Judgment due on O’Brien appeal over refusal of Red Flag discovery

Businessman Denis O'Brien's long-running case against Red Flag Consulting returns to the courts on Friday.

The Court of Appeal is set to give judgment in his appeal against a High Court refusal of an application, by Mr O'Brien, for discovery.

Had the application been granted, it would have given Mr O’Brien wide-ranging access to documents held by the public relations firm, as well as forcing it to disclose the identity of the client on whose behalf it assembled a dossier on the businessman, which he regards as evidence of a criminal conspiracy against him.

Red Flag Consulting, whose senior staff and principals have strong historical connections to the Tony O'Reilly era at Independent News and Media, deny Mr O'Brien's assertions.

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The case is almost exactly two years old but is still mired in what are essentially pre-trial procedural matters, rather than the substance of Mr O’Brien’s criminal conspiracy claims.

Arrived anonymously

The case originated when, according to Mr O’Brien, a USB memory stick arrived anonymously at his Dublin office. The USB contained some 339 files, all but a handful of them being copies of newspaper articles about Mr O’Brien and his business dealings.

The remaining files were original and were essentially unflattering profiles of Mr O'Brien and his business record. A final file was a draft speech by the former Fianna Fáil TD Colm Keaveney, which was also critical of Mr O'Brien.

Mr O'Brien launched his legal action against Red Flag, which had assembled the contents of the USB stick. The PR company had shared the collection of files, via Dropbox and not a memory stick, with just one person – a sometime journalist named Mark Hollingsworth who at the time was also working with a London-based corporate intelligence company named Alaco.

Mr O'Brien has always held he has no idea how the USB stick came into his possession but, simultaneously to launching his legal action, he gave the stick to a Dutch-based investigator, Martin Coyne, who, according to Red Flag digital forensic investigators, tampered with the contents.

Mr O’Brien’s side deny this.

Discovery application

Lawyers for the businessman applied for discovery against Red Flag, itemising nine types of information they sought to assist him in pursuing his case against the company and named individuals associated with it, including non-executive chairman Gavin O'Reilly and chief executive Karl Brophy.

The information sought included the identity of Red Flag’s client and his or her instructions to the PR company, and the identity of the person or persons who wrote and/or edited the original documents on the USB stick (as opposed to the newspaper cuttings) and Mr Keaveney’s draft speech.

In December 2016, however, Mr Justice Colm Mac Eochaidh refused discovery in all but one category, which was documents of communications, on other matters, between Red Flag and its client – but with the identity of the client redacted.

Judgment in Mr O’Brien’s appeal will be given on Friday morning, but few observers think the matter will end there.