Options narrowing for Denis O’Brien in Red Flag battle

The latest judicial rebuff to Denis O’Brien’s efforts to crack open - on his terms - the Red Flag Consulting case may finally signal the beginning of the end, if not the actual curtain call, for this particular legal saga.

To date, an array of judges and courts have all refused to give the businessman what he wants - unfettered access, by way of discovery, to information inside the public relations consultancy.

Mr O'Brien alleges that Galway businessman and telecoms rival Declan Ganley is the client on whose behalf Red Flag compiled an unflattering dossier on him.

Mr Ganley denies this and, in a separate fresh legal action - a side show addendum to Friday's Supreme Court decision - Red Flag says it will not be breaching what the company sees as client confidentiality.

The case originated when, according to Mr O’Brien, a USB memory stick arrived anonymously at his Dublin office. The USB containedmore than 300 files, all but a handful of them being copies of newspaper articles about him and his business dealings.

The remaining files were essentially unflattering profiles of Mr O'Brien and his business record. A final file was a draft speech by the former Fianna Fáil TD Colm Keaveney, which was also critical of Mr O'Brien.

Mr O’Brien launched his legal action against Red Flag, which had assembled the contents of the USB stick.

Exceptional circumstances

From the outset, Mr O'Brien has sought to use the heaviest available legal artillery against the PR company. He began his case in October 2015 seeking an Anton Pillar Order - in effect, a civil search and sieze warrant.

This legal device is used in only the most exceptional circumstances in which a litigant contends, for example, that evidence vital to their case is in imminent danger of being destroyed.

No such evidence existed regarding Red Flag, beyond Mr O'Brien's assertions, and the then President of the High Court, Mr Justice Nicholas Kearns, refused the application.

The case then went before Mr Justice Colm MacEochaidh in the High Courtwho, while granting Mr O’Brien a preservation order, rejected his demand for discovery - that is, access to Red Flag’s files under a series of headings.

In doing so, the judge said Mr O’Brien had failed to advance evidence as to why the court should facilitate him, had failed to explain how he obtained the dossier and had failed to prove publication, a necessary threshold for defamation.

Mr O'Brien pressed on but the Court of Appeal shot him down again in October 2017. In doing so, the three judges - Mr Justice Sean Ryan, Mr Justice Gerard Hogan and Mr Justice Michael Peart - sided strongly with the reasoning, law and precedents quoted by Mr Justice MacEochaidh.

And now, the Supreme Court has judged there is no reason at all for it to intervene in the case or overturn the decisions of lower court colleagues.

Judgment was given on Friday by some of the most senior members of that court, including the Chief Justice, Mr Justice Frank Clarke, Mr Justice John Mac Menamin and Ms Justice Elizabeth Dunne.

Challenging interpretations

Their judgmentsays there is “considerable merit in the criticism [by the Court of Appeal] made to the effect that the facts set out in the application filed on behalf of Mr O’Brien go well beyond matters which were the subject of findings by the trial judge”.

They reject the rehashing, through affidavits, of matters that have already been the subject of findings of facts by lower courts. In other words, they say a plaintiff should not keep revisiting things already decided as fact, as opposed to challenging interpretations of the law.

The three judges say they “wish strongly to emphasise” that the purpose of an appeal to the Supreme Court “is not designed to permit the applicant [Mr O’Brien] to engage in advocacy”.

And they are blunt in telling Mr O’Brien that were they to accede to his request to overturn the Court of Appeal’s decision to uphold the High Court’s discovery refusal, they would in effect be defeating the entire purpose of having a Court of Appeal.

The very particular constitutional threshold required to allow Mr O’Brien’s appeal to go all the way to the top had not been met, they ruled.

It is not clear whether Mr O’Brien will now seek to prosecute his case against Red Flag without discovery or place all his remaining eggs in what might be described as the Colm Keaveney basket.

This is a separate High Court attempt to prise open Red Flag on the basis of the former Fianna Fáil Galway East TD’s sworn affidavit purporting to show that Mr Ganley is the client.