Judge joins businessman Declan Ganley to Denis O’Brien action

Denis O’Brien has secured High Court orders joining Declan Ganley as a co-defendant with Red Flag Consulting in his action over alleged defamation and conspiracy.

Ms Justice Miriam O’Regan also permitted Mr O’Brien to amend his case to make additional claims of seeking to involve politicians and media in an alleged conspiracy against him, plus alleged disclosure of information under the Official Secrets Act.

Mr O’Brien alleges, in furtherance of the alleged conspiracy against him, the defendants engaged in a campaign of briefing politicians and journalists with the intention of injuring and or causing loss to him.

The judge said she considered the amended claim does not “radically differ” from the claim in the existing pleadings and would permit the amendments.

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After her judgment, she was told by Mark Harty SC, for Mr Ganley, that he wanted time to consider the option of appeal.

The judge agreed to put the matter back to April 10th when various issues will be addressed, including costs of the application and the making of directions to progress the case.

Mr O’Brien brought the joinder and amendment application on foot of material obtained in recent months, including a sworn statement from former Fianna Fáil TD Colm Keaveney that he believes Mr Ganley was Red Flag’s commissioning client for a dossier concerning Mr O’Brien.

Mr Ganley denies he was the client behind the dossier, which Mr O’Brien contends included material defamatory of and unfavourable to him.

Mr O’Brien claims the dossier, which mainly consisted of media stories and a number of other documents - including one entitled ‘Who is Denis O’Brien?’ - was on a USB memory stick contained in an envelope left in his Dublin office in October 2015. Red Flag has raised issues concerning exactly how Mr O’Brien came into possession of the memory stick.

Mr Ganley said there was no actual evidence he was the client for the dossier and that was merely a belief of Mr O’Brien and Mr Keaveney.

During the hearing of the application, Mr Harty voiced concern Mr Keaveney had sworn an affidavit saying he believed Mr Ganley was the client after a settlement was reached between Mr Keaveney and Mr O’Brien in relation to separate defamation proceedings.

Red Flag, which denies defamation and conspiracy and maintains it is entitled to keep its client’s identity confidential, was neutral on the joinder but opposed the proposed amendments.

The PR firm’s counsel Michael Collins SC said the proposed amended claim alleged Red Flag had encouraged Neil Ryan - a former assistant secretary in the Department of Finance who had been seconded to the position of Head of Market Solutions at State-owned Irish Bank Resolution Corporation - to meet Fianna Fáil leader Mícheal Martin in 2015. The meeting was to discuss IBRC’s sale of services providing company, Siteserv, to a company contolled by Mr O’Brien.

It was being alleged this was aiding and abetting a breach of the Official Secrets Act but the court has been told nothing about it or of how Mr Ryan was subject to that Act in his role in IBRC, Mr Collins said.

He said the only evidence of this was there were text messages passed between Mr Keaveney and Karl Brophy, chief executive of Red Flag, about arranging a meeting between Mr Ryan and Mr Martin.

Neither Mr Brophy nor anyone else in Red Flag ever met or corresponded with Mr Ryan, who was not a party to these proceedings, counsel said.

Mr Collins also said Mr Keaveney had not responded in his sworn statements to claims by his former parliamentary secretary, Alan Hynes, that a figure of €250,000 had been mentioned as a settlement of the separate defamation proceedings by Mr O’Brien against the former TD.

In her judgment, Ms Justice O’Regan noted Mr O’Brien, in his proceedings, has alleged both lawful and unlawful conspiracy as well as defamation.

Mr Ganley, she noted, opposed being joined on several grounds, including claims the entire action was essentially a defamation one and the joinder application was outside the two-year time limit for such cases.

Mr O’Brien argued the time limit point was defeated by a provision of the Statute of Limitations which says the period of limitation shall not run if the right of action has been concealed by fraud.

Ms Justice O’Regan noted Diarmuid Ó Comháin, solicitor for Mr O’Brien, said his client had until the recent past been unaware of the identity of Red Flag’s client.

The solicitor said the information to ground the application to join Mr Ganley was not provided to the O’Brien side until October 13th, 2017. He also said Mr Keaveney had said in an affidavit of December 4th, 2017 he believes the client is Declan Ganley.

Red Flag, the judge noted, was neutral on whether Mr Ganley was joined while the latter had sworn he is not the client. The relevant case law meant the court must, insofar as the joinder application is concerned, resolve the disputed facts on that matter in favour of Mr O’Brien, she said.

On the basis of the issues raised by Mr O’Brien when disputing that the joinder bid was statute-barred, the judge said she was satisfied there must be some doubt about the application of the statute against Mr Ganley.

In those circumstances, it was appropriate to join Mr Ganley as a co-defendant, she ruled.

Addressing the application to amend the existing claim, the judge noted Red Flag argued there was a limited evidential basis for the proposed amendments and the factual basis for those was tenuous. It was also argued the amendments would radically alter the original statement of claim.

Mr O’Brien’s side maintained an exchange of emails within the proposed amended claim provided sufficient particulars to identify dates, words spoken, actions taken and the purpose of those.

Another proposed amendment relates to a party who had information which Mr O’Brien alleges was official information under the Official Secrets Act, she said. The businessman alleged he enjoyed a right of confidence concerning some of that information.

Ms Justice O’Regan said it was claimed a third party was encouraged or facilitated by the defendants, or by Mr Brophy, to disclose that information and, in so doing, the defendants were guilty of soliciting, aiding, abetting, counselling and/or procuring the commission of a criminal offence and breach of confidence. It was also claimed the particulars of this alleged conduct were set out in various text messages and the alleged conduct comprised wrongful actions amounting to conspiracy.

Mr O’Brien is also claiming damages for breach of confidence, she noted.

Red Flag, she said, had argued the pleadings were closed and at a somewhat advanced stage but had not argued they were prejudiced if the proposed amendments were allowed.

She said the current deficit of evidence, as asserted by the defendants, should not be the basis for refusing the amendments sought. While the particulars, the text messages, “might be considered less than ideal”, that was also not a basis for refusing the amendments.

It was also significant the emails referred to were not available to Mr O’Brien until October 13th last.

She was not satisfied the claim now sought to be made by the inclusion of the amendments radically differs from the claim in the existing pleadings and would permit it, she said.

Because she was not satisfied that issues raised as to the provenance of the USB stick containing the dossier were “germane” to the relief being sought, she had not addressed them in her decision, the judge added.