A judge hearing an application by Denis O'Brien to have Declan Ganley named as a co-defendant in Mr O'Brien's legal action against Red Flag Consulting should be told the terms of a deal between Mr O'Brien and former Fianna Fáil TD Colm Keaveney, the High Court was told on Wednesday.
In the deal, Mr O’Brien dropped a defamation case against Mr Keaveney, hitherto a long-standing critic of the businessman. At the time, Mr Keaveney had lost his Dáil seat and was bankrupt.
Mr Keaveney then swore an affidavit for Mr O’Brien in which he said it was his belief that Mr Ganley was the client on whose behalf Red Flag had assembled a dossier which Mr O’Brien says was defamatory of him and was part of a criminal conspiracy against him.
He also gave Mr O’Brien access to text exchanges between him and Red Flag’s chief executive, Karl Brophy, and with the Fianna Fáil leader, Michéal Martin.
Apart from joining Mr Ganley to the action, Mr O’Brien is also asking the High Court to amend his statement of claim against Red Flag. He claims the PR company “encouraged and assisted” Neil Ryan, a former senior official in the department of finance seconded to the Irish Bank Resolution Corporation, to disclose confidential information about Mr O’Brien to Mr Martin, contrary to the Official Secrets Act.
Mr Ryan has denied ever having had confidential banking information of Mr O’Brien’s and says he did not disclose any such information to any member of the Dáil or any public relations firm.
Mr Ganley denies being Red Flag’s client and on Wednesday his counsel, Mark Harty SC, said the terms of the O’Brien-Keaveney deal, in which it is alleged by Mr Keaveney’s former parliamentary secretary Alan Hynes that €250,000 was mentioned to him by Mr Keaveney, should be disclosed.
Mr Harty said the High Court had no evidence Mr Ganley was the client, merely Mr Keaveney’s belief.
“The only thing you can say about Mr Keaveney is that on the day [October 13th, 2017, when the Court of Appeal upheld a High Court ruling against Mr O’Brien] that Mr O’Brien failed in his quest to find evidence, he somehow compromised, that is settled proceedings with Mr Keaveney on the precise same date and as a result of that compromise, Mr Keaveney swore an affidavit for him.
“To me, that is alarming and causes me great concern,” said Mr Harty.
Mr O’Brien’s barrister, Michael Cush SC, interjected: “Mr Harty’s concerns are not a submission to the court.”
“Well I would suggest it should also cause concern the court,” Mr Harty replied.
He continued: “It is undoubtedly the case that Mr Keaveney and Mr O’Brien compromised the case.
“Mr [Diarmuid] O’Comhain [Mr O’Brien’s solicitor], when challenged by Mr Ganley on affidavit; Mr O’Brien when challenged by Mr Ganley on affidavit; Mr Keaveney when challenged by Mr Ganley on affidavit – none of them have sworn an affidavit to say what the terms of that settlement were.
“This is an application which requires a degree of transparency on the part of the applicant [Mr O’Brien] and all this court can say is that it knows very little about what Mr O’Brien knew, and it knows nothing about what he agreed with Mr Keaveney.”
Mr Harty said Mr Ganley should not be joined to the action because it was based on alleged defamatory material in the dossier and the application was being made outside the two-year defamation time limit.
The question of the deal was also raised by Red Flag’s counsel, Michael Collins SC, who said it was not known if the payment to Mr Keaveney of €250,000 had in fact been made by Mr O’Brien. Mr Collins drew attention to what Mr Keaveney did not say in a responding affidavit.
“He doesn’t say ‘and it’s all rubbish, I never got paid €250,000 or any sum by Mr O’Brien’. And he doesn’t say ‘and that allegation that I said I’d say whatever Mr O’Brien wants me to say’ – he doesn’t deny that. . . which is truly extraordinary when you consider the lengths of the detail he’s gone to deal with a far lesser point, namely as to whether Mr Hynes had an input into the speech that he made to Dáil Éireann.”
Mr Collins said an analysis of texts between Karl Brophy and Mr Keaveney showed that Mr Brophy had only introduced Mr Ryan to him and that it was Mr Keaveney who arranged a meeting between Mr Ryan and Mr Martin.
Assertions by Mr O’Comhain that Mr Brophy encouraged Mr Ryan to disclose information were not supported by the texts but were a “gloss” and a “leap” by Mr O’Brien’s solicitor, said Mr Collins.
Michael Cush said Mr Ganley’s sworn and “carefully crafted” denial about not being the client was not “a determinant” in the case; Mr Ganley, or his servants or agents, may have established a “special purpose vehicle” for the purposes of engaging Red Flag.
The statue of limitation did not apply, argued Mr Cush, if the right of action had been concealed by fraud. The barrister said it was his case that the alleged conspiracy against Mr O’Brien was by both lawful and unlawful means, and did not depend only on defamation.
Ms Justice Miriam O'Regan will give her decision at a date to be determined.