INM seeks stay on proceedings taken by two former executives

Gavin O’Reilly and Karl Brophy oppose application

Former INM chief executive Gavin O’Reilly and former INM director of corporate affairs Karl Brophy are suing INM and its former chairman Leslie Buckley on grounds including alleged breach of privacy and data protection rights. Photograph: iStock

Former INM chief executive Gavin O’Reilly and former INM director of corporate affairs Karl Brophy are suing INM and its former chairman Leslie Buckley on grounds including alleged breach of privacy and data protection rights. Photograph: iStock

 

Independent News and Media (INM) plc has asked the High Court for a stay on proceedings against it by two of its former executives over an alleged data breach in the company in 2014.

Former INM chief executive Gavin O’Reilly and former INM director of corporate affairs Karl Brophy are suing INM and its former chairman Leslie Buckley on grounds including alleged breach of privacy and data protection rights.

The defendants deny the claims. Mr Buckley’s counsel Brian Gageby said while he was taking no position on the stay application, his client wanted to make it clear he denies any wrongdoing and has authorised a full and robust defence of any allegations of wrongdoing.

INM asked Mr Justice Garrett Simons on Thursday to stay the O’Reilly/Brophy proceedings until two inspectors, appointed by the High Court, have completed their investigation into the matter.

Mr O’Reilly and Mr Brophy opposed the application. The judge reserved his decision.

The inspectors were appointed in 2018 following an application to the court by the Office of the Director of Corporate Enforcement (ODCE) over a number of matters, including the alleged 2014 data breach. The ODCE had carried out its own inquiry before this following protected disclosures by two former executives including its then chief executive Robert Pitt.

INM says it remains unclear what the true purpose of the data interrogation incident in 2014 was and there was no evidence that anyone in INM, other than Mr Buckley, knew about it. INM is separately suing Mr Buckley who is also denying any allegations of wrongdoing in that case.

It also says while INM can put in a defence to the O’Reilly/Brophy claim, it will not be a meaningful defence to the action pending the release of the inspectors’ report and will not be an efficient use of resources.

Bairbre O’Neill BL, for INM, said that with the High Court-appointed inspectors yet to complete their investigation and report there was a degree of overlap between the O’Reilly/Brophy proceedings and the inspectors’ investigation.

While INM conducted its own internal reviews and had cooperated fully with the inspectors and the data commissioner, there is a dispute about the factual matters that occurred in 2014 and an evidential gap, she said.

The gap is raised in these proceedings and if the parties are forced on (to hearing) and pleadings will have to be amended, which has been tacitly admitted in the plaintiffs’ statement of claim, that would not be an efficient use of resources, she said.

Discovery applications (for more information in advance of the hearing) will be necessarily broad without having the inspectors’ report and could be reduced if it was available, she said.

One of the most important considerations for the court is to minimise the risk of inconsistent determinations. Due to the huge overlap between this case and the inspectors’ investigation, that does constitute a real risk of an inconsistent conclusion, she said.

Trial

Oisín Quinn SC, for Mr O’Reilly and Mr Brophy, said this was an application about INM having to put in its defence rather than the trial not proceeding. Whatever the outcome of this application for a stay, it does not automatically preclude an option that when the matter is ready for trial that the trial should not proceed.

The right to a speedy trial is well established, both constitutionally and under EU law, he said.

The inspectors have powers, including to seek documents and bring people in and ask them questions but there are substantial powers available to a litigant, in any case, to get to the bottom of a problem, including through discovery and cross-examination among many others.

There can be no truth to the claim INM cannot deal with this matter (before the inspectors’ report arrives) and the civil courts have well-armed a litigant to do so, he said.

It could be a number of years before the inspectors’ report is final because there could be legal challenges to any draft report.

All the information INM requires related to data protection must have been retrieved, downloaded and boxed away and INM must have assembled all the information it needs while the inspectors’ process is ongoing, he said.

Mr Quinn said his clients were very keen to progress their case and are concerned it will drop away if the stay is granted and be several years before it comes to trial in the context of what is a somewhat tactical and strategic approach to the case by INM, he said.