Judge approves arrangement between INM and ODCE for access to documents

A judge has made rulings governing access by various parties to documents and other material to be used for an application by the State’s corporate watchdog for appointment of inspectors to Independent News and Media plc.

Judge approves arrangement between INM and ODCE for access to documents

By Ann O'Loughlin

A judge has made rulings governing access by various parties to documents and other material to be used for an application by the State’s corporate watchdog for appointment of inspectors to Independent News and Media plc.

INM opposes any such appointment and is seeking judicial review, to be heard on May 9, of the decision to seek inspectors.

The President of the High Court, Mr Justice Peter Kelly, today approved an arrangement agreed by INM and the Office of the Director of Corporate Enforcement (ODCE) for access to sworn documents and exhibits for the ODCE application.

He reserved the position concerning use of discovered documents.

The judge also made directions aimed at speedily progressing the ODCE application, which will proceed only if INM loses its judicial review. The ODCE will be listed for mention 48 hours after the judicial review decision is given.

That ODCE/INM arrangement concerning access to documents provides affidavits and other material will be edited in the context of a previous agreement between them concerning treatment of legally privileged material.

Both sides have reserved their position concerning how the privilege agreement should be interpreted and the ODCE disputes claims by INM he breached that agreement by including certain content in his sworn affidavit.

In his ruling today, Mr Justice Kelly said, what is “most unusual” about the ODCE application is that, before it came before the court last week, there was “extraordinary publicity” about the ODCE;s affidavit and, as a result, a lot of people were concerned to be fully apprised of the materials before the court.

He said there was discussion about their legal entitlement to that material but the issue did not have to be decided because the ODCE was not objecting to those persons having access, subject to the privilege issue.

At today’s hearing, former INM company secretary Andrew Donagher also sought access as did the Irish Times. The latter application fell into a different category and would be addressed this afternoon, the judge said.

The judge said the access matter was further complicated because INM had now filed 12 replying affidavits.

He said INM had alleged last week that legally privileged material, provided by INM to the ODCE on foot of what is known as a “Fyffes” agreement concerning its treatment, had been included in the ODCE affidavit. Because of that, he had said he would make no orders concerning access until today’s hearing.

However, since last week, the ODCE and INM had reached an agreement as to how to deal with the material at issue, he noted.

He made directions for access in line with that agreement, including access by parties concerned about the data interrogation to those portions of the ODCE affidavit dealing with data interrogation issues. All those parties could also apply if they believe they are entitled to additional material.

Journalist Sam Smyth and former INM company secretary Andrew Donagher, who are among 19 persons concerned their personal data may have been accessed by third parties when INM data was taken off site for “interrogation” in October 2014, are among those entitled to access in line with the INM/ODCE agreement.

Journalist Sam Smyth at a previous court sitting
Journalist Sam Smyth at a previous court sitting

Solicitor Simon McAleese, who is representing Mr Smyth, said he had learned from media reports he himself may feature in documents and also wanted access to them on his own behalf. He has been given access on the same terms.

Former INM Chairman Leslie Buckley argued, through his counsel Sean Guerin SC, he is directly affected by the ODCE application and was entitled to be served with all documents . Mr Guerin said the precise position of his client did not appear to have been raised by the ODCE with the court at a previous hearing despite Mr Buckley’s understanding it would be.

Neil Steen SC, for the ODCE, said his side had fairly presented Mr Buckley’s request for documents and had not understood at that stage Mr Buckley was asserting an entitlement to service of all material. Mr Buckley has the ODCE’s affidavit, will get most of the exhibits and replying affidavits, the criticism of the ODCE were entirely unfounded, he said.

The only entity directly affected by the application for inspectors is INM itself and the ODCE would object to the papers being served on Mr Buckley.

The ODCE was not objecting to Mr Buckley being provided with access to the papers but would object to any application to join him to the case. Mr Justice Kelly said Mr Buckley had liberty to bring any such motion but, in the interim, he would be treated in a similar manner to other parties seeking access in that he would be provided with the edited material.

Former INM chairman, Leslie Buckley
Former INM chairman, Leslie Buckley

Others seeking access to documents included former INM CEO Gavin O’Reilly and Karl Brophy, also formerly of INM, their company, Red Flag Consulting and Mandy Scott, who had worked as a personal assistant to both men.

The Data Protection Commissioner, on the agreement of both the ODCE and INM, is to receive all material related to an alleged data breach at INM in October 2014 and, along with many of the applicants for access to documents, reserved her position concerning access to other material.

Former INM CEO Robert Pitt and INM CFO Ryan Preston will also get access to the documents.

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