Ganley asks court to throw out O’Brien case linking him to Red Flag

Businessman Declan Ganley is asking the High Court to throw out the legal action taken against him by telecoms rival Denis O'Brien.

In documents filed with the High Court this week, the Galway-based entrepreneur states that Mr O'Brien's action, to which Mr Ganley was joined last March, along with Red Flag Consulting and several members of the PR firm's staff, is statute barred, an abuse of the legal process, while also being scandalous, vexatious and frivolous.

The documents filed include Mr Ganley’s stated intention of asking the High Court on February 11th, 2019, to throw out Mr O’Brien’s action against him. This notice of motion is supported by an affidavit sworn by Mr Ganley and copies of letters exchanged between his and Mr O’Brien’s solicitors since March.

Mr O'Brien has been suing Red Flag, and leading figures in the company – including Gavin O'Reilly, Karl Brophy and three other employees – since October 2015. He alleges criminal conspiracy by the company and defamation through its assembling of a dossier containing unflattering newspaper articles and profile/assessments of Mr O'Brien, several of which dwell on the findings of the Moriarty tribunal.

Mr O’Brien argues that Mr Ganley is the client on whose behalf the dossier was created, a charge he denies. After a string of courtroom failures to get discovery against Red Flag, and criticism from the bench, Mr O’Brien won a notable victory in March in having Mr Ganley joined in the action as a co-defendant with Red Flag and the others.

Since then both sides have been jousting over voluntary discovery – an engagement that has evidently now prompted Mr Ganley to file for dismissal.

“I am not the ‘client’ as alleged,” he states in his affidavit. “I did not, either personally of through servants or agents, conspire or combine together with the other defendants to this action [Red Flag et al], or any of them, wrongfully and/or with the sole or predominant intention of injuring and/or causing loss to [Mr O’Brien] in the manner alleged.”

Statute of limitations

Mr Ganley says Mr O’Brien has claimed that if the Galway businessman is not personally the client, “the client may be ‘companies associated’ with me”. If that is the case, Mr Ganley argues, Mr O’Brien should identify such companies and show why he [Mr Ganley] is liable for their actions.

Mr Ganley argues, using dates cited by Mr O’Brien, that the alleged publication of the dossier (which Red Flag denies) occurred before October 12th, 2015, the day before Mr O’Brien launched his action against the PR firm.

He says that under the Defamation Act and the statute of limitations, Mr O’Brien should have launched an action against him before October 12th, 2017. Mr O’Brien’s move against Mr Ganley began on December 11th, 2017 and resulted in his being joined in the action on April 17th, 2018.

Mr Ganley argues that while he referenced the statute of limitations in seeking to fend off the joining action, “the substantive issue in relation to whether [Mr O’Brien’s] claim is time-barred is yet to be determined”.

He goes on to argue that Mr O’Brien’s assertion of conspiracy against him “has not been properly particularised, has not been distinguished from defamation and in any event is bound to fail”.

Mr Ganley says that Mr O’Brien’s claims against him of breaching confidence, and his failure (in Mr Ganley’s view) to detail how Mr Ganley conspired against him or damaged him is “so ill particularised and devoid of actual detail that it is not possible to properly defend”.

‘Abuse of process’

Mr Ganley continues: “to require [me] to assign time and resources to defending such a claim is plainly an abuse of the process. Further, I say that [Mr O’Brien] in making accusations of criminal conduct against persons who are not parties to the proceedings is clearly engaged in vexatious or scandalous pleading.”

In letters between the two sides, Mr Ganley's solicitors, Tweed, complain about the "glacial process of these proceedings".

In a lengthy exchange following Mr Ganley’s application to the High Court for discovery last July (in which he sought details supporting Mr O’Brien’s allegations earlier in the case), Mr Ganley agreed to hand over three categories of document but refused in four others, arguing they related only to unsubstantiated allegations made by Mr O’Brien which it was up to him to prove.

In 10 document categories sought from Mr O'Brien, his solicitor, Eames, declined in nine and said he did not understand one other category.

In response, Tweed apologised and clarified that the category related to all documents Mr O'Brien possessed that were connected to his receipt of an IBRC memo concerning department of finance official Neil Ryan, seconded to the bank, which was written by Tom Hunnerson and sent in 2012 to the bank's then chief executive, Mike Aynsley.

Mr O’Brien claims that Mr Ganley encouraged Ryan to disclose his private bank affairs, which Mr Ganley denies.