Tuesday 27 September 2016

Several defamatory references to Denis O'Brien in dossier, High Court hears

Published 08/12/2015 | 19:33

Denis O'Brien
Denis O'Brien

DENIS O'Brien says an assertion that his use of his media and business interests mean he has "become Ireland's Berlusconi" is among several defamatory references to him in a dossier, the High Court heard.

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The claims came during the hearing of the businessman's application for an order identifying a client of the consultancy firm Red Flag who commissioned the dossier.  Silvio Berlusconi is an Italian media tycoon and former Italian prime minister.

Red Flag denies any involvement in defamation or conspiracy or that it published the dossier, which mainly comprises media articles but also includes documents entitled "Who is Denis O'Brien?" and "The Moriarty Tribunal Explainer".

Red Flag has also described as "entirely speculative" claims by Mr O'Brien against Gavin O'Reilly, a Red Flag non-executive director, including that Mr O'Reilly was an "active player and/or influence" in creating the dossier.

It has further claimed a “lack of candour” by Mr O’Brien about how he learned of the firm’s alleged dissemination of the dossier of material which he believes is part of a campaign "masterminded" by the unidentified client to damage him.

Mr O’Brien denies lack of candour but accepts a sworn statement by him last October may have incorrectly conveyed he learned from an investigation of Red Flag’s alleged involvement in dissemination of the dossier, his counsel Michael Cush said.

In the same statement, Mr O'Brien also said, "in addition, and during the course of this investigation.." he received an envelope anonymously containing a memory stick containing the dossier.

In a later sworn statement, Mr O’Brien said, arising from his belief of a campaign to damage him, he had hired chartered accountant John Whelehan, now working in Kiev, Ukraine, but formerly with accountancy giant PWC, to investigate publicly available material related to him and his businesses to see if the source of the suspected campaign could be identified.

He said he did not get a report from Mr Whelehan because, in the interim, he received the dossier anonymously on a USB computer memory stick in an envelope with no postmark received by him last October in his Dublin office. He presumed the envelope was discarded.

Mr O’Brien says a code to decrypt the stick was written inside the envelope and he learned from the dossier itself of Red Flag’s alleged involvement in the alleged campaign.

An allegation or suggestion by Red Flag he might have obtained the USB stick improperly was "entirely unsubstantiated" and would be relied upon by him to pursue punitive damages in this case.

If Mr O’Brien’s first sworn statement led Red Flag to believe it was from the investigation, rather than the dossier itself,  that he got his belief about Red Flag’s alleged dissemination of the dossier, that was incorrect and Mr O’Brien apologises for that, Mr Cush said.

Michael Collins SC, for Red Flag, said this matter was "not as simple" as Mr Cush outlined and he would address the claim of lack of candour is continuing arguments before Mr Justice Colm MacEochaidh on Friday.

During several exchanges with Mr Cush about what form of order Mr O'Brien was seeking at this stage, Mr Cush told the judge he wants an order, via early discovery or other type of order, requiring Red Flag to disclose now the identity of its client for that dossier.

Mr O’Brien alleges the client is “mastermind” of a conspiracy to damage him and Red Flag are not innocent parties, but “concurrent wrongdoers” in that regard. He alleges conspiracy by both lawful and unlawful means.

Red Flag had confirmed it compiled that dossier and authored some material in it and also confirmed it had a client for it, counsel said.

Beginning his opposing arguments, Mr Collins said it was “genuinely difficult” to know exactly what form of order was being sought by Mr O’Brien.

The sworn statement Mr O'Brien relied upon last October in seeking an "extraordinary" order to seize equipment from his client's offices, which was refused, referred to a whole series of matters many of which were not now being pursued in the defamation claims.

The defamation claims being pursued relate to references in the dossier concerning Mr O'Brien's dealings with IBRC and the Sitserv company.

There is also a reference to his having become "Ireland's Berlusconi" and a claim he uses the "cover of charitable acts" to deflect negative media commentary, counsel said.

A range of other matters raised by Mr O'Brien were covered in his conspiracy claim, counsel added.

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