The High Court has ordered newspaper group Mediahuis Ireland and Leslie Buckley to furnish descriptions of certain documents they may have received as part of a statutory investigation into a 2014 data breach at the firm.
Mr Justice Garrett Simons said the inspectorate documents, over which Mediahuis and Mr Buckley are asserting a “public interest privilege”, met the threshold of relevance and necessity, and it is “highly likely” they would confer a litigious advantage on the plaintiffs.
Former Independent News and Media plc (INM) executives, Gavin O’Reilly and Karl Brophy, sought documents Mediahuis and Mr Buckley may have received from court-appointed inspectors investigating the company’s affairs.
These include correspondence, transcripts of hearings, expert reports and drafts fo the statutory report to be furnished to the High Court.
Mr Justice Simons said he would rule later on which of the documents sought are privileged. He directed the defendants to file an affidavit describing the documents subject to the privilege claim.
Mr O’Reilly and Mr Brophy are suing the company, now Mediahuis, and Mr Buckley over an alleged breach of their privacy and data protection rights during what they describe as “a hack”.
Mr Buckley disputes the “hack” description because a hack normally involves someone outside a company gaining access to data, whereas Mr Buckley says he was an executive directing interrogation of information.
Clandestine operation
Mr O’Reilly and Mr Brophy claim it was part of a clandestine operation, directed by Mr Buckley on behalf of then-majority INM shareholder Denis O'Brien, and dressed up as a cost-cutting operation.
Data is alleged to have been given to another firm outside the jurisdiction where it was interrogated over a period of months.
The defendants deny the claims.
The investigation came on foot of the High Court’s 2018 appointment of an inspector, under section 748 of the Companies Act, to investigate the data interrogation issue, following an application from the Director of Corporate Enforcement.
Mr Justice Simons said public interest privilege differs from legal professional privilege in that it is “qualified, not absolute”.
The court must, therefore, engage in a balancing exercise whereby the asserted public interest is weighed against the public interest in the administration of justice.
The judge said it would be “premature” to rule upon the defendants’ claim of public interest privilege at this point.
He said the court could not adjudicate on the claim in the abstract and would need a description of the documents over which the privilege is claimed and may even need to inspect them.
In a separate issue, the judge refused Mr Buckley’s request for the imposition of a 2016 or 2017 cut-off date for documents he must submit as part of the discovery process. Mr Buckley must disclose all documents up to the point Mr Brophy and Mr O’Reilly first threatened to sue him in March 2020.
The case will be mentioned before the court in January.
