Denis O’Brien ‘harmed’ by alleged defamation, court told

Lawyers for businessman Denis O'Brien have told the High Court he is continuing to suffer harm as a result of alleged defamation of him by the Red Flag Consulting firm.

Because of that, his counsel Martin Hayden SC sought a date as soon as possible to hear an application for discovery of nine categories of documents for Mr O’Brien’s full action against Red Flag. Discovery is “central” to the case, counsel said.

The court also may have to decide a dispute between the sides over access to the Dropbox of a Red Flag employee, he added.

Adjourning discovery and other issues to May 31st for mention, Mr Justice Colm MacEochaidh said he would see what was in the discovery application and other legal documents before determining whether the matter is urgent.

There are hundreds of defamation actions before the courts and “screaming urgency” would have to be shown to allow this case get priority over others, he said.

Mr Hayden said the urgency arises because the harm to Mr O'Brien is continuing.

The judge said many plaintiffs in defamation actions make similar complaints and he would decide later if there was any element to justify this case getting priority over others.

Mr O’Brien initiated his proceedings last October alleging conspiracy and defamation against Red Flag and some of its executives and employees.

He claims a USB computer memory stick sent anonymously to his Dublin office contained a dossier of defamatory material.

The material mainly comprises media stories about Mr O’Brien and his business interests, plus documents entitled: “Who is Denis O’Brien?” and “Moriarty Tribunal Explainer”.

The case has been before the court several times since, including February 29th when the O’Brien side got more time to provide a sworn statement about custody of the USB stick.

Red Flag had raised concerns the USB stick was in the offices of Rotterdam-based Digitpol for some ten days after the court ordered on October 16th it be handed over “forthwith” to solicitors for Mr O’Brien and held without interference pending further court orders.

Mr O’Brien’s lawyers said there had been no access to, or interference with, the encrypted chamber of the USB stick containing the dossier and Digitpol had it for analysis purposes.

On Monday, the judge was told the O’Brien side had provided an affidavit addressing the issues raised and had agreed Red Flag could have two weeks to respond to that.

After William Abrahamson BL, for Red Flag, said his side were unclear why the discovery matters should get any priority and the judge queried why the urgency, Mr Hayden said discovery is central to the application and the judge was case managing this action.

The judge said he will revisit the issue of urgency when the replying affidavit and discovery application is before him.

He would list the matters for mention on May 31st and also deal with costs issues, including costs of Mr O’Brien’s unsuccessful application to inspect, before the hearing of the full action, material imaged from devices of Red Flag and its staff which remains frozen pending further order.

When Mr Hayden said he had hoped the other side would have agreed on a hearing date for discovery, the judge said the court “caught the ball” when the O’Brien side sought orders last October to search and seize material from Red Flag’s premises.

Those orders were refused but the court granted orders allowed for forensic imaging of material from devices of Red Flag, which remains frozen.

The matter was said to have screaming urgency at that stage but the court would decide on May 31st if it retained any urgency, he said.