Independent News and Media Plc v The Companies Act 2014

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 18 September 2020
• Neutral Citation: [2020] IEHC 384
• Docket Number: 2018 No. 124 COS
• Court: High Court
• Date: 18 September 2020

IN THE MATTER OF INDEPENDENT NEWS AND MEDIA PLC

AND IN THE MATTER OF SECTION 748 OF THE COMPANIES ACT 2014

AND IN THE MATTER OF AN APPLICATION

BETWEEN

JENNIFER KILROY, HARRIET MANSERGH, JONATHAN NEILAN, MARK KENNY. SAM SMYTH, ANDREW DONAGHER

AND

SIMON MCALEESE

DONAL BUGGY, ANNEMARIE HEALY

AND

MANDY SCOTT

VINCENT CROWLEY

MOVING PARTIES

AND

THE DIRECTOR OF CORPORATE ENFORCEMENT INDEPENDENT NEWS AND MEDIA PLC LESLIE BUCKLEY

RESPONDENTS TO THE MOTIONS

[2020] IEHC 384

Garrett Simons

2018 No. 124 COS

THE HIGH COURT

JUDGMENT of Mr. Justice Garrett Simons delivered on 18 September 2020

INTRODUCTION	2
PROCEDURAL HISTORY	3
JUDGMENT ON FIRST APPLICATION TO USE DOCUMENTATION	7
THE MOTIONS HEARD ON 28 JULY 2020	10
POSITION OF COMPANY AND DIRECTOR OF CORPORATE ENFORCEMENT	14
NO REDACTION	REQUIRED
MR BUCKLEY'S OPPOSITION TO THE APPLICATIONS	14
DISCUSSION	16
DECISION ON APPLICATION TO USE DISPUTED MATERIAL	22
POSITION OF PERSONS NOT YET SUPPLIED WITH THE DISPUTED MATERIAL	27
MR BUCKLEY'S STANDING TO OPPOSE THE APPLICATION	28
DECISION ON OBJECTION TO STANDING	30
CONCLUSION AND FORM OF ORDER	32

INTRODUCTION

1 This judgment is delivered in respect of applications made by a number of individuals to be allowed to use material, which they have received in the context of the within proceedings, for the purposes of other proceedings. The material consists of affidavits and exhibits which had been filed as part of an application to appoint inspectors to Independent News and Media plc pursuant to the Companies Act 2014. I will refer to these affidavits and exhibits as “the disputed material” throughout this judgment. The moving parties seek to use the disputed material for the purposes of proceedings which they intend to pursue against Irish News and Media plc and/or Mr Leslie Buckley. These other proceedings allege that an exercise, which involved the detailed examination or “interrogation” of data held by the company relating to the moving parties, entailed a breach of the moving parties’ rights, including, in particular, their right to privacy.

2 This judgment also addresses related applications by other individuals, who have not previously received the disputed material, to be furnished with that material and then to be allowed use it for the purposes of other proceedings.

3 As discussed presently, the legal principles which arise on these various applications have already been the subject of a detailed judgment by the then President of the High Court (Kelly P.), In the matter of News and Independent Media plc [2019] IEHC 467. Much of the debate at the hearing before me on 28 July 2020 centred on whether this earlier judgment should be distinguished.

PROCEDURAL HISTORY

4 The applications currently before the court arise in the context of an ongoing inspection of the affairs of Irish News and Media plc (“ the Company”) by two court-appointed inspectors. 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 1986 (as amended).

5 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] JEHC 488; [2019] 2 I.R. 363 ( “ the principal judgment”). As explained in the principal judgment, notwithstanding that there was little dispute between the parties as to the existence of the underlying facts, a large number of affidavits and exhibits had nevertheless been exchanged in advance of the hearing of the application. The present judgment is concerned with the entitlement, if any, of the moving parties to rely on these affidavits and exhibits for the purposes of other proceedings.

6 Prior to the hearing in July 2018 of the application to appoint inspectors, a number of individuals had sought to have sight of the affidavits and exhibits. This was so notwithstanding that these individuals were not formally parties to the application. An agreement had then been reached between the Director of Corporate Enforcement and the Company whereby the material would be furnished subject to certain redactions. As indicated earlier, this documentation will be referred to in this judgment as “ the disputed material”.

7 This agreement had subsequently been expressly approved of by Kelly P. by order dated 24 April 2018. The relevant part of the order reads as follows.

“The Court DOTH APPROVE of the agreed arrangement to furnish the documentation requested as outlined in the aforesaid letter and schedule dated 23rd of April 2018 and given that the agreement as reached relates only to the affidavit of Ian Drennan doth direct that all replying affidavits (12 to date) and any further affidavits to be filed in the within proceedings be also furnished subject to relevant redaction to the requesting parties while noting that the requesting parties reserve their position and are at liberty to apply to the Court on motion if dissatisfied with the documentation received - such available documentation to be furnished electronically 48 hours after the making of the within order with email addresses of the requesting parties to be supplied to McCann Fitzgerald Solicitors to facilitate such delivery and the Court requiring application on notice to all parties to the proceedings if any documentation received is sought to be used by any party other than for the purpose of the within proceedings.”

8 (A slightly different form of wording is used in a subsequent order of 5 July 2018 which authorised the furnishing of papers relevant to the data protection issue to Mr Jonathan Neilan, Mr Mark Kenny, Mr Rory Godson, and Mr Vincent Crowley. Those individuals were directed “to hold the material confidentially” and “not to use the material for any purpose outside the proceedings”. They were, however, given liberty to apply).

9 As appears, it is implicit in the order that, save with the leave of the court, the interested parties were only entitled to use the disputed material for the purposes of the application to appoint the inspectors. The effect of this part of the order has since been described as follows by Kelly P.

“One important restriction was placed upon the recipients of the said material. They were precluded from using the documentation provided to them for any purpose other than use in these proceedings. Should they wish to use the material disclosed for any other purpose they were required to apply to court for leave to do so. […]”

10 This observation had been made by the President in his judgment delivered in respect of an application for leave to use the disputed material, In the matter of News and Independent Media plc [2019] IEHC 467. (Where convenient, this judgment will be referred to by the shorthand “ the Brophy/O'Reilly judgment”).

11 Before turning to consider that judgment, however, it may be convenient to explain first the nature of the “data interrogation” allegations, which are central to all of the requests to use the documentation for other proceedings.

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