Sunday 9 December 2018

Shane Phelan analysis: Denis O'Brien, defamation, and conspiracy - what is the Red Flag court case about?

Media and telecoms tycoon Denis O'Brien is suing a Dublin public relations firm, Red Flag Consulting Ltd

Denis O’Brien. Photo: Bloomberg
Denis O’Brien. Photo: Bloomberg
Karl Brophy
Colm Keaveney
Declan Ganley
Gavin O'Reilly
Shane Phelan

Shane Phelan

What is the Red Flag case about? Media and telecoms tycoon Denis O'Brien is suing a Dublin public relations firm, Red Flag Consulting Ltd, and a number of its executives for defamation and conspiracy.

The case revolves around the creation of a dossier containing unflattering material about Mr O'Brien, some of which he alleges to be defamatory.

Mr O'Brien claims it was used to negatively brief journalists and harm his interests, including a planned IPO of Digicel.

He has alleged Red Flag engaged in both lawful and unlawful conspiracy against him, claims the PR firm denies. The case was initiated in October 2015 and has been in court several times, but has yet to go to a full trial.

Why is the case back in the news?

The High Court yesterday issued orders joining businessman Declan Ganley as a co-defendant.

Mr O'Brien has alleged Mr Ganley was the client who commissioned Red Flag to compile the dossier.

What is Red Flag?

The PR firm was set up in 2013 by former Independent News & Media (INM) executive Karl Brophy and has offices in Dublin, London, Paris and Brussels.

Former INM chairman Gavin O'Reilly is its chairman. According to the EU Transparency Register and the Irish Lobbying Register its clients include British American Tobacco, US agrochemical corporation Monsanto and Irish Distillers.

Didn't Mr O'Reilly and Mr Brophy have rows with Mr O'Brien before the current dispute?

Yes they did. Mr O'Reilly departed INM in 2012 following a long-running dispute with Mr O'Brien, the media group's largest shareholder, over the company's strategy.

Mr Brophy was made redundant from his €300,000-a-year job as director of corporate affairs by INM the same year as a "cost saving".

He later sued the company, claiming Mr O'Brien was behind his dismissal.

During these proceedings Mr O'Reilly' successor as INM Chief Executive, Vincent Crowley, testified that Mr O'Reilly and Mr Brophy spent significant time looking into a view that Mr O'Brien's borrowings with Anglo Irish Bank were non-performing and hoped to put this into the public domain.The allegations were untrue and Mr O'Brien's loans were performing.

The case was settled and Mr Brophy accepted that Mr O'Brien had "no hand, act or part" in the decision to make him redundant.

Mr O'Brien also clashed with Mr Brophy in 1998 when the businessman sued over an article written by Mr Brophy in the 'Irish Mirror'. He was awarded €750,000 in damages.

Mr Ganley and Mr O'Brien have also clashed before as well, haven't they?

Both were involved in rival bids for the State's second mobile phone licence in 1995.

Mr Ganley's Cellstar consortium lost out to Mr O'Brien's Esat Digifone.

Mr Ganley is suing Mr O'Brien, former Fine Gael communications minister Michael Lowry and the State alleging Cellstar lost out due to corruption in how the licence was awarded.

Mr O'Brien has alleged Mr Ganley acted "maliciously" and out of "spite" in bringing the court proceedings.

The Moriarty Tribunal found Mr Lowry assisted Mr O'Brien in his bid to secure the licence. Both men dispute the tribunal's findings.

How did Mr O'Brien learn of the alleged conspiracy against him?

Mr O'Brien's lawyers said a memory stick containing the dossier was delivered anonymously to his office in Dublin on October 8, 2015.

At the time he had ordered an investigation to discover who was behind what he believed was a concerted campaign being waged against him.

As well as containing newspaper articles, the dossier also contained a number of drafts of a speech for then Fianna Fail TD Colm Keaveney, critical of Mr O'Brien, including a draft with changes suggested by Red Flag.

It later transpired that Red Flag's version of the speech was not delivered.

What happened after Mr O'Brien initiated his proceedings against Red Flag in October 2015?

Mr O'Brien obtained an interim High Court order preventing Red Flag interfering with, or removing, computer material and other IT items from its offices.

But he failed in an attempt to get a so-called Anton Piller order, which would have allowed him and his solicitor enter Red Flag's premises to inspect and, if necessary, take away any material specified in the order.

Mr Justice Colm Mac Eochaidh did, however, grant an order for the forensic imaging, or photographing, of the content of Red Flag's computers. Lawyers for Red Flag raised concerns over how Mr O'Brien obtained the memory stick, saying it was shrouded in mystery.

In May 2016, Mr O'Brien sued Mr Keaveney for defamation over the proposed text of his speech.

That December, Mr Justice Mac Eochaidh refused to grant orders directing Red Flag to discover documents that would disclose the identity of its client, a decision appealed by Mr O'Brien. But this challenge was dismissed by the Court of Appeal in October 2017.

The case seemed to have run aground for Mr O'Brien. What reignited it?

The defamation action against Mr Keaveney was settled in October last year. The former TD has said Mr O'Brien paid his legal costs but has denied receiving any payment as part of the settlement.

The following month he swore an affidavit supporting Mr O'Brien's case against Red Flag and provided text messages exchanged between him and Mr Brophy.

In the affidavit he also said he believed Mr Ganley commissioned the dossier.

This has been strenuously denied by Mr Ganley.

What happens next?

The case is due back in court next month where costs and other issues arising from the application to join Mr Ganley as a co-defendant will be dealt with. Following this it is expected to move to a full trial.

Irish Independent

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