O’Brien, the memory stick and a claim of conspiracy to defame

In the sweltering Caribbean heat and humidity of an October day, 223 people gathered on the lawns of King's House, the official residence of the governor-general of Jamaica.

The three-storey mansion on Kingston’s Hope Road looks everything one would expect from a colonial statement erected in 1872 and rebuilt in 1907, after an earthquake destroyed it.

Gleaming white, it is set in substantial grounds, a mix of rolling lawns and beds full of flowering shrubs, and is approached by a mile-long driveway named Palm Tree Avenue.

The garden party atmosphere on Monday, October 19th, was completed by the crisp movements of the governor’s military guard of honour dressed in bright-red tunics, white gloves and smartly pressed black trousers with crimson stripes down the sides.

When his name was called out, Denis O’Brien stepped forward and the governor general, Sir Patrick Linton Allen, placed over his shoulder and across his chest, a sash – emerald green, yellow and black, the colours of Jamaica.

O’Brien then bowed his head and Sir Patrick placed a green ribbon and medal around his neck, before handing him a small, burgundy tube, the scroll containing his award: an honorary Order of Jamaica, the equivalent of the British knighthood.

The citation read "for his sterling contribution to the development of the telecommunications industry in Jamaica" through his company Digicel.

Behind the bestowing of the honour lay appreciation for 1,500 Digicel jobs in Jamaica and the support the company’s foundation has given on the island to education, special needs and entrepreneurship.

The Irish billionaire may now style himself, should he so choose, as the Honourable Denis O’Brien. He is already being described as “Denis O’Brien, OJ” in invites for a conference to be held later this week.

Frenetic activity

The poised, elegant calm of the governor’s mansion and marquees was in stark contrast to the frenetic activity that had by then been unleashed back in Dublin by O’Brien’s latest foray into the Irish courts.

Six days before his Kingston investiture, O’Brien had sworn a 21-page affidavit in the Singaporean offices of Kuek Cheow Kiong, a notary public, alleging that he had been the victim of “conspiracy, defamation, malicious falsehood, and unlawful conduct”.

O’Brien’s complaints were global in their reach: “In recent times, and particularly in the last 12 months, I have become conscious that there is a campaign to damage me personally and professionally and to damage my business interests.

“Specifically, I have been the subject of targeted campaign to undermine me and to disseminate false statements about me.

“In addition to this, confidential information relating to me has been leaked and/or attempts have been made to leak such information.

"This false information has been disseminated in numerous ways, which prevent me from dealing with the false allegations made about me," the affidavit, which has been seen by The Irish Times, reads.

“I am satisfied that this campaign has been ongoing for some time,” he went on, “[It] is evident from the frequency with which I find myself subject to such negative comments.

“Similarly, the manner in which I find myself targeted made me believe that is was a structured and organised campaign. For example, there were many instances over the last 12 months where I would receive similar if not identical questions from reporters within the same day, as if information was being disseminated in a patterned way.”

As O'Brien was receiving his Jamaican honour, the billionaire's lawyers and IT specialists were by then already working hard against the target of his ire – the Dublin offices of Red Flag Consultants.

Prompted by a High Court order granted on Friday, October 16th, staff from the public affairs company were already flying into Dublin, some from offices in London and Brussels.

Including the company’s non-executive chairman, Los Angeles-based Gavin O’Reilly, they had come back so that their Macbook Air computers could be examined along with computers in Red Flag’s Ely Place offices, and also their smartphones.

Waiting for them were O’Brien’s IT experts from Espion, a Dublin-based firm of computer forensic investigators and data analysts. Red Flag had theirs too, from the London-based Stroz Friedberg, both adept at extracting digital information.

The High Court order granted to O’Brien directed that certain information held by Red Flag be preserved for later examination when the substance of O’Brien’s assertion – that there is an unlawful and defamatory conspiracy against him – can be tested in court, though a more draconian legal instrument sought by O’Brien was refused.

Several of the people named in the order have strong historical connections to Independent News and Media (INM), control of which O'Brien wrested from Gavin O'Reilly's father, Tony O'Reilly, after a long, and at times bitterly fought boardroom and shareholder battle.

The others are: Gavin O'Reilly, a former chief executive of INM; Karl Brophy, chief executive of Red Flag and a former executive of INM who departed after O'Brien gained effective control of INM; Séamus Conboy, Red Flag director of client campaigns; Bríd Murphy, a Red Flag account manager and social media specialist employed previously with Fine Gael; and Kevin Hiney, a Red Flag account executive with prior experience, as an Irish diplomat, of the British and European parliaments.

At the core of O’Brien’s concerns is a dossier of 339 files contained in 40 folders on an encrypted SanDisk USB memory stick – most are PDFs, bar four Word documents, four Powerpoint presentations and two videos.

The overwhelming majority are newspaper cuttings detailing O'Brien's business and humanitarian activities, though three – entitled Who is Denis O'Brien?, Denis O'Brien IPO Experience, and The Moriarty Tribunal Explainer – are original texts.

In the words of a source, who has spoken to The Irish Times on condition of anonymity, the latter are "a Fisher-Price guide to Denis O'Brien written for people who have never heard of Denis O'Brien".

Nonetheless, the only person known to have obtained access to the dossier outside Red Flag, prior to Denis O’Brien receiving a copy, is UK-based freelance journalist Mark Hollingsworth, who received it from Red Flag via Dropbox, the file-sharing internet service.

Sometime after Hollingsworth got the dossier, and after Denis O’Brien had hired private investigators, O’Brien says he received the memory stick anonymously. The memory stick contained the same files as in the Dropbox dossier.

“I received an envelope anonymously,” said the businessman. “I do not know who sent me this envelope.”

Anton Pillar order

Denis O’Brien’s Singapore affidavit, which gave his Maltese address as his home, formed the core of his October 13th bid in the High Court to seek an Anton Pillar order – effectively a civil law search and seize warrant. Failure to comply leaves the person against whom such an order is made in contempt of court.

The High Court refused this from O’Brien, granting him instead an order that seeks to preserve intact the evidence – the dossier – he argues will prove his conspiracy case.

O'Brien's contention of a conspiracy was fuelled by events last May and June, when RTÉ's David Murphy received documents from a trusted source allegedly detailing aspects of the businessman's arrangements with the Irish Bank Resolution Corporation (IBRC), the successor bank to Anglo Irish that the Government put into liquidation in February.

They concerned O’Brien’s contention of a verbal agreement to extend payback time on loans and the rates of interest to be charged by the bank.

Asked to comment by RTÉ, O'Brien reacted by obtaining an injunction gagging the broadcaster. A few days later, however, speaking with the protection of Dáil privilege, Catherine Murphy TD revealed some of the details.

O'Brien responded by threatening legal action against media outlets publishing reports of her remarks. The Irish Times was warned by O'Brien's solicitors William Fry to remove a report from its website or face the consequences.

The injunction against RTÉ was clarified shortly afterwards by the judge, who said the original order had not been intended to restrict Oireachtas reporting.

However, O’Brien has initiated a separate legal action against the Dáil Committee on Procedures and Privileges because it refused to sanction Catherine Murphy and, as O’Brien sees it, uphold his constitutional right to a good name.

In the wake of these controversies, several players in the drama began to receive emails in late July from Mark Hollingsworth, who said he was writing a story about O'Brien for The Sunday Times magazine. The newspaper has since said Hollingsworth was not working for it.

David Murphy consulted his boss, Kevin Bakhurst, RTÉ's head of news and current affairs and deputy director general, who told him he could engage with Hollingsworth but only on information that was already in the public domain.

Murphy in due course spoke to Hollingsworth by telephone for about 30 minutes. RTÉ sources say the conversation was as expected between two journalists until the point when Hollingsworth asked for access to the source for Murphy’s IBRC information. Murphy refused.

Other people approached by Hollingsworth in July included Rory Godson, a PR consultant and former Sunday Times business editor; Catherine Murphy's communications adviser, Ann-Marie McNally; Lucinda Creighton and several other journalists.

After the summer, Hollingsworth followed up his earlier approaches by telling people he was coming to Dublin, which he did on September 7th and 8th.

RTÉ sources say he met David Murphy for coffee in Fixx, a cafe at the corner of Dawson Street and Molesworth Street and again, Hollingsworth sought access to sources. During a lunch in the Voila Cafe on Lower Baggot Street, Hollingsworth told the Renua TD Lucinda Creighton he was doing "a big, big splash on Denis" for The Sunday Times. Some days later, Creighton thought it odd when she met a Sunday Times journalist on an unrelated matter only to discover the journalist said she knew nothing about a "big, big splash" on O'Brien.

But Hollingsworth's September visit to Dublin was not all wasted as he obtained the Red Flag dossier of newspaper cuttings and profile-cum-assessment material on O'Brien. By October 9th, the memory stick containing the dossier was with Espion and names were emerging. They included Alan Hynes, parliamentary assistant of Colm Keaveney, the Fianna Fáil TD for Galway East, who made comments in the Dáil on June 9th.

In his speech, Keaveney characterised O’Brien as obtaining favours from the government and being “enriched” by government decisions. He spoke of criminality and corruption in relation to O’Brien and asked why the Garda Síochána had not investigated the findings of the Moriarty tribunal.

Forensic analysis of metadata suggested Keaveney’s speech had been edited by Karl Brophy and Séamus Conboy. In fact, Keaveney’s Dáil speech was not the edited version on the memory stick; the TD has said the speech delivered was authored wholly by himself.

Other names to emerge included Brid Murphy and Kevin Hiney, both, like Brophy and Conboy, employees of Red Flag.

Espion’s analyst, Dr Damir Kahvedzic, suggested that for a full forensic investigation of who wrote or edited the documents on the memory stick, and with whom they were shared, access would be needed to all computers, phones and memory storage systems connected to the documents.

Espion’s report was with O’Brien on October 12th. The next day in Singapore, he swore his affidavit.

“Having considered the contents of the memory stick, I was shocked as they were simply extraordinary. It is clear to me that this is part of a campaign to undermine me, which has been on going for some time and which is calculated to cause me maximum damage,” he swore.

The “three most crucial documents” are those profiling his career, his IPO experience and the Moriarty tribunal’s findings.

Quoting these, O’Brien identifies “the most egregious” of the “highly defamatory and entirely false” allegations against him to be as follows: that “a government minister ‘helped secure a state contract’ for me”; that “I ‘stopped the presses to alter a news report’”; that “I had gotten journalists fired from their jobs”; that “I was given ‘huge writedowns on debts owed to a State bank’”; that “I use philanthropy as ‘a PR tool’”; and that “I had ‘tried to silence the Irish parliament’”.

“I deny each and every one of these allegations,” says the affidavit.

The affidavit claims "defamatory innuendo" in the assertion that Digicel, O'Brien's mobile phone company which operates in Central America and the Caribbean, including Jamaica and Haiti, "targeted poor countries with even poorer governments".

“Such statements amount to allegations of unethical behaviour and potentially criminal wrongdoing, which I say and believe are severely defamatory,” says O’Brien, who also rejects a claim in the documents that he is “only in favour of [my] own speech being free”.

On the Moriarty tribunal, O’Brien asserts in his affidavit that, in documents on the memory stick, “I am accused of perjuring myself by providing ‘false testimony and falsifying documents’”. He says this is “mild” compared to the claim, which he says is in the documents, that the awarding of the licence was “in monetary terms, the largest single act of public corruption in the history of the State” and that it was “undoubtedly criminal”.

Elsewhere, the affidavit rejects “unsubstantiated assertions” about “substantial debt writedowns” by IBRC, which is described in one of the documents as “a subsidy from the Irish State for one of Ireland’s richest men”.

He rejects also that he received "unwarranted debt writedowns and/or went on to receive corruptly awarded State contracts" in relation to his purchase of Siteserv, Topaz and Ocean Blue.

O’Brien describes the Keaveney speech, “which went on to be delivered in Dáil Éireann” as defamatory and written with the intention that it was delivered with the protection of parliamentary privilege.

There is “a clear possibility”, O’Brien’s affidavits swears, that the dossier was prepared to damage the stock market flotation of Digicel, through which he hoped to raise some $2 billion but which he aborted on October 6th.

The High Court battle about the Red Flag files resumes today, when O’Brien’s lawyers are expected to seek access to all internet search and download history for all computer equipment in Red Flag and all related metadata.

If the action proceeds to a full hearing – that is, an examination of any evidence suggesting an alleged conspiracy – much that Denis O’Brien has sought to keep out of the public domain, or consigned to fading memory, is likely to be put under the spotlight.

That would include his banking arrangements with IBRC and the findings of the Moriarty tribunal, which concluded that "Michael Lowry, in the course of his ministerial office, as Minister for Transport, Energy and Communications, by his acts and decisions, [had] conferred a benefit on Mr Denis O'Brien, a person who made payments to Mr Lowry".

Claim of grudge

The O’Brien affidavit is candid in acknowledging what he himself describes as the strained personal history between himself, Gavin O’Reilly and Karl Brophy.

“The Second, Third and Fourth Named Defendants – (Karl Brophy, Séamus Conboy and Gavin O’Reilly) – are aggrieved by me and have a grudge against me,”the affidavit reads.

“It was calculated to cause damage to my business at a time when I was conducting an IPO and intended to float my business on the New York Stock Exchange. I believe that the contents of the memory stick or like information has been circulating in relation to me for some time, and certainly some of the contents of the memory stick have been disseminated in the last 12 months,” the billionaire goes on.

Describing the dossier as being part of something clandestine and “shrouded in unfairness and dishonesty”, O’Brien says it was prepared with a view to advancing somebody’s interest. “The question is: whose interest?”

Similar attention will be focused on the memory stick – now in the safe keeping, by order of the High Court, of O’Brien’s solicitors, Eames. Who copied files on to it and when?