A HEARING OF an application by the Office of the Director of Corporate Enforcement (ODCE) to have inspectors appointed to investigate Independent News and Media (INM) has been delayed, possibly indefinitely, at the High Court.
The application, under the Companies Act 2014, was lodged on foot of a 200-page affidavit regarding the goings-on at a corporate level within the company being submitted by ODCE director Ian Drennan on 23 March.
Today, at the High Court, INM successfully argued that a Judicial Review hearing be granted to question the decision to allow the ODCE’s application to be brought in the first place.
Judicial Review is a process whereby the courts can rule on the appropriateness of decisions made by administrative, statutory bodies, including those of the judiciary.
Only if that action fails (it’s scheduled for 9 May) will the application to appoint inspectors be heard. Should that happen, it won’t be heard until the next legal term, in all likelihood.
Separate to the Judicial Review issue, a number of parties interested in the current controversy surrounding the ODCE and INM stated that they wish to view the affidavits filed in the case, the grounding affidavit of which has been featured heavily in the media since 23 March, but which had never been opened in court until today.
In addition, counsel for the ODCE read out a letter addressed to the director on 6 April from billionaire Denis O’Brien (whose name features prominently in the OCDE’s affidavit), which stated that O’Brien plans to hold the director “fully and personally responsible” for the leaking of the initial filing, an allegation the ODCE denied repeatedly in court.
Application
Today’s hearing had, in advance, been expected to concern the ODCE’s application on the grounds that its year-long investigation of INM could only now be furthered using the heightened power of two appointed High Court inspectors.
The ODCE investigation itself resulted after a number of protected disclosures by former INM executives Robert Pitt and Ryan Preston (counsel for both of whom made themselves heard in court today) raised question marks regarding, among other things, the large-scale removal of data from the business and its alleged distribution to six external companies from October 2014 (leading to the compilation of a list of names of persons of note whose data may have been breached, including journalists and barristers, known as the INM19), and the ill-fated, never-completed acquisition of radio station Newstalk by INM in 2016.
The director’s application was immediately scuppered before a packed courtroom (with journalist Sam Smyth, of the so-called INM19 present in both physical and legal forms) when counsel for INM Shane Murphy SC expressed the company’s intention to apply for Judicial Review owing to the fact that INM wasn’t given advance warning of the director’s plan to apply for inspectors prior to 23 March, something he said was a “breach of INM’s rights to natural Constitutional justice”.
“That is a most unusual application,” said president of the High Court Justice Peter Kelly, presiding. “I have never heard of such an application.”
Murphy’s intention to apply for Judicial Review was first mooted in an affidavit filed this morning, meaning that neither counsel for the ODCE Neil Steen nor Kelly himself had seen it prior to this afternoon’s hearing.
“There’s a lot going on behind the scenes it seems that I wasn’t made aware of,” remarked Kelly. “It’s to do with the media interest that has been excited by this case, you may not be aware of it,” replied Steen. “I haven’t been living on the moon,” Kelly replied in turn.
Many voices
Before Steen could outline the reasons the ODCE is seeking inspectors, different legal representation for many different concerns had their say, all of whom wished for the same thing – to be granted copies of the various affidavits that have been filed in the case, the contents of which have emerged in the media in piecemeal form over the past 10 days, much of it coming from INM’s own newspaper titles.
Separate barristers for, in order, Red Flag Consulting and Karl Brophy and Mandy Scott (the former two of whom are currently being sued by Denis O’Brien in a separate action, while Brophy’s name is among the INM19), Robert Pitt, Ryan Preston, and the Data Protection Commissioner, all expressed the wish that their clients be furnished with copies of all filings in the case.
Then solicitor Simon McAleese (a former media lawyer for INM, the two having since parted ways), representing Sam Smyth, stood up and asked for the same.
In response, Steen said that, while he believed the various applicants have no legal right to view those filings, he had no objection to them being furnished with copies.
This was not the case for Shane Murphy (counsel for INM) however, who suggested that, due to the exhibition of ‘privileged material’ in the court filings, access to the various documents should only be granted to the Data Protection Commissioner.
Kelly resolved the issue by putting it back until 24 April, saying that it was up to the ODCE and INM to resolve their differences over that alleged privileged material before then – otherwise he would order its release on that date.
O’Brien letter
In subsequently outlining the case for the appointment of inspectors, Steen spoke at length about the leaking of information contained in the original 200-page affidavit to the media in the past 10 days.
The ODCE, he insisted, was not responsible. During the director’s year-long investigation, Steen argued, no confidential information had ever been leaked.
“It was only after proceedings were served (on 23 March) that information began to emerge, much of it from the newspapers of INM,” he said.
Our position is that INM is the only entity directly affected by the applicant, and that only one INM journalist appears to have direct access to the affidavit.
Steen went on to outline the entirety of Denis O’Brien’s 6 April letter to Ian Drennan, director of the ODCE.
In it, O’Brien said that he had been “subjected to extraordinary and still intensifying media coverage” ever since the application was filed on 23 March, for which he held the ODCE responsible.
He said those leaks “had caused, and are causing, damage to my reputation”, and said that, in the aftermath of the collapse of the trial of former Anglo Irish Bank chairman Sean Fitzpatrick (in part due to the shredding of crucial evidence inadvertently by an ODCE employee), O’Brien would have expected the ODCE to be more careful with the confidential information in its possession.
“I intend to hold you fully and personally responsible for all such failings,” O’Brien concluded.
Ruling
In summary, Justice Kelly ruled that the proceedings be adjourned to a number of dates. The various applications for sight of the different filings will be decided on Tuesday 24 April, whereupon, assuming the ODCE and INM cannot come to an understanding, Kelly will order that all filings be made available in electronic form.
He suggested that, in the meantime, anyone engaging in the publication of information in unopened affidavits would be “engaging in a dangerous game”
Regarding the Judicial Review application, Kelly said that he was “not at all convinced that the two matters (the Judicial Review and the ODCE’s application – the ODCE had suggested hearing both actions simultaneously) should be heard together”.
He said that the Judicial Review application would be heard on Wednesday, 9 May, and that should INM succeed in that application, the ODCE’s case “would never get beyond the starting blocks”.
Should the Judicial Review action fail, however, the ODCE would be able to have its application heard in the next legal term.
The Judicial Review application is expected to take a day, or possibly two, according to Murphy.
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