Lawyers for Denis O’Brien have confirmed to the High Court that he is appealing its refusal to order Red Flag Consulting to discover documents revealing the identity of its client for a dossier of material about the businessman.
Mr O’Brien alleges that the material is mostly unfavourable to him and is defamatory.
Mr Justice Colm Mac Eochaidh awarded costs of the discovery hearing against Mr O’Brien after finding that hearing could have been avoided had Red Flag’s “reasonable” offers concerning discovery being taken up by Mr O’Brien.
There was no good reason not to give Red Flag the costs of this application, the judge said. He stayed the order for costs, and other orders made arising from his ruling on discovery, pending Mr O’Brien’s appeal against that ruling.
The decision to appeal will further delay the full hearing of Mr O’Brien’s action, initiated in October 2015, against Dublin-based Red Flag and some of its executives and staff. A date for the full hearing has yet to be fixed.
Memory stick
Mr O’Brien has told the court the dossier at issue arrived at his Dublin offices in October 2015 on a USB memory stick contained in an unstamped envelope. It included some 80 media reports and other material, including documents entitled
Who is Denis O’Brien?
and
The Moriarty Tribunal Explainer
.
Red Flag denies defamation or conspiracy.
It previously confirmed the dossier included its documents but said there were significant issues concerning how Mr O’Brien got that material and argued it was entitled to preserve its client’s anonymity.
Last month, Mr Justice Mac Eochaidh refused to order Red Flag to discover documents that would disclose its client’s identity.
The judge 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.
He also refused to order Red Flag to discover documents concerning “publication” of the dossier.
He ruled Mr O’Brien was entitled to documents relating to communications between Red Flag and its client concerning the dossier, but with the client’s name redacted.
Draft order
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, Mr Justice Mac Eochaidh said. Red Flag had agreed to discover documents concerning its retainer by the client, the judge said.
When the matter returned before the judge on Thursday for orders arising from his judgment, he was told the sides had agreed a draft order for discovery in the terms of the judgment which provided Red Flag would swear an affidavit of discovery in 16 weeks.
As Mr O’Brien intended to appeal, both sides also agreed the discovery order be stayed pending that appeal.
William Abrahamson, for Red Flag, also sought costs of the discovery hearing, saying the judge’s findings mostly reflected the discovery offered by his side but not accepted by Mr O’Brien.
The judge rejected arguments by Frank Beatty SC, for Mr O’Brien, that the costs issue should await the outcome of the action. He had decided “99 per cent” of the discovery issues in favour of Red Flag and it was entitled to its costs, to be stayed pending appeal, he ruled.
