The High Court has allowed a group of former Independent News and Media figures and others to use affidavits and exhibits from the company inspectors case in proceedings they have brought or intend to pursue against the company and/or former chairman Leslie Buckley. Four applicants who had not received the material were also granted access to it.
In a judgment delivered on 18 September 2020, Mr Justice Garrett Simons said the permission did not extend to parts of the affidavits that had been redacted under an earlier court order. The parties were asked to agree the precise form of the order and any redactions. The court left costs for further submissions and a later ruling.
The material had been filed by Independent News and Media and the Director of Corporate Enforcement in the 2018 application that led to the appointment of two inspectors to examine the company’s affairs. The inspectors were appointed amid concerns including an alleged data interrogation exercise. The principal judgment described allegations that company back-up data had been examined in 2014 and searched against the names of 19 people. Those allegations were not determined by the applications in this judgment.
The applicants sought to rely on the papers in proceedings alleging breaches of privacy and data protection rights. The company and the Director did not oppose their applications. Buckley opposed them, arguing, among other things, that some material had been obtained under statutory compulsion and that its use could give the applicants an improper litigation advantage.
Simons J applied the approach used in an earlier decision allowing Karl Brophy and Gavin O’Reilly to use the same material. He found special circumstances and said permission was in the interests of justice. The affidavits and exhibits had been filed voluntarily by the company and the Director, formed part of a public hearing, and were already in the public domain. The court also noted that the two parties who had filed them did not object.
The judge rejected the argument that permission settled whether any document could be admitted as evidence. Its evidential status would have to be established in the ordinary way, and objections could be raised before the trial judge in the later proceedings. The judgment did not decide whether the alleged data interrogation occurred as claimed or whether it amounted to an actionable wrong.
The court also ruled that Buckley had a right to be heard on the applications, given the particular circumstances and his central role in the alleged wrongdoing. It said that conclusion was confined to this case and did not establish a general right for others in similar situations.