Businessman Denis O’Brien and two companies controlled by him are seeking documents used in a court application by the Director of Corporate Enforcement (ODCE) to have inspectors appointed to investigate matters at Independent News & Media (INM).

On Friday, Michael Cush SC, with Shelley Horan, for Mr O’Brien, Island Capital and Blaydon Ltd, told High Court president Mr Justice Peter Kelly his clients have been assisting the inspectors’ investigation and a procedural point had been reached where they required to see the documents.

It may appear “surprising” his side has not seen the documents, counsel said. His side had informed the inspectors of the intended application for the documents and the inspectors had said they had no role in that regard.

Application

In the circumstances, he wanted leave to serve short notice on INM and the Director of Corporate Enforcement (ODCE) of an application to be provided with the ODCE’s grounding affidavit in the application for inspectors, plus replying affidavits.

Mr Justice Kelly, noting several other parties have secured access to the documents, granted liberty for short service of the application and returned the matter to next Wednesday.

Former INM chief executive Gavin O’Reilly and Karl Brophy, former INM director of corporate affairs, are among a number of parties who previously secured access to the documents. Both men later obtained permission to use the materials for their contemplated proceedings against INM and possibly others arising from the alleged data breach.

In September 2018 Mr Justice Kelly appointed two inspectors – barrister Sean Gillane SC, who specialises in criminal law, and Richard Fleck, a UK based solicitor and corporate governance expert – to investigate the conduct of affairs at INM.

Their first report was provided to the judge in April, 2019.

ODCE Ian Drennan applied for inspectors in spring 2018 following his office’s year-long investigation into matters raised in protected disclosures made in 2016 and 2017 by former INM chief executive Robert Pitt and INM’s chief financial officer Ryan Preston.

Arising from that investigation, the ODCE raised concerns about issues including an alleged data breach at INM in 2014 involving data being exported from the jurisdiction and interrogated by third parties.

Exercise

The then INM chairman Leslie Buckley, who stepped down in March, 2018, has said that was done as a cost-cutting exercise called Operation Quantum.

In September 2018, Mr Justice Kelly ruled the ODCE had provided evidence that “well justified” inspectors being appointed.

He was satisfied many questions “remain to be answered” about “disquieting” issues raised by the ODCE, including the alleged removal from INM, and interrogation, of the data of 19 persons, including journalists, former INM employees and executives and two senior counsel for the Moriarty tribunal.

The judge was also concerned about the circumstances concerning the proposed acquisition by INM of Newstalk Radio from a company of Mr O’Brien, then INM’s largest shareholder, and the proposed payment by INM of a €1 million “success fee” to another company of Mr O’Brien’s. While neither of those payments proceeded, they were “certainly suggestive of an unlawful purpose directed to the benefit of Mr O’Brien directly or indirectly and the detriment of the company”, he said.

The appointment of inspectors’ was in the public interest in the context of the regulation of public companies, the nature of INM’s business and the importance of a free press, he held.