Friday 22 November 2019

The mere fact of O'Brien seeking order shows seriousness of case

Denis O'Brien
Denis O'Brien
Former INM executive Karl Brophy
Dearbhail McDonald

Dearbhail McDonald

The Anton Piller search and seize order sought by businessman Denis O'Brien against a Dublin-based Public Relations firm he is suing has been described as "one of the law's two nuclear weapons".

The other nuclear weapon is a Mareva injunction, a freezing order that restrains people of disposing of their assets. It was deployed quite liberally against suspected fraudsters in recent years.

Anton Piller orders are granted where there is a serious risk that a defendant may destroy or otherwise dispose of material that could be critical for the plaintiff to state their case at trial.

However, because of the severe repercussions for the party against whom such an order is issued - as well as the potential for their abuse - they are scarce.

Mr O'Brien sought an Anton Piller order against Red Flag Consulting Limited, whose non-executive director is Gavin O'Reilly, former CEO of Independent News and Media (INM), which owns the Irish Independent, among other businesses.

Mr O'Brien initially sought the search and seize order without notifying Red Flag amid claims made by him that the PR firm is linked to an alleged concerted and unlawful conspiracy to damage Mr O'Brien personally and commercially.

The case comes back before the High Court today when Red Flag is expected to fully defend the alleged defamation and conspiracy action.

Mr O'Brien's core allegation against Red Flag and five of its staff including Karl Brophy (a former INM executive) is that the defendants have been involved in authoring documents as part of the conspiracy.

These include, the court heard, documents entitled "Who is Denis O'Brien?" and "The Moriarty Tribunal Explainer" as well as media articles Mr O'Brien - who believes a client of Red Flag is behind the alleged conspiracy - says are unfavourable to him.

Had Mr O'Brien succeeded in securing an Anton Piller order, it would have allowed Mr O'Brien and his solicitor enter Red Flag's premises to inspect and, if necessary, take away any documents or articles specified in the order pending the full trial of the action.

That compares with the UK, the birthplace of Anton Piller orders, which requires an independent solicitor to undertake the sensitive task of searching and seizing an opponent's premises.

An Anton Piller order is, at heart, a civil search warrant, one that goes way beyond the normal remedy in civil or commercial proceedings of exchanging documents (a process known as discovery) or securing a preservation order if there are concerns over the integrity of documents.

They're mostly used in cases of alleged software piracy or alleged stolen assets.

Normally, powers of search and seizure are reserved for bodies such as gardaí, Revenue or corporate enforcement.

When gardaí enter premises on foot of a search warrant, they do not need the permission of the party being searched.

Anton Piller orders do not require the consent of the defendant, but if they refuse, the subjects of such an order can (in theory at least) be jailed for contempt of court.

Last Wednesday, High Court President Mr Justice Nicholas Kearns refused to grant Mr O'Brien an Anton Piller order.

Judge Kearns said he was not inclined to grant the "quite draconian" order sought which would have entitled Mr O'Brien, his solicitor and investigators to enter Red Flag's offices to take control of the firm's computers.

Instead, Judge Kearns granted an interim (temporary) yet extensive order for Red Flag to preserve documents contained in a dossier which Mr O'Brien says disclose the alleged concerted and unlawful conspiracy.

Given the draconian nature of an Anton Piller order, it would have been remarkable had Judge Kearns acceded to it.

However, the mere fact that it was applied for in the first place sheds some light on what the High Court heard, in somewhat diplomatic terms, was "a very public prior history" between Mr O'Reilly and Mr O'Brien, who is currently suing members of the Oireachtas Committee on Procedure and Privileges (CPP).

The history between the O'Reilly family and Mr O'Brien, in relation to INM, has been played out in public.

And the decision to press the nuclear button that is an application for an Anton Piller speaks volumes about the prior and ongoing history between the parties.

The decision to seek an Anton Piller order is not taken lightly.

And remarks by Red Flag's Senior Counsel that some of their executives might need to consult with gardaí reflects the gravity of the allegations, and potential consequences for both sides.

Irish Independent

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