Red Flag says ODCE documents may affect defence in O’Brien case

Red Flag Consulting says documents for an application by the State's corporate watchdog to appoint inspectors to investigate affairs Independent News and Media may have "a bearing" on its defence to the action brought against it by businessman Denis O'Brien.

William Abrahamson BL, for Red Flag, asked Ms Justice Miriam O’Regan on Tuesday to extend the timeline for exchange of legal documents , including his side’s defence or amended defence, pending its bid to be provided with papers for the separate case by the Director of Corporate Enforcement.

He said the president of the High Court, Mr Justice Peter Kelly, will be addressing issues of access to the ODCE documents on April 24th and his side wanted the time to consider any papers obtained.

Red Flag had, during the ODCE matter on Monday, applied for access to the ODCE papers because it seemed personal data relating to Karl Brophy of Red Flag and others may have been compromised, he said.

It seemed from media coverage that Mr O’Brien or companies controlled by him were connected to what occurred, counsel said.

There was a possibility the papers in the ODCE case will have a bearing on Red Flag’s defence, or amended defence in this case, he said.

Ms Justice O'Regan, noting the Red Flag case dates back to 2015, said there appeared to be no element of serious urgency involved in the case. She agreed there was "conjecture" concerning the ODCE documents that might be released to Red Flag but said she would be loathe to require Red Flag or businessman Declan Ganley, joined by the High Court last month as a co-defendant to the case with Red Flag, put in their defence without Red Flag having an opportunity to see any papers that might be provided.

Timeline

Noting a quick decision by the High Court on access to papers was likely, she said she would adjust the timeline for this case to facilitate Red Flag should it secure access to papers.

Counsel for Mr Ganley said he needed time to consider the pleadings in the Red Flag case as he had only very recently been brought into it.

Frank Beatty SC, for Mr O’Brien, had opposed the proposed adjustment to the timeline, saying the application for that was based on “complete conjecture” from the Red Flag defendants and that the papers they wished to see appeared to constitute hearsay evidence.

Earlier on Tuesday, Ms Justice O’Regan ruled liability for costs of Mr O’Brien’s successful application to join Mr Ganley to his case against Red Flag alleging defamation and conspiracy should be decided at the trial of that case, a date for which has yet to be fixed.

She made a similar order concerning liability for costs of Mr O’Brien’s successful bid to amend his case to make additional claims.

Ms Justice O’Regan had last month granted Mr O’Brien’s application to join Mr Ganley and also permitted Mr O’Brien amend his case to make additional claims against the defendants of seeking to involve politicians and media in an alleged conspiracy against him, plus alleged disclosure of information under the Official Secrets Act.

Alleged conspiracy

Mr O’Brien alleges, in furtherance of the alleged conspiracy against him, there was a campaign of briefing politicians and journalists with material with the predominant intention of injuring and or causing loss to him.

He applied to amend his claim and join Mr Ganley after getting material in recent months, including a sworn statement from former Fianna Fáil TD Colm Keaveney stating he believes Mr Ganley was Red Flag's commissioning client for a dossier concerning Mr O'Brien.

Mr Ganley denies he was the client behind the dossier, which Mr O’Brien contends included material defamatory of, and unfavourable, to him.

Mr O’Brien claims the dossier, which mainly consisted of media stories and a number of other documents including one entitled ‘Who is Denis O’Brien?’, was on a USB memory stick contained in an envelope left in his Dublin office in October 2015.

Red Flag denies defamation and conspiracy and has also raised issues concerning exactly how Mr O’Brien came into possession of the memory stick.