INM chairman Leslie Buckley claims privilege over communications, High Court hears

The chairman of Independent News & Media (INM) Leslie Buckley is claiming privilege over communications with a cyber security specialist in his dealings with the Office of the Director of Corporate Enforcement (ODCE), the High Court has heard.

The ODCE is conducting an inquiry into an aborted deal between INM and Newstalk, the radio station owned by INM’s largest shareholder, Denis O’Brien. The inquiry has more recently widened to include the handling of a “potential personal data breach” at the media company.

Documents

In the High Court on Monday, in a case where Mr Buckley is claiming privilege over certain documents the ODCE has been given under seal, it was revealed that 10 of the 11 documents concerned are communications with Derek Mizak.

According to his Linkedin profile, Mr Mizak is a cyber security consultant and an expert in information security, digital forensics, counterintelligence and IT security management.

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The court also heard the documents involve John Henry, of Specialist Security Services, who provides security services to Mr Buckley, including IT security.

The court was told that while Mr Buckley in an affidavit has given a lot of information about Mr Mizak, there should be more information given about the role played by Mr Henry.

Brian Murray SC told the President of the High Court, Mr Justice Peter Kelly, that the ODCE was happy to accept the documents were privileged if they are as have been described by Mr Buckley in an affidavit submitted to the court.

He suggested that one way of resolving the dispute would be for the judge to look at the documents and see if they fitted with the description of them that had been given by the INM chairman.

Mr Buckley, the court was told, has said the documents over which privilege was being claimed had been generated while communicating with Mr Mizak to seek his assistance in relation to technical matters arising from Mr Buckley’s dealings with the ODCE.

Sean Guerin SC, for Mr Buckley, said his client would have a new affidavit sumitted by January 11th, and the case should be capable of being dealt with quite quickly thereafter.

He said the documents were generated when his client sought assistance in realtion to the ODCE inquiry. He said more than 40,000 documents had been reviewed, of which 275 had been produced. Privilege was only being claimed on a very small number of the documents.

Litigation

In relation to one of the 11 sealed documents, the matter should be capable of being resolved between lawyers. Legal professional privilege is being claimed over this document, which is a communication between a lawyer and a client, which would normally be covered by privilege.

The other documents are communications with a third party which may be covered by litigation privilege.

Mr Murray said two of the documents were originally said by Mr Buckley to have been prepared in contemplation of the making of a statement by Mr Buckley to the ODCE. However, when it was pointed out that they post-dated the making of Mr Buckley's statement, Mr Buckley clarified the situation.

He had made an error and the documents were produced for a statement INM was making to the ODCE. This matter would require amendment of the papers submitted to the courts.

Mr Justice Kelly said the schedule of documents should be amended by way of a new affidavit, and any new evidence Mr Buckley might want to submit he should feel free to do so. He listed the matter to mention again on January 22nd next. He said he might at that stage take the documents away to read them, and give his ruling a few days thereafter.

The case before the court involves Mr Buckley and the ODCE. INM is not a party to the case.

The ODCE's involvement followed a row last year between Mr Buckley and Robert Pitt, INM's former chief executive who made the whistleblower complaint against him over an aborted bid for Newstalk. Mr Pitt's complaint to the ODCE also prompted INM to launch an independent review last December.