The High Court has been asked to direct a trial of preliminary issues with a view to preventing Denis O'Brien pursuing various claims against Declan Ganley.
These claims include alleged involvement in a conspiracy by lawful means to damage Mr O'Brien's reputation and alleged attempts to encourage a senior Department of Finance official to disclose details of Mr O'Brien's banking affairs.
Mr Justice Michael McGrath has reserved his decision on Mr Ganley's application for a trial of preliminary issues in proceedings initiated in 2015 by Mr O'Brien against public relations firm Red Flag Consulting and various persons associated with the firm. Mr Ganley was joined as a co-defendant in 2018.
The judge will also decide later whether Red Flag’s bid to have part of Mr O’Brien’s claim struck out should be heard before or after discovery applications by the parties, including by Mr O’Brien for any documents evidencing “hostility” by Red Flag and Mr Ganley towards him.
Red Flag wants the court to strike out claims by Mr O'Brien that the defendants, in particular Red Flag chief executive Karl Brophy, sought to encourage and facilitate disclosure of information by Neil Ryan, a former assistant secretary to the Department of Finance, concerning Mr O'Brien's banking relationship with State-owned IBRC.
Mr O’Brien claims any such disclosure would be an offence under the Official Secrets Act. The court was told this week by Mark Harty SC, for Mr O’Brien, the Chief State Solicitor has said no such information was disclosed by Mr Ryan, who is not a party to the case.
Mr O’Brien’s action, initiated in October 2015, has been subject of multiple applications and has yet to go to a full hearing.
When he got orders in March 2018 to join Mr Ganley as a co-defendant, the High Court also permitted him to amend his claim on foot of certain material, including a sworn statement from former Fianna Fáil TD Colm Keaveney stating he believed Mr Ganley was Red Flag's commissioning client for a dossier of material concerning Mr O'Brien.
Mr O'Brien claims the defendants engaged in a campaign of briefing politicians and journalists with material with the predominant intention of injuring and or causing loss to him. He claims they sought to encourage Mr Ryan – who had been seconded from the Department of Finance to be head of market solutions at IBRC – to meet Fianna Fáil leader Micheál Martin in 2015 over IBRC's sale of Siteserv to a company of Mr O'Brien.
Who is Denis O’Brien?
Mr O’Brien initiated the proceedings in 2015 arising from a dossier of material, mainly media stories and a number of other documents, including one entitled Who is Denis O’Brien?. Mr O’Brien claimed the dossier was on a USB memory stick contained in an envelope left in his Dublin office in October 2015.
The Red Flag defendants deny any conspiracy or wrongdoing and have raised issues concerning how Mr O’Brien came into possession of the memory stick. Mr Ganley also denies the claims, including he was the client for the dossier.
On Tuesday, Mr Harty, for Mr Ganley, asked Mr Justice McGrath to order a trial of four preliminary issues, arguing that would save court time and resources.
The issues are: 1. whether Mr O’Brien’s claim in defamation or conspiracy to defame is statute barred and, 2. whether his claim of reputational damage by lawful means conspiracy is “unstateable”. The third issue is whether his claim for breach of confidence and criminal wrongs – arising from alleged encouragement of Mr Ryan to disclose information – is scandalous, vexatious and/or inadequately pleaded. The fourth issue is whether the claims against Mr Ganley should be struck out as disclosing no cause of action or being frivolous, vexatious and an abuse of process.
Opposing the application, Michael Cush SC, for Mr O’Brien, said Mr Ganley was seeking to “dice up” parts of the case that suited him and, even if he won those, there would still be significant claims to be addressed and “no real saving” of time and resources. Mr O’Brien would appeal if this application was decided against him, counsel added. He disagreed an action for conspiracy by lawful means is unknown to law and/or an abuse of process and said the “covert” nature of the conspiracy meant Mr O’Brien required discovery to establish its precise nature.
If the court is ultimately satisfied Mr Ganley was using a PR firm to encourage a politician to avail of Dáil privilege to damage a commercial rival – Mr O’Brien – that is an “extremely unique and worrying” set of circumstances for democracy, counsel said.
Instructions to appeal
Mr Harty said he was not going to say he would have instructions to appeal if this application went against his client as he considered that was “entirely inappropriate”.
Mr Ganley was being faced with the “most extraordinary” claim and request for discovery, all the defendants are at idem Mr Ganley was not Red Flag’s client and Mr O’Brien was seeking “to use deep pockets to force Mr Ganley into a corner”.
Mr Cush said his case was Mr Ganley “is the person who directed all of this”.