The High Court has directed Mediahuis Ireland Group Limited and Leslie Buckley to file affidavits of discovery in proceedings brought by Karl Brophy and Gavin O’Reilly, while postponing a decision on whether documents from an ongoing statutory investigation are protected by public interest privilege.
Mr Justice Garrett Simons said the court could not decide the privilege question in the abstract. The defendants must describe the documents for which they claim privilege in the affidavits and explain the grounds. The judgment makes no finding on whether any document is privileged; that question may be decided later, after the documents and claims are more fully specified.
The dispute concerns documents that the defendants received from inspectors appointed to investigate the affairs of Mediahuis Ireland Group, formerly Independent News and Media. It does not concern documents the company or Mr Buckley provided to the inspectors. The inspectors’ terms of reference include the data interrogation issue, which the plaintiffs’ pleadings describe as a clandestine exercise involving company data. Those are allegations, not findings in this judgment.
The defendants argued that disclosure could undermine the confidentiality and effectiveness of the ongoing inspectorate process. The judge accepted that there were respectable arguments for protecting at least some material, but said a blanket ruling was premature. He noted that the statutory scheme allows for an inspector’s report to be published and that inspectors have powers to compel evidence and documents. The court must consider individual documents and their circumstances before deciding any privilege claim.
The judge also rejected Mr Buckley’s proposed discovery cut-offs of 30 April 2016 or August 2017. He set 25 March 2020—the date the plaintiffs first threatened legal proceedings—as the cut-off for Mr Buckley’s discovery, except for documents related to the ongoing inspectorate process. He said the earlier dates could exclude relevant material, including documents concerning engagement with the Office of the Director of Corporate Enforcement, and found no cogent evidence that the longer period would create a disproportionate burden.
The judgment did not settle the final wording of the discovery order or set a deadline for the affidavits. The judge said the parties would discuss those details with him. The company’s proposed Category 10 would need revision so it was confined to the data interrogation issue. The matter was listed for mention on 29 January 2023, with a view to fixing a directions hearing.