Monday 22 October 2018

Inside the text exchange at the heart of claims of 'a criminal conspiracy'

There was high drama in Court 5 when Declan Ganley was joined in 'conspiracy' proceedings against Red Flag, writes Liam Collins

Karl Brophy
Karl Brophy
Denis O'Brien
Declan Ganley
Liam Collins

Liam Collins

'I'm good at this sort of s**t," declared Karl Brophy, the man behind Red Flag Consulting, in a text to the one-time Fianna Fail TD Colm Keaveney. They were texting back and forth about the billionaire businessman Denis O'Brien and how much he paid for his loans and the purchase of Siteserv from the Irish Bank Resolution Corporation (IBRC), formerly Anglo Irish Bank.

The saga of the 'dossier' on Mr O'Brien compiled by Red Flag, a Dublin-based lobbying and consultancy firm, took another dramatic twist last Thursday when Ms Justice Miriam O'Regan "joined" businessman Declan Ganley to Denis O'Brien's proceedings against the lobbyist/public relations company Red Flag, and widened the nature and scope of the litigation.

The judge allowed an application by Denis O'Brien's lawyers that he can pursue Red Flag for engaging in a campaign against him by "briefing politicians and journalists with material with the predominant intention of injuring and/causing loss to the plaintiff [O'Brien]".

The judge also allowed a claim by his lawyers that, contrary to the Official Secrets Act, his private and confidential banking arrangements were disclosed, to be included in the proceedings. Red Flag "encouraged" Neil Ryan, a former assistant secretary in the Department of Finance, to disclose this information, the lawyers claim. By doing so, the defendants [Red Flag] "were guilty of soliciting, aiding, abetting, counselling and/or procuring the commission of a criminal offence" the judgment added, "with the intent to injure the plaintiff [O'Brien] by unlawful means and therefore amount to the tort of conspiracy", the legal action claims.

Judge O'Regan said it was "significant" that information was not available to Mr O'Brien and his lawyers until October 13, 2017, and, as a result, found that the amendments could be made to take these into account.

The new material introduced in the case arises from the involvement of former Labour party and Fianna Fail party TD Colm Keaveney. He was sued for defamation by Denis O'Brien but settled that case in November 2017. Keaveney has provided Denis O'Brien's legal team with an affidavit and a series of text messages between himself and Karl Brophy of Red Flag Consulting between March 23, 2015, and June 10, 2015.

According to court document, on a word count basis, Mr Brophy sent texts consisting of 2,636 words as against 278 words in reply from Mr Keaveney.

These indicate, Mr Keaveney claims, an attempt by Karl Brophy of Red Flag to "influence" him "in relation to the plaintiff [O'Brien] and as regards the content of my contributions to the Dail debates in relation to the plaintiff [O'Brien] and/or Siteserv".

The roots of this legal saga go back to the battle for control of Independent News & Media (INM - the owner of this newspaper) between its then largest shareholder Sir Anthony (Tony) O'Reilly and the present largest shareholder, Denis O'Brien. Karl Brophy was director of corporate affairs and content development at INM and worked alongside former chief executive Gavin O'Reilly (son of Tony O'Reilly), who is now chairman of Red Flag Consulting and one of the defendants in this litigation, along with employees Seamus Conboy, Brid Murphy and Kevin Hiney.

This attempt to involve Mr Keaveney in a campaign by supplying him "with material adverse to the plaintiff [O'Brien]" and the dossier compiled by Red Flag for the person he [Keaveney] identifies as businessman Declan Ganley "was part of a wider exercise to undermine the plaintiff [O'Brien]", according to Keaveney's affidavit.

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Mr Keaveney detailed how he was selected by Fianna Fail to deliver a speech in the Dail on June, 9, 2015, in relation to the sale of Siteserv - a utilities company sold at a discount to Mr O'Brien by IBRC - which later acquired the contract to install water meters. At 9.42am that morning, Colm Keaveney sent a copy of his speech to Karl Brophy by email from his iPhone. "The reason I sent my draft of my speech was because it had been requested by the defendants [Red Flag] and they were to fact check it as it had become apparent to me that they were knowledgeable of Siteserv and the plaintiff [O'Brien]," Keaveney said in his affidavit.

"I saw the amended version of the speech as authored by the defendants [Red Flag] before I left Tuam, Co Galway, for Dail Eireann and I personally decided not to include the defendants' [Red Flag] proposed amendments," he said in his affidavit.

"I was surprised at the changes as they went way beyond what I had expected. I was in fact irritated that Mr Brophy had taken the liberty of making extensive changes and I was wholly unimpressed with the nature and extent of the changes."

The amended version of the speech for Mr Keaveney was contained in a dossier compiled by Red Flag for the mystery client Mr Keaveney and Denis O'Brien now identify as businessman Declan Ganley. Likened to F Scott Fitzgerald's 'Jay Gatsby' in an Irish Times profile, Mr Ganley is a telecoms millionaire who lives at Moyne Park near Tuam, Co Galway.

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He was part of a consortium that bid unsuccessfully for the first Irish commercial mobile phone licence which was granted to Denis O'Brien's Esat Digifone in late 1995. Coincidentally, Mr Ganley was also referred to as 'Gatsby' in a series of texts between Colm Keaveney and Johnny Fallon, a public relations executive with Carr Communications who has been named as an intermediary in settling litigation between Mr Keaveney and Denis O'Brien in late 2017.

The text message between Mr Brophy (KB) and Mr Keaveney (CK) also referred to parliamentary questions, such as one text dated April 26, 2015, at 12.09pm from Karl Brophy: "Stay on the 5m the 'inquiry' will look at wrong things."

An exchange on May 6, 2015, starting at 17.47 included the following texts:

n CK: "Recast the PQ for me please!"

n KB: "Will do. That's a very f**king Jesuitical answer."

n CK: "Cheers. They are c**ts!"

On May 22, 2015, at 15.18 Karl Brophy sent the following text: "sent you that [a parliamentary question which Mr Keaveney had requested him to 'tidy up'] and another bonus one earlier. Well worth asking the second one."

In an affidavit, Karl Brophy denied that the material, such as texts and emails, was evidence of a campaign to extensively brief journalists and politicians against Denis O'Brien. He also said communications were not evidence of him attempting to induce Mr Keaveney to use parliamentary privilege in order to make statements injurious to Denis O'Brien and said that allegations against him are "wholly without foundation".

He also said that text messages between himself and Mr Keaveney were not evidence that he encouraged and assisted Neil Ryan, a former assistant secretary in the Department of Finance, seconded to IBRC, to share information in breach of confidence, merely that he put the two of them in contact with each other.

The Chief State Solicitors Office, representing Neil Ryan, said in a letter dated December 21, 2017, to Eames Solicitors, representing Denis O'Brien: "We are instructed that Mr Ryan has no recollection of ever having been in possession of confidential information relating to your client's banking affairs... Mr Ryan did not disclose your client's confidential information to an elected member of Dail Eireann, to a public relations consultancy firm or otherwise."

In a further letter to Eames Solicitors on January 26, 2018, the Chief State Solicitors Office said: "We are instructed that Mr Ryan did have a meeting with Mr Micheal Martin TD but this did not concern your client or companies related to him, including Siteserv."

The 'pleadings' in the case have now been amended with the permission of Judge O'Regan, to include a claim that in his capacity as an assistant secretary in the Department of Finance, Neil Ryan became "possessed of information" about the private banking affairs of Denis O'Brien and his companies.

"For Mr Ryan to disclose that information is a criminal offence pursuant to the Official Secrets Act 1963," it claims. "Pursuant to and in furtherance of the aforementioned conspiracy the defendants engaged in a campaign of briefing politicians and journalists with material adverse to the interests of the plaintiff [Denis O'Brien] with the express purpose of having those politicians and journalists promote and publish the material with the predominant intention of injuring and/or causing loss to the plaintiff."

In relation to these allegations, Denis O'Brien is now seeking damages for conspiracy, defamation and breach of confidence against the defendants in the case, named as Red Flag Consulting Limited, Karl Brophy, Seamus Conboy, Gavin O'Reilly, Brid Murphy and Kevin Hiney.

Following last Thursday's ruling by Judge O'Regan, the case has been sent for mention on April 10, but it is likely to be some considerable time before this fascinating series of events comes to a full hearing in the High Court in Dublin.

Sunday Independent

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