Mr Buckley’s application is "a circus" which is “wholly unmeritorious” and should be dismissed, John Rogers SC, for Mr Pitt, told Mr Justice Garrett Simons.
The application had been set up principally to damage Mr Pitt whom Mr Buckley has ordained his “principal accuser”, counsel said. Mr Buckley had attacked Mr Pitt’s credibility and reputation by selectively putting before the court, and into the public domain with the benefit of absolute privilege, material normally confidential to an inspection process which has not concluded.
Mr Rogers was opposing Mr Buckley’s application to have the inspectors withdrawn, or for a direction requiring them to recuse themselves, on grounds of alleged objective bias
The inspectors, Seán Gillane SC and Richard Fleck CBE, who were appointed by the High Court in September 2018, strongly deny objective bias and oppose the application.
Their appointment was sought by the Director of Corporate Enforcement (ODCE) following his office’s year-long investigation into matters at INM arising from protected disclosures made in 2016 and 2017 by Mr Pitt and former INM Chief Financial Officer Ryan Preston.
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.
On Wednesday, Mr Rogers referred to an affidavit in which Mr Pitt said all of the evidence he has given to the inspectors is “entirely truthful”, he stands over all of it and disputed claims by Mr Buckley of a “dramatic change” in some of his evidence.
Mr Pitt said the inspection is at a relatively early stage and it was “extraordinary” Mr Buckley has decided to attack it when he “knows well” that witnesses, including Mr Pitt, will be subject to cross examination. The process adopted by the inspectors will protect all parties’ interests and is designed to reach a satisfactory conclusion, he said.
Unfortunately, the method adopted by INM to examine his own protected disclosure “fell well short” of what was required, for reasons including a sub-committee of the INM board had interviewed Mr Buckley but not Mr Pitt and an internal review process did not give Mr Pitt the facility to cross-examine.
In submissions for the ODCE, a notice party, Neil Steen SC said the inspectors are very experienced persons of the highest professional reputation and standing.
He said the court must attach particular importance to the inspectors sworn evidence they have not made findings or conclusions and there is no assertion they have closed their minds in relation to the allegations against Mr Buckley.
What the inspectors are doing is in the public interest and case law shows the courts lean against excessive judicial supervision of such inspections, he said. The ODCE believed the court should be slow to allow the application and should take care to discourage such applications in the future.
Michael Cush SC, for Denis O’Brien, also a notice party, said Mr Buckley is a long-standing business associate of Mr O'Brien who continues to have regard for Mr Buckley’s ability and integrity.
While many of the alleged actions being investigated are alleged to have been done for the benefit of Mr O’Brien, the detail of what is being investigated relates much more to Mr Buckley than Mr O’Brien, counsel said. Mr O’Brien had no first hand knowledge of many of the matters complained of by Mr Buckley but could readily understand, seen from Mr Buckley’s perspective, his concerns. Mr O’Brien placed great reliance on statements from the inspectors including, inter alia, the inspection process is designed to encompass fairness.
Mr O’Brien noted with interest, “and some irony”, the observations made by Mr Rogers concerning the impact of allegations made against an individual during a court process, counsel added.
The hearing continues on Friday.