The president of the High Court will rule later whether Leslie Buckley, who is to step down shortly as INM chairman, is entitled to privilege over certain documents discovered for the State corporate enforcer's investigation of a whistleblower complaint.
Mr Buckley has claimed privilege over 11 documents and Brian Murray SC, for the Office of the Director of Corporate Enforcement, indicated on Monday, if they are what Mr Buckley says they are, they are subject to litigation and/or legal advice privilege.
Counsel asked Mr Justice Peter Kelly to receive the documents, contained in a sealed envelope, and read them to consider the privilege claim.
The judge said he would rule on the privilege claim on a date which the parties would be informed of.
Whistleblower
The ODCE had sought a range of documents from Mr Buckley as part of its investigation of a whistleblower complaint made by Robert Pitt, INM's former chief executive, against Mr Buckley arising from an aborted bid for Newstalk.
Mr Pitt’s complaint to the ODCE also prompted INM to launch an independent review last December.
Mr Buckley represents INM’s main shareholder, Denis O’Brien, who also owns Newstalk, the valuation of which sparked the original dispute between Mr Pitt and Mr Buckley.
Since the ODCE began investigating the INM-Newstalk aborted deal, its inquiry has widened to take in the handling of a “potential personal data breach” at INM.
The High Court case is between the ODCE and Mr Buckley, who is represented by his own lawyers, and does not involve INM which previously said it has “co-operated fully in supplying the ODCE with all the information it has requested”.
The ODCE put questions to Mr Buckley last August about the involvement of a British security company, Trusted Data Solutions UK. The ODCE has asked Mr Buckley to explain who gave TDS access to INM’s internal IT system, who paid for it, what benefit INM received, and the names of others able to help the ODCE’s inquiries.
Mr Buckley has told the ODCE access to the IT system was granted to TDS, which has its European headquarters in Cardiff, as part of a “cost reduction exercise” at INM.
In court documents, Mr Buckley said an order served on him by the ODCE required him to extract and review a large number of documents dating back two years. Following that, 275 documents were provided to the ODCE and privilege was claimed over 11 of those, handed over to the ODCE in a sealed envelope.
Mr Buckley said in an affidavit the cost reduction exercise with which he said the documents were connected necessitated engagement of "external technical expertise", firstly by IT expert Derek Mizak who had recommended hiring a specialist IT company. He said an IT security specialist John Henry, of Specialist Security Services, introduced him to Mr Mizak.
Some of the documents were prepared in advance of a statement that INM was issuing, the court previously heard.
Affidavits
One of the 11 documents is an email communication between solicitor and client and the other documents are communications to Mr Mizak. Mr Buckley said in affidavits those arose because Mr Mizak’s assistance was being sought with technical questions arising from the ODCE demand.
Today, Mr Murray said Mr Buckley had delivered a sworn statement addressing issues raised by the ODCE concerning the privilege claim. There was also a discussion about a potential waiver of privilege and that had been practically resolved so there was no need to address that.
That meant the only issue before the court was to review the documents. Mr Buckely was contending litigation and legal advice privilege applied and the ODCE was not disputing that, counsel said.
The judge said he was being asked to apply well established legal principles to this issue and would read the documents and deliver his ruling later.
