By Ann O'Loughlin
Businessman Declan Ganley, who denies he is the client behind the commissioning of an allegedly defamatory dossier on Denis O'Brien, says he cannot be brought into the O'Brien case against a PR firm because the application is out of time.
Mr Ganley has said he should not be joined as a defendant in Mr O'Brien's defamation and conspiracy case against Red Flag Consulting, and a number of its executives and employees, because the application came after the maximum two-year time limit for bringing defamation actions.
The High Court heard was hearing an application by Mr O'Brien to join Mr Ganley in the proceedings and also to amend the pleadings to enlarge the claim of conspiracy beyond what is contained in the dossier.
Mr Ganley opposes the application to join him while Red Flag, which denies claims of defamation and conspiracy, opposes the amendment to the pleadings.
Mr O'Brien says that time limit claimed by Mr Ganley is defeated by a provision of the Statute of Limitations which says the period of limitation shall not run if the right of action has been concealed by fraud.
He also says Mr Ganley has provided a "carefully crafted" denial and this is not simply a defamation case but also one about conspiracy.
Mark Harty SC, for Mr Ganley, said there was no actual evidence Mr Ganley was the Red Flag client. It was simply a belief of both former Fianna Fail TD Colm Keaveney and of Mr O'Brien.
Mr Keaveney swore an affidavit saying he believed Ganley was the client after a settlement had been reached between Keaveney and Mr O'Brien in relation to separate defamation proceedings.
However, Mr Keaveney "has nothing" to back up his claim Mr Ganley is the client, counsel said.
Counsel continued that the only thing that can be said about Mr Keaveney's claim is that as a result of the compromise reached between the Keaveney and O'Brien's sides in relation to the defamation proceedings is that Mr Keaveney then agreed to swear an affidavit saying Mr Ganley was the client.
"To me this is alarming and causes me great concern", Mr Harty said.
Counsel said neither Mr Keaveney nor Mr O'Brien had sworn an affidavit to say what the terms of the settlement of the defamation proceedings were.
Mr Harty said there was no question of fraudulent concealment and Mr Ganley had been entirely overt in saying he was relying on the Statute of Limitations to oppose the application to join him in the case.
Michael Collins SC, for the Red Flag defendants, said there was inadequate particularisation of the claims of conspiracy beyond the dossier to justify the court permitting an amendment to the pleadings.
The court heard on Tuesday that one aspect of this was a claim that Red Flag encouraged Neil Ryan, a former assistant secretary in the Department of Finance, to have a meeting with Fianna Fail leader Mícheal Martin in 2015 over the sale of services providing company, Siteserv, to a company of Mr O'Brien by the Irish Bank Resolution Corporation (IBRC). Mr Ryan had been seconded to IBRC.
It was being claimed that this was aiding and abetting a breach of the Official Secrets Act but the court has been told nothing about about it or of how Mr Ryan was subject to that Act in his role in IBRC, Mr Collins said.
But at its height, the only evidence of this was there were text messages passed between Colm Keaveney and Karl Brophy, CEO of Red Flag, about arranging a meeting between Mr Ryan and Mr Martin, counsel said. Mr Brophy, or anyone else in Ref Flag, had never met or corresponded with Mr Ryan who is not a party to these proceedings.
Mr Collins said Mr Keaveney had not, in affidavits he swore, responded to claims made by his (Keaveney's) former parliamentary secretary, Alan Hynes, that a figure of €250,000 had been mentioned as a settlement of the separate O'Brien/Keaveney defamation proceedings.
One would have expected Mr Keaveney to say he was not paid money to give evidence and to have resented Mr Hynes’ claim that Mr Keaveney had told the O’Brien side "tell me what to say and I will say it " after the defamation settlement.
However, Mr Keaveney did not deal with either of those matters in his affidavit, counsel said.
Ms Justice Miriam O'Regan said she would give her decision in due course.