Monday 16 July 2018

Court orders Ganley to be joined as co-defendant in O’Brien case against PR firm

Denis O’Brien. Photo: Bloomberg
Denis O’Brien. Photo: Bloomberg
Shane Phelan

Shane Phelan

The High Court has made orders joining businessman Declan Ganley as a defendant in the conspiracy and defamation action being taken by telecoms and media tycoon Denis O’Brien against PR firm Red Flag Consulting.

Ms Justice Miriam O’Regan also made an order allowing Mr O’Brien to amend his plenary summons and statement of claim in the case to include an allegation regarding a meeting between a former Department of Finance official and Fianna Fáil leader Michéal Martin.

Although the proceedings have been ongoing since 2015, Mr O’Brien last week sought to have Mr Ganley joined as a defendant.

His application was based on new information provided by former Fianna Fáil TD Colm Keaveney late last year. Mr Keaveney swore an affidavit in which he stated his belief that Mr Ganley was the person who commissioned Red Flag to compile a dossier on Mr O’Brien.

Mr O’Brien has alleged the dossier was used as part of a conspiracy against him and that it contained defamatory material about him.

Mr Ganley denies being the client who commissioned the dossier and opposed the application.

His counsel argued there was no actual evidence against him, merely the beliefs expressed by Mr Keaveney.

Following the ruling, Mark Harty SC, for Mr Ganley, said he would need to take instruction from his client on whether the decision will be appealed.

The case was adjourned until April 10 when the issue of costs is expected to be dealt with.

The ruling adding Mr Ganley as a defendant is the latest twist in the long-running case, in which Mr O’Brien has sued Red Flag and its chief executive Karl Brophy, chairman Gavin O’Reilly, director of client communications Séamus Conboy, account manager Brid Murphy, and account executive Kevin Hinney.

In her ruling Ms Justice O’Regan said the thrust of the existing proceedings was that the defendants, together with an unnamed client, commissioned or compiled a report or dossier and undertook other activity with intent to injure Mr O’Brien.

She said Mr O’Brien claims the activity involved both lawful and unlawful conspiracy.

The judge said an affidavit submitted to the court by Mr O’Brien’s solicitor, Diarmuid Ó Comháin, stated that until the recent past his client had been unaware as to the identity of Red Flag’s client.

The information grounding the application to join Mr Ganley was not provided to Mr O’Brien until October 13 last year, the judge noted.

The following month, Mr Keaveney swore an affidavit in which he stated he believed the client was Mr Ganley.

Ms Justice O’Regan said the rules of the superior courts allowed for an application to add a plaintiff or defendant to be made to the court at any time before trial by motion.

She also noted the rules stated that the court may at any stage of the proceedings join a party whose presence before the court may be necessary in order to enable it to effectually and completely adjudicate on a matter.

The judge cited a previous judgment by Ms Justice Mary Laffoy to the effect that this provision requires a plaintiff, in this case Mr O’Brien, to demonstrate he has a stateable case against the proposed new defendant.

She said the proper approach was to determine whether the case was stateable on the basis of the plaintiff’s version of disputed facts.

The judge said that although there is a dispute between the parties as to whether or not Mr Ganley was the client, following on from the Laffoy judgment the disputed facts must be resolved in favour of Mr O’Brien.

Ms Justice O’Regan said Mr Ganley’s resistance to being joined as a co-defendant was based on the assertion that the existing claim was one of defamation and that the application was statute barred as it was outside the two-year limit for such actions, which would have expired in October 2017.

She said Mr O’Brien’s lawyers had countered that the statute of limitations can be extended if, among other things, the action is based on a fraud by the defendant or their agents and the period of time would not then begin to run until the plaintiff had discovered the fraud or could with reasonable diligence have discovered it.

The judge said she was satisfied that there must be some doubt as to the application of the statute of limitations and it was appropriate to accede to the request to join Mr Ganley as a co-defendant.

Regarding the application to amend the pleadings and statement of claim, the judge said the defendants had argued the pleadings were closed and were at somewhat of an advanced stage.

However, the judge decided that the pleadings were not at such an advanced stage as to amount to sufficient prejudice to the existing defendants.

The amendment allowed by the judge relates to a claim by Mr O’Brien, aired in court last week, that a former Department of Finance assistant secretary Neil Ryan, who was on the management team of IBRC, was encouraged to disclose information about Mr O’Brien to Fianna Fáil leader Michéal Martin.

The allegation is based on text messages between Mr Keaveney and Mr Brophy regarding the setting up of a meeting between Mr Ryan and Mr Martin.

Red Flag had resisted the amendment application, stating there was limited evidential basis to support it.

The court has previously heard Mr Ryan does not dispute that a meeting took place with Mr Martin, but says there was no discussion in relation to Mr O'Brien or companies related to him, including Siteserv.

In her ruling, Ms Justice O’Regan said the amendment related to a party who possessed information which it is alleged was covered by the Official Secrets Act and was in part information in which Mr O’Brien “enjoyed a right of confidence”.

She said it was suggested this third party was subject to “encouragement or facility” by Red Flag or Mr Brophy to encourage him to disclose this information and in doing so the defendants were guilty of soliciting, aiding, abetting, counselling or procuring the commission of a criminal offence and a breach of confidence.

Ms Justice O’Regan said she was satisfied from submissions that the deficit of evidence, as asserted by the defendants, should not be a basis for refusing the amendment.

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