Monday 24 October 2016

Dearbhail McDonald: 'Mystery client' could be unmasked yet with O'Brien and Red Flag facing long road ahead

Published 22/12/2015 | 02:30

Denis O'Brien. Photo: Bloomberg
Denis O'Brien. Photo: Bloomberg

If the litigation between businessman Denis O'Brien and Dublin PR firm Red Flag were a movie, it would have more twists and turns than a bag of pretzels.

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Yesterday, Red Flag (company motto: 'Make the First Move') secured a not-insignificant win when the High Court ruled that it doesn't have (for now, at any rate) to reveal the mystery client for whom a dossier of material was compiled.

The dossier contained some 80 documents about Mr O'Brien that the businessman claims are defamatory and evidence of a conspiracy to damage him. The Digicel founder received the dossier on an anonymous USB memory stick in an envelope at his Dublin office on October 8 last.

Within days, and following an expert analysis of the USB memory stick by Espion, a Dublin-based IT firm, Mr O'Brien went to the High Court seeking orders to freeze and seize Red Flag's computers and records, including those belonging to its chairman Gavin O'Reilly. Mr O'Reilly is the former CEO of Independent Newspapers (publishers of the Irish Independent) where Mr O'Brien is currently the single largest shareholder.

Mr O'Brien failed to secure an Anton Piller order, in effect a civil search warrant. But he did secure powerful court orders to inspect and create forensic images of certain devices held by various Red Flag executives and staff.

Red Flag subsequently confirmed that it did indeed have a client. But it refused to reveal the client's identity - stating that it had a duty of confidentiality which would be irreversibly damaged if exposed.

This prompted Mr O'Brien to seek further court orders to unmask the mysterious party. The application was unusual as it was brought at the interlocutory or very early stage of the proceedings, but is by no means unprecedented.

Irish judges do have discretion, in appropriate cases, to compel identities of John and Jane Does where there are suspected concurrent wrongdoers. So it's possible to compel identities, even early on.

The task of assessing where the balance lay - Mr O'Brien's desire to unmask the identity of the alleged (mysterious) wrongdoer versus Red Flag's duty of confidentiality - fell to High Court judge Mr Justice Colm Mac Eochaidh.

Judge Mac Eochaidh and Mr O'Brien's paths had in fact crossed two years ago when Mr O'Brien took a legal action against 'The Sunday Times' in which Mr O'Brien argued that irreversible harm would be caused to him if certain financial details were published.

Mr O'Brien succeeded, then, in securing a temporary injunction against 'The Sunday Times'. But it was a similar assertion of irreversible harm (as alleged by Red Flag) that helped shape Judge Mac Eochaidh's refusal of Mr O'Brien's identity disclosure request.

Yesterday, minutes before Judge Mac Eochaidh's ruling, Red Flag's counsel Michael Collins SC introduced a new twist. This was when the lawyer alerted the court to details of a forensic IT report commissioned by Red Flag. The report by international investigators Stroz Freidberg raised concerns that the anonymous memory stick had been modified - after Judge Mac Eochaidh made an order for the device to be secured.

Judge Mac Eochaidh said the latest IT report (which may or may not be significant) would not affect his decision and proceeded to rule that the law required Mr O'Brien to establish a very high degree of wrongdoing on the part of the person he wanted to identify and was obliged to show he will suffer irreversible harm unless Red Flag disclosed the name of its client. The bar was set high: Mr O'Brien would have to have a very strong case, "almost to the point of certainty", that wrongdoing had been committed against him. Judge Mac Eochaidh said that Mr O'Brien had not proved that the dossier had been published, a necessary element for defamation.

The judge also ruled Mr O'Brien hadn't proved that harm had been done to him and hadn't proved that the motivation of the mystery client was to do harm to him.

But there is a long road to travel for both sides and Mr O'Brien may ultimately win the right to unmask the mystery party, thus ensuring more twists and turns as this fascinating case proceeds.

Irish Independent

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