Denis O’Brien and Red Flag reach agreement on devices

An appeal over orders granted to Denis O'Brien requiring some Red Flag Consulting staff and executives to hand over personal computers and devices used for work for "forensic imaging" has been resolved on agreed terms.

The sides have agreed a way forward including concerning how the material may be handled pending further court order, the Court of Appeal was told on Monday.

Mr O'Brien's lawyers got the imaging orders at the High Court last November as part of their preparations for the full hearing of his case against Red Flag and various executives and staff alleging defamation and conspiracy.

The businessman claims Red Flag was involved in preparing, for an unidentified client, a dossier of material about him which he alleges is mostly unfavourable and defamatory.

He said in court documents the dossier was on a USB memory stick contained in an envelope sent anonymously to him in October 2015. It contains about 80 media reports and other material, including a document entitled: “Who is Denis O’Brien?” and “The Moriarty Tribunal Explainer”.

Red Flag, which denies defamation or conspiracy, previously confirmed the dossier included its documents and said there were significant issues concerning how Mr O’Brien got that material. It also argues it is entitled to preserve the anonymity of its client.

A date for the hearing of the full action has yet to be fixed.

The imaging orders were sought to allow digital forensic experts photograph material on personal devices pending a ruling whether that material can be inspected for use in the full action.

An appeal against the refusal of a stay on execution of the imaging orders previously did not proceed after agreement was reached concerning how material on the devices would be preserved.

When Red Flag’s full appeal against the imaging orders came on for hearing on Monday afternoon, Maurice Collins SC, for Red Flag, said it was not proceeding and could be struck out on terms agreed just hours earlier.

Both sides believed the matter could be addressed via the discovery of documents process and had also agreed how the devices should be handled, he said.

Mr Justice Michael Peart, presiding at the three-judge appeal court, agreed to strike out the appeal on the terms agreed, including a stay, pending any further order of the High Court or Court of Appeal, on the imaging orders.

He also made agreed orders for costs related to the appeal to be costs in the cause (dependent on the outcome of the full case) and giving liberty to both sides to apply.

When making the imaging orders last November, Mr Justice Colm MacEochaidh said they would balance the rights to privacy of the individuals involved and Mr O’Brien’s right to establish the “fingerprints” on a dossier of material sent to him anonymously.

The orders required Red Flag executive Séamus Conboy, chief executive Karl Brophy, non-executive chairman Gavin O'Reilly, and two staff members to provide, for forensic imaging, any personal computers, laptops, phones and other devices used by them for work purposes. Other members of staff who said they had not used their work or personal devices in connection with the dossier were also required to provide sworn statements to that effect.

Red Flag opposed the orders as “exceptional” and a “fishing expedition”. Mr Brophy had expressed concerns the imaging being sought could significantly impact on the privacy of the firm’s executives, staff and their families, the court heard.