Denis O’Brien suffers a serious setback in Red Flag battle

Analysis: High Court judge delivers blunt assessment of the businessman’s case

Denis O’ Brien at the High Court, Dublin. File photograph: Gareth Chaney/Collins

Denis O’ Brien at the High Court, Dublin. File photograph: Gareth Chaney/Collins

 

“I’m not going to read out the whole of the judgment, ” said Mr Justice Colm Mac Eochaidh in a soft voice. “I’ll just read out some of the passages.”

Court 15 in Dublin’s Four Courts, a small room on the second floor, was barely half full.

Apart from the two sets of lawyers – one for Denis O’Brien, the other for Red Flag Consulting – and a handful of reporters, the public seats were largely empty,

The judge’s voice may have been soft, but what he said was not.

Flicking though pages of his 26-page ruling to get to the meaty bits, it was clear quickly that this was not going to be a happy day for the plaintiff, Denis O’Brien.

As part of his year-long battle with Red Flag, O’Brien was seeking discovery of nine categories of documents from inside the PR company – in other words, he wanted the High Court to direct the company to give him the documents to help him pursue his case against them for conspiracy, defamation and causing him loss by unlawful means.

In the event, he lost in eight of the nine categories.

Red Flag does not have to disclose the identity of their client, the person on whose behalf a dossier of newspaper cuttings on O’Brien, plus some assessments of him and his businesses, was assembled by the PR company.

Furthermore, the judge ruled that O’Brien had failed to prove the dossier had been published and therefore he could not prove that he had been defamed.

The one category in which the judge found in O’Brien’s favour, Category G, relates to communications between Red Flag and their client on the dossier and any other subject.

However, the “R” word with which O’Brien has become so associated in the public consciousness raised its head once again.

“Needless to say,” wrote the judge, “any discovery ordered in this category may be redacted to conceal the identity of the defendant’s client.”

In four separate categories of documents, O’Brien had wanted to know for whom Red Flag was working.

Marching orders

He wanted to know who wrote and who edited three original papers about him in the dossier.

And he wanted to know just about everything possible about a draft speech in the dossier by former TD Colm Keaveney: who wrote it, who in Red Flag suggested changes to the speech, the date on which they were engaged, where that happened and under what terms.

However, Mr Justice Mac Eochaidh refused.

O’Brien had failed to persuade him that knowing the identity of the Red Flag client would advance his assertion that Red Flag had a motive to harm him.

O’Brien had to prove relevance in this regard but had failed.

The judge decided there were too many imponderables and unknown outcomes to allow this.

Two other categories related to the alleged publication of the dossier and here, Mr Justice Mac Eochaidh delivered his bluntest comments.

The businessman claimed that questions from journalists suggested they had seen the dossier, and therefore it had been published, but the judge was having none of it.

“The plaintiff has failed to substantiate this claim in any way,” he ruled, adding that O’Brien had not given “any details at all” which would allow the court to say whether actions of journalists were connected with the dossier.

‘Very surprising’

“This is information which the plaintiff presumably has at his fingertips and it may support the proposition that the journalists had seen the dossier and therefore that it had been published to them.

“The omission of these potentially very relevant alleged facts from the pleadings or from the correspondence and affidavits grounding this application is odd.”

The judge reminded everyone how he had “pointedly said” a year ago that the full story as to how O’Brien got the dossier, which was on a USB memory stock, had not been told. He said nothing had changed since.

“The plaintiff has been aware, or ought to have been aware, that he should provide a full explanation of how the memory stick came to be in his possession or if he can’t do that, he should explain why this is not possible.

“He cannot rely of the alleged clandestine nature of the defendant’s activities to explain the absence of evidence about how the memory stick came to be in his possession.

“These facts are known to him.”

Ruling against two further categories of discovery sought, both relating to documents the defence might use later, the judge said he would see both sides again in January.

Outside the courtroom, two groups of lawyers and client representatives huddled separately, poring over the judgment and its implications.

Only one of them appeared happy.

The plantiff is appealing against the ruling.

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