Businessman Denis O'Brien has filed a renewed legal attempt to gain access to communications such as texts and emails about him between the public relations company Red Flag Consulting and journalists and politicians.
Mr O'Brien, who has waged a five-year legal battle with Red Flag alleging it was involved in a "conspiracy" against him, has filed an appeal against a High Court order two months ago that refused him access to any such material.
In July, Judge Miriam O’Regan said it would not be “appropriate” to grant Mr O’Brien’s discovery application for the material and that the material he was seeking was “overbroad in the extreme”.
Mr O'Brien had looked for four categories of documents from Red Flag, which is chaired by Gavin O'Reilly, with whom he previously clashed at Independent News & Media (INM). Red Flag's chief executive and founder is Karl Brophy, who was a senior executive at INM working for Mr O'Reilly.
The judge granted Mr O’Brien access to three of the categories he sought, but refused “category C”. This category was described as including communications that showed Red Flag or its staff “briefing politicians, their parliamentary assistants . . . and/or journalists with material adverse” to Mr O’Brien’s interests.
When making her order in July refusing Mr O’Brien’s request, Ms Justice O’Regan said Red Flag would “of course” have been briefing politicians and journalists in its day-to-day role.
“They may well have material adverse to the interests of [Mr O’Brien]. But that of itself does not suggest that because they may be speaking to [journalists and politicians] with such material that that would amount to a conspiracy,” she said in court.
Mr O'Brien is now challenging the refusal in the Court of Appeal on seven grounds. His solicitors, from the firm run by Aidan Eames, are arguing that the High Court "erred" by adjudging the material he was seeking as overly broad.
The businessman’s legal team is also arguing that Red Flag did not show that there would be a “disproportionate burden” on it by giving Mr O’Brien what he sought. Mr O’Brien is also contending that the judge could have addressed the broadness by defining a time limit on the material sought.
He says the judge failed to recognise that the material sought was “relevant and necessary” in the context of his overarching allegation that Red Flag briefed journalists and politicians against him. Mr O’Brien also alleges that the breadth of category C “reflected the clandestine and surreptitious nature of the conspiracy” he alleges was carried out against him, which Red Flag has denied.
Mr O’Brien also argues that it would be difficult to narrow the scope of what he is seeking without making it less useful to him. He also claims the judge could have granted him access to a narrower set of communications than what he sought.
Due in court
His appeal is due in court for directions from the judge on October 30th. Mr O’Brien is seeking an order granting him access to any political or media briefings by Red Flag “adverse” to his interests, including any material that might show the “motive” for such briefings. Alternatively, Mr O’Brien wants an order granting any such briefing material that was sent in 2014 or 2015.
Mr O’Brien is suing Red Flag and a number of people who worked for it over the contents of a dossier which he says it prepared on him in an effort to damage his business interests.
He is also suing businessman Declan Ganley, who he alleges commissioned Red Flag to prepare the dossier. The respondents all deny the allegations.
Mr O’Brien received the dossier on a USB stick that he says was delivered anonymously to his office in Dublin in 2015.