O’Brien loses court ap­peal in bid to ac­cess Red Flag’s dossier

Irish Independent - - News - Tim Healy

BUSI­NESS­MAN De­nis O’Brien has failed to get court or­ders di­rect­ing Red Flag Con­sult­ing to give him doc­u­ments that might dis­close the iden­tity of its client for an al­legedly dam­ag­ing dossier about him.

Mr O’Brien was en­ti­tled to know if the client is his “ab­so­lute sworn num­ber one en­emy in the world”, his coun­sel Michael Cush SC had ar­gued.

Red Flag de­nies defama­tion or con­spir­acy or that Mr O’Brien suf­fered harm or loss from the dossier. It has also raised is­sues con­cern­ing his claim he got the dossier anony­mously from a USB stick in an en­ve­lope left in his Dublin of­fices in Oc­to­ber 2015.

A three-judge Court of Ap­peal (COA) yes­ter­day dis­missed Mr O’Brien’s ap­peals over the High Court re­fusal of dis­cov­ery of the client’s iden­tity.

The iden­tity was not rel­e­vant for de­ter­mi­na­tion of his case against Red Flag and some of its ex­ec­u­tives and staff, with the ef­fect he had not met the le­gal test for dis­cov­ery, it ruled.

A cross-ap­peal by Red Flag over or­ders re­quir­ing it to dis­cover doc­u­ments re­lat­ing to its com­mu­ni­ca­tions with the client about the dossier, with the client’s name redacted, was also dis­missed.

The pres­i­dent of the COA, Mr Jus­tice Sean Ryan, with Mr Jus­tice Michael Peart and Mr Jus­tice Gerard Ho­gan, said Mr O’Brien’s claim against Red Flag is of con­spir­acy to dam­age him in a va­ri­ety of ways, in­clud­ing defama­tion.

The “sim­ple” is­sue in this ap­peal was if the client’s iden­tity would en­able Mr O’Brien to ad­vance his own case or dam­age the de­fen­dant’s case. He could not see how the client’s name could give rise to a de­duc­tion of in­tent to col­lect and pub­lish un­true ma­te­rial, or con­spire to do so.

Com­pi­la­tion of the dossier in it­self was not suf­fi­cient to es­tab­lish a con­spir­acy on the part of that client, or to demon­strate Red Flag was a co-con­spir­a­tor with the client.

Mr O’Brien was not en­ti­tled to as­cer­tain the client’s iden­tity by seek­ing dis­cov­ery from Red Flag. Mr O’Brien had failed to show the dis­cov­ery sought was rel­e­vant, di­rectly or in­di­rectly, to the mat­ters at is­sue between the sides in this case.

The “fun­da­men­tal point” is that Red Flag’s client was free to col­lect and/or pub­lish ma­te­rial crit­i­cal of Mr O’Brien even if this was done “for the basest of mo­tives”. If ma­te­rial hos­tile to a per­son is pub­lished and they sue, truth is a full de­fence.

Af­ter the judg­ment, Frank Beatty SC, for Mr O’Brien, said his client would con­sider whether to seek an ap­peal to the Supreme Court.

Busi­ness­man De­nis O’Brien

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