The president of the High Court has ruled that only a redacted version of the first report of the inspectors investigating Independent News & Media can, at this stage, be disclosed to INM, the Central Bank and others, including former INM chairman Leslie Buckley.
The inspectors were appointed by Mr Justice Peter Kelly last September and their first interim report was provided to him last April. The judge noted on Tuesday that the inspectors aimed to produce their final report by early next year.
Only the Office of the Director of Corporate Enforcement (ODCE) has a statutory entitlement to see the first report but the court has discretion in relation to whether anyone else can access it. The ODCE, supported by inspectors Seán Gillane and Robert Fleck, objected to the applicants being provided with the report at this stage, primarily because it refers to evidential matters.
In his judgment on Tuesday, the judge directed that only those parts of the report which do not deal with evidential matters should be provided to the various applicants. A “good deal” of the report deals with evidential matters, he said.
He reached that conclusion for reasons including that the inspectors had given guarantees of confidentiality to various persons with whom they spoke and his anxiety the court should not take any step that might hinder the inspectors’ work.
The report, he noted, is essentially a progress report and does not contain any findings but does contain a lot of direct and indirect reference to evidential material.
The decision means the applicants will get access to 29 paragraphs of the report which, his judgment indicated, contains at least 79 paragraphs.
Among those who sought access were INM, Mr Buckley, former INM group chief executive Robert Pitt, former chief executive of INM's Irish division Vincent Crowley, journalist Maeve Sheehan and a number of companies and individuals whom the ODCE is concerned may have been involved in the removal and interrogation of data from INM in 2014.
Mr Justice Kelly reserved judgment on the access applications last May, noting this was the first time objections had been raised concerning an application under section 759 of the Companies Act for access to an interim report of court-appointed inspectors.
In his judgment, he noted he had appointed the inspectors last September to investigate a range of issues, including the data interrogation.
Data appears to have been searched against the names of 19 individuals, including journalists and two senior counsel to the Moriarty tribunal, and “grave concerns” had been expressed about the lawfulness of that, he noted.
The lawfulness of this whole operation is “very questionable”, he said.
In exercising his discretion concerning access to the report, he noted the report is merely an interim one, a progress report on work undertaken to date, and no findings of any sort have been made.
He also took into account that the ODCE and inspectors had opposed releasing the report to the applicants.
While only the court and, to a very limited extent, the ODCE have a legitimate interest in having oversight of the work carried out of the inspectors, he did not believe giving a report to the applicants would in any way interfere with that oversight.
His main concern in exercising his discretion was the opposition of the inspectors. While they opposed release of the report in its entirety, the reality is that opposition concerned the evidential material in the report.
He would be “loath” to take steps which might risk being a hindrance to the inspectors making progress in their work and fully appreciated they had given a commitment of confidentiality to those whom they spoke.
The inspectors, he noted, had said that commitment was particularly productive in assisting their work and they were able to get co-operation of individuals without the fear of material leaking into the public domain.
It would be quite inappropriate for the court to take any step which might cut across that commitment or take any step which might jeopardise the integrity and progress of the inspection.
However, he saw no objection to the parts of the report which do not deal with evidential matters being disclosed.
Meanwhile, the High Court has separately rubber-stamped the proposed €145.6 million takeover of INM by Belgian group Mediahuis, clearing the way for the deal to close in coming months. The court’s approval of the deal, which is being executed using a scheme of arrangement, was the final external hurdle for the transaction after consent was received on Monday from Richard Bruton, the Minister for Communications.
At a brief hearing on Tuesday morning, Mr Justice Robert Haughton said all paperwork for the proposed deal “seems to be in order”. Lawyers for INM submitted papers to the court including email exchanges with the takeover panel, and argued that all legal conditions for approval of the scheme had been met.
The judge said the scheme, which has been approved by more than 90 per cent of INM shareholders, was “well thought out” and he said he would be “slow to interfere in any way” as shareholders had backed it in such strong numbers. He also noted that no objections had been raised in court from third parties, and made the order sought by INM for approval of the scheme.