Declan Ganley fails in preliminary O'Brien/Red Flag case application

Declan Ganley fails in preliminary O'Brien/Red Flag case application
File image of Declan Ganley

Businessman Declan Ganley - who billionaire Denis O'Brien believes is allegedly behind a lobbying campaign designed to damage him - has failed in a High Court application to have certain claims in the case determined before the main trial involving a public relations firm.

Mr O'Brien is suing the Red Flag Consulting public relations firm and a number of people involved in it, along with Mr Ganley who has interests in the telecommunications business.

Mr Ganley has separately sued the State and Mr O'Brien over the awarding in the 1990s of the country's second mobile phone licence to an O'Brien company.

In this action, it is claimed the Red Flag defendants and Mr Ganley were involved in a negative media and political lobbying campaign against Mr O'Brien who controls the telecommunications firm, the Digicel Group.

On Friday, Mr Justice Michael MacGrath refused an application by Mr Ganley to determine a number of preliminary matters concerning whether the claims against him were stateable and statute barred.

The judge said Mr O'Brien first learned of the alleged campaign against him in 2015 when he unexpectedly received a USB memory stick containing a dossier of material.

Mr O'Brien says it amounted to defamation, breach of confidence and conspiracy to cause him damage by lawful and unlawful means. He seeks compensatory, aggravated, punitive and exemplary damages.

All defendants deny the claims and Mr Ganley denies he is the Red Flag client behind the alleged campaign.

Mr O'Brien initially sued Red Flag and five people involved in it, including former Independent News and Media executives Gavin O'Reilly and Karl Brophy.

In 2018, after obtaining certain information from former TD Colm Keaveney and public relations consultant John Fallon, who had allegedly turned down an approach to work on the O'Brien dossier, a successful application was made to join Mr Ganley as co-defendant in the Red Flag proceedings.

It is alleged in these proceedings that the defendants, in particular O'Reilly, Brophy and Ganley, have had previous dealings with Mr O’Brien as a result of which they bear hostility towards him.

Mr Ganley then asked the court to order a trial on a number of preliminary issues.

He wanted the court to decide whether the claim against him was statute-barred as it was brought some two-and-a-half years after the initial proceedings. He also asked whether the claim relating to reputational damage "by lawful means conspiracy" was unstateable, unknown to law and/or an abuse of process.

Mr O'Brien's lawyers opposed the application arguing, among other things, law, the statute of limitations did not apply because there was fraudulent concealment of information which meant the time limit on bringing proceedings was postponed.

Mr Ganley argued fraudulent concealment could not arise because there was no pre-existing relationship between the parties.

1Declan Ganley fails in preliminary O'Brien/Red Flag case application

Mr Justice MacGrath refused Mr Ganley's application saying in relation to fraudulent concealment he was unable to conclude there was "a clear point to which it is possible to have a clear answer." In light of the state of the pleadings and absence of agreement or concession on the facts between the parties, it would be premature to do so.

Notwithstanding the prematurity of the application, Mr Ganley had not "identified issues which are sufficiently concise and capable of a clear answer to justify making the order sought."

He was also not satisfied there would be a significant saving of time and expense by determining the matters raised by Mr Ganley.

With regard to Mr Ganley's claims in relation to other matters including that the claims are vexatious and inadequately pleaded, he said the court expressed no view on this save to say nothing in his decision affected Mr Ganley's right to engage the jurisdiction of the court to seek a strike out on these grounds.

In a separate judgment on Friday, Mr Justice McGrath ruled the court should first hear an application for discovery on documents against the non-Ganley defendants before going on to determine Red Flag's application to strike out certain parts of an amended statement of claim delivered last year by Mr O'Brien.

The Red Flag defendants argued if part of the pleadings were struck out, this would have a bearing on the discovery application. Mr O’Brien said that given the secretive and clandestine nature of the acts alleged against the defendants, the discovery application should be determined first or else he would be faced with a “Catch-22 situation”.

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