Denis O’Brien loses court appeal over Red Flag dossier
Businessman sought access to documents that might have disclosed identity of client
Businessman Denis O’Brien has lost his appeal in the Red Flag case. Red Flag denies defamation or conspiracy or that Mr O’Brien suffered harm or loss from the dossier. Photograph: Dara Mac Dónaill
Denis O’Brien has failed to get court orders directing Red Flag Consulting to give him documents that might disclose the identity of its client for an allegedly damaging dossier about him.
Mr O’Brien was entitled to know if the client is his “absolute sworn number one enemy in the world”, his counsel, Michael Cush SC, had argued. The businessman wanted the identity for reasons including possible proceedings against the client.
Red Flag denies defamation or conspiracy or that Mr O’Brien suffered harm or loss from the dossier. It has also raised issues concerning his claim he got the dossier anonymously from a USB stick in an envelope left in his Dublin offices in October 2015.
A three-judge Court of Appeal on Friday dismissed Mr O’Brien’s appeals over the High Court refusal of discovery of the client’s identity.
The identity was not relevant for determination of his case against Red Flag and some of its executives and staff, with the effect he had not met the legal test for discovery, it ruled.
A cross-appeal by Red Flag over orders requiring it discover documents relating to its communications with the client about the dossier, with the client’s name redacted, was also dismissed.
The president of the Court of Appeal, Mr Justice Sean Ryan, with Mr Justice Michael Peart and Mr Justice Gerard Hogan, said Mr O’Brien’s claim against Red Flag is of conspiracy to damage him in a variety of ways, including defamation.
The “simple” issue in this appeal was if the client’s identity would enable Mr O’Brien to advance his own case or damage the defendant’s case. He could not see how the client’s name could give rise to a deduction of intent to collect and publish untrue material, or conspire to do so.
Compilation of the dossier in itself was not sufficient to establish a conspiracy on the part of that client, or to demonstrate Red Flag was a co-conspirator with the client.
Mr O’Brien was not entitled to ascertain the client’s identity by seeking discovery from Red Flag. Mr O’Brien had failed to show the discovery sought was relevant, directly or indirectly, to the matters at issue between the sides in this case and was not entitled to discovery based on “pure speculation”.
The “fundamental point” is that Red Flag’s client was free to collect and/or publish material critical of Mr O’Brien even if this was done “for the basest of motives”. The client could also engage others to do that, subject to doing so lawfully.
‘Thickets of confusion’
If material hostile to a person is published and they sue, truth is a full defence.
If the dossier was actually published by Red Flag, and it defamed Mr O’Brien, he has a remedy under the Defamation Act 2009. Mr O’Brien had not provided evidence of actual publication of the dossier to justify discovery, he said.
He was at a loss to understand, through “all the thickets of confusion” in this case, how precisely the unnamed client was to be indicted for conspiracy or defamation. The time limit for any defamation case against the client would expire this month, he noted.
He also refused discovery on grounds Mr O’Brien had lost an earlier High Court application also aimed at getting the client’s identity.
After the judgment, Frank Beatty SC, for Mr O’Brien, said his client would consider whether to seek an appeal to the Supreme Court.
Because the main appeals were by Mr O’Brien, and Red Flag’s cross-appeal was “relatively insignificant”, the court proposed awarding costs against Mr O’Brien, with a stay on payment pending final determination of the case. Any objections to the costs order should be filed within four weeks, it said.