Denis O’Brien to appeal Red Flag decision to Supreme Court

Businessman Denis O'Brien is to appeal to the Supreme Court to force Red Flag Consulting to reveal the identity of the client for whom it composed a dossier critical about him.

He wants the court to agree to review, and then overturn, last month’s rejection by the three-judge Court of Appeal of his application for access to discovery against the Dublin public relations firm.

In papers filed this week with the Supreme Court, Mr O’Brien argues that his case is one of “general public importance” and that it is “in the interests of justice” that the court hear his appeal against the Court of Appeal decision. These are the two criteria the Supreme Court has adopted for deciding whether to admit cases for consideration since the advent of the Court of Appeal.

In a 20-page application, Mr O'Brien states that the Court of Appeal "erred in law" in no fewer than six instances when rejecting his application for discovery, a rejection mirroring an earlier High Court rejection.

Mr O’Brien wants the Supreme Court to order Red Flag to reveal who it was working with when it compiled the dossier, what instructions it was operating under, the fee the company was paid, the terms of the retainer and the date on which the retainer was agreed and its duration.

Equally, he has sought the names of the authors of three documents about him, along with seeking to know more about a draft speech by the former Fianna Fáil TD Colm Keaveney, including who edited it, where, when and why.

Would versus might

Mr O’Brien argues that there are four different matters of general public interest for the Supreme Court to consider, one of which rests on the differences between two words: “would” and “might”.

He argues that in seeking access to records held by Red Flag, he was required by the lower courts “to establish that knowing the client’s name ‘would’ advance his own case. . .”

“For the purpose of discovery,” says the application to the Supreme Court for leave to appeal, “he was only obliged to satisfy that court that learning the identity of the client might enable him to advance his case against the defendant.”

Claiming that he has been defamed, which requires publication to have taken place, Mr O’Brien said it “defies common sense” that a PR firm would compile a dossier and then not share it.