Saturday 17 August 2019

Red Flag consulting firm confirms it had a client for dossier of material relating to Denis O'Brien, High Court hears

Denis O'Brien
Denis O'Brien

Tim Healy

The Red Flag consulting firm being sued by businessman Denis O’Brien has confirmed it had a client for a dossier of material relating to the businessman which he alleges is part of a conspiracy to damage him, the High Court has heard.

A document in that dossier, described as a draft speech of Fianna Fail TD Colm Keaveney, was not prepared for the client, the court was also told.

Mr Justice Colm MacEochaidh today refused an application by two employees of Red Flag - account manager Brid Muprhy and account executive Kevin Hiney - for a stay on his orders requiring them hand over, for forensic imaging, their personal devices used for work.

The two sought the stay pending their appeal against the imaging orders on grounds including those involved a "gross invasion" of their privacy as the devices contain much personal material, including text messages, emails, financial and medical information.

Refusing the stay, the judge said that would effectively amount to unwinding the imaging orders carefully made by him on November 2nd. The two could renew their stay application to the Court of Appeal, he added.

He said the November 2nd orders tried to balance the defendants' rights to privacy with Mr O'Brien's right to orders protetcing his litigation. In balancing those rights, the judge said he noted, due to cloud computing and other advances, an "unavoidable interface" between personal data and work accounts.

The imaging orders provided for a limited invasion of privacy and Mr O'Brien will not see anything of the material unless the court decides so in the future, he added.

He accepted arguments on behalf of Mr O'Brien of a possibility of innocent deletion of material that may not be detected.

He also noted there was no sworn statement by the two there was no communication on these personal devices between them and the dossier client and said that "tilts the balance" a lttle more in favour of Mr O’Brien.

The November 2nd orders require the two, along with Red Flag CEO Karl Brophy, Chairman Seamus Conboy and non-executive director Gavin O'Reilly hand over devices for forensic imaging of the material on them.  The material will be stored by an independent solicitor and cannot be inspected by Mr O'Brien's side unless the court grants his inspection application at a hearing on December 8th.

In seeking the stay today, Maurice Collins SC said Ms Murphy and Mr Hiney were very concerned about having to hand over devices containing much persoanl material. Even if Mr O'Brien was ultimately not permitted inspect the material,  the imaging  would have involved an "unwarranted, disproportionate and irreversible" invasion of privacy.

Ms Murphy, in a sworn statement on behalf of herself and Mr Hiney, said their devices were not used for creating, editing, reviewing or storing the dossier and both also undertook not to delete may material pending their appeal, counsel added.

If the court ultimately refuses Mr O’Brien an order directing Red Flag to disclose the client, "this is all specious" and could not justify enforcement of the imaging order pending appeal.

The height of the case is a speculative suggestion there may be something on these devices that is not on the work devices or email accounts of any of the defendants, counsel added.

Opposing the stay application, Michael Cush SC said Ms Murphy and Mr Hiney had said their devices were not used for creating, editing, reviewing or storing the dossier but had not indicated to whom the dossier material was sent or trasnmitted.

The orders were merely "preservative" of Mr O'Brien's rights and he would never get to see the material unless there was a further order of the court, he said.

Counsel said Red Flag had confirmed there was a client for the dossier but it was protecting that client's confidentiality and not revealing it to Mr O'Brien. The swown statement by Ms Murphy did not refer to any dissemination of material to the client and this was among the reasons his side was opposing the stay, he said.

When the judge remarked it seemed the "real purpose" of this litigation was to identify the client, Mr Cush said there was no doubt his side was "definitely interested" in that but Mr O'Brien was also interested in the alleged wrongs of Red Flag.

The sides also referred to a draft speech for Fianna Fail TD Colm Keaveney which the court previously heard was contained in the dossier.

Mr Collins, for the Red Flag side, said the speech was received into the office and not prepared for a client. Changes to the speech had been suggested by Mr Brophy and Mr Conboy but Mr Keaveney, for unknown reasons, rejected all those changes, counsel said. It was wrong to suggest any involvement by the defendants in writing that.

Mr Cush said the draft speech was "hugely condemnatory" of Mr O'Brien. Mr Keaveney had said he did not deliver that speech and what he had delivered was his own but that was an issue for debate, counsel said.

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