The High Court has ordered Mediahuis Ireland Group Limited and Leslie Buckley to pay the plaintiffs’ costs of two discovery motions in proceedings brought by Karl Brophy and Gavin O’Reilly. The order followed a supplemental judgment dealing only with the allocation of legal costs after an earlier discovery ruling.
The plaintiffs seek damages over an alleged “data interrogation” exercise involving computer data, including emails, held by Mediahuis Ireland Group Limited. They allege breaches of privacy, data protection and constitutional rights, as well as conspiracy to damage their interests. Those claims have not been determined in this costs judgment.
The earlier ruling required the defendants to file affidavits of discovery describing documents for which they claim public interest privilege and explaining the basis for those claims. If describing particular documents would undermine a privilege claim, the relevant party must preserve them and provide a description directly to the court. The court had not yet ruled finally on whether documents relating to the statutory inspectorate process could attract public interest privilege.
The earlier ruling also set 25 March 2020 as the discovery cut-off date for all categories, except documents related to the ongoing inspectorate process. The second defendant had sought a much earlier limit. The judge said the plaintiffs had been substantially successful on that issue, obtaining a period that captured an additional four years.
In the costs judgment, Mr Justice Garrett Simons said the plaintiffs had been entirely successful on the procedural question of whether privilege could be adjudicated before the documents were identified in affidavits of discovery. He said the defendants’ approach on that issue was not reasonable and prolonged the discovery hearing, which lasted two days. He also found that no meaningful distinction could be drawn between the defendants’ positions for costs purposes, including because the second defendant’s written submissions had raised the privilege issue.
The court ordered each defendant to pay the costs of the discovery motions, including written submissions, two counsel, stenography and the 30 January 2023 post-judgment hearing. Costs are to be adjudicated under Part 10 of the Legal Services Regulation Act 2015 if the parties cannot agree. Execution of the costs order is stayed until the proceedings are finally determined, but adjudication may proceed.
The judgment did not finally decide who should bear the inspectors’ costs. The judge’s provisional view was that those costs should be treated as expenses of the statutory investigation and initially met by the Corporate Enforcement Authority. The inspectors and the authority are to have an opportunity to be heard before a final view is reached. The proceedings were listed remotely for 20 February 2023 to address outstanding discovery issues.