THE HIGH COURT has heard the defence of communications millionaire Declan Ganley against an attempt by billionaire Denis O’Brien to join him to a defamation action O’Brien had taken against Red Flag Consulting.
O’Brien’s outstanding defamation action against the company concerns the existence of a dossier of information on him that was allegedly delivered to his business on a USB stick anonymously in late 2015.
That dossier, consisting of more than 80 files, included memoranda, media articles, and amended drafts of a speech, harshly critical of O’Brien, delivered by former Fianna Fáil and Labour TD Colm Keaveney in the Dail in June 2015.
The company denies that the dossier was defamatory of O’Brien.
Yesterday, the case for amending O’Brien’s statement of claim against Red Flag to include an unlawful conspiracy action in addition to the original defamation suit, together with arguments for joining Ganley to that action, was heard.
O’Brien claims that Ganley is the heretofore unnamed client of Red Flag for whom the dossier was allegedly compiled. He has made several attempts in both the High Court and the Court of Appeal to force Red Flag to reveal the identity of that client, all of which were rebuffed.
Today, counsel for Ganley, Mark Harty SC, allowed before Justice Miriam O’Regan that his appearance was an unusual one, given Ganley has not as yet actually been named as a defendant in O’Brien’s action.
‘Carefully crafted’
Citing an affidavit sworn by Ganley last month, in which he stated that he had never been a client of Red Flag, Harty said that his client had at all times behaved ‘in an overt fashion’.
(Earlier, counsel for O’Brien Michael Cush SC had argued that the wording of Ganley’s affidavit in which he said he was not the client in question constituted “a carefully crafted denial”. “You’re arguing it might have been some company he might have been associated with?” Justice Miriam O’Regan said in response to this.)
“He had highlighted that his plea was in relation to the statute of limitations (which is one year, or two if ordered by a court, in defamation cases – O’Brien’s case was first filed in October 2015, which would mean the window for attaching Ganley to the case had passed),” Harty continued. “No replying affidavit was ever delivered by the plaintiff.”
The court must remember that Mr O’Brien is perhaps the best resourced and most experienced personal litigant before these courts. A cursory examination will show him as the plaintiff in tens of defamation actions.
Harty argued that given O’Brien’s ‘extraordinary experience’ of litigation it didn’t make sense that he should not reply to Ganley’s affidavit on a matter of law.
Declan Ganley never dealt in an underhand way or committed a covert action. He said: ‘I’m relying on the statute of limitations.’ He said: ‘I’m not the client.’
That was the point for Denis O’Brien to emerge from the shadows and swear an affidavit of his own, but he did not.
Regarding the affidavit sworn in favour of O’Brien by Keaveney, a one-time harsh critic of the businessman, Harty said that affidavit “adds nothing” to the case.
“They still have no evidence that Mr Ganley was the client. All they have is Mr Keaveney’s belief that he was.”
Harty added that the circumstances in which Keaveney had a court action against him dropped by O’Brien, prior to swearing his own affidavit last December, were “alarming”.
Compromised
“On the day in which Mr O’Brien failed in a quest to find evidence (at the Court of Appeal, regarding the Red Flag client, on 13 October 2017), he somehow compromised proceedings with Mr Keaveney (the High Court action O’Brien settled with the former TD) and on foot of that compromise Keaveney swore an affidavit for him.”
Neither Mr O’Comhain (Diarmuid, Denis O’Brien’s solicitor) or Mr O’Brien have sworn affidavits as to what the terms of the settlement (with Keaveney) were.
Counsel for Red Flag, and five of its employees, Michael Collins SC focused on the application by O’Brien to amend his statement of claim against the company to include unlawful conspiracy, specifically concerning a meeting between former Irish Bank Resolution Corporation (IBRC) executive and senior Department of Finance official Neil Ryan and leader of Fianna Fáil Micheál Martin in early 2015, allegedly with regard to Ryan divulging information concerning O’Brien’s private banking dealings in the context of IBRC and the controversial sale of supply business Siteserv.
Cush had previously argued that meeting would have seen a breach of the Official Secrets Act, given confidential information would have been disseminated by a highly-placed state employee, with Red Flag complicit in same.
Collins argued that the amendment should not be allowed as the evidence put forward by O’Brien was not sufficient to substantiate it.
Cush countered that legal precedent shows that it is O’Brien’s pleadings that should be judged, not the evidence, regarding whether or not the amendment should be approved. For her part, Judge O’Regan commented that “the amended statement of claim presupposes the joinder of Mr Ganley” to the defamation proceedings.
Regarding the dossier itself, Collins said: “If you think it is some sort of MI5 file, it is not that, it’s more akin to a scrapbook.” He added that most of the contents of the dossier were “newspaper clippings which are publically available”.
He said that the plaintiff “has not been able to provide any detail at all about how the memory stick (carrying the dossier) came to him. No one has been able to explain how it got there.”
Conspiracy claim
“There isn’t evidence of publication [key to a defamation action], it hasn’t been established as a claim of conspiracy, and the pleadings of the plaintiff are inadequate,” he said.
Mr O’Brien has declined to give any detail regarding his suggestion that journalists had been briefed (with the contents of the dossier). The full story has not been brought to court, including how the USB stick came to be in his possession.
Regarding the suggestion that Neil Ryan had breached the Official Secrets Act at Red Flag’s behest, thus suggesting unlawful conspiracy, Collins said “we know nothing of that”.
“The height of it (that claim) is to be found in the text messages (between Keaveney and Red Flag CEO Karl Brophy, which were read in court yesterday). Mr Cush says Mr Keaveney is the fount of all evidence. The only deponent to give any evidence is Mr Keaveney,” he said.
He stated that “it’s not as if Mr Brophy contacted Mr Ryan himself”. “That’s the height of the allegation, and it doesn’t amount to proof that Red Flag procured or encouraged Mr Ryan, or that they suggested he disclose confidential information or that he breach the Official Secrets Act. Where in the texts is anything said about the Official Secrets Act and confidential information? Mr Keaveney doesn’t say that, it is Mr O’Comhain (who had supplied an affidavit of his own putting each of Keaveney’s texts ‘in context’) that does.”
Mr Keaveney doesn’t deal with the Ryan meeting at all. He doesn’t contradict Mr Brophy (who swore in an affidavit that his sole involvement in that meeting was to put Ryan in touch with Keaveney via a mutual acquaintance Paul Hayes) in any way shape or form.
Regarding the fact that O’Brien’s High Court action against Keaveney had been settled following which Keaveney swore his affidavit in favour of O’Brien, Collins argued that, in his own rebuttal affidavit to that of his former assistant Alan Hynes, Keaveney didn’t deny being paid a sum of €250,000 by O’Brien, nor that he had stated “whatever he wants me to say I’ll say it”.
“This is extraordinary given the lengths of detail gone to elsewhere in his affidavit,” said Collins.
“He may have been paid money, we simply don’t know.”
The full story
Collins said that the fact it was Denis O’Brien’s solicitor O’Comhain who had made inferences from the text message transcripts “comes back to the pattern I outlined in the previous judgements (by the High Court and Court of Appeal, which denied O’Brien discovery as to Red Flag’s client) of the court not being given the full story”.
“The court is left in the unsatisfactory situation of having incomplete evidence, of Mr O’Brien failing to give the full story to the court, yet again,” he said.
In his right of rebuttal to the arguments of the defence counsels, Cush argued that Judge O’Regan’s decision had to be made on the weight of his client’s pleadings, not of the evidence.
“My basic case is that the defendants, in arranging a meeting (between Ryan and Micheál Martin) have aided and abetted in the offence (breach of the Official Secrets Act),” he said.
I have the meeting, I have the arrangements to set up the meeting, and I have what was to be discussed.
In our pleadings I have outlined exactly what is alleged to have occured.
“It is not the right approach to trawl affidavits in an amendment application, the right approach is to focus on the pleadings,” he said.
The hearing, which had been scheduled to last two hours but ended up spanning two days, thus concluded with Judge O’Regan saying:
“You will understand that I am not in a position to provide a ruling at this time.”
She reserved judgement, with that ruling to be provided “in due course”.
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