‘INM 19’ members win High Court applications for document access

Certain members of the so-called "INM 19" whose personal data was allegedly compromised as part of a data leak at Independent News & Media have been given High Court permission to use State documents to prepare fresh lawsuits against the company and its former chairman Leslie Buckley.

Mr Justice Garrett Simons has ruled that the applicants could use material that came to light during an inspection of INM by two court-appointed inspectors in any other proceedings they take against the news publisher or Mr Buckley.

Mr Justice Simons concluded in a written judgment that Mr Buckley’s opposition to the applications was “not well founded”.

The three similar applications were made on behalf of journalist Sam Smyth, former INM executive Andrew Donagher, ex-chief financial officer Donal Buggy, former head of group treasury Anne Marie Healy, former INM employee Mandy Scott, PR executives Mark Kenny, Harriet Mansergh, Jennifer Kilroy, and Jonathan Neilan, solicitor Simon McAleese, and former INM chief executive Vincent Crowley. All but Mr McAleese are members of the "INM 19".

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“Not only would it be artificial to restrain the moving parties from now relying on this material, it also has the potential to cause them an injustice,” the judge said.

The judgment follows similar permission granted to Karl Brophy, the former INM director of corporate affairs, and Gavin O'Reilly, who was INM chief executive before Mr Crowley.

In all but four cases, the individuals concerned on this occasion had already been furnished with the documentation during the application to appoint the inspectors.

The judge granted permission to use the material in subsequent proceedings partly on the basis that the content of the material was “already in the public domain” after a court hearing in July 2018. The nature of the alleged “data interrogation” issue was set out in some detail in the principal judgment, he said.

Discovery

He also noted that given Mr Brophy and Mr O’Reilly had already been permitted by the court to use the documentation for their claims for alleged breach of privacy, it would be “artificial and arbitrary” to rule that other parties were not equally entitled to use the documentation for similar purposes. There would be “no obvious public interest” in doing so.

To require them to apply to the court for discovery of those same documents – which the majority of the applicants already have – would be “paradoxical” and “wasteful of the scarce time and resources of the court” as well as increasing the costs and delaying the litigation in question.

While four of the moving parties – Ms Kilroy, Ms Mansergh, Mr Buggy and Ms Healy – had not previously been supplied with the disputed material, the judge said he was satisfied that they were also entitled to use it.

This was because they had established their legitimate interest in the proceedings leading to the appointment of INM inspectors in September 2018 and because their names appear on a spreadsheet listing the “INM 19”, suggesting they had been specifically targeted as part of a “data interrogation” exercise.

Material

Neither INM nor the Director of Corporate Enforcement opposed the applications. INM had previously opposed the application by Mr Brophy and Mr O’Reilly without success.

But counsel for Mr Buckley, who was chairman of INM until March 2018, argued that use of the material in proceedings against his client would “represent an improper litigation advantage”, as it would include material provided to the Director of Corporate Enforcement under statutory compulsion.

Mr Buckley, who is alleged to have directed the “data interrogation exercise”, strongly denies any wrongdoing.

The judge said that if Mr Buckley wished to argue that it was unfair that answers he contends were only provided on foot of statutory obligation are now to be used against him, then this could be raised in the context of any proceedings taken against him.

“The trial judge in those proceedings can rule on any objection to the admissibility of such evidence,” he said.

Mr Justice Simons said he was satisfied that his ruling “does not confer any improper litigation advantage on the moving parties”.