Brophy v Mediahuis Ireland Group Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 16 December 2022
• Neutral Citation: [2022] IEHC 660
• Court: High Court
• Docket Number: 2019 No. 6358 P

Between

Karl Brophy

Gavin O'Reilly

Plaintiffs

and

Mediahuis Ireland Group Limited

Leslie Buckley

Defendants

[2022] IEHC 660

2019 No. 6358 P

THE HIGH COURT

Discovery – Statutory investigation – Public interest privilege – Plaintiffs seeking an order for discovery of documents against the defendants – Whether documents relating to an ongoing statutory investigation into the affairs of the first defendant attract public interest privilege

Facts: The plaintiffs, Mr Brophy and Mr O’Reilly, alleged breaches of their right to privacy and of their rights under the data protection legislation, breach of constitutional rights, and a conspiracy to damage their interests. The plaintiffs issued motions seeking an order for discovery of documents against the defendants, Mediahuis Ireland Group Ltd (the Company) and Mr Buckley. The parties had been able to reach consensus on almost all of the terms of the proposed discovery. The two outstanding areas of disagreement were as follows. First, there was disagreement as to whether documents relating to an ongoing statutory investigation into the affairs of the Company attract public interest privilege. Secondly, there was disagreement as to whether a temporal limitation should be imposed on the discovery which Mr Buckley should be required to make. The outstanding issues came on for hearing before the High Court (Simons J) on 17 November and 25 November 2022.

Held by Simons J that the documentation relating to the inspectorate process met the threshold of relevance and necessity. He held that it would not be possible for a court to adjudicate on a claim of privilege in the abstract, without having the benefit of a description of the documents involved. He held that it would be premature for the court to rule upon the claim of public interest privilege asserted by the Company and Mr Buckley; the defendants would instead be directed to file an affidavit of discovery. Simons J held that the documents in respect of which privilege was being claimed should be described in the second part of the first schedule of the affidavit, and the basis of the claim explained. He would discuss with counsel the precise wording of the order for discovery and the time to be allowed for the making of the affidavit of discovery. He held that the proposed wording of the category to be discovered by the Company (referred to as Category 10) would need to be revised to ensure that it is confined to the data interrogation issue. He held that it may also be necessary to exclude documents which were already in the possession of the Company prior to the statutory investigation and were captured by other categories. He proposed giving the parties liberty to apply. In the event that particular documents could not be described without undermining a claim of privilege, he proposed adopting a protocol similar to that adopted by the High Court (Clarke J) in Murphy v Independent Newspapers (Ireland) Ltd [2006] IEHC 276. Simons J held that the relevant party would be directed to preserve the disputed documents, and to provide a list setting out a description of those documents directly to the court; that list would not be shared with the other parties unless the court so directed. He held that he would also hear from the inspectors as to how they might be facilitated in ensuring that their views, on whether particular documents might be privileged, could be communicated to the court.

Simons J held that a cut-off date of 25 March 2020 would be imposed in respect of all categories of discovery to be made by Mr Buckley, save in respect of documents related to the ongoing inspectorate process.

Discovery ordered.

Appearances

Oisín Quinn, SC and Hugh McDowell for the plaintiffs instructed by Addleshaw Goddard (Ireland) LLP

Bairbre O'Neill SC and Eoin McCullough SC for the first defendant instructed by Matheson LLP

Sean Guerin, SC, Lorcan Staines, SC and Brian Gageby for the second defendant instructed by A & L Goodbody LLP

Nessa Cahill, SC for the High Court appointed inspectors instructed by Ferrys Solicitors LLP

JUDGMENT of Mr. Justice Garrett Simons delivered on 16 December 2022

INTRODUCTION

1 This judgment is delivered in respect of an application for an order directing the discovery of documents. The parties have, to their credit, been able to agree almost all of the terms of the proposed discovery. The two outstanding areas of disagreement are as follows. First, there is disagreement as to whether documents relating to an ongoing statutory investigation into the affairs of Mediahuis Ireland Group Ltd attract public interest privilege. Secondly, there is disagreement as to whether a temporal limitation should be imposed on the discovery which the second named defendant should be required to make.

APPOINTMENT OF THE INSPECTORS

2 The affairs of Mediahuis Ireland Group Ltd (formerly Independent News and Media plc) (“ the Company”) are the subject of an ongoing investigation under Part 13 of the Companies Act 2014 (“ the statutory investigation” or “ the inspectorate process”). The High Court (Kelly P.) had, by order dated 6 September 2018, appointed Mr. Sean Gillane, SC, and Mr. Richard Fleck, CBE, as inspectors pursuant to Section 748 of the Companies Act 2014 and Order 75B, rule 3(1) of the Rules of the Superior Courts (as amended).

3 The application to appoint the inspectors had been initiated by the Director of Corporate Enforcement by originating notice of motion dated 23 March 2018. The application had been strongly opposed by the Company. The application was heard over three days in July 2018, and Kelly P. delivered a detailed written judgment on 4 September 2018, Director of Corporate Enforcement v. Independent News and Media plc [2018] IEHC 488, [2019] 2 I.R. 363 (“ the principal judgment”).

4 The principal judgment explains that the Director of Corporate Enforcement had identified a number of issues of concern, in reliance upon which he sought the appointment of inspectors by the court.

5 One of these issues is referred to in the principal judgment by the shorthand the “ data interrogation” issue. The issue is described as follows at paragraphs 19 to 23 of the principal judgment:

“In 2014, back-up tapes of computer data were removed from the company's premises. They were taken to the premises of a company outside the jurisdiction. There, that data was interrogated over a period of some months. This operation was directed by Mr. Buckley. Other members of the board were not aware of this operation at that time. It is alleged that Mr. Buckley expressly instructed the company's head of I.T. not to disclose the matter to Mr. Pitt. During the course of the interrogation, tapes and associated data appear to have been accessible to and accessed by a range of individuals who are external to the company. These individuals have business links with Mr. Buckley, with each other and appear also to have links with Mr. O'Brien.

This exercise was, according to Mr. Buckley in responses which he gave to the Director on foot of statutory demands for information, part of a cost-reduction exercise in respect of a contract which the company had with Simon McAleese Solicitors, for the provision of legal services. Under the terms of that contract, Mr. McAleese was guaranteed an annual fee of approximately €650,000 and the contract had a five-year duration. It was due to expire in 2016. The chairman indicated he thought that that was a very significant fee and an open-ended contract. Because he said he found it difficult to obtain information on the contract, he felt that he needed to access emails and documentation stored on the company's system.

During the course of the interrogation, data appears to have been searched against the names of no fewer than 19 individuals. They included the journalists Rory Godson, Maeve Sheehan, Brendan O'Connor and Sam Smyth; two members of the Inner Bar, Jeremiah Healy S.C. and Jacqueline O'Brien S.C.; former board and staff members of the company including Joe Webb (former chief executive of the company's Irish division), Karl Brophy (former director of corporate affairs of the company), Mandy Scott (former personal assistant to the chief executive), Vincent Crowley (former chief executive of the company), Donal Buggy (former director and chief financial officer of the company) and the late Mr. James Osborne (former chairman of the company). Also included were Messrs. Andrew Donohue, Mark Kenny, Jonathan Neilan, Harriet Mansergh, Jenny Kilroy, Nick Cooper and Ann Marie Healy.

It is difficult to see what the interrogation of information concerning at least some of those persons had to do with a cost-reduction exercise in respect of the legal services being provided by Mr. McAleese. The Director points out that both senior counsel who were the subject of the interrogation acted for several years as counsel to the inquiry into payments to politicians and related matters presided over by Mr. Justice Moriarty. That tribunal was involved in investigations into allegations relating to the awarding of the second GSM licence to Esat which is an entity controlled by Mr. O'Brien. Indeed, in their letter of 30 April 2018 to Mr. Buckley the company's solicitors described the names of those searched against as persons who may be regarded as having acted adversely to Mr. O'Brien. The rights and entitlements of some or all of these 19 people may have been transgressed in a most serious way by this activity.

The costs of this data interrogation exercise were not discharged by the company. The bills for it were presented to an entity controlled by Mr. O'Brien called Island Capital and were paid by an Isle of Man company called Blaydon Ltd. Mr. O'Brien is the beneficial owner of Blaydon Ltd. The company does not know why Blaydon Ltd. discharged the costs associated with this data interrogation. According to Island Capital, Blaydon Ltd....