The former majority shareholder in Independent News & Media (INM), Denis O’Brien, was told emails within the media group were being searched as part of an effort to identify why a solicitor’s contract with the company had been renewed, High Court inspectors have found.
The lengthy inquiry into the controversy in the group concerned a number of matters including the searching of emails by an outside company engaged by the PLC’s former chairman, Mr O’Brien’s associate Leslie Buckley.
In a report published on Wednesday, the inspectors found that Mr Buckley initiated the data interrogation of the emails because he was concerned about the terms of a new contract with then solicitor, now Circuit Court judge, Simon McAleese, who had been a long time legal adviser to INM.
Mr Buckley decided that if a particular email could be located, he might have grounds for terminating the contract, as part of a cost-saving exercise, the report said.
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The search was then widened to address other concerns – that “other persons connected with INM had been acting with ulterior motives or for concealed purposes otherwise than for the benefit of” the media business, which is now owned by Belgian group Mediahuis.
However, the inspectors decided it would not be appropriate to “speculate” on how the interrogation of the data came to include 19 names that contributed to the 2018 controversy about matters at INM and led to the appointment of the inspectors.
A major issue in the controversy was the apparent links between the inclusion of some of the names and the Moriarty tribunal, which investigated the awarding of the State’s second mobile phone licence to Mr O’Brien’s Esat Digifone.
The 19 names included employees of INM, journalists, barristers and employees of lobbying group FTI Strategic Communications.
“Bearing in mind the very serious nature of the allegation and the degree of care which we have to exercise in reaching a conclusion, we do not think it would be appropriate to speculate on how the list of nineteen persons of interest, or any other list, came about,” the report says.
The inspectors, Sean Gillane SC and Richard Fleck, said they were not persuaded by the evidence of Derek Mizak, whose company, DMZ, was engaged by Mr Buckley, as to how Mr Mizak came to generate the names and that there was an absence of contemporaneous documentation.
“There is no evidence that Mr O’Brien was aware of the expansion of the ambit of the data interrogation that occurred after October 2014 and the work being done by Mr Mizak and TDS [a company in Wales that was involved in searching the data] in relation to individuals such as the nineteen persons of interest”.
The inspectors said Mr O’Brien agreed to pay for the work done on the data because Mr Buckley told him “it would be embarrassing for him to explain to INM, in the context of a cost-cutting exercise, the nature and scale of the work undertaken”.
Mr Buckley had not informed the INM board of the decision to search the emails for material relating to the McAleese contract.
The controversy that led to the appointment of the inspectors was based largely on confidential disclosures made by former INM chief executive Robert Pitt and the group’s former chief financial officer, Ryan Preston.
The inspectors said it was “inappropriate and misleading” that the two executives had not disclosed from the outset that they had been co-operating with one another. “In representing to us that their positions were entirely independent, when they were not, Mr Pitt and Mr Preston misled us,” the inspectors said.
It was unfair to Mr Buckley that it only emerged in the course of cross-examination that a failure to disclose material documentation had occurred, they said. However, the interaction between the two men was not such as to undermine the integrity of their disclosures, the inspectors said.
In a statement, Mr O’Brien said the inspectors had found there was no breach of the Companies Acts as alleged.
They had also found, he said, that complaints made during the controversy were wrong and unfounded and it had not been the case that there had been an effort to benefit him, to the detriment of other shareholders, through a potential acquisition by INM of Mr O’Brien’s then radio business, Newstalk, or through the payment of fees to one of his companies, Island Capital, in relation to a transaction in Australia.
“The Inspectors have also found that no confidential information in relation to INM was ever disclosed to me for an improper purpose. Furthermore, the report is clear that I was careful to ensure the confidentiality of any information received by me and that I did not misuse the information in any communication received by me,” his statement added.
The report also establishes that he was not aware of the work being done in relation to certain individuals described as the 19 persons of interest, he said.
Mr Buckley, in a statement, said he welcomed the report which “contains no findings of dishonesty against me during my time as chairman of INM and demonstrates that I acted with integrity in the interests of all shareholders”.
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