Red Flag case: Key O’Brien claims ‘based on assertion’, not evidence

It was perhaps not surprising that the president of the Court of Appeal, Mr Justice Seán Ryan, struck a tone of mild exasperation in parts of his judgment yesterday, the latest twist in businessman Denis O'Brien's legal war against Red Flag Consulting.

The case is two years old but Mr O’Brien has yet to notch up what any reasonable observer would characterise as a victory. Instead, costs – once again awarded against him yesterday – have mounted well into the millions and the defendants, a relatively small lobbying company, have now achieved the sort of brand recognition of which a marketer could only dream.

“I am at a loss to understand,” Mr Justice Ryan said in his judgment rejecting Mr O’Brien’s appeal, “through all the thicket of confusion that seems to me to apply to this case, just how precisely the unnamed client [of Red Flag] is to be indicted for conspiracy or defamation.”

Mr Justice Ryan is the country's second-highest judge and sitting beside him in the tiny room of Court 2 of the appeal court were Mr Justice Michael Peart and Mr Justice Gerard Hogan.

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“I agree,” they both said as the court president concluded giving judgment.

Interests of justice

Hogan is one of Ireland's foremost constitutional experts and, in assenting to the judgment, he will have been conscious that, if Mr O'Brien is to challenge matters at Supreme Court level, the businessman will have to show, before the court will agree to hear him, that his case is one of "general public importance" and that "the interests of justice" require he be given another hearing.

The Court of Appeal's 49-page judgment is tightly written, detailed in its examination of the High Court judgment under review, and thorough in the laws and precedents cited in support of its conclusions – which are to reject, comprehensively, the arguments advanced by Mr O'Brien.

Again and again, the judgment dismisses assertions made by him, saying points made do not follow each other, either in terms of law or logic, culminating at one juncture by Mr Justice Ryan observing: “the plantiff [Mr O’Brien] has done no more than assert relevance, insisting that it is obvious but has not been able to demonstrate any legal or logical justification for his proposition”.

At issue for the Court of Appeal was Mr Justice Colm Mac Eochaidh's rejection, in the High Court last December, of Mr O'Brien request for discovery (that is, essentially, access to documents) of anything Red Flag had that would identify the client for whom it acted in compiling a dossier of material about the businessman.

Mr O’Brien wanted to know also how much Red Flag was paid by the client, and what his or her instructions to the company were. He wanted to know why the dossier was compiled and who had edited any of the original material in it.

The vast bulk of the dossier of some 339 files were copies of newspaper articles about Mr O'Brien and a clutch of unflattering and uncomplimentary profiles about him and his businesses. One was a draft speech by the former Fianna Fáil TD Colm Keaveney.

In his October 2015 affidavit launching his case, which began by his asking the High Court to give him sweeping “search and seize” powers over Red Flag, Mr O’Brien said the dossier was “simply extraordinary”, was full of “false and unfair statements” about him and had caused “biased media coverage” about him.

It was evidence of a malicious and criminal conspiracy against him and he wanted compensation, together with “aggravated and exemplary damages” to be paid by Red Flag.

The jurisprudence (legal philosophy) underpinning discovery is well established and Mr O’Brien has not sought to challenge it. Rather, much of his case has rested on simple assertion but the High Court, and now the Court of Appeal, ruled that he has not proved conspiracy or malice – or even publication, a requisite to prove defamation, which is his stated aim.

The fact that Red Flag assembled the dossier was not evidence of publication, Mr Justice Ryan said in his appeal court judgment. The speech Colm Keaveney made in the Dáil, and to which Mr O’Brien took grave exception, was not the speech on dossier.

“That is not evidence of publication,” remarked the judge, “but rather of non-publication.”

Information-gathering

In sections of the judgment that provide comforting reading for editors and reporters (and for PR firms that regularly compile material for the opponents and business rivals of clients), Mr Justice Ryan defended the right to gather information.

“The defendants’ client in this case,” he said, “was free to collect and/or publish material critical of the plaintiff [Mr O’Brien]. He was also entitled to engage others to do that very thing . . . Red Flag, as a consultancy, does not have to ensure that its clients’ motives are pure, legitimate and not simply hostile or ‘malicious’. If material hostile to a person is published and he or she sues, truth is a defence.”

It was not sufficient simply to plead defamation and conspiracy, and refer to exemplary and aggravated damages, to justify a demand that a client be identified, said Mr Justice Ryan.

He dismissed Mr O’Brien with what he described as a “fundamental point”.

“Red Flag’s client was entitled to have the dossier prepared, even if this was done for the basest of motives. That in itself is not sufficient to establish a conspiracy on the part of that client or to demonstrate that Red Flag was itself a co-conspirator with the client.

“If the dossier was actually published by Red Flag and it has defamed the plaintiff, then Mr O’Brien has his remedy under the Defamation Act 2009.”