Former INM CEO Gavin O'Reilly can use documents for possible case over alleged data breach, judge rules

Mr O'Reilly and Mr Brophy are both concerned their personal data was accessed during that alleged data breach.

A range of materials, including sworn statements from the Office of the Director of Corporate Enforcement (ODCE) and INM executives, was provided to them and various other third parties last year on condition those could be used only for the hearing about whether to appoint inspectors.

Anyone seeking additional use of the material had to ask the court.

The ODCE, who sought the inspectors' appointment, ultimately made by the court last September, had not opposed the two using the materials in their contemplated proceedings.

INM objected for reasons including data protection concerns and lack of clarity about the nature of the contemplated proceedings and the identity of the respondents to be sued.

In his judgment today, Mr Justice Kelly said there are special circumstances justifying the making of the order and he was also satisfied it would not cause any injustice to INM.

He set out details concerning the alleged data breach and the concerns of Mr O’Reilly and Mr Brophy in that regard.

Mr Brophy is among 19 individuals whose data appeared to have been searched and he was concerned that data included highly sensitive information such as medical and employee records. He was also concerned the alleged searching may have breached journalistic privilege.

While Mr O’Reilly was not among the 19 people, he has sworn that he believes it is clear from the material disclosed to date he was “personally targeted by the data interrogation”, the judge also noted.

Arising from the alleged breach, he noted both men intend to bring proceedings alleging breach of privacy, data privacy rights, constitutional rights and alleging they have suffered loss and damage.

He said it is not disputed the applicants already have the documents at issue and he could not agree the reliefs being sought by the two applicants was “unduly wide”.

He also noted the material provided to the two has been given with the consent of INM and did not involve any unilateral action by the ODCE.

If he refused this application, the applicants would almost inevitably get the material following a discovery application.

He rejected further arguments that allowing the applicants use, the material would give them an improper litigation advantage.

The applicants already know the contents of the documents and there was no issue here of “fishing” for additional information to support their case.

He saw no injustice or disadvantage to INM in making the order but there would be a disadvantage for the applicants who would face increasing costs and delay as they would have to make a discovery application.