Tuesday 24 April 2018

O'Brien fails to have PR firm client named in 'conspiracy' claim

Denis O’Brien
Denis O’Brien

Tim Healy

Businessman Denis O'Brien has failed to get an injunction requiring the identification of a client of a public relations firm he claims is behind a conspiracy to damage him.

He sought the order against Dublin-based Red Flag Consulting over a dossier of material which shows the alleged conspiracy.

The dossier, contained on a USB computer memory stick, was sent to him anonymously in his Dublin offices last October.

Mr O'Brien initiated proceedings against Red Flag and various executives and staff, including CEO Karl Brophy.

During some 10 court applications, he got orders including to image and preserve material on devices of Red Flag pending further hearings. He sought an injunction compelling the firm to identify its client because he wants to join that client to the action.

Red Flag argued there was no legal basis for that injunction, that it has a duty of confidentiality to its client and its business would be irreversibly damaged if it had to disclose the identity.

Garret Doyle, chief operations officer of Red Flag, outside court. Photo: Collins
Garret Doyle, chief operations officer of Red Flag, outside court. Photo: Collins

In his judgment yesterday, Mr Justice Colm MacEochaidh found the Irish courts can make such identification orders but on conditions, including applicants for such orders providing evidence, to a high degree of certainty, of wrongdoing on the part of the alleged wrongdoer.

Mr O'Brien failed to produce evidence that showed, to that degree of certainty, any wrongdoing by the client justifying such an order, the judge said.

While it was claimed the alleged conspiracy affected his reputation for philanthropic activity in Haiti and may have damaged the planned initial public offering of his company Digicel, the evidence in that regard was insufficient to justify the injunction.

Mr O'Brien alleged conspiracy to damage him by both lawful and unlawful means but failed to provide evidence showing, to the extent required, he was harmed by the alleged conspiracy, the judge said. An injunction based on the lawful means conspiracy is "a strange and novel tort in the 21st century" which damnifies people who do together what would not be unlawful if that was done apart, he said.

For Mr O'Brien to get that injunction, he would have to show some evidence of the motivation of the client but failed to do so.

The contest was between Red Flag's desire not to breach a duty of confidentiality against Mr O'Brien's interest in getting information at this stage concerning the unknown client, the judge said.

Mr O'Brien knew "full well" how important confidentiality was having, in proceedings against 'The Sunday Times' in 2013, litigated his own right to confidentiality in relation to his banking affairs.

If confidentiality was to be removed, Mr O'Brien must show, to a point of almost certainty, he will suffer irreversible harm unless Red Flag discloses the name of its client now, the judge said. He had failed to do so.

The judge said there was insufficient evidence for him to decide whether there was, as Red Flag claimed, a lack of candour by Mr O'Brien concerning the circumstances leading to his becoming suspicious of a campaign against him. Mr O'Brien had denied any lack of candour.

While it might be the case, and the court believes, the "full story" had not been told about the circumstances in which the memory stick appeared on Mr O'Brien's desk, there may well be a "perfectly good explanation" for all of that, the judge said. He simply could not decide, based on the evidence, there was a lack of candour.

Before the judge gave his ruling, Red Flag raised issues relating to the USB stick. These included whether there was an attempt to delete or overwrite material from the stick on October 24 last or whether there was an innocent explanation for that, said Michael Collins SC, for Red Flag.

Mr O'Brien's side said they needed time to address these matters, which Martin Hayden SC, for the businessman, said they took very seriously. These matters were raised only very recently by the defendants following receipt of a report from their experts who inspected the stick, counsel said.

When Mr Hayden said his side was anxious to progress the case to hearing, the judge said he did not consider it to be urgent and would case-manage it in January or February. The existence of the proceedings would, he believed, have a "quietening effect" on the alleged conspirators, "if there are any".

Irish Independent

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