Paddy McKillen seeks access to Department of Finance files

Investor alleges ‘inappropriate’ contact with Barclay brothers over his Nama, IBRC loans

Property investor Paddy McKillen wants full access to 12 documents which he believes will show the Department of Finance engaged in "inappropriate" contacts with representatives of the billionaire Barclay brothers about his loans with State-owned IBRC and Nama, the High Court has heard.

Communications fully or partly disclosed by the department to date suggest it was being "inappropriately" lobbied by interests linked to the Barclays concerning acquisition of Mr McKillen's "fully-performing" loans as part of a hostile takeover strategy concerning the London-based Maybourne hotel group, Jim O'Callaghan SC, for the businessman, said.

Mr McKillen was the largest shareholder in the Maybourne hotel group when it was subject of a takeover bid from the Barclays in 2010 and 2011 which was “vigorously opposed” by Mr McKillen, counsel said.

Among the documents sought from the department is the identity of the recipient of an email sent in October 2011 by former department secretary general John Moran.

That email was copied to two senior department officials and it included a scanned document. The identity of the sender of the scanned document was initially blacked out but was later disclosed as Richard Faber, a director of a company linked to the Barclay brothers and son-in-law of Sir Frederick Barclay, Mr O'Callaghan said.

Mr Justice Seamus Noonan is hearing Mr McKillen's application for orders quashing the November 2014 decision of the Information Commissioner upholding the department's refusal of access to the 12 documents.

Access refused

The department refused access to 11 of the documents arguing that, due to their already being subject of a High Court discovery order, it would amount to contempt of court.

Disclosure of a 12th document was refused on grounds it contained commercially sensitive information which the department said was not in the public interest to disclose.

In arguments, Mr O’Callaghan said Mr McKillen wrote to the Information Commissioner in early 2013 saying he became aware, through a UK High Court action in 2012, of direct communications between representatives of the Barclays and the department. He wanted to see any documents which could disclose efforts to influence key persons in the department.

His case was that such contacts concerned Mr McKillen’s loans in IBRC and no public interest justified such contacts because IBRC and Nama are independent statutory interests. The contacts also related to events that occurred some years ago and the department’s explanation for withholding the documents does not stand up to scrutiny, Mr O’Callaghan argued.

Opposing Mr McKillen’s application, Brian Foley BL, for the Commissioner, said his client fully and forensically considered the material put before him both by the department and Mr McKillen before making his decision.

‘Commercially sensitive’

This was not a rubber-stamping exercise and the redacted information “was about as commercially sensitive as it gets”. The information related to potential interest in an asset, which was being bought, what might be paid and the interested party, counsel added.

An appeal against the Commissioner’s decision may only be brought on a point of law and several of the legal issues now being raised could and should have been raised before the Commissioner, Mr Foley submitted.

Mr McKillen was represented by other lawyers before the Commissioner and his new legal team are not now entitled to raise such points for the first time before the High Court, he said.

Mr Foley will conclude his arguments on Wednesday after which it is expected judgment will be reserved.