Denis O’Brien reaches agreement with Red Flag workers

Two employees of Red Flag Consulting, the public relations firm being sued by businessman Denis O'Brien, will not have to give him potential access to their personal computers and smartphones following an agreement announced yesterday in the Court of Appeal.

The two, Brid Murphy and Kevin Hiney, appealed an imaging order, granted to Mr O'Brien by Mr Justice Colm Mac Eochaidh in the High Court last November, allowing for all data on their personal devices – smartphones and tablets – to be copied in the presence of Mr O'Brien's digital forensic experts.

This copy would have gone to a third-party lawyer and Mr O’Brien would have had to apply to the courts for access.

The pair appealed, citing privacy and data protection, and argued that their personal devices contained personal information such as family photographs.

Handling material

Yesterday their barrister, Maurice Collins SC, told the Court of Appeal that the matter had been resolved. The sides had agreed a way forward, including how the material may be handled pending further court order, he said.

Mr O’Brien’s lawyers were given the imaging order as part of their preparations for the full hearing of his case against Red Flag and various executives and staff of the company, against whom he alleges defamation and conspiracy.

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

Red Flag acknowledge creating the dossier of some 339 files, mainly copies of already published media reports, together with some original profile and briefing-type material.

Denies conspiracy

Red Flag denies conspiracy or that the material is defamatory. It has argued that there are significant issues concerning how Mr O’Brien was given the dossier, known to have been obtained by only one other person, a sometime journalist named

Mark Hollingsworth

.

When Mr Hollingsworth got the dossier in September 2015, he was also working with Alaco, a London-headquartered corporate intelligence-gathering company, Alaco. He did not disclose this fact to the TDs and journalists he interviewed in Dublin.

A date for the hearing of the full action by Mr O'Brien has yet to be fixed and both sides are also awaiting Mr Justice Mac Eochaidh's decision on his application for discovery against Red Flag.

If granted, this would oblige Red Flag to disclose to Mr O’Brien documents the High Court will identify as potentially being relevant to his case and which will be accessed through Red Flag’s solicitors.

Under yesterday’s agreement, access to material on Ms Murphy and Mr Hiney’s personal devices will be targeted in this way, according to the parameters of any discovery order eventually granted by Mr Justice Mac Eochaidh.

Both sides believed, Mr Collins told the appeal court, that the matter could be addressed via the discovery of documents process. They had also agreed how the devices should be handled, he said.

Mr Justice Michael Peart, presiding at the three-judge Court of Appeal, 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 (dependent on the outcome of the full case) and gave liberty to both sides to apply.