Jennifer Kilroy, Harriet Mansergh, Jonathan Neilan, Mark Kenny, Sam Smyth, Andrew Donagher, and Simon McAleese v The Director of Corporate Enforcement Independent News and Media Plc
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 15 February 2021 |
| Neutral Citation | [2021] IEHC 102 |
| Date | 15 February 2021 |
| Docket Number | 2018 No. 124 COS |
| Court | High Court |
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
[2021] IEHC 102
2018 No. 124 COS
THE HIGH COURT
Costs – Stay – Leave to use affidavits and exhibits for the purpose of other proceedings – Moving parties seeking leave to use affidavits and exhibits for the purpose of other proceedings – Whether the execution of the costs orders should be stayed
Facts: The High Court, on 18 September 2020, [2020] IEHC 385 (the principal judgment), granted a number of individuals leave to use material, which they had received in the context of the proceedings, for the purposes of other proceedings. The material consisted of affidavits and exhibits which had been filed as part of an application to appoint inspectors to the second respondent, Independent News and Media plc (the Company), pursuant to the Companies Act 2014. The moving parties, Ms Kilroy, Ms Mansergh, Mr Neilan, Mr Kenny, Mr Smyth, Mr Donagher, Mr McAleese, Mr Buggy, Ms Healy, Ms Scott and Mr Crowley, wished to use the disputed material for the purposes of proceedings which they intended to pursue against the Company and/or the third respondent, Mr Buckley. These other proceedings alleged that an exercise, which involved the detailed examination or “interrogation” of data held by the company, entailed a breach of the moving parties’ rights, including, in particular, their right to privacy. Mr Buckley disputed those allegations and intended to fully contest those proceedings. The matters that remained to be determined by the court fell under two broad headings as follows: first, it was necessary to address the precise form of costs order to be made in respect of the applications the subject-matter of the principal judgment; secondly, it was then necessary to consider a number of additional applications for leave to use the disputed material for other proceedings.
Held by Simons J that the precise terms of the orders to be made in respect of the three motions heard on 28 July 2020, and which were the subject of the principal judgment, had largely been agreed between the parties, save in respect of costs. Simons J held that the order would provide that the moving parties in respect of each of the three motions were entitled to recover their costs as against Mr Buckley. Simons J held that the costs were to include any reserved costs, the costs of the hearing on 28 July 2020, and the costs of written legal submissions, if any, filed. Simons J held that such costs were to be adjudicated by the Office of the Chief Legal Costs Adjudicator in default of agreement between the parties. Simons J granted Mr Webb and Mr Godson leave to use the disputed material (as more fully defined in the order) for the purpose of their proceedings as against the Company and/or Mr Buckley. Simons J held that a costs order would be made in favour of Mr Godson, in terms similar to those previously outlined (save that the date of the hearing was 6 October 2020). Simons J made no costs order in respect of Mr Webb’s motion in circumstances where he did not pursue an application for costs.
Simons J held that a stay would be placed on the costs orders pending any appeal to the Court of Appeal and/or an application for leave to appeal to the Supreme Court. Simons J held that the execution of the costs orders was not to be stayed pending the outcome of the other proceedings taken against Mr Buckley and/or the Company.
Leave to use affidavits and exhibits for the purpose of other proceedings granted.
JUDGMENT of Mr. Justice Garrett Simons delivered on 15 February 2021
This supplemental judgment addresses a number of matters arising out of a judgment delivered on 18 September 2020, In the matter of Independent News and Media [2020] IEHC 385 (“ the principal judgment”). The principal judgment granted a number of individuals leave to use material, which they had 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”. The moving parties wish to use the disputed material for the purposes of proceedings which they intend to pursue against Independent 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, entailed a breach of the moving parties' rights, including, in particular, their right to privacy. The proceedings will be referred to as the “ proceedings alleging breach of privacy” where convenient. It should be recorded that Mr. Buckley disputes these allegations and intends to fully contest those proceedings.
The matters remaining to be determined by this court fall under two broad headings as follows. First, it is necessary to address the precise form of costs order to be made in respect of the applications the subject-matter of the principal judgment. Secondly, it is then necessary to consider a number of additional applications for leave to use the disputed material for other proceedings.
The principal judgment had been delivered in respect of three motions heard by me on 28 July 2020. The parties to these motions appear to be in broad agreement that the costs of the motions should be borne by Mr. Buckley as the unsuccessful party. (The position in respect of the costs of Mr. Vincent Crowley's motion is less clear-cut, with his entitlement to costs being challenged in the written legal submissions). The parties are in disagreement, however, as to whether a stay should be imposed on those costs orders. Mr. Buckley submits that the costs should not be executed until such time as the other proceedings, i.e. the proceedings alleging breach of privacy, in aid of which leave to use the disputed material had been sought, are heard and determined.
If and insofar as it remains in dispute, I propose to address, first, the question of the allocation of costs. The applications for leave to use the disputed material were made in the context of existing proceedings pursuant to the Companies Act 2014, whereby the Director of Corporate Enforcement had sought an order from the High Court appointing inspectors to investigate the affairs of Independent News and Media plc (“ the Company”). As explained in the principal judgment, documentation in the form of affidavits and exhibits had been exchanged in the course of that application. The documentation had been furnished to interested parties, subject to a proviso that same was not to be used other than for the purposes of the proceedings without the leave of the court. The motions sought leave to use that material for the purposes of other proceedings.
The motions represented stand-alone applications, in the sense that the sole issue to be determined between the parties to those motions has now been finally decided by the High Court (subject, of course, to any appeal). There will be no further hearing before this court involving those parties. The applications should thus be...
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