Denis O’Brien fails in Supreme Court bid to access Red Flag files

Businessman sought leave to challenge Court of Appeal rejection of discovery attempt

Denis O’Brien failed in his Supreme Court bid. File photograph: Cyril Byrne

Denis O’Brien failed in his Supreme Court bid. File photograph: Cyril Byrne

 

The Supreme Court has refused to allow businessman Denis O’Brien leave to challenge a Court of Appeal rejection of his attempt to get discovery against Red Flag Consulting.

Three judges of the court, led by the Chief Justice, Mr Justice Frank Clarke, ruled that Mr O’Brien had failed to surpass the threshold for his case to be admitted for consideration. The threshold is that the matter at issue must be one of general importance.

“This case does not involve anything more than the application of well-established principles to the facts of this case,” read the determination, which was considered also by Mr Justice John McMenamin and Ms Justice Elizabeth Dunne. “On that basis, the court is not satisfied that the constitutional threshold is met and will refuse leave to appeal.”

Since the establishment of the Court of Appeal, under the 33rd Amendment to the Constitution, the Supreme Court has taken the view that only matters of exceptional importance should come before it, a position the three judges noted had now “been considered in a large number of determinations”.

Upholding decision

Mr O’Brien was seeking to appeal a Court of Appeal ruling, upholding an earlier High Court decision, refusing to give him discovery against Red Flag Consulting.

Mr O’Brien asserts Red Flag has been involved in a criminal conspiracy to damage him and his business interests and is suing for defamation.

However, the High Court ruled that Mr O’Brien had failed to prove that a dossier of material about him, assembled by Red Flag, had ever been published. The court also criticised Mr O’Brien for failing to explain adequately how he came to be in possession of the dossier.

The Court of Appeal upheld the High Court ruling, and last October, Mr O’Brien appealed to decision to the Supreme Court.

In its determination, the Supreme Court said there was “considerable merit in the criticism” that matters set out by Mr O’Brien in his application “go well beyond matters which were the subject of findings by the trial court”.