High Court approves INM-ODCE documents arrangement

The president of the High Court has approved arrangements governing access to documents to be used for an application by the State’s corporate watchdog for the appointment of inspectors to Independent News & Media (INM).

INM opposes any such appointment and is seeking a judicial review, which is to be heard on May 9th, aimed at quashing the decision of Director of Corporate Enforcement Ian Drennan to seek inspectors.

Mr Justice Peter Kelly on Tuesday approved an arrangement agreed in recent days by INM and the Office of the Director of Corporate Enforcement (ODCE) governing access by various parties to sworn documents and exhibits from the ODCE application.

Some of the documents will be redacted, subject to any further order made in the context of INM’s claims of legal privilege over some material. If the various applicants believe they are entitled to see additional material, they can bring further applications.

The judge also directed that the ODCE and INM should resolve between themselves INM’s concerns about making available commercially sensitive information. The ODCE has filed a lengthy grounding affidavit and some supplemental affidavits.

Dr Len O’Hagan, an non-executive director of INM, has filed the main replying affidavit for the company, with 11 other affidavits for INM described as “confirmatory”.

Under the arrangements for access, documents will be provided to the Data Protection Commissioner (DPC), former INM chairman Leslie Buckley, journalist Sam Smyth, the former head of INM's Irish operations Joe Webb and former INM company secretary Andrew Donogher.

The ODCE has expressed concern that the data of 19 people, including Mr Smyth, Mr Webb and Mr Donogher, may have been accessed by third parties when server back-up tapes were removed from INM’s Talbot Street premises over a period from October 2014.

Access only

That matter is being investigated by the DPC and is among the grounds for the ODCE’s application for inspectors. Mr Buckley, through his counsel Seán Guerin SC, argued he was entitled to be served with all documents but Neil Steen SC, for the ODCE, maintained Mr Buckley’s entitlement was to access only as he is not a party to the case.

The judge said Mr Buckley had liberty to bring a motion to be joined to the proceedings. Other parties who will get documents are Red Flag Consulting and Karl Brophy and Gavin O'Reilly, now with Red Flag but formerly senior employees of INM, and Mandy Scott, a personal assistant to both men.

Red Flag, Mr Brophy and Mr O'Reilly are defendants in long-running litigation taken against them by businessman Denis O'Brien, INM's major shareholder. Former INM chief executive Robert Pitt and INM chief financial officer Ryan Preston will also get access to documents.

The ODCE application for inspectors arose from protected disclosures made by both men on dates in 2016 and 2017.

Solicitor Simon McAleese, representing Mr Smyth, also secured access to documents on his own behalf arising from his having been referred to in media reports concerning the ODCE application.

Mr McAleese signalled he may also apply to see the minutes of an INM board meeting which appeared to have been held around the time of discovery of the alleged data breach.

Speedily progressing

The judge also made directions aimed at speedily progressing the ODCE application, which will proceed only if INM loses its judicial review. The ODCE matter will be listed for mention 48 hours after the judicial review decision is given.

Mr Justice Kelly also granted liberty to lawyers for The Irish Times and Times UK to bring applications on May 3rd, if necessary, concerning access to documents.

Mr Steen said the ODCE believes a motion for access would be the best approach in the context of complaints, including from Mr O’Brien, about material having been “leaked”. The ODCE was not responsible for that, counsel said.

Shane Murphy SC, for INM, said the issue of media access was for the court. INM would not oppose the media having the ODCE’s grounding affidavit and INM’s main replying affidavit, but would object to access to exhibits and was not keen on “wholesale disclosure”. There had been references in court to the main affidavits and it may be considered those references permit access, he said.

Earlier, the court heard the ODCE/INM arrangement concerning access of various parties to documents provides affidavits and other material will be redacted in the context of a previous agreement between the ODCE/INM concerning treatment of legally privileged material.

Both sides have reserved their position concerning how the privilege agreement should be interpreted, and the Mr Drennan disputes claims by INM he breached that agreement by including certain content in his sworn affidavit.