Text messages between former INM chairman Leslie Buckley and former INM chief executive Robert Pitt show a "perfectly normal, relaxed relationship" between them at a time Mr Pitt alleged he was being put under pressure within INM, the High Court has been told.
However, those texts had not made it into a draft document by the inspectors concerning evidence relating to Mr Pitt’s claims of being put under pressure, Seán Guerin SC said.
The inspectors also failed to draw attention to conflicting accounts by Mr Pitt of a conversation between him and INM IT director Gerry Wilde, relating to whether Mr Buckley had directed Mr Pitt need not be informed of issues concerning data interrogation, counsel said.
Mr Pitt was able to say one thing on one occasion and on another occasion make “really damaging” allegations against Mr Buckley, but the inspectors appeared to have come to the view these things are not relevant, counsel said. Mr Pitt was getting “a pass” on issues of fact that “seriously undermine” his own credibility and the credibility of allegations made by him.
Counsel stressed he was not suggesting any “agenda” or actual bias by the inspectors.
The court may consider the inspectors may have made errors but his side’s concern was when the errors all go “one way” in a manner adverse to Mr Buckley, he said.
In the context of claims about a data breach at INM in 2014, the inspectors had not set out relevant evidence supportive of Mr Buckley’s evidence he had directed a search of data in relation to a legal services contract but had nothing to do with the generation of 19 names of journalists and others, counsel said.
What featured instead was a “very generous” account by the inspectors of “wholly uninformed opinions” from various persons, who had no direct knowledge of the relevant data issues, that were “very damaging” to Mr Buckley, counsel said.
Mr Buckley believes the inspectors’ presentation of evidence concerning these and other issues exhibits a “pattern of error” in a way “unfairly adverse” to Mr Buckley and “unfairly favourable” to his accusers, especially Mr Pitt.
In contrast, Mr Pitt, Mr Buckley’s “principal accuser”, had almost no criticism of the content of the documents at issue.
The inspectors have “failed in a marked way to strike a balance” between Mr Buckley and Mr Pitt in the preparation of draft material in the investigation, counsel said.
Mr Guerin was opening Mr Buckley’s application before Mr Justice Garrett Simons to have the appointment of the inspectors set aside, or for a direction they recuse themselves from further involvement in the investigation, on grounds of alleged objective bias. Inspectors Seán Gillane and Richard Fleck, whose investigation is continuing but has been hampered in some respects by the Covid-19 pandemic, refute the claims of objective bias and argue the application is “fundamentally misconceived”.
They dispute their presentation of the evidence mentioned amounts to “assessments” or “summaries” by them of that evidence.
The notice parties to the application include Mr Pitt and businessman Denis O’Brien, formerly INM’s major shareholder.
The inspectors were appointed by the High Court in September 2018 on the application of the Director of Corporate Enforcement (ODCE) following the latter’s year-long investigation into matters raised in protected disclosures made in 2016 and 2017 by Mr Pitt and former INM chief financial officer Ryan Preston.
The ODCE raised concerns about issues including an alleged data breach at INM in 2014, involving data being exported from the jurisdiction and interrogated by third parties in what Mr Buckley, who stepped down as INM chairman in March 2018, has said was a cost-cutting exercise called Operation Quantum.
On Tuesday, Mr Guerin said Mr Buckley’s application was “reluctantly” brought, particularly as both inspectors are of impeccable character, but it had to be seen in the context of Mr Buckley’s right to his good name.
The inspectors were appointed to investigate a range of matters at INM which the ODCE had said may be “suggestive of wrongdoing”, counsel said. This was not proof of wrongdoing, he stressed.
Mr Buckley had become chairman of INM when it was “sinking in a massive pool of debt” and, under his leadership, the entire debt was paid off and the company became cash positive and outward looking, counsel said.
While Mr Buckley was not claiming that was all his doing, he would normally be entitled to reputational benefit from it but his reputation was “essentially destroyed” arising from matters in the application for appointment of the inspectors.
Mr Buckley had seen the inspection process as a means of “righting the wrongs done to him” and has co-operated extensively with the inspectors with that in mind. However, matters in the investigation had developed to a point where Mr Buckley considered he had no alternative but to bring this application, he said.
The hearing continues on Wednesday.