Independent News & Media will not appeal judicial review refusal

The application by the Director of Corporate Enforcement (ODCE) to have inspectors appointed has been fixed for hearing before the president of the High Court, Mr Justice Peter Kelly, on 10 July.

Last week, Mr Justice Seamus Noonan ruled INM’s fundamental proposition that INM had a right to be consulted before legal proceedings are instituted by a public body is “novel and unprecedented” and, as a matter of law, “cannot be sustained”.

If INM has an answer to the concerns raised by the ODCE, that may mean, when the application is actually heard, inspectors will not be appointed, he also said.

There was an important public interest in the functions performed by the ODCE, he said.

When the matter returned before the judge on Friday, he ruled that the costs of the judicial review application should be paid by INM.

Shane Murphy SC, for INM, had argued any order for costs should await the decision whether or not to appoint inspectors.

Counsel also suggested Mr Justice Kelly should decide the issue of the costs of the judicial review proceedings.

Those arguments were opposed by Neil Steen SC, for the ODCE. He said his client has been successful in the judicial review which had raised a separate and distinct legal issue from the application to appoint inspectors.

The ODCE had won the judicial review action and was entitled to its costs, counsel said.

Mr Justice Noonan said he could find no reason to depart from the normal rule of costs following the event – going to the winning side – and he awarded costs in favour of the ODCE.

While the action pending before Mr Justice Kelly was factually related, the cases were legally different, he said.

The ODCE application was initiated following its year-long investigation into matters at INM. That arose from protected disclosures by former INM CEO Robert Pitt and INM CFO Ryan Preston in 2016 and 2017.

ODCE Ian Drennan has said he wants inspectors to investigate a number of issues about which he has concerns.

The issues include an alleged data breach at INM over some months from October 2014; a proposed purchase by INM of Newstalk Radio from Communicorp, owned by INM’s major shareholder, Denis O’Brien; and a proposed fee payment by INM to Island Capital, also linked to Mr O’Brien. Neither the purchase nor payment proceeded.

In response to the bringing of the ODCE application in March, INM sought judicial review which, had it succeeded, would have prevented the application from being heard.

Aodhan O Faolain, Ireland International News Agency Ltd.