Tuesday 23 January 2018

Denis O’Brien’s case against Red Flag Consulting 'will have every PR firm in the city wondering' if they're committing conspiracy - High Court judge

Businessman Denis O'Brien
Businessman Denis O'Brien

Tim Healy

BUSINESSMAN Denis O’Brien’s case against Red Flag Consulting "will have every public relations firm in the city wondering" if they are committing conspiracy, a High Court judge has remarked.

Mr Justice Colm MacEochaidh made the comment before reserving judgment on Mr O’Brien’s application for orders compelling Red Flag name its client who commissioned a dossier of material about the businessman which he alleges is evidence of a campaign to damage him.

The judge hopes to rule by the end of the law term on December 21.

Mr O’Brien claims Red Flag and its unknown client are involved in the alleged campaign.

He wants the client's identity now so as to sue that client, along with Red Flag, for damages for alleged conspiracy and defamation

Among Mr O’Brien’s concerns is whether the dossier, particularly material in it about the planned public offering earlier this year of his company Digicel [which ultimately did not proceed], was sent to hedge funds, Michael Cush SC, for the businessman, said.

It was clearly relevant whether the client is a “benign hedge fund” or a rival of Mr O’Brien’s, counsel said.

The issue was not whether the dossier was published to millions but "who it was sent to".

Mr O'Brien rejected claims by Red Flag of a "lack of candour" by him related to how he learned of Red Flag's involvement with the dossier, counsel said.

Opposing the application, Michael Collins SC, for Red Flag, argued it has a duty of confidentiality to the client and there is no legal basis for the order, which was a “fishing exercise” involving a “procedural morass”.

There was no "clear and unambiguous" evidence of the alleged hostile campaign against Mr O'Brien.

Mr O’Brien had been refused orders last October to seize computers and devices from Red Flag's offices, he said.

Instead, he got freezing orders preserving material on the devices and further orders permitting imaging of the material. He had deferred another application for orders to inspect the imaged documents.

Now he wanted this “exceptional” order which would cause “irreparable harm” to the firm’s consulting and communications business already damaged by the proceedings, counsel argued.

Many of the firm’s clients were concerned data of theirs held by Red Flag had been forensically imaged as part of Mr O’Brien’s proceedings.

Ireland is being seen as a jurisdiction where public relations firms may potentially be compelled to disclose their clients' identities, counsel said. That "might not be accurate" but some clients have that fear.

Mr O'Brien had failed to be "frank" in a sworn statement last October, the basis for his application for orders to seize devices of Red Flag, he said.

This concerned how a USB computer memory stick with the dossier of material about him “materialised” on his Dublin office desk like “Dr Who’s Tardis”.

There was “implausibility stamped over all this”, counsel said.

Mr O’Brien initially gave no information about where the memory stick was delivered to but later said it came to his offices in an unmarked envelope with the decryption code written inside the envelope.

There was no explanation how someone "waltzed" through security in the “centre of his empire” to leave an envelope on his desk.

Mr O’Brien had in the same October affidavit given the impression he had hired a “Jason Bourne” team of professional investigators to find the source of the alleged campaign against him.  What actually happened was a “one-man” Irish accountant based in Ukraine did a “desk top search” of media articles about him, counsel said.

Kiev based accountant John Whelehan has said all he did was search publicly available media reports about Mr O’Brien, counsel said. Red Flag also assembled publicly available material concerning Mr O’Brien and there must be many hundreds of people doing that as Mr O’Brien is of "very significant interest".

Mr O’Brien initially said he learned from the investigation of Red Flag’s involvement with the dossier when that clearly could not have been the case, counsel said.

In closing arguments, Mr Cush, for Mr O'Brien, said his client denied any "lack of candour" but accepted he made a mistake in his affidavit which suggested he learned of Red Flag's involvement with the dossier via an investigation.

It was also incorrect for Red Flag to say there was just a "desk-top" investigation when Mr O'Brien has said inquiries were also made, counsel added.

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