Denis O’Brien has been refused a High Court injunction requiring Red Flag Consulting to identify, at this stage, its client for a dossier of material about the businessman which he alleges is evidence of a conspiracy to damage him.
Mr Justice Colm MacEochaidh upheld arguments by Red Flag that it has a duty of confidentiality to its client which would be irreversibly damaged by disclosure the client’s identity at this interlocutory stage of the proceedings.
While Mr O’Brien had maintained the duty of confidentiality can yield to the entitlement to litigate over wrongdoing, he had failed to provide evidence which showed, to the high degree of certainty required, any wrongdoing justifying such an order, the judge said.
While it was claimed the alleged conspiracy affected his reputation for philanthrophic activity in Haiti and may have damaged the planned IPO of his company Digicel, the evidence in that regard was insuffcient to justify the injunction. Nor had be established there was publication of the complained of dossier material such as warranted the injunction sought, the court heard.
Mr O’Brien had failed to provide evidence entitling him, at this stage, to the identification order on foot of his claims there was a conspiracy, by both lawful and unlawful means, to damage him, the judge said.
Alleged conspiracy
He had failed to provide evidence showing, to the extent required, he was harmed by the alleged conspiracy.
For Mr O’Brien to get an injunction based on the lawful means conspiracy, which was “a strange and novel tort in the 21st century” which damnifies people who do together what would not be unlawful if that was done apart, he would have to show some evidence of the motivation of the unnamed client, the judge said.
The contest was between Red Flag’s desire not to breach a duty of confidentaility against Mr O’Brien’s interest in getting information at this stage concerning the unknown client, the judge said.
Mr O’Brien “knows full well” how important confidentiality is as he had in 2013 litigated his own confidentiality before the judge in relation to his banking affairs, the judge said.
If confidentiality was to be removed, Mr O’Brien must show he will suffer irreversible harm unless Red Flag court discloses the name of its client now, the judge said. He would have to show, to a popint of almost certainty, he would suffer irreversible harm without an injunction and had failed to do so.
The judge also addressed other claims by Red Flag alleging a lack of candour by the businessman concerning the nature and circumstances leading to his becoming suspicious of a campaign against him; the nature of the investigation he had arranged for to be conducted into the alleged conspiracy and the circumstances concerning the appearance of a USB memory stick, which contained the dossier, in his Dublin offices last October. The businessman denied those claims.
Candour
The judge said he cannot decide if there had been a lack of candour as there simply was not enough evidence.
While it might well be the case, the court believes the “full story” had not been told about matters including the circumstances in which the memory stick appeared on Mr O’Brien’s desk. There may well be a “perfectly good explanation” for all of that, the judge said, adding that he simply could not decide, based on the evidence, that there was a lack of candour.
During the hearing of the identificaiton application earlier this month, lawyers for Mr O’Brien said they believed they could also get the client’s identity through the normal High Court process of discovering documents for a full hearing.
Red Flag, which previously raised issues concerning how the USB stick containing the dossier material came into Mr O’Brien’s possession, on Monday also told the court of further issues relating to the USB stick.
Those included whether there was an attempt to delete or overwrite material from the stick on October 24th last or whether there was an innocnent explanation about that, Michael Collins SC, for Red Flag, outlined.
Mr O’Brien’s side said they needed time to address these matters, which Martin Hayden SC, for the businessman, said they took very seriously. These matters were only raised very recently by the defendants following receipt of a report from their experts who inspected the stick, counsel said.
After giving his decision, the judge told the sides he did not consider the case urgent. He considered the existence of the proceedings would have a “quietening effect” on the alleged conspirators, “if there are any”, he added.
Mr O’Brien initiated his action last October. It has been brought against Red Flag and various of its executives and staff, including the firm’s chief executive Karl Brophy.
