Denis O'Brien lawyers to cross-examine witnesses in INM investigation, High Court hears

The documents were also necessary to enable the Fry clients make detailed submissions and to protect their rights to fair procedures, he said in an affidavit.

Witnesses associated with the applicants have given evidence in the investigation and have fully co-operated and actively engaged with the inspectors, he said.

The inspectors indicated last November they would seek further evidence from various persons and had provided five draft statements of relevant facts and evidence and invited submissions from the Fry clients on those, he said. As well as 10 transcripts of evidence from the Fry clients, the inspectors provided 35 transcripts of evidence from various persons.

All this material indicated there is a whole range of documentation available to the inspectors and relevant to the Fry clients that those clients do not have, he said.

On February 5 last, the inspectors, at the request of various parties, had said cross-examination of witnesses would be allowed. The Fry clients had written on February 14 seeking to cross-examine named individuals and reserved the right to supplement that list if further information became available.

That letter stated the Fry clients were at a disadvantage in not having access to documents that are available to other parties and their right to an effective cross-examination would be impeded if they did not have the documents.

Mr O’Sullivan also noted certain documents were previously provided to several parties involved in the investigation.

In seeking the documents production order today, Michael Cush SC, with Shelley Horan BL, for the applicants, told High Court president Mr Justice Peter Kelly the ODCE had raised an issue whether Blaydon was entitled to the documents.

As Blaydon is a wholly owned subsidiary of Mr O’Brien’s, he was not sure there was “any reality” to that issue, counsel said.

Catherine Donnelly BL, for the ODCE, said matters have moved on in the investigation and it was not clear whether all three applicants were entitled to the documents but her side was in the court’s hands concerning the matter.

Caren Geoghegan BL, for INM, said, if the court directed the documents be provided, that could be done by INM via a USB key within 48 hours.

The production order should provide, in line with similar production orders, that the documents could only be used for the purpose of the investigation, she added.

Mr Justice Kelly said he was satisfied the applicants should be provided with copies of affidavits and exhibits which lead to the September 2018 court order appointing Sean Gillane SC and Kieran Fleck CBE as inspectors to INM. The production order is subject to the applicants undertaking the documents will be used solely for the purpose of the inspectors’ investigation, he added.

ODCE Ian Drennan initiated the application following his office’s year-long investigation into matters raised in protected disclosures made in 2016 and 2017 by former INM CEO Robert Pitt and INM's Chief Financial Officer Ryan Preston.

In September 2018, Mr Justice Kelly ruled the ODCE had provided evidence that "well justified" inspectors being appointed. He said that a number of “disquieting” issues included the alleged removal from INM, and interrogation, of the data of 19 persons, including journalists, former INM employees and executives and two senior counsel for the Moriarty Tribunal.

The inspectors are also investigating the circumstances concerning the proposed acquisition by INM of Newstalk Radio from a company of Mr O'Brien, then INM's largest shareholder, and the proposed payment by INM of a €1m 'success fee' to another company of Mr O'Brien's. Neither of those payments proceeded.