The president of the High Court has ruled that Leslie Buckley, who is to step down shortly as chairman of Independent News and Media, is entitled to privilege over 10 documents concerning the preparation of his response to the State corporate enforcer’s investigation of a whistleblower complaint,
Mr Justice Peter Kelly was given the documents in a sealed envelope last month and asked to read them to consider the privilege claim.
That procedure was agreed to by lawyers for the Office of the Director of Corporate Enforcement who in August 2017 issued a letter requiring Mr Buckley to discover a range of documents.
Following a review of documents dating back two years, Mr Buckley provided 275 documents but claimed privilege over 11 of those. Some of the documents were prepared in advance of a statement that INM was issuing, the court previously heard.
Mr Buckley had said the 11 documents were privileged because they related to legal and technical advice sought for preparation of his response to the Director’s statutory requirements, made both of himself and INM, in the context of its investigation.
The ODCE has not seen the documents but his lawyers indicated, if they were what Mr Buckley said they were, the privilege claim was not disputed.
In his judgment on Tuesday, the judge held 10 of the 11 documents over which privilege was claimed attracted either litigation or legal advice privilege.
The only document which did not attract privilege was the Director’s own letter of August 11, 2017.
The privilege claim concerning that arose only because it was attached to another document, an email to Mr Buckley from his solicitor Kieran Furlong relating to the ODCE letter.
Mr Justice Kelly said that email, along with other emails exchanged between Mr Furlong, Derek Mizak - Mr Buckley’s IT expert - and Mr Buckley were all privileged because they concerned the preparation of Mr Buckley’s response to the ODCE’s requirements.
The ODCE sought documents from Mr Buckley as part of its investigation of a whistleblower complaint made by Robert Pitt, INM’s former chief executive, against Mr Buckley arising from an aborted bid for Newstalk. Mr Pitt’s complaint to the ODCE also prompted INM to launch an independent review last December.
Mr Buckley represents INM’s main shareholder, Denis O’Brien, who also owns Newstalk, the valuation of which sparked the original dispute between Mr Pitt and Mr Buckley.
Since the ODCE began investigating the INM-Newstalk aborted deal, its inquiry has widened to take in the handling of a “potential personal data breach” at the company.
The High Court case is between the ODCE and Mr Buckley, represented by his own lawyers, and does not involve INM which previously said it has “co-operated fully in supplying the ODCE with all the information it has requested”.
The ODCE put questions to Mr Buckley last August about the involvement of a British security company, Trusted Data Solutions UK. The ODCE has asked Mr Buckley to explain who gave TDS access to INM's internal IT system, who paid for it, what benefit INM received, and the names of others able to help the ODCE’s inquiries.
Mr Buckley has told the ODCE access to the IT system was granted to TDS, which has its European headquarters in Cardiff, as part of a “cost reduction exercise” at INM.