Documents disclosure would cause Red Flag ‘irreparable harm’

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

Michael Collins SC, for Red Flag, disputed claims on behalf of Mr O'Brien that, if the client is a competitor of Mr O'Brien's and/or involved in "bitter" litigation involving Mr O'Brien and/or involved in the planned Digicel flotation, that was all highly relevant to the businessman's claims of conspiracy and he 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 what is known as a Norwich Pharmacal order compelling Red Flag to name the client and Mr O'Brien should not get effectively the same order via a discovery application, counsel also argued.

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

Alleged conspiracy

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 executives and employees has yet to be set. The case was before Judge Colm Mac Eochaidh 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. While the judge had refused Norwich Pharmacal orders, he had indicated Mr O’Brien could pursue the client identity matter in a discovery application, Mr Cush said.

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

The hearing continues on Wednesday.