Denis O’Brien notches up his first big win in Red Flag case

Analysis: Legal ruling to make Declan Ganley a defendant a huge relief for businessman

Red Flag case: Denis O’Brien has seemed to face an uphill battle. Photograph: Simon Dawson/Bloomberg

Red Flag case: Denis O’Brien has seemed to face an uphill battle. Photograph: Simon Dawson/Bloomberg

 

Ms Justice Miriam O’Regan’s judgment in favour of Denis O’Brien will have come as a huge relief, if not cause for celebration, to the businessman, his advisers and his legal team. In a case that has been running since October 2015, yesterday’s ruling in the High Court is O’Brien’s first big win, and it is a significant one at that.

From the outset O’Brien has seemed to face an uphill battle, firing an opening salvo that took many observers by surprise. It began when he sought an Anton Piller order – in effect a civil search-and-seize warrant – that would have allowed him to enter the offices of Red Flag Consulting and remove anything he suspected lent weight to his fundamental claim that the company was at the centre of a conspiracy against him and his business interests.

The then president of the High Court, Mr Justice Nicholas Kearns, refused the rarely sought (or granted) Anton Piller order before handing the case over to Mr Justice Colm Mac Eochaidh, who issued what were essentially preservation and copying orders, aimed at protecting the evidence on which Mr O’Brien based his case.

To advance his cause Mr O’Brien then sought discovery – that is, the disclosure – of material held by Red Flag, to see what, if any of it, might support his case. But Mr Justice Mac Eochaidh refused this in a ruling upheld by the three-judge Court of Appeal, and which even the Supreme Court declined to unpick.

In finding in O’Brien’s favour, and citing extensive legal precedent, Ms Justice O’Regan has breathed much new life into the saga

O’Brien simultaneously opened battle on a new front by serving notice, last December, that he would seek to have the Galway-based businessman and telecoms rival Declan Ganley added to the list of Red Flag defendants.

O’Brien’s solicitor Diarmuid Ó Comhain, of Eames, argued that an affidavit sworn for O’Brien by Colm Keaveney, the former Labour Party and Fianna Fail TD and erstwhile O’Brien critic, to the effect that he believed Ganley was Red Flag’s client, was sufficient grounds for Ganley to be made a codefendant.

Separately, it was argued that O’Brien’s claim against Red Flag should be amended to reflect O’Brien’s new belief that Neil Ryan, a Department of Finance official seconded to the Irish Bank Resolution Corporation, had broken the Official Secrets Act. This allegedly occurred, with the encouragement of Red Flag, O’Brien argues, when Ryan met the Fianna Fáil leader, Michéal Martin.

In finding in O’Brien’s favour, and citing extensive legal precedent, Ms Justice O’Regan has breathed much new life into the saga. If her ruling to make Ganley a defendant, and to allow O’Brien to amend his claim, is appealed but upheld there will be a battle royal when, some years from now, the businessman’s substantive case against the PR company comes to court – replete with an eclectic cast of businesspeople and bankers, PR consultants and journalists, politicians, civil servants, digital experts and forensic analysts.