More time for Denis O’Brien’s side to address Red Flag concerns

Lawyers for businessman Denis O’Brien have been given more time to provide a sworn statement concerning the custody of a USB computer memory stick containing a dossier of material which, the businessman alleges, evidences a conspiracy to damage him.

Mr O’Brien initiated proceedings last October alleging conspiracy and defamation against Red Flag Consulting and some of its executives after the USB stick was sent anonymously in an envelope to his Dublin office.

Red Flag later raised concerns the USB stick was in the offices of Digitpol, a firm in Rotterdam, for some 10 days after the court ordered on October 16th last it be handed over “forthwith” to solicitors for Mr O’Brien to be held without interference pending further court orders.

Mr O’Brien’s lawyers said there had been no access to, or interference with, the encrypted chamber of the USB stick containing the dossier and Digitpol had the stick for analysis purposes.

Mr Justice Colm MacEochaidh had given Mr O’Brien’s side to February 19th to provide a comprehensive affidavit addressing the issues raised.

When the case returned before the judge on Monday for further case management, William Abrahamson, for Red Flag, complained the affidavit had not yet been provided and opposed giving the O’Brien side more time for that.

Frank Beatty, for Mr O'Brien, said the affidavit had to be sworn by Martin Coyne, principal of Digitpol, who was in a "remote" part of China and would not be back in the Netherlands until this week.

The judge said Mr O’Brien had been able to move at “lighting speed” last October when initiating this case and was able to swear affidavits despite being outside the country. Why could Mr Coyne could not do the same? he asked

Mr Beatty said Mr Coyne needed to be in the Netherlands to get the necessary information.

‘Entirely contradictory’

Mr Abrahamson said he was surprised at the “leisurely approach” being taken given the “gravity” of the matter and argued efforts purportedly made by the O’Brien side to explain this matter were “entirely contradictory and obfuscatory”.

It was “frankly ironic” the difficulties that had arisen involved Mr Coyne who was again being “rolled out” as the explanation for this delay, he said.

Mr Beatty apologised to the court for the delay but said he took exception to how it was being characterised by Red Flag which appeared to be “playing to the audience”.

The judge remarked there was “a lot of that” by both sides in this case.

Mr Beatty said there was “nothing suspicious or strange” about the delay and nothing other than the fact Mr Coyne is away. Mr O’Brien could not be criticised for that.

When the judge said Red Flag had a mechanism to make a complaint via an application to court but had not invoked that, Mr Abrahamson said they did not wish to waste time and costs if an application was unnecessary. His side has “very grave concerns” and were eager to see the explanation, he added.

In his decision, the judge said he was told there was a practical difficulty preparing the affidavit because Mr Coyne is in China. He saw “no urgency whatsoever” in the provision of the explanation and expected the affidavit would be delivered as soon as that could be arranged.

He would extend time for that to 9am next Monday and list the case for further management on March 14th as there was “no particular urgency”, the judge said.