Former INM chairman loses bid to oust inspectors
Posted on 15th February 2021 at 21:27
Former Independent News & Media (INM) chairman, Leslie Buckley, has lost his bid to have High Court inspectors who are investigating allegations surrounding him removed from the company.
Following a judgment delivered on Monday morning, Mr Buckley faces a legal bill for his failed application to revoke the appointment of barrister Sean Gillane and UK corporate governance expert, Richard Flack. The judge said it appeared the inspectors were entitled to the legal costs against Mr Buckley but, if a different costs order was required, submissions on that should be made within two weeks and he would rule on the matter later, he said.
Separately, Mr Buckley has also been ordered to pay legal costs for several of the so-called INM19 cohort of individuals, whose personal data contained on INM’s servers was allegedly breached in an operation allegedly overseen by Mr Buckley, who has denied any wrongdoing.
The individuals have received court permission to use documents drafted by State investigators at the Office of the Director of Corporate Enforcement (ODCE), which detail the allegations in cases against INM and Mr Buckley, and have now won cost orders against Mr Buckley over his objections.
Legal sources suggest that costs for orders covered by the two judgments could exceed €500,000.
Mr Buckley had sought the revocation of the appointment of the High Court inspectors by suggesting they demonstrated “objective bias” against him in a draft copy of a report on their activities circulated in December 2019.
Mr Justice Garrett Simons ruled on Monday that Mr Buckley had failed to make out a case to support those claims.
He also found that asking the court to go through thousands of pages of evidence to assess the claims would amount to the court “trespassing on the role” of the inspectors and “second guessing” them.
Mr Buckley had alleged the inspectors’ draft statements showed a pattern in favour of evidence of former INM chief executive Robert Pitt and against that of Mr Buckley.
The inspectors, who were appointed by the High Court in September 2018, strongly denied objective bias.
In his judgment, Mr Justice Simons agreed with the inspectors that the revocation application was irreconcilable with existing case law on the proper scope of objective bias.
Outlining the background, the judge said a number of matters under investigation concerned allegations made against Mr Buckley by Mr Pitt. Mr Buckley refuted those allegations and challenged the credibility of Mr Pitt.
He said Mr Buckley had co-operated fully with the inspectors and acknowledged they had observed fair procedures in their dealings with him.
Mr Buckley had not alleged actual bias and had not alleged any predetermination by the inspectors, in the sense of reaching any fixed conclusions on their findings, he said.
That concession was “well made” as the inspectors had invited submissions on the draft statements and had since indicated they intend to issue revised versions of the draft statements, which would correct many of the errors in those complained of by Mr Buckley.
The judge said Mr Buckley’s entire case for revocation turned on the inferences which he claimed a notional reasonable observer would draw from the errors in the draft statements.
It was argued the distillation of extensive evidence into the draft statements must have entailed evaluation, consideration and assessment of that evidence, and this offered an important insight into the inspectors’ mindset.
Mr Buckley conceded errors were likely, even bound to occur, in the draft statements but attached great significance to what he characterised as “errors” in the presentation of the evidence, and alleged a consistent pattern of misstating and misrepresenting evidence in relation to him.
This, Mr Buckley argued, was so pronounced that a reasonable and fair-minded observer could not avoid having a reasonable apprehension the presentation of the evidence was the outcome of an intellectual process infected, even unconsciously, by a particular form of bias, an attitude of ill will towards him or goodwill towards his accusers.
This claim of objective bias ran into difficulties because of a well-established line of case law to the effect that bias may not be inferred from a pattern of erroneous decisions, the judge said.
Mr Buckley had not set out any “plausible” reason why the inspectors might have an attitude of ill will towards him and instead sought to reply on errors which occurred at an early stage of the process, before the inspectors reached any final determination.
This, under the case law, was “impermissible”.
The judge also described as “untenable” arguments by Mr Buckley that the court should draw inferences from the errors made.
A corollary of the principles that objective bias may not be inferred from legal or other errors made within the decision-making process is that the High Court should not embark upon a detailed examination of the draft statements, he said.
The inspectorate process was still at a relatively early stage and it was envisaged there would be further oral evidence and cross-examination of witnesses by interested parties, he noted. For the court to do what Mr Buckley sought would involve trespassing on the inspectors’ role.
Mr Buckley’s argument that some witness statements should be condemned by the court as erroneous for allegedly failing to highlight alleged inconsistent statements by Mr Pitt would require the court to consider issues of credibility which also trespassed on the inspectors’ role, he said.
On foot of those and other findings, he dismissed the application.
The Director of Corporate Enforcement (ODCE) sought the inspectors’ appointment following his office’s year-long investigation into matters at INM arising from protected disclosures made in 2016 and 2017 by Mr Pitt and former INM chief financial officer Ryan Preston.
Five issues being investigated include the alleged off-site interrogation in 2014 of the data of 19 individuals, including journalists and barristers, and Mr Buckley’s communication with Denis O’Brien as a major shareholder in INM.
The judgment on the issues surrounding the INM-19 was also issued by the same judge on Monday morning. A cohort of seven of the INM-19, represented by and including the solicitor Simon McAleese, had previously won the right to use the ODCE’s papers in claims against INM and Buckley. The papers include details of allegations that Mr Buckley oversaw an operation to secretly copy INM’s IT servers, with senior executives’ knowledge, and “interrogate” or search the servers for information on people, including 19 prominent individuals. Mr Buckley has denied any wrongdoing.
The judgment orders Mr Buckley to pay the costs for both sides in the dispute with Mr McAleese and his clients. The costs for this order will be lower than for the revocation application, but are still likely to push Mr Buckley’s overall bill arising from Monday’s judgments beyond €500,000.
Many of the INM-19 were represented in the case by barristers Hugh McDowell and Oisín Quinn, while Mr Buckley’s legal team included senior counsel Seán Guerin.
Separately, former chief executive of INM’s Irish division and an INM-19 member, Joe Webb, has also, arising from Monday’s judgments, the right to use the ODCE papers in any data privacy claims he brings. He did not seek costs. Another INM-19 member, Rory Godson, the former editor of the Irish edition of the Sunday Times, and now a public relations agent, also won the right to use the ODCE papers and was awarded costs.
Mr Buckley’s legal losses this week follow a finding earlier this month by the Data Protection Commission that INM, under Mr Buckley’s chairmanship, broke data privacy law in relation to its handling of events around the alleged secret data server “interrogation”.
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