Businessman Denis O’Brien has failed to get court orders directing Red Flag Consulting to disclose documents that would reveal the identity of its client for a dossier of material about him.
Those and other documents were sought by Mr O’Brien’s lawyers in preparation for the full hearing of his case against Red Flag and various executives and staff over the dossier which, he alleges, is mostly unfavourable to him and defamatory.
The dossier, which Mr O'Brien said arrived at his Dublin offices in October last year on a USB memory stick contained in an unstamped envelope, includes some 80 media reports and other material, including documents entitled Who is Denis O'Brien? and The Moriarty Tribunal Explainer.
Red Flag, which denies defamation or conspiracy, previously confirmed the dossier included its documents. It said there were significant issues concerning how Mr O’Brien got the material and argued it was entitled to preserve its client’s anonymity. ‘
Unknown’ outcomes
In his judgment yesterday, Mr Justice Colm Mac Eochaidh said Mr O’Brien had failed to show that knowing the client’s identity was relevant and necessary for his case and, as a matter of probability, would advance his plea that Red Flag’s “predominant motive” in compiling the dossier was to harm him.
There were “too many imponderable and unknown” outcomes in the theory of relevance advanced, he said. The most Mr O’Brien could say was knowing the client’s identity might assist with proving the client’s motivation which might assist in attributing that motivation to Red Flag in compiling the dossier.
However, Mr O’Brien was entitled to documents relating to communications between Red Flag and its client concerning the dossier with the client’s name redacted, the judge ruled. Such documents were likely to reveal the nature of the relationship between Red Flag and its client and were relevant because Red Flag’s motivation in preparing the dossier was an issue.
Red Flag had agreed to disclose documents concerning its retainer by the client, the judge noted.
Refusing Mr O’Brien’s application for documents concerning “publication” of the dossier, the judge noted he previously found there was insufficient evidence to conclude “a want of candour” by Mr O’Brien concerning how he got the dossier but the “full story” had not been told about its “mysterious appearance” at his Dublin offices.
Explanation
Given those findings, Mr O’Brien should have been aware he should provide a “full” explanation of how the stick came to be in his possession or, if he could not do that, explain why not, the judge said.
While Mr O’Brien argued publication could be inferred from the dossier being sent to his office, and the fact he was asked certain questions by journalists prior to that, he had failed to substantiate that claim in any way, the judge held. It was “very surprising” and “odd” no details at all were provided about his interactions with the journalists.
It was also surprising Mr O’Brien had been unable to provide any information at all about how the memory stick came to him and had not even told the court why he had no information about its “mysterious appearance”.
He would not order discovery of documents showing the identity of persons or entities to whom the dossier was sent because of the absence of pleaded material in relation to publication, he held.
While Mr O’Brien’s side argued he was entitled to such evidence of publication “without which his case would fail”, so too was every plaintiff who believes they have a good case “but lacks the evidence to prove it”, the judge said.
The matter has been adjourned to next month.
