Saturday 17 August 2019

High Court refuses to grant Denis O'Brien orders naming Red Flag's client

Businessman Denis O’Brien. Photo: Collins Courts
Businessman Denis O’Brien. Photo: Collins Courts

Aodhan O'Faolain

A High Court judge has refused to grant Denis O'Brien orders directing Red Flag Consulting to discover documents that would disclose the identity of its client for a dossier about the businessman.

Mr Justice Colm MacEochaidh, on the basis of his finding Mr O'Brien had not adduced enough facts to show "publication" of the dossier, also refused to order Red Flag discover documents in relation to publication of the dossier.

Noting his previous finding the court had not heard the "full story" about the "mysterious appearance" of how the dossier arrived at Mr O'Brien's offices in October 2015 on a memory stick placed in an envelope, he said he would not order discovery of documents in relation to publication because of the absence of pleaded material in relation to that issue.

While Mr O'Brien's side had argued he was entitled to such evidence of publication "without which his case would fail", so too was every plaintiff who believes they have a good case "but lacks the evidence to prove it", the judge said.

If that were possible, litigants would "flood the courts with unsubstantiated writs hoping that applications for discovery would produce the evidence they lack"

The judge ruled Mr O'Brien was entitled to discovery of documents relating to communications between Red Flag and its client for the dossier. Those communications must concern the dossier only and the client's name could be redacted, he added.

Such documents were likely to reveal the nature of the relationship between Red Flag and its client and were relevant because Red Flag's motivation in preparing the dossier was an issue in the case, he said.

He was giving judgment on applications by Mr O'Brien's lawyers for documents as part of preparations for the full hearing of his case against Red Flag and various executives and staff alleging defamation and conspiracy.

The businessman claims Red Flag was involved in preparing, for an unidentified client, a dossier of material about him which he alleges is mostly unfavourable and defamatory.

He said in court documents the dossier was on a USB memory stick contained in an envelope sent anonymously to his Dublin offices in October 2015. It contains about 80 media reports and other material, including a document entitled: “Who is Denis O’Brien?” and “The Moriarty Tribunal Explainer”.

Red Flag, which denies defamation or conspiracy, previously confirmed the dossier included its documents, said there are significant issues concerning how Mr O’Brien got that material and argued it was entitled to preserve the anonymity of its client.

In his judgment today, Mr Justice MacEochaidh noted Red Flag had agreed to make discovery of the instructions provided by its client and the terms of its retainer on the basis those are relevant to the issue of its motivation.

In order to get additional documents identifying the client, Mr O'Brien must persuade the court knowing the client's identity was relevant and necessary for the case and would, as a matter of probability, advance his plea the defendants predominant  motive in compiling the dossier was to harm him.

There were "too many imponderable and unknown" outcomes in the theory of relevance advanced by Mr O'Brien to entitle him to the documents sought, the judge said. The most he could say was that knowing the client's identity might assist with proving the client's motivation which in turn might assist in attributing that motivation to the defendants in compiling the dossier.

The judge noted Red Flag had claimed discovery should in any event be refused on the basis of confidentiality between it and the client. If Mr O'Brien had persuaded the court discovery of the identity was relevant and necessary, he could have argued confidential relations ought not prevent an order for discovery but the court did not have to decide that issue in these circumstances, he said.

On foot of his finding Mr O'Brien had failed to produce enough or any evidence to show there was publication of the dossier, he refused discovery of documents showing the identity of persons or entities to whom the dossier was sent.

While Mr O'Brien argued publication could be inferred from the dossier being sent to his office and the fact he was asked certain questions by journalists prior to that, he had failed to substantiate that claim in any way, the judge held.

He had failed to provide evidence of questions asked of him and it was "very surprising" and "odd" no details at all were provided about his interactions with the journalists in question.

It was also surprising Mr O'Brien had not been able to provide any information at all about how the memory stick came to him and had not even told the court why he had no information about the "mysterious appearance" of the stick. 

The judge noted his previous findings there was insufficient evidence to conclude "a want of candour" by Mr O'Brien concerning how he got the memory stick but that the "full story" had not been told about its delivery. Mr O'Brien should have been aware he should provide a full explanation of how the stick came to be in his possession or, if he could not do that, explain why that was not possible, he said.

The matter has been adjourned to next month.

After the hearing a spokesperson for Denis O'Brien said he intends to appeal the ruling.

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