Sunday 4 December 2016

Application for stay on an order allowing forensic imaging of material on devices used by Red Flag employee has been resolved, Court of Appeal hears

Tim Healy

Published 14/01/2016 | 17:56

Red Flag CEO Karl Brophy
Red Flag CEO Karl Brophy

AN application for a stay on an order allowing forensic imaging of material on a phone and personal devices used for work by an employee of a consulting firm being sued by businessman Denis O'Brien has been resolved, the Court of Appeal heard.

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Red Flag account manager Brid Murphy had sought a stay, pending appeal, on the imaging order after the High Court refused to grant a stay.

The matter was briefly mentioned today before the President of the Court of Appeal, Mr Justice Sean Ryan, who was told the stay application had been “resolved” and could be struck out. No details of the terms of the resolution were given.

Ms Murphy’s full appeal against the imaging order remains fixed for hearing on October 17 next.

At the High Court last November, Mr Justice Colm MacEochaidh ordered various executives and staff of Red Flag to hand over for "forensic imaging" any personal computers and devices used by them for work purposes.

The orders were made against Red Flag, its CEO Karl Brophy, Seamus Conboy, Gavin O'Reilly, Brid Murphy and Kevin Hiney.

The order allowed digital forensic experts photograph material on the equipment pending a ruling whether that material can be inspected for use in Mr O'Briens' action against Red Flag and various of its executives and staff alleging defamation and conspiracy.

No date for the hearing of that action has been set but it is due before the High Court later this law term for case management purposes.

When making the imaging order, Mr Justice MacEochaidh said it would balance the rights to privacy of the individuals and Mr O’Brien’s

right to establish the “fingerprints” on a dossier of material sent to him anonymously last October.

Mr O'Brien claims that material is largely unfavourable to him and he believes Red Flag was involved in putting it together for an unnamed

client.

He claims the material - comprising some 80 media stories about the businessman and documents entitled "Who is Denis O'Brien? and "The Moriarty Tribunal Explainer" - is evidence of a conspiracy to harm him.

Red Flag has confirmed to the court it had a client for the dossier but it refused to name the client.

Last month, the judge dismissed Mr O'Brien's application for an injunction compelling the firm to identify its client now. Mr O'Brien

said he wanted that injunction because he wants to joint that client to the action against Red Flag for alleged conspiracy and defamation.

Red Flag argued there was no legal basis for that injunction, it has a duty of confidentiality to its client and its business would be

irreversibly damaged if it had to disclose a client's identity.

Mr Justice MacEochaidh found the Irish courts can make such identification orders but applicants for such orders must provide, to

a high degree of certainty, evidence of wrongdoing on the part of the alleged wrongdoer.

Mr O'Brien had failed to produce such evidence and had also failed to establish there was publication of the dossier material such as to

warrant the injunction.

Another reason for refusing the injunction was because lawyers for Mr O'Brien said they believed they could also get the client's identity

through the normal High Court process of discovering documents for a full hearing, he noted.

The judge also said he did not case to be urgent but was prepared to case manage it in January or February.

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