The inspectors appointed to investigate alleged data breaches and other matters at Independent News and Media (INM) have formed views they are not entitled to reach at this stage because they do not have all the material available to them that they should have, the High Court was told.
Seán Guerin SC, for former INM chairman Leslie Buckley, said while the inspectors' lawyer argued they had reached "no view" in a draft statement on their investigation, this was not the evidence of his clients.
Even if they had reached a view at this stage it would be inappropriate to do so because there had not been any cross examination of the witnesses, including one of the central witnesses, Robert Pitt, former INM CEO, who made a protected disclosure which gave rise to the investigation, he said. Therefore all the material was not available to the inspectors.
Mr Guerin was making replying submissions in Mr Buckley's application seeking the withdrawal of the two inspectors, Seán Gillane SC and Richard Fleck CBE, who were appointed by the High Court in September 2018. They strongly deny Mr Buckley's claim of objective bias in their approach and oppose his application.
Their appointment was sought by the office of the Director of Corporate Enforcement (ODCE) following that office's year-long investigation into matters at INM arising from protected disclosures made in 2016 and 2017 by Mr Pitt and by former INM Chief Financial Officer Ryan Preston.
Issues being investigated
Five issues being investigated include the alleged off-site interrogation in 2014 of the data of 19 individuals, including journalists and barristers, and Mr Buckley’s communication with Denis O’Brien as a major shareholder in INM.
Mr Buckley’s application centres on his complaints about the inspectors treatment of information and evidence in five lengthy draft statements, collectively referred to as the ‘draft statement’, gathered to date concerning the issues and circulated to Mr Buckley and others for submissions with a view to amendment.
Among his submissions on Friday, Mr Guerin said the court should remember the "potentially grave consequences" for Mr Buckley of findings adverse to him because there are a number of individuals who want to use material in the investigation for their own separate proceedings.
This was in circumstances where there is an absence of an appeal process which must aggravate any concerns a reasonable observer would have, he said.
The inspectors, unlike the ODCE itself, did not acknowledge that there was a possibility of unconscious bias in their investigation, he said.
Unconscious bias was like living on a floodplain where after the flood subsidies the damage to a house can be fixed and made to look fine, but the house remains at risk. If there is a reasonable apprehension of such bias and it is still there, like the flood waters, it will rise again and that is really of concern to his client, counsel said.
It was the Buckley side's argument that in creating the draft statement the inspectors failed to apply their minds to issues they say are of relevance.
Errors had been identified in the draft statement the Buckley side believes the court should look at specific errors and concerns they have while accepting it cannot look at all the errors.
The inspectors' counsel was not entitled to say, as he had, there were only a handful of errors in the entire several hundred pages, he said. What the Buckley side was asking for was the court to examine a selection of legitimate complaints which they had, he said. These had been precisely set out by Mr Buckley in his second affidavit.
The case is to resume in December on a date to be agreed between the parties.