Sunday 22 September 2019

O'Brien loses court appeal in bid to access Red Flag's dossier

Businessman Denis O'Brien. Photo: Tony Gavin
Businessman Denis O'Brien. Photo: Tony Gavin

Tim Healy

Businessman Denis O'Brien has failed to get court orders directing Red Flag Consulting to give him documents that might disclose the identity of its client for an allegedly damaging dossier about him.

Mr O'Brien was entitled to know if the client is his "absolute sworn number one enemy in the world", his counsel Michael Cush SC had argued.

Red Flag denies defamation or conspiracy or that Mr O'Brien suffered harm or loss from the dossier. It has also raised issues concerning his claim he got the dossier anonymously from a USB stick in an envelope left in his Dublin offices in October 2015.

A three-judge Court of Appeal (COA) yesterday dismissed Mr O'Brien's appeals over the High Court refusal of discovery of the client's identity.

The identity was not relevant for determination of his case against Red Flag and some of its executives and staff, with the effect he had not met the legal test for discovery, it ruled.

A cross-appeal by Red Flag over orders requiring it to discover documents relating to its communications with the client about the dossier, with the client's name redacted, was also dismissed.

The president of the COA, Mr Justice Sean Ryan, with Mr Justice Michael Peart and Mr Justice Gerard Hogan, said Mr O'Brien's claim against Red Flag is of conspiracy to damage him in a variety of ways, including defamation.

The "simple" issue in this appeal was if the client's identity would enable Mr O'Brien to advance his own case or damage the defendant's case. He could not see how the client's name could give rise to a deduction of intent to collect and publish untrue material, or conspire to do so.

Compilation of the dossier in itself was not sufficient to establish a conspiracy on the part of that client, or to demonstrate Red Flag was a co-conspirator with the client.

Mr O'Brien was not entitled to ascertain the client's identity by seeking discovery from Red Flag. Mr O'Brien had failed to show the discovery sought was relevant, directly or indirectly, to the matters at issue between the sides in this case.

The "fundamental point" is that Red Flag's client was free to collect and/or publish material critical of Mr O'Brien even if this was done "for the basest of motives". If material hostile to a person is published and they sue, truth is a full defence.

After the judgment, Frank Beatty SC, for Mr O'Brien, said his client would consider whether to seek an appeal to the Supreme Court.

Irish Independent

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