High Court: Leslie Buckley fails in bid to remove inspectors from INM investigation

Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 101
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

It had been contended that certain draft statements contained “errors” in the manner in which evidence was presented. As such, Mr Buckley said that the documents raised a reasonable apprehension of bias on the part of the inspectors, and they should be removed. Giving his judgment on Monday, Mr Justice Garrett Simons rejected the assertion that the draft reports raised the issue of objective bias and dismissed the application.

Background

In 2018, the then-President of the High Court, Mr Justice Peter Kelly, granted an application brought by the Director of Corporate Enforcement to appoint two inspectors into the affairs of INM. The investigation was to cover four topics, namely: the proposed acquisition of NewsTalk, market abuse regulations, data interrogation irregularity and the dealings of an independent review board.

Mr Buckley was the chairman of INM until March 2018 and was heavily linked to allegations of wrongdoing or impropriety in his management of the company.

The two inspectors appointed by Mr Justice Kelly were Mr Sean Gillane SC and Mr Richard Fleck CBE. In late 2019 and early 2020, the inspectors delivered five draft statements which provided a narrative about the core matters in issue in the case. It was noted by the inspectors that there was no real dispute as to the evidence in the case, although the parties were invited to identify any errors in the statements.

Further, each statement contained the caveat that the documents were summaries of the evidence and that no conclusion had been reached by the investigators in relation to disputed evidence.

Mr Buckley was not satisfied by the contents of the draft statements, claiming that the investigators had engaged in a consistent pattern of misstatement and misrepresentation of the evidence. He called upon the investigators to recuse themselves and, when they refused, he brought an application in the High Court seeking their removal.

High Court

In the High Court, Mr Justice Simons considered the allegations of bias which were being alleged by Mr Buckley. It was noted that Mr Buckley was not making the case of actual bias against the inspectors. Rather, it was alleged that the mistakes and errors which were made by the inspectors in the draft statements were of such significance that it would give rise to the reasonable apprehension of bias from an objective person. As such, the application was based upon objective bias.

The court also said that it was important that Mr Buckley stopped short of saying that the inspectors had made any predetermination in the case.

The judge said that Mr Buckley’s arguments were made difficult by the well-established line of case law which said that bias could not be inferred from a pattern of erroneous behaviour. Considering the principles derived from O’Callaghan v. Mahon [2007] IESC 17, the court noted that Mr Buckley was required to show “the existence of something external” to the decision-making process which grounded a claim of bias. The court said that Mr Buckley failed to point to any external factor which showed bias on the part of the inspectors.

Further, the court referred to the case of A.P. v. Judge McDonagh [2009] IEHC 316, in which Mr Justice Frank Clarke (sitting in the High Court) said that different considerations applied where prejudgment is alleged by a party. The court said that the A.P. case was not relevant to the present proceedings because, in that case, the court had ruled that predetermination could not be inferred from the decision and behaviour of the decision-maker. Again, “something more is required,” the court said. In the present case, Mr Buckley had adduced no evidence beyond the alleged errors in the statements to indicate bias on the part of the inspectors.

The court also pointed out that Mr Buckley never in fact claimed that the inspectors had engaged in predetermination of any of the issues contained in the statements. The court said this concession was well made in light of the fact that the inspectors had invited comments on the draft statements and indicated that revised versions would issue to correct any errors.

Mr Justice Simons held that he would not engage in a detailed examination of the draft statements because this would infringe the principle in O’Callaghan that objective bias could not be inferred from errors in a decision. However, the court noted Mr Buckley was essentially seeking “a root and branch examination of the inspectors’ work to date, including examining literally thousands of pages of transcript evidence”.

Considering the judgment of Mr Justice Nial Fennelly in O’Callaghan, the held that it was inappropriate to conduct a detailed examination of the statements because it would usurp the role of the inspectors in the case. It was noted that the investigation was still at an early stage, with cross-examination still to take place. A review of the documents required the court “descending into the arena and assessing the very issues which the inspectors were appointed to inquire into”.

Conclusion

In light of the court’s findings, the court refused to remove the inspectors from the investigation. The court said that the default position was that the inspectors were entitled to their costs against Mr Buckley.