Thursday 27 October 2016

Businessman Denis O'Brien loses High Court bid to reveal Red Flag mystery client

Tim Healy

Published 21/12/2015 | 15:22

Denis O’Brien
Denis O’Brien

Denis O'Brien has failed to get an injunction requiring the identification of a client of a public relations firm the businessman claims is behind a conspiracy to damage him.

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He sought the order against Dublin-based Red Flag Consulting over a dossier of material which shows the alleged conspiracy.

The dossier, contained on a USB computer memory stick,  was sent to him anonymously in his Dublin offices last October.

Mr O'Brien initiated proceedings against Red Flag and various executives and staff, including CEO Karl Brophy.

During some ten court applications, he got orders including to image and preserve material on devices of Red Flag pending further hearings.

Earlier this month, he sought an injunction compelling the firm to identify its client because he wants to join that client to the action.

Red Flag argued there was no legal basis for that injunction, that it has a duty of confidentiality to its client and its business would be irreversibly damaged if it had to disclose the identity.

In his judgment Monday (Dec 21), Mr Justice Colm MacEochaidh found the Irish courts can make such identification orders but on conditions,including applicants for such orders providing evidence, to a high degree of certainty, of wrongdoing on the part of the alleged wrongdoer.

Mr O'Brien had failed to produce evidence which showed, to that degreeof certainty, any wrongdoing by the client justifying such an order, the judge said.

While it was claimed the alleged conspiracy affected his reputation for philanthropic activity in Haiti and may have damaged the planned initial public offering (IPO) of his company Digicel, the evidence in that regard was insufficient to justify the injunction.

Mr O'Brien alleged conspiracy to damage him by both lawful and unlawful means but failed to provide evidence showing, to the extent required, he was harmed by the alleged conspiracy, the judge said.

An injunction based on the lawful means conspiracy  is  "a strange and novel tort in the 21st century" which damnifies people who do together what would not be unlawful if that was done apart, he said.  For Mr O'Brien to get that injunction,  he would have to show some evidence of the motivation of the unnamed client but failed to do so.

Nor had be established there was publication of the complained of dossier material to warrant the injunction. Without publication, there could not be defamation, he said

The contest was between Red Flag's desire not to breach a duty of confidentiality against Mr O'Brien's interest in getting information at this stage concerning the unknown client, the judge said.

Mr O'Brien knew "full well" how important confidentiality was having, in proceedings against the Sunday Times which came before the judge in 2013,  litigated his own right to confidentiality in relation to his banking affairs.

If confidentiality was to be removed, Mr O'Brien must show, to a point of almost certainty, he will suffer irreversible harm unless Red Flag court discloses the name of its client now, the judge said. He had failed to do so.

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.

The judge said there was insufficient evidence for him to decide whether there was, as Red Flag claimed, a lack of candour by the businessman concerning the nature and circumstances leading to his becoming suspicious of a campaign against him.

There was also insufficient evidence in relation to the nature of the investigation he had arranged to be conducted into the alleged conspiracy and the circumstances concerning the appearance of the USB memory stick, which contained the dossier, in his Dublin offices last October.

The businessman had denied any lack of candour.

While it might well the case, and the court believes, the "full story" had not been told about matters including the circumstances in which the memory stick appeared on Mr O'Brien's desk.

There may well be a "perfectly good explanation" for all of that, the judge said. He simply could not decide, based on the evidence, there was a lack of candour.

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