Denis O’Brien case against PR firm Red Flag adjourned

Businessman wants experts to photograph computer material in preparation for action

Efforts are continuing to reach agreement about how much computer material a Dublin-based consulting firm must provide for photographing by experts for businessman Denis O’Brien for his action against the firm.

At the High Court today, Michael Cush SC, for Mr O'Brien, said they had made some progress concerning the material to be made available by Red Flag Consulting Ltd for photographing.

After being told some matters remained to be addressed, Mr Justice Colm MacEochaidh agreed, on consent of both sides, to adjourn the matter to Thursday.

Mr O'Brien wants his experts to photograph certain material in preparation for his action alleging Red Flag is involved in an alleged conspiracy to damage him personally and commercially, including concerning the recent planned IPO of his company, Digicel, which ultimately did not proceed.


His action over alleged defamation and conspiracy is against Red Flag and some of its directors and employees, including Red Flag chief executive Karl Brophy, a former senior executive with Independent News & Media; and another Red Flag senior executive, Gavin O'Reilly, a former chief executive of INM.

The businessman’s lawyers last week complained the defendants breached an order made earlier this month allowing experts for both sides carry out “forensic imaging” of computer files.

That process involves taking photographs of certain documents and storing them pending the court’s decision whether Mr O’Brien is entitled to inspect the documents.

Mr O’Brien claims the firm was engaged to compile and contribute to a dossier of mainly unfavourable material about him and he wants to inspect the Red Flag files to ascertain who is behind the alleged conspiracy.

The court previously heard Mr O’Brien had hired a private investigator to look into the alleged conspiracy and later received a USB stick containing the dossier which was delivered anonymously to him in an envelope.

His lawyers initially sought orders permitting his side enter Red Flag’s offices and inspect all its computers and take material but the High Court refused that as “quite draconian”. He instead got an order restraining interference with the documents.

That order has been varied to allow the forensic imaging process be carried out by experts for both sides. The court has fixed December 8th to hear Mr O’Brien’s application to inspect the photographed material.

Red Flag denies defamation, conspiracy or any wrongdoing. Its lawyers told the court the dossier does contain material gathered by the firm which is very concerned over how that came into Mr O’Brien’s possession.

Mr O’Brien’s side alleged the Red Flag side was not complying fully with the forensic imaging order on grounds including they could not access material stored in “cloud” (an internet-based system of storage) to trace whether material has been deleted.

In denying any breach, the Red Flag side argued the order’s terms provided only for limited access to the computers of those involved in creating, editing and reviewing the dossier documents.

On Tuesday morning, Mr Cush said the issues between the sides relating to the forensic imaging process had narrowed but the other side needed to take instructions and he asked that the matter be adjourned to the afternoon.

When it returned to Mr Justice MacEochaidh at 2pm, Mr Cush said there were still some outstanding matters, including relating to the imaging of dropbox comments concerning media articles which featured in the dossier.

The Red Flag side had said it has the 30 day comments version of Dropbox but would ask Dropbox if it could provide a longer version, counsel outlined. There were some other matters to be addressed, including arising from conflicting expert advice about material stored in “cloud”. The judge adjourned the matter to Thursday to allow the remaining matters be addressed.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times