Two inspectors investigating certain matters at INM are still gathering information, have made no findings and the bid by former INM chairman Leslie Buckley to have them withdrawn is "deeply flawed", the High Court has been told.
The inspectors reject Mr Buckley’s claims of objective bias in their investigation or that they have a mindset unfavourable to him, Cian Ferriter SC said.
The inspectors are engaged in a "preliminary sifting through" of evidence concerning thousands of documents and Mr Buckley effectively wants the court to "look over their shoulders" during that process, he said.
Mr Buckley’s complaints include that the inspectors had not, in their “draft working statement” concerning evidence in various modules, set out his core evidence he knew nothing about the alleged search of data of 19 people, counsel outlined.
Mr Buckley has complained the inspectors’ draft statement omits evidence as to the origin of the 19 names of “persons of interest” and gave “almost no consideration” to the relevance of the 19 names and to detailed evidence of businessman Denis O’Brien – formerly a major shareholder INM – rejecting the suggestion the list could represent an “anti-Denis O’Brien list”.
The content of the draft statement blew those and other complaints by Mr Buckley “out of the water”, counsel said.
One of the inspectors, Richard Fleck CBE, has said in an affidavit the draft statement on data interrogation included Mr Buckley's explanation of the reasons why a search of certain data was initiated; how Dublin-based cyber-security consultant Derek Mizak, a shareholder in the firm DMZ IT, identified the names of 19 "persons of interest"; Mr Buckley's lack of knowledge of the search of the 19 persons of interest and Mr O'Brien's lack of involvement in the data search.
Mr Fleck said the draft statement included that Mr Mizak had told the inspector the names on the schedule came about because, having searched the mailboxes of four individuals originally named, Mr Mizak identified other individuals whom he thought might be “of interest”.
19 individuals
It also included that Mr Mizak had denied the 19 individuals had been identified because they were known to have taken positions, or been involved in, matters adverse to Mr O’Brien. Mr O’Brien’s evidence that he knew some of the 19 names on the list but not all, and would not have regarded it as a list of persons with interests adverse to him, was also included.
Mr Ferriter said the inspectors accept Mr Buckley had identified a small number, about three or four, actual errors in their draft statement which would be corrected.
Those errors could not support the “radical” allegation of objective bias against the inspectors and his application for their withdrawal/recusal was “deeply flawed, legally and factually”.
Mr Buckley had accused the inspectors of not properly summarising evidence and omitting objective facts but Mr Buckley himself was “guilty of absolutely those matters” and there was “a repeated trend of crying wolf” on Mr Buckley’s part, counsel said.
Mr Ferriter was making submissions in the continuing hearing before Mr Justice Garrett Simons of Mr Buckley's application for orders to have the inspectors withdrawn or directing they recuse themselves from the investigation.
The High Court appointed Mr Fleck and Seán Gillane SC as inspectors in September 2018 on the application of the Director of Corporate Enforcement (ODCE), following the latter's year-long investigation into matters raised in protected disclosures made in 2016 and 2017 by former INM chief executive Robert Pitt and former INM chief financial officer Ryan Preston.
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 in what Mr Buckley, who stepped down as INM chairman in March 2018, has said was a cost-cutting exercise called Operation Quantum.
In his application, Mr Buckley has claimed the inspectors' presentation of evidence exhibits a "pattern of error" in a way "unfairly adverse" to him and "unfairly favourable" to his "accusers", especially Mr Pitt.
Collective draft statement
His complaint centres on a collective draft statement circulated by the inspectors to him and others. That comprises five draft statements, entitled Relevant facts and evidence, in five modules – INM's sale of its shareholding in APN News and Media Ltd; the data interrogation; the proposed acquisition of Newstalk Ltd; INM's handling of the protected disclosures and communications between Mr Buckley and Denis O'Brien.
In an affidavit, Mr Buckley has denied all allegations of wrongdoing against him in relation to the affairs of INM. He said those allegations impugned his personal integrity “in the most serious way, accusing me, in effect, of attempted fraud on a company to which I feel I have provided long, loyal and substantial service”, he said. He denied “wholeheartedly” he had ever preferred the interests of Denis O’Brien to those of the INM shareholders as whole.
The hearing continues on Friday.
