By Ann O'Loughlin
Businessman Denis O'Brien has claimed a dossier about him was compiled by Red Flag Consulting for a client for a “hostile” motive and was part of a “campaign of defamation” intended to damage him.
It is “very relevant” that Gavin O’Reilly and Karl Brophy of Red Flag had an “animus” against Mr O’Brien arising from the circumstances of the departure of both from Independent News and Media, Michael Cush SC, for Mr O’Brien, argued.
While Red Flag says it prepared the dossier in the ordinary course of business for a client, Mr O’Brien rejects that claim and he is entitled to know whether the client is his “absolute sworn number one enemy in the world”, he said.
It was also “quite sinister” that the dossier included proposed changes by Red Flag to a speech of Fianna Fáil TD Colm Keaveney and Mr O’Brien did not accept Red Flag’s insistence the amended speech was not part of its work for the client, he said.
While Mr Keaveney had not adopted the proposed changes and had delivered his own speech, the proposed amendments indicated an intention by Red Flag’s client to use Dáil privilege to damage Mr O’Brien, he argued. This suggested intent by someone outside Dáil Eireann to engage in “subversion of the constitutional order”.
He was opening Mr O’Brien’s appeal aimed at establishing the identity of the client. Mr O’Brien has appealed refusals by the High Court to require Red Flag to discover documents which would disclose the client's identity or concerning publication of the dossier.
The High Court said Mr O'Brien had failed to show knowing the client's identity was relevant and necessary for his case or could advance his claim Red Flag's "predominant motive" in compiling the dossier was to harm him.
The businessman has said the dossier, comprising mainly media reports but also including documents entitled: “Who is Denis O’Brien?” and “Moriarty Tribunal Explainer”, was on a USB memory stick in an envelope put anonymously on his desk at his Dublin offices in October 2015.
Red Flag has said the dossier included its material and it is entitled to keep the client’s identity confidential. It denies defamation or conspiracy and has also raised issues about how Mr O’Brien got the dossier.
Mr O’Brien says he needs to know the identity of the client to consider whether to sue that person as well as Red Flag.
Today, Mr Cush said the identity of the client and the issues concerning publication are the two main strands of appeal. His side had some evidence of publication albeit that was limited, he said.
This is a “very unusual” case and he was unaware of another one here where the allegation is of a “campaign of defamation” with the objective of causing damage, counsel said. He was also alleging conspiracy by unlawful means – defamation. He further claimed, when two or more people combine, while they may act lawfully, if their sole aim is to cause injury, that is unlawful.
The question of motive is “absolutely central” to the claims and the High Court applied the wrong test when refusing to order Red Flag to discover the documents, he said.
Mr Cush said it is public knowledge and relevant to motive in this case that Gavin O'Reilly, Chairman of Red Flag, is the son of Dr Tony O’Reilly with whom it is “very well known” Mr O’Brien has “fractious relations”.
Dr O’Reilly was “ousted” from INM by Mr O’Brien and his son Gavin was also ousted as such by Mr O’Brien from INM, counsel said. Mr Brophy was also a former journalist with INM who blamed his departure from INM on Mr O’Brien.
Those previous connections with Mr O’Brien were “obviously relevant” and his side will be relying on that at trial, counsel said. It was also relevant Gavin O’Reilly and Mr Brophy could be said to have an “animus” against Denis O'Brien. All of this made knowing the client’s identity clearly relevant.
The appeal continues.