Independent News and Media (Motions) (Approved) [2021] IEHC 102 (15 February 2021)

NO REDACTION REQUIRED

APPROVED

[2021] IEHC 102

THE HIGH COURT

2018 No. 124 COS

IN THE MATTER OF INDEPENDENT NEWS AND MEDIA PLC

AND IN THE MATTER OF SECTION 748 OF THE COMPANIES ACT 2014

AND IN THE MATTER OF AN APPLICATION

BETWEEN

JENNIFER KILROY, HARRIET MANSERGH, JONATHAN NEILAN, MARK KENNY,

SAM SMYTH, ANDREW DONAGHER, AND SIMON MCALEESE

DONAL BUGGY, ANNEMARIE HEALY AND MANDY SCOTT

VINCENT CROWLEY

MOVING PARTIES

AND

THE DIRECTOR OF CORPORATE ENFORCEMENT

INDEPENDENT NEWS AND MEDIA PLC

LESLIE BUCKLEY

RESPONDENTS TO THE MOTIONS

JUDGMENT of Mr. Justice Garrett Simons delivered on 15 February 2021

INTRODUCTION

1. This supplemental judgment addresses a number of matters arising out of a judgment

delivered on 18 September 2020, In the matter of Independent News and Media

[2020] IEHC 385 ("the principal judgment"). The principal judgment granted a number

of individuals leave to use material, which they had received in the context of the within

proceedings, for the purposes of other proceedings. The material consists of affidavits

and exhibits which had been filed as part of an application to appoint inspectors to

Independent News and Media plc pursuant to the Companies Act 2014. I will refer to

these affidavits and exhibits as "the disputed material". The moving parties wish to use

the disputed material for the purposes of proceedings which they intend to pursue against

Independent News and Media plc and/or Mr. Leslie Buckley. These other proceedings

allege that an exercise, which involved the detailed examination or "interrogation" of

data held by the company, entailed a breach of the moving parties' rights, including, in

particular, their right to privacy. The proceedings will be referred to as the "proceedings

alleging breach of privacy" where convenient. It should be recorded that Mr. Buckley

disputes these allegations and intends to fully contest those proceedings.

2. The matters remaining to be determined by this court fall under two broad headings as

follows. First, it is necessary to address the precise form of costs order to be made in

respect of the applications the subject-matter of the principal judgment. Secondly, it is

then necessary to consider a number of additional applications for leave to use the

disputed material for other proceedings.

COSTS OF THE MOTIONS HEARD ON 28 JULY 2020

3. The principal judgment had been delivered in respect of three motions heard by me on

28 July 2020. The parties to these motions appear to be in broad agreement that the costs

of the motions should be borne by Mr. Buckley as the unsuccessful party. (The position

in respect of the costs of Mr. Vincent Crowley's motion is less clear-cut, with his

entitlement to costs being challenged in the written legal submissions). The parties are

in disagreement, however, as to whether a stay should be imposed on those costs orders.

Mr. Buckley submits that the costs should not be executed until such time as the other

proceedings, i.e. the proceedings alleging breach of privacy, in aid of which leave to use

the disputed material had been sought, are heard and determined.

4. If and insofar as it remains in dispute, I propose to address, first, the question of the

allocation of costs. The applications for leave to use the disputed material were made in

the context of existing proceedings pursuant to the Companies Act 2014, whereby the

Director of Corporate Enforcement had sought an order from the High Court appointing

inspectors to investigate the affairs of Independent News and Media plc ("the

Company"). As explained in the principal judgment, documentation in the form of

affidavits and exhibits had been exchanged in the course of that application. The

documentation had been furnished to interested parties, subject to a proviso that same

was not to be used other than for the purposes of the proceedings without the leave of the

court. The motions sought leave to use that material for the purposes of other

proceedings.

5. The motions represented stand-alone applications, in the sense that the sole issue to be

determined between the parties to those motions has now been finally decided by the

High Court (subject, of course, to any appeal). There will be no further hearing before

this court involving those parties. The applications should thus be characterised for costs

purposes as resulting in final orders, rather than interlocutory orders.

6. On this analysis, the parties who sought leave to use the disputed material for other

proceedings are prima facie entitled to an order for costs against Mr. Buckley. This is

because those parties have, for the purposes of Part 11 of the Legal Services Regulation

Act 2015, been "entirely successful" in their applications. Mr. Buckley is the

unsuccessful party in that he had opposed the applications by way of written and oral

submission.

7. It is correct, of course, to say that an application to court for leave to use the disputed

material would still have been required even had Mr. Buckley not opposed same. This

is because it was necessary, under the terms of the relevant court orders, to apply for

leave of the High Court to rely on the disputed material for any purposes other than for

the application to appoint the inspectors. Nevertheless, Mr. Buckley's stance in opposing

the motions had the consequence of increasing costs significantly. The Director of

Corporate Enforcement and the Company had not opposed the motions, and but for Mr.

Buckley's opposition, the matter could have been dealt with shortly and, possibly, even

on the basis of the papers alone. Instead, Mr. Buckley, as he was perfectly entitled to do,

resisted the applications. This had the consequence, however, that the costs incurred by

the other side in pursuing the applications were increased. I am satisfied, therefore, that

Mr. Buckley should have to pay the costs.

8. For the sake of completeness, I should say that even if I am incorrect in my

characterisation of the orders as final, as opposed to interlocutory, orders, the same result

would nevertheless eventuate. This is because it is clear from Order 99 of the Rules of

the Superior Courts (as amended in 2019) that the High Court, even on an interlocutory

application, must seek to determine the incidence of costs save where it cannot do so in

the interests of justice. This is consistent with the language of the Legal Services

Regulation Act 2015 which provides that the High Court may make an order for costs at

any stage of the proceedings. It seems to me, therefore, that even if characterised as

interlocutory orders, this court would be obliged to attempt to address the question of

costs. The position is clear-cut in that the other side was entirely successful in the

application, notwithstanding Mr. Buckley's opposition.

9. The next issue to be determined is whether some form of stay on the enforcement of the

costs orders should be put in place. Mr. Buckley submits that the execution of the costs

orders should await the hearing and determination of the other proceedings, i.e. the

proceedings against Mr. Buckley himself, in aid of which the documentation had been

sought.

10. With respect, I do not think that such a stay is necessary in the interests of justice.

Whereas a court will often impose a stay on the execution of costs pending the

determination of the proceedings within which the costs order has been made, it would

be most unusual to stay an order pending the determination of other proceedings. The

position in this regard has been stated as follows by the Court of Appeal in its judgment

in Permanent TSB v. Skoczylas [2020] IECA 152 (at paragraph 44 of the judgment).

"The principles discussed in [Godsil v. Ireland [2015] IESC 103,

[2015] 4 IR 535] apply to the execution of orders for costs and not

merely to the making of such orders. To hold otherwise would be to

fundamentally undermine the role of costs, and the function of costs

orders, in the administration of justice. The making of costs orders

would be an entirely hollow protection for successful litigants if such

orders were not, in general, immediately enforceable. A successful

party has a legitimate expectation that where costs are awarded in his

favour that he may take all lawful steps to recover those costs from

the unsuccessful party. Where it is sought to suspend that entitlement

by the granting of a stay, the onus clearly rests on the party seeking

such a stay to satisfy the court that it is in the interests of justice to do

so. Such stays are, of course, frequently granted pending appeal.

Such a stay has been ordered by this Court but the additional stay now

sought by Mr Skoczylas is quite different in nature and scope."

11. On the facts of Skoczylas, a stay had been sought on a costs order pending the

determination of other proceedings to which the party in whose favour the costs order

had been made was not involved. The primary reason advanced for seeking the stay was

that were the costs order to be executed it would, or so it was said, inevitably result in

the bankruptcy of the party against whom the order had been made. This, in turn, was

said to have implications for the ability of a company, in which the party against whom

the costs order had been made was the major shareholder, to pursue the other

proceedings. The Court of Appeal ultimately refused the application for a stay pending

the determination of the other proceedings.

12. As appears from the passage cited above, the test to be applied is whether the imposition

of a stay on a costs order is necessary in the interests of justice. For the reasons which

follow, I am satisfied that a stay is not necessary in the present case.

13. First, there has been no suggestion that a requirement to discharge the costs orders would

adversely affect Mr. Buckley's ability to finance his defence of the other proceedings.

The measure of costs will be relatively modest, consisting of the costs of a motion heard

before the High Court in less than half a day, together with the costs of written legal

submissions. This is not a situation where, for example, the requirement to meet a costs

order in a first set of proceedings would cause financial hardship for a party and inhibit

their ability to prosecute or defend, as the case might be, a second set of related

proceedings involving the same parties. In such a scenario, a court might well decide to

stay the execution of a costs order to ensure that the party's right of access to the courts

is safeguarded. This is especially so if there is a reasonable prospect that the party would

succeed in the second set of proceedings. It would be unjust if, for example, a party who

would otherwise have won the second set of proceedings were to be prevented from

pursuing those proceedings in consequence of having to pay a costs order obtained in

earlier, related proceedings.

14. Secondly, the connection between the issues arising on the motions heard on 28 July

2020, and the other proceedings, is remote. Even if Mr. Buckley were to be entirely

successful in defending the proceedings taken against him alleging breach of privacy,

this would not vindicate his opposition to the applications for leave to use the disputed

material. Those applications were determined primarily by reference to the fact that the

disputed material had already been the subject of a hearing in open court. The outcome

of the motions on 28 July 2020 did not turn on the merits of the breach of privacy

proceedings. Put otherwise, even if Mr. Buckley is entirely successful in his defence of

the proceedings alleging a breach of privacy, it remains the fact that he opposed the

motions on 28 July 2020 on grounds which were ultimately found by this court to be

unsustainable.

FURTHER APPLICATIONS FOR LEAVE TO USE DISPUTED MATERIAL

15. It is next necessary to consider two outstanding applications for leave to use the disputed

material in other proceedings, as follows.

16. The first application is brought by Mr. Joe Webb. Mr. Webb explains his role in the

Company as follows in his affidavit of 16 July 2020.

"3.

I am the former Chief Executive of the Respondent's Irish division

having held a number of senior management positions over almost

20 years with Independent News and Media plc. These senior

positions held across the period 2001 to 2010 were, inter alia, Group

Advertisement Sales Director, Deputy Managing Director and

Managing Director of Independent Newspapers Ireland Limited.

I held the post of Chief Executive - Island of Ireland - between the

years 2010 and 2013."

17. Mr. Webb goes on to explain that he is one of the so-called "INM 19". This is a reference

to nineteen individuals whose name appear on a spreadsheet discovered by the Office of

the Director of Corporate Enforcement as part of its own investigations, i.e. prior to the

appointment of the two inspectors by the High Court. This spreadsheet has been

exhibited as part of the affidavit of Mr. Ian Drennan sworn on 23 March 2018. The

precise purpose of, and genesis of, this spreadsheet is a matter which is currently under

investigation by the court-appointed inspectors.

18. Mr. Webb had been provided with the disputed material in April 2018, and had issued

proceedings both as against the Company itself and as against Mr. Buckley. At the time

the application for leave to use the documents came to be made, the proceedings had only

been served as against the Company not as against Mr. Buckley.

19. The application for leave to use the disputed material was not opposed by the Company

nor by the Director of Corporate Enforcement. Mr. Webb has confirmed that he is not

seeking a costs order as against either the Company or Mr. Buckley.

20. The position adopted by Mr. Buckley in response to Mr. Webb's application is that he

formally opposes same, but has nothing to add in terms of his opposition to that which

had been ventilated in respect of the earlier applications which resulted in the principal

judgment.

21. Applying the principles set out in the principal judgment, I am satisfied that it is in the

interests of justice that Mr. Webb also be given leave to use the disputed material for the

purpose of his proceedings as against the Company and Mr. Buckley.

22. Mr. Webb has a legitimate interest in the proceedings leading up to the appointment of

the inspectors, given his previous employment by the Company and the fact that he

appears on the INM 19 spreadsheet.

23. The next application to be considered is that of Mr. Godson. The solicitor acting for Mr.

Godson has sworn an affidavit grounding the motion. It is explained in the affidavit that

Mr. Godson worked as a journalist from 1985 to 2002, latterly at The Sunday Times and

that he then worked at Goldman Sachs, an investment bank, before starting a strategic

communications firm, Powerscourt, in 2004. Mr. Godson's name also appears on the

INM 19 spreadsheet.

24. The position taken by Mr. Buckley in response to Mr. Godson's application is similar to

that in the case of Mr. Webb's application above. Mr. Buckley is formally opposing the

application but does not seek to add to the submissions previously made.

25. Applying the principle set out in the principal judgment of September 2020, I am satisfied

that Mr. Godson too is entitled to use the disputed material for the purpose of proceedings

against Mr. Buckley and/or the Company.

CONCLUSION AND FORM OF ORDER

26. The precise terms of the orders to be made in respect of the three motions heard on

28 July 2020, and which are the subject of the principal judgment, have largely been

agreed between the parties, save in respect of costs. For the reasons set out herein, the

order will now provide that the moving parties in respect of each of the three motions are

entitled to recover their costs as against Mr. Buckley. The costs are to include any

reserved costs; the costs of the hearing on 28 July 2020; and the costs of written legal

submissions, if any, filed. Such costs to be adjudicated by the Office of the Chief Legal

Costs Adjudicator in default of agreement between the parties.

27. Mr. Webb and Mr. Godson are granted leave to use the disputed material (as more fully

defined in the order) for the purpose of their proceedings as against the Company and/or

Mr. Buckley. A costs order will be made in favour of Mr. Godson, in terms similar to

those outlined in the preceding paragraph (save that the date of the hearing is 6 October

2020). No costs order is made in respect of Mr. Webb's motion in circumstances where

he did not pursue an application for costs.

28. A stay will be placed on the costs orders pending any appeal to the Court of Appeal

and/or an application for leave to appeal to the Supreme Court. For the avoidance of any

doubt, the execution of the costs orders is not to be stayed pending the outcome of the

other proceedings taken against Mr. Buckley and/or the Company.

Result: Leave to use affidavits and exhibits for the purpose of other proceedings granted. No stay on costs order.

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