THE SWORN TESTIMONY of a former Galway TD has become the centrepiece of businessman Denis O’Brien’s long-running High Court action 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 all the claims.
Today’s hearing before Justice Miriam O’Regan in the High Court concerns efforts by O’Brien to both update his statement of claim in the action and to attach millionaire Declan Ganley to the action as a defendant. Ganley has previously provided a sworn affidavit of his own insisting that he is not the Red Flag client who commissioned the dossier in question.
The plaintiff is attempting to update the statement of claim against Red Flag to include an unlawful conspiracy action in addition to the original defamation suit.
O’Brien, meanwhile, 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’s action, which was initially expected to last two hours but which will now not conclude until at least tomorrow, chiefly concerned the opening of affidavits favourable to O’Brien, and the outlining of text messages between former Galway TD Keaveney, once a fierce critic of O’Brien, and chief executive of Red Flag Karl Brophy, one of the six named defendants in the action.
Dossier
Included in the initial USB dossier was the amended draft of a speech which Keaveney delivered in the Dáil in June 2015 which was harshly critical of O’Brien, and regarding which the TD had allegedly requested Red Flag’s advice.
It had become clear in recent months that Keaveney had sworn an affidavit late last year, the content of which would be used by O’Brien to assert that Ganley was the person responsible for the dossier. “Now Mr O’Brien has information with regard to the identity of that client, which came to him in October 2017,” counsel for O’Brien, Michael Cush SC, said.
Keaveney was declared bankrupt in June 2016. An action by O’Brien against him in the High Court was subsequently dropped.
Cush spent the entirety of today’s hearing addressing the court regarding those text messages and affidavits, which he declared as evidence that Ganley was the previously unnamed client.
He said that, in the year prior to O’Brien acquiring the USB stick the volume of queries received by the businessman from journalists concerning his affairs had ‘greatly increased’.
The affidavit sworn by Keaveney, and another by PR professional Johnny Fallon, would demonstrate that Declan Ganley was the client of Red Flag in question, he said.
Cush then proceeded to outline transcripts of a number of text messages between Keaveney and Brophy dating from 2015. They concerned matters such as the setting up of a meeting between Fianna Fáil leader Micheál Martin and a senior official in the Department of Finance Neil Ryan concerning O’Brien’s business dealings, and the suggestion that Keaveney should lodge certain parliamentary questions in the Dáil which concerned O’Brien.
Some of the texts concern the controversial sale of company Siteserv to O’Brien by the Irish Bank Resolution Corporation (IBRC) in 2012.
“Stay on the €5 million. The inquiry will look at the wrong things,” Brophy wrote in one text (the €5 million concerns a payment of same by IBRC to Siteserv’s shareholders).
“Aynsley (Mike, former CEO of IBRC) claims this morning that O’Brien paid full value, he didn’t. Will write up questions for the Dáil.”
“The context here is clearly Siteserv,” said Cush.
‘Non-meeting’
Regarding the meeting between Ryan and Martin, described as a ‘non-meeting’ by Cush, a text was read out from Brophy reading:
Don’t expose him or reveal who set this up. He’s keen to meet MM (Micheál Martin). Got agitated as week wore on, but worried about speaking out. V good banker will know everything.
“In process,” Keaveney replied. “The first step has happened.”
“For a senior civil servant to be in contact with politicians is potentially a very serious matter,” Cush said with regard to the texts.
Ryan has since claimed in an affidavit of his own that O’Brien was not discussed at the meeting between Ryan and Martin, a claim Cush said he would be disputing when the case comes to a full trial. He added that the texts between Brophy and Keaveney “may be of some use at trial” also.
On their face they demonstrate a sustained interest in the imparting of negative communications regarding Mr O’Brien, and the desire that Mr Keaveney, in particular, would publicise those under the privilege of the House.
He detailed another email, allegedly sent by Brophy to Keaveney, in which he said it would be “hugely beneficial” if files detailed in the Sunday Business Post newspaper were put “on the record”, ie read into the official Dáil record.
Cush then went on to outline the much-anticipated affidavits of Keaveney and Fallon.
Keaveney’s, which was sworn in December of last year, stated that he believes the person for whom the dossier was compiled was Declan Ganley, who is repeatedly referred to by a nickname, Gatsby, throughout the sworn documents and texts.
Fact check
He claimed that he had only ever met Brophy twice, the last time being in 2011. He said, regarding his Dáil speech in 2015, that he had simply wanted Red Flag to fact check it, and that in their response they had gone “far beyond what my intentions were and had butchered my speech”. He said in the end he had used his own version of the speech and not Red Flag’s.
“It was clear they were not pursuing the public interest but rather their own interests,” he stated.
He said that from May 2013 he had met Ganley “numerous times”. He had also met with Ganley employee John McGuirk. He said that during those conversations he had learned that Brophy had assured Ganley that he would “never disclose his identity”.
He said, regarding the meeting between Martin and Ryan, he had “not been party to the subsequent discussions”, and that “Brophy may have been pursuing his own agenda”.
Fallon’s affidavit, as read by Cush, stated that he had met Ganley between May and August 2015, and that McGuirk had then approached him with a separate business proposition – that he work as a consultant with regard to establishing if Denis O’Brien had engaged in criminal activity, and that he would prepare a report to that purpose.
He stated that he never received any payment from Ganley, and also referred to him by the nickname Gatsby.
Cush also outlined a number of affidavits by defendants Brophy and Seamus Conboy, in which Keaveney’s claims are disputed.
“Mr Brophy’s affidavit is full of indignant assertion,” Cush said. “Never does he say what the texts actually mean, or what context is necessary to give the full story.”
Action
In his affidavit, Brophy suggested that far from only using Red Flag to fact check his Dáil speech, Keaveney had “later told me he regretted not delivering our version”, Cush said.
Conboy said in his own affidavit that “at no time did I tell (Keaveney) to take a particular position” regarding O’Brien.
Yet another affidavit, from Keaveney’s former parliamentary assistant Alan Hynes, stated that €250,000 had been mentioned to the TD as a figure that was on offer in order that a High Court action taken by O’Brien against him be settled.
Hynes said that Keaveney had told him that he had told representatives for O’Brien: “just tell me what he needs me to say and I’ll say it”.
A final rebuttal from Keaveney disputed the affidavits of Brophy and Hynes.
He stated that he does not know Brophy personally. He said that Brophy had played an active role in “trying to influence me” with regard to O’Brien and his “contributions to Dáil debates”.
He said he had become “increasingly uncomfortable” with the ways in which Brophy was trying to ‘brief’ him.
He said that “never in my 17 years” as a public representative had he received such representations.
The hearing continues tomorrow before Justice Miriam O’Regan.
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