The High Court has permitted former Independent News and Media executives Karl Brophy and Gavin O’Reilly to use documents disclosed in earlier court proceedings when bringing planned claims over an alleged data interrogation. The permission is limited to that purpose and does not determine the merits of any claim or give the documents special evidential status.
In a judgment delivered on 27 June 2019, President of the High Court Mr Justice Kelly ordered that the two men could use the documents to bring proceedings against Independent News and Media plc and other persons, if they considered it appropriate, for alleged breaches of privacy, data protection rights and constitutional rights.
The documents had been furnished to the men under an arrangement approved by the court on 24 April 2018. That arrangement restricted their use to the inspector-appointment proceedings unless the court granted permission for another use. Brophy and O’Reilly applied for permission to rely on them in contemplated litigation arising from the alleged data interrogation.
The judgment recounts allegations that, in 2014, backup tapes containing company data were taken from INM’s premises and interrogated over a period of months at a company outside Ireland. The Director of Corporate Enforcement had obtained an order appointing inspectors to investigate INM, including the data interrogation issue. The alleged conduct and any resulting rights breaches were not findings made in this application.
The Director did not oppose the application. INM objected, arguing in part that the requested permission was too broad, that the men had not shown sufficient disadvantage if refused, and that allowing use of the documents would give them an improper litigation advantage. INM filed no affidavit evidence supporting its objection and relied on legal submissions.
Justice Kelly applied principles governing permission for collateral use of litigation documents. He found special circumstances and no injustice to INM in allowing the specified use. He also considered that refusal would likely require the men to seek the same documents through discovery, adding cost and delay.
The order does not allow unrestricted use of the material. The judge said that if any documents are later offered as evidence in the contemplated proceedings, they must be proved in the ordinary way. The judgment grants permission to use the documents to bring claims; it does not establish liability or resolve those claims.