Businessman Denis O'Brien and two companies are to be given certain documents used in the State corporate watchdog's application for the appointment of inspectors to investigate an alleged data breach and other matters at Independent News & Media, the High Court has directed.

Owen O'Sullivan, of William Fry solicitors, for Mr O'Brien, Island Capital Management Ltd and Blaydon Ltd, said the documents were necessary so the Fry clients would know what, if any, allegations are made against them and to ensure "effective" cross-examination of certain individuals who have given evidence to the inspectors.

The documents were also necessary to enable the Fry clients to make detailed submissions and to protect their rights to fair procedures, he said in an affidavit.

Witnesses associated with the applicants have given evidence in the investigation and have fully co-operated and actively engaged with the inspectors, he said.

The inspectors indicated last November they would seek further evidence from various people and had provided five draft statements of relevant facts and evidence and invited submissions from the Fry clients on those, he said. As well as 10 transcripts of evidence from the Fry clients, the inspectors provided 35 transcripts of evidence from various people.

Relevant material

All this material indicated there was a whole range of documentation available to the inspectors and relevant to the Fry clients that those clients do not have, he said.

On February 5th last, the inspectors, at the request of various parties, had said cross-examination of witnesses would be allowed. The Fry clients had written on February 14th seeking to cross-examine named individuals and reserved the right to supplement that list if further information became available. That letter stated the Fry clients were at a disadvantage in not having access to documents that are available to other parties and their right to an effective cross-examination would be impeded if they did not have the documents.

Mr O’Sullivan also noted certain documents were previously provided to several parties involved in the investigation.

In seeking the documents production order on Wednesday, Michael Cush SC, with Shelley Horan BL, for the applicants, told High Court president Mr Justice Peter Kelly the ODCE had raised an issue on whether Blaydon was entitled to the documents. As Blaydon is a wholly owned subsidiary of Mr O'Brien's, he was not sure there was "any reality" to that issue, counsel said.

Catherine Donnelly BL, for the ODCE, said matters had moved on in the investigation and it was not clear whether all three applicants were entitled to the documents but her side was in the court's hands concerning the matter.

Caren Geoghegan BL, for INM, said if the court directed the documents be provided, that could be done by INM via a USB key within 48 hours.

The production order should provide, in line with similar production orders, that the documents could only be used for the purpose of the investigation, she added.

Judge satisfied

Mr Justice Kelly said he was satisfied the applicants should be provided with copies of affidavits and exhibits that led to the September 2018 court order appointing Sean Gillane SC and Kieran Fleck CBE as inspectors to INM. The production order is subject to the applicants undertaking that the documents will be used solely for the purpose of the inspectors’ investigation, he added.

The director of corporate enforcement Ian Drennan initiated the application 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.

In September 2018 Mr Justice Kelly ruled the ODCE had provided evidence that “well justified” inspectors being appointed. He said that a number of “disquieting” issues included the alleged removal from INM, and interrogation, of the data of 19 people, including journalists, former INM employees and executives and two senior counsel for the Moriarty tribunal.

The inspectors are also investigating the circumstances surrounding the proposed acquisition by INM of Newstalk 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. Neither of those payments proceeded.