Sunday 17 December 2017

Red Flag says it will suffer harm if dossier client identity revealed

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

Red Flag Consulting will suffer “irreparable harm” if ordered to disclose documents revealing the identity of the client who commissioned it to prepare a dossier on businessman Denis O'Brien, the High Court has been told.

The claims were made by Michael Collins SC, for Red Flag, in a hearing over discovery of documents in advance of Mr O'Brien's case against the firm alleging conspiracy to damage him personally and professionally.

Counsel disputed claims on behalf of Mr O'Brien that, if the client is a competitor of Mr O'Brien's and/or is involved in "bitter" litigation involving Mr O'Brien, and/or involved in the planned Digicel initial public share offering (IPO), then this was all highly relevant to claims of conspiracy and that Mr O'Brien was entitled to know the client's identity.

The client may be a competitor, involved in litigation or just involved in business and it is not unusual or untoward in business to do research on others in business, this happens daily and confidentiality rules apply, counsel said.

The relationship of confidentiality is crucial to Red Flag's business and it will suffer "irreparable harm" if that is breached, he argued.

The court previously refused to make an order compelling Red Flag name the client.  Mr O’Brien should not get effectively the same order via a discovery application, counsel argued.

Red Flag has agreed to provide a range of documents, including concerning the circumstances of its retainer concerning the dossier, but is entitled to maintain the client’s confidentiality, he submitted.

Michael Cush SC, for Mr O’Brien, said he wants the client’s identity, not just for his action against Red Flag alleging it conspired to damage him, but because he also wants to sue the client over alleged conspiracy.

Mr O’Brien claims “unrelentingly negative” material in the dossier is defamatory and evidence of a conspiracy to damage him personally and professionally.

Most of that material comprises media stories about the businessman but also includes documents entitled “Moriarty Tribunal explainer” and “Who is Denis O’Brien?”.

A hearing date for the businessman’s action against Red Flag and some of its executives and employees has yet to be set.

The case was before Judge MacEochaidh on Tuesday in relation to discovery matters.

Mr Cush argued he had an “unanswerable” case for entitlement to the documents on grounds including the client’s identity may be relevant to the case.

If they were, for example, a commercial competitor, and/or known to be in “bitter” litigation concerning Mr O’Brien, and/or involved in the planned Digicel IPO, that would be “self-evidently” relevant and go to motive or predominant purpose, he said.  If the client was involved in the IPO, that heightens the relevance, counsel added.

While the judge had refused order relating to the naming of the client previously, he had indicated Mr O’Brien could pursue the matter in a discovery application, Mr Cush said.

If there is evidence of wrongdoing on part of the client, that is relevant and any confidentiality concerning identity of the client was the client’s, not Red Flag’s, he said.

The judge was told Red Flag has in its defence denied defamation and conspiracy and also pleads Mr O’Brien has failed to establish evidence of publication of the dossier.

If publication is found, defences of qualified privilege and/or honest opinion have been pleaded. It also pleads the dossier was prepared in the ordinary course of business under a retainer for a client.

Mr Collins argued Mr O'Brien must fully explain how he came into possession of the dossier, contained on a USB computer memory stick.

Mr O'Brien has claimed the USB stick was in an envelope which arrived anonymously in his Dublin offices in October 2015.

Controversy continues concerning what happened to the USB stick after the court previously ordered it be handed over forthwith to be retained by Mr O'Brien's solicitors pending further court order, counsel added.

The hearing continues.

Online Editors

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