Lawyers for the State's corporate watchdog have said the challenge by INM to the decision to apply for inspectors to be appointed to the company, should clearly fail.

The High Court was told that INM wanted matters to be "whittled down" before they went to court because there were matters it would prefer the public did not hear.

INM says the Office of the Director of Corporate Enforcement (ODCE) began its investigation into the company in January 2017. 

And it claims it should have been notified of the Director's concerns and given an opportunity to respond before he made his decision in March this year, to go to the High Court and ask for inspectors to be appointed.

But lawyers for the Director said arguments made by INM were false, absurd and an illusion. Senior Counsel Brian Murray said INM's case was "unstateable" and should clearly fail.

Mr Murray said INM was submitting that the application to court for inspectors was the final step in a process.

But he said after the application was made, the court would take several more steps before a hearing was then conducted in public. 

He said INM's lawyers had used the word "transparency" a lot.  But transparency was not simply a matter between INM and the ODCE - it also applied to the public. 

Mr Murray claimed INM wanted the matters in issue to be "whittled down" because there were matters it would prefer the public did not hear, as the "wrong conclusions might be drawn". 

He said the whole purpose of the procedures put in place by the Oireachtas, did not provide for an entitlement to be consulted before proceedings like these were brought.  Fair procedures were accommodated through the ample rules of the court.

Mr Murray said INM was making many submissions in relation to the consequences of the Director's decision, including the damage to INM's reputation. 

But he said it seemed the number of facts in dispute were relatively few. 

And he said the argument being made by INM suggested that there should be a special rule for public limited companies, whose share price would be affected by such proceedings. 

These companies were among the largest and the best resourced in the state, he said.

Mr Murray said the court had never been told why the fact that the Director's decision followed a process of compulsorily obtaining information imposed an obligation on the Director to consult INM, when such an obligation did not apply in other cases.

Mr Murray submitted that any state body bringing proceedings pursuant to a statutory power bases their case on assertions of fact or law.

He said these facts or opinions are presented to the court to allow the court to make findings. He said INM was describing the position adopted by the ODCE in his affidavit as if it was a report with findings or conclusions and claiming it therefore had a right to make submission.

This, he claimed, demonstrated the falsity and absurdity of the arguments being made.

He said INM seemed to be arguing that the affidavit should have been shown to INM before being submitted to court. And he asked where would this end.

He said the Oireachtas had not imposed any obligation on the ODCE to give prior notice of making an application to have inspectors appointed.

He said the company could put whatever evidence it liked before the High Court in response to the ODCE's application.

If INM was correct he said, it would introduce remarkable pre conditions on the right of public bodies to litigate in court. 

And he said it would raise fundamental questions about the entitlement of the court to administer justice in public in accordance with the law. 

He said if INM was correct, it would be impossible to structure a functioning system of justice other than one which operated entirely in private.

The fact that litigation might cause embarrassment or inconvenience or even damage was not a sufficient reason to impose an obligation on the plaintiff to consult beforehand.

Lawyers for the ODCE have said it was absolutely wrong of INM to come into the High Court and say the ODCE owed them a duty to tell them what had happened in their own company.

Brian Murray said it was "very curious" that INM claimed it had been deprived until March, of information casting doubt on the explanation given by former Chairman, Leslie Buckley for the removal of data from INM in 2014.

Yesterday, INM lawyers told the court the board had no evidence to suggest Mr Buckley’s explanations as to why servers were removed were inaccurate or misleading.And they said it would have been extraordinary for the board to have accused the chairman of something without evidence.

Mr Murray told the court INM director Dr Len O'Hagan had put this in "very strident terms" in his sworn document. He said INM had claimed the ODCE's decision to apply to have inspectors appointed came as a bolt from the blue.

But Mr Murray said solicitors for whistleblower and former Chief Executive Robert Pitt had written to INM in August 2017, raising concerns and queries about the removal of data and asking the board to meet to discuss these concerns. 

As a result, Mr Murray said INM knew Mr Pitt was saying he had been told that data had been exported from the jurisdiction and interrogated, that the people who did that were independent third party contractors not employed by INM, that the data had been searched in relation to certain people - former directors and employees, that Mr Pitt was saying this had been done for the benefit of a third party, under severe pressure from Mr Buckley, that it had been done in such a way so as to ensure others in INM would not be aware of it, and that a company associated with INM's majority shareholder, Denis O'Brien, had paid for it. 

Mr Murray said the statement that nothing had been identified that could have led the board of INM to believe that Mr Buckey's explanations for what happened were not true, was questionable "at least". 

Mr Murray told the court that based on the information that had now been obtained, it would appear that Mr Pitt was right and that Mr Buckley was wrong about this issue.  

He said that if this was correct and if this meant that the board had been misled about this, there was the prospect that Mr Pitt was right and Mr Buckley was wrong about other issues including the proposed acquisition of Newstalk by INM.

Mr Murray said there was an obvious thread running through all the issues, and they all went to the heart of crucial issues of corporate governance. 

Mr Murray also told the court that the Data Protection Commissioner had been told by INM that data had been accessed for a limited business purpose. But he said the Commissioner had not been told that someone outside the company had paid for this. He asked why it was that someone else would pay the cost of the company's data being interrogated and what right this would give the person over the exercise. 

Mr Murray said INM knew the information, they say should have been given to them, before the application for inspectors, was obtained in an ongoing investigation where one of the people at the centre of the investigation remained chairman of the board.  And this was at a time where one of the concerns was that information was being shared on an ongoing basis outside the company. 

Mr Murray said many of the facts put forward by the ODCE had not been disputed. He asked how INM could say its share price had been diminished by the ODCE bringing a court application in which things that were true, or not disputed had been disclosed. 

Lawyers for INM rejected the criticisms by the ODCE. Senior Counsel, Paul Gallagher said no reasonable explanation had been given as to why a spreadsheet with the names of 19 people whose data was interrogated, was not given to INM before the decision to apply for inspectors was made. 

He said INM took the concerns raised by Mr Pitt very seriously.  All of the relevant people were interviewed and the ODCE was informed of this at the time. He said the company was in a difficult position because of a very serious issue between the then CEO, Mr Pitt and the then Chairman Mr Buckley. 

He said the company did not have the spreadsheet at the time and the evidence available to the board did not justify taking the "enormous step" of challenging the explanation given by Mr Buckley in relation to the data removal. There was speculation he said, which the company did its best to investigate but it did not have this very important piece of evidence. 

Mr Gallagher said what INM was looking for was not elaborate, it was not a major imposition, it was not opening floodgates.

Mr Justice Seamus Noonan has reserved his decision. 

Separately, during the hearing an issue arose as to whether sworn documents and exhibits referred to during the proceedings could be given to the media.

Lawyers for INM said they had no concerns about this and had already made their affidavits available to the media.

After taking instructions, lawyers for the ODCE told the court that the Director had a concern about third parties and about the ODCE acquiescing in the distribution of documents.

However, Mr Murray said that should the court make a direction in relation to the matter, they would have no problem with that.

Mr Justice Noonan said it seemed to him that any affidavits sworn in these judicial review proceedings were now in the public domain.