Sunday 23 April 2017

Businessman O'Brien wants urgent hearing of appeal into Red Flag dossier

Businessman Denis O’Brien. Photo: Collins Courts
Businessman Denis O’Brien. Photo: Collins Courts

Aodhan O'Faolain

Businessman Denis O’Brien wants an urgent hearing of his appeal aimed at establishing the identity of a client who commissioned a dossier of allegedly defamatory material about him.

However, the President of the Court of Appeal, Mr Justice Sean Ryan, indicated it may not be possible to fix a hearing date this year.

Mr O’Brien has appealed refusals by the High Court to require Red Flag Consulting discover documents which would disclose the client's identity or concerning publication of the dossier.

The High Court said Mr O'Brien had failed to show knowing the client's identity was relevant and necessary for his case or could advance his claim Red Flag's "predominant motive" in compiling the dossier was to harm him.  

The businessman has said the dossier, comprising mainly media reports but also including documents entitled: “Who is Denis O’Brien?” and “Moriarty Tribunal Explainer”, was on a USB memory stick in an envelope put anonymously on his desk at his Dublin offices in October 2015.  

Red Flag has said the dossier included its material and it is entitled to keep the client’s identity confidential. It denies defamation or conspiracy and has also raised issues about how Mr O’Brien got the dossier.

A hearing date for the action against Red Flag and some of its executives and employees has yet to be set.

On Monday, Michael Cush SC, for Mr O’Brien, said his side's appeal over the discovery matters was urgent for reasons including there is a maximum two years to bring defamation cases and he needed to know the identity of the client to consider whether to sue that person as well as Red Flag.

He disputed the appeals related to a “speculative claim” against the client and asked for either a priority hearing date for the appeal or, alternatively, a split appeal with an initial hearing on the core issue whether Mr O'Brien was entitled to documents disclosing the client’s identity.

Opposing the application, William Abrahamson BL, for Red Flag, argued Mr O’Brien wanted to “skip the queue” to potentially bring a claim against the client if the latter is identified and that was neither a fair nor appropriate use of the court’s limited resources.  Mr O’Brien cannot prove publication and was unable to say when the two year period should run, counsel added.

Mr Justice Ryan said he could not grant a priority hearing for reasons including pressures on the court’s lists and whether this matter was entitled to priority over others.

He was also “a bit doubtful” that, as Mr Cush suggested, a hearing of one issue concerning the client's identity would finish in an hour.

Splitting the issues would not assist, he said. The best he could do was bring the appeal forward from the June listing to fix hearing dates, where it was previously listed,  to the April 27th list to fix dates.

There was no guarantee the appeals would get an early hearing as other litigants were also anxious to get their appeals on, he stressed.  "A few more judges” would help, he added.

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