Monday 26 September 2016

Denis O'Brien urges judges to order Red Flag to name client who ordered dossier

Published 08/12/2015 | 12:41

Denis O'Brien
Denis O'Brien

Businessman Denis O’Brien has urged a judge to order the Red Flag consulting firm to name its client for a dossier of material concerning the businessman which, he claims, is evidence of “very serious wrongdoing” and conspiracy.

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Michael Cush SC, for Mr O’Brien, said Red Flag has confirmed it compiled that dossier and has also confirmed it had a client for it. This was “clandestine” activity as the client clearly intended to remain anonymous, he said.

The dossier includes documents referring to “Ireland’s Berlusconi”, alleging Mr O’Brien used “philantrophy as a pr tool” and engaged in “blatant pr exercises in attempt to throw off the negative shroud of the Moriarty tribunal”, he said.

Those and other statements and documents amounted to an “extraordinary” body of evidence of conspiracy by both lawful and unlawful means, and defamation, counsel argued.

Mr Cush said the dossier also included a draft speech for Fianna Fail TD Colm Keaveney and forensic analysis of that showed Red Flag had suggested amendments to that speech. None of those amendments could have been intended for any other reason than to make people think less of Mr O’Brien, he said.

The fact Mr Keaveney had said he had not adopted those changes in the speech and had authored his own speech did not alter the nature of the defendants’ actions and the intention behind those, Mr Cush said. The proposed amendments and deletions showed the extent to which the defendants, on the instructions of their client, were prepared to go to try and denigrate Mr O’Brien.

Mr Cush said Red Flag had said its executives Karl Brophy and Seamus Conboy were acquaintances of Mr Keaveney and the speech was informally supplied in that context. It was his case the client intended the amended speech might be delivered under privilege in the Dail, counsel outlined. 

This case raised serious questions about free speech and the integrity of the democratic process and showed just how insidious the actions of the defendants and their client are, he added.

He was opening the application before Mr Justice Colm MacEochaidh for an order requiring Red Flag Consulting and various of its executives and staff to disclose the identity of its client for the dossier of material.

Mr O’Brien claims the dossier was supplied to him on a USB computer stick anonymously last October after he hired a private investigator to look into his belief of a conspiracy to damage him personally and professionally.

The dossier mainly contains media articles about Mr O’Brien and other documents, including one entitled “Who is Denis O’Brien?” and another entitled “Moriarty Tribunal Explainer”.

In arguments today, Mr Cush said some of the statements in the dossier were worse than those which previously led to Mr O’Brien securing defamation damages against the Irish Daily Mail.

Mr O’Brien is “often accused of suing too much” but in some of the Red Flag documents he is accused of “suing too little”, counsel said.

The dossier as a whole is evidence of conspiracy, both by lawful and unlawful means,  and aspects of that are defamatory, counsel said. “We have a serious case against a client whom, as we all suspected, has instructed the defendants to engage in this exercise”.

There was no denial in several affidavits for Red Flag that the primary objective of the material is to damage Mr O’Brien, counsel said. While there was a denial of conspiracy and defamation, there was no assertion of “just case” excuse.

It was not a defence for Red Flag to argue many of the documents were media articles already in the public domain or reiterated statements previously publicly made.

While Red Flag disputed the dossier as a whole or any part of it was defamatory and also denied conspiracy, there was,  apart from that “general denial”, no other suggestion of a defence or articulation of any of the classic defences to defamation.

Taken as a whole, it was “absolutely clear” the predominant objective of this dossier is to damage Mr O’Brien and injure his reputation, he said.

When the judge asked how can injury be caused by showing non-injurious benign material, counsel said the material is not benign and none of it is favourable to Mr O’Brien. There was also evidence, from the suggested amendments to Mr Keaveney’s speech, of attempts to secure publication of the material. 

The court should order disclosure of the identity of this client, he said. Red Flag had confirmed the material in the dossier was prepared  by Red Flag on the instructions of a client but said the client’s identity and their instructions are clearly confidential. Red Flag had also said the material was not compiled or authored due to any “grudge”.

It is also relevant that Red Flag is in the communications business and the court can reasonably infer it has been engaged in the complained of activity concerning Mr O’Brien for at least five months, counsel added. Mr O’Brien had been put on alert due to a pattern of inquiries from journalists over that period, he said.

The hearing continues.

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