O'Brien v Red Flag Consulting Ltd

• Jurisdiction: Ireland
• Judge: the President
• Judgment Date: 13 October 2017
• Neutral Citation: [2017] IECA 258
• Date: 13 October 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 258 [2017 No. 24]

BETWEEN

DENIS O'BRIEN

PLAINTIFF

AND

RED FLAG CONSULTING LIMITED AND OTHERS

DEFENDANTS

[2017] IECA 258

Ryan P.

The President

Peart J.

Hogan J.

Neutral Citation Number: [2017] IECA 258

[2017 No. 27]

[2017 No. 24]

THE COURT OF APPEAL

Discovery – Defamation – Conspiracy – Plaintiff seeking to ascertain the identity of the defendants' client – Whether plaintiff was entitled to ascertain the identity of the client by means of seeking discovery from the defendants

Facts: The plaintiff, Mr O'Brien, in October 2014, came into possession of a USB memory stick that held a dossier relating to him consisting of memoranda, drafts of a speech by a TD and media articles. He claimed that the materials were of a most negative and disparaging nature. The collection was compiled by the defendant company, Red Flag Consulting Ltd, and the personal defendants, who also produced some of the documents. They carried out the work collected in the dossier on the instructions of a client. Mr O'Brien claimed that the dossier was the result of a conspiracy by the defendants and their client to cause him harm by unlawful means and was also defamatory. On consideration of the material in the dossier, he instituted proceedings. His claim was pleaded in conspiracy, causing loss by unlawful means and defamation. He claimed compensatory as well as aggravated and exemplary damages. As well as containing a general traverse, the defendants' defence pleaded qualified privilege and honest opinion, defences under the Defamation Act 2009. Mr O'Brien, in a notice for particulars, sought the name of the defendants' client pursuant to Norwich Pharmacal v HM Commissioner for Customs & Excise [1974] AC 133 but that was refused by the High Court (Mac Eochaidh J). Mr O'Brien then applied for discovery of documents. On 12th January 2017, the High Court ordered discovery of five categories out of nine that were sought and relating to matters including the retainer of the defendants, the drafting of certain documents in the dossier, the compilation of other documents, the circumstances in which suggestions were made in respect of a draft speech by a TD and communications between the defendants and their client. This order was, however, qualified by the refusal of the court to order identification of the client. Mac Eochaidh J held that the identity of the client was not relevant to the proceedings. The plaintiff appealed to the Court of Appeal against the judgment of Mac Eochaidh J and the order in consequence dated 12th January 2017 on his motion for discovery. The issues for the Court on the appeal were directed to four areas of dispute or categories of discovery of documents: (a) documents which tend to identify the client; (b) documents which provide evidence of the publication of the dossier or any constituent elements thereof; (c) documents which provide evidence of communications between the defendants and the client; and (d) documents which tend to support the defendants' pleas of honest opinion and qualified privilege.

Held by Ryan P that Red Flag's client was entitled to have the dossier prepared, even if this was done for the basest of motives; that in itself was not sufficient to establish a conspiracy on the part of that client or to demonstrate that Red Flag was itself a co-conspirator with the client. Ryan P held that if the dossier was actually published by Red Flag and it has defamed the plaintiff, then Mr O'Brien has his remedy under the Defamation Act 2009.

Ryan P held that the plaintiff was not entitled to ascertain the identity of the client by means of seeking discovery from Red Flag.

Appeal dismissed.

JUDGMENT of the President delivered on 13th October 2017

Introduction

1 In this case, the plaintiff claims that the defendant company and the personal defendants, together with an instructing client who is unknown, were engaged in a conspiracy to damage him in a variety of ways, including defamation. His claim is pleaded in conspiracy, causing loss by unlawful means and defamation. He claims compensatory as well as aggravated and exemplary damages. The issue at hand is the plaintiff's appeal against the judgment of Mac Eochaidh J. and the order in consequence dated 12th January 2017 on his motion for discovery.

2 In October 2014, the plaintiff, Mr. Denis O'Brien, came into possession of a USB memory stick in circumstances with which the court is not concerned so far as this discovery appeal is concerned. The device held a dossier relating to Mr. O'Brien consisting of memoranda, drafts of a speech by a TD and media articles. He claims that the materials are of a most negative and disparaging nature. The collection was compiled by the defendants who also produced some of the documents. They are a public relations consultancy company and carried out the work collected in the dossier, through its employees and officers, on the instructions of a client. Mr. O'Brien claims that the dossier is the result of a conspiracy by the defendants and their client to cause him harm by unlawful means and is also defamatory. On consideration of the material in the dossier, he instituted his proceedings on the grounds and seeking the reliefs above stated. Further and better particulars were sought and furnished between the parties and the defendants filed their defence. They admitted collecting and compiling the information in the dossier and authorship of original material therein, but denied each and every legal wrong alleged. As well as containing a general traverse, the defendants pleaded qualified privilege and honest opinion, which are defences under the Defamation Act 2009.

3 Mr. O'Brien, in a notice for particulars, sought the name of the defendants' client but that was refused. He brought a motion to have the identity revealed to him pursuant to the jurisdiction that was applied in Norwich Pharmacal and that matter came before Mac Eochaidh J. in the High Court. The judge refused the application on the ground that the plaintiff had not made out a sufficient case as required under that jurisprudence. That application has some relevance to the present proceedings, firstly, because Mac Eochaidh J. referred in his judgment on this application for discovery to his previous order and judgment, and, secondly, because Mr. O'Brien's counsel relies on what he claims are concessions made by counsel for the defendants in the course of the argument on the quasi-Norwich Pharmacal application.

4 Mr. O'Brien then applied for discovery of documents. On 12th January 2017, the High Court ordered discovery of five categories out of nine that were sought and relating to matters including the retainer of the defendants, the drafting of certain documents in the dossier, the compilation of other documents, the circumstances in which suggestions were made in respect of a draft speech by a TD and communications between the defendants and their client. This order was, however, qualified by the refusal of the court to order identification of the client, a restriction that was embodied in the discovery by the addition to each category ordered of the words 'subject to redaction of the identity of the said client and of any information which might enable the client to be identified'.

5 In his judgment, Mac Eochaidh J. held that the identity of the defendants' client was not relevant to the present proceedings. Having set out the relevant law – as to which there is no dispute or complaint – the High Court judge revealed his rationale as follows. In summary, he held that a party may not seek discovery of a document to find out whether the document may be relevant. The plaintiff does not know whether the identity of the defendants' client will assist in establishing that client's motivation in engaging the defendants to compile the dossier, much less whether the defendants shared their client's motivation. The most the plaintiff can say is that gaining the identity of defendants' client might assist with proving the motivation of the client, which in turn might assist in attributing that motivation to the defendants in compiling the Dossier. That fell short of what was required of the plaintiff in this case. The burden of establishing relevance rested on the plaintiff and it had to be discharged regardless of the attitude of the defendants to the issue. The court must be independently satisfied that the plaintiff had discharged the burden. At paragraphs 19 and 20 of the judgment, MacEochaidh J. held:

'19. There are too many imponderables and unknown outcomes in the theory of relevance advanced by the plaintiff. The most the plaintiff can say is that gaining the identity of defendants' client might assist with proving the motivation of the client, which in turn might assist in attributing that motivation to the defendants in compiling the Dossier. In my view, this falls short of what is required of the plaintiff in this case.

'20. The plaintiff suggests in written submissions that the extent to which it is required to establish relevance is altered or reduced by the manner in which the defendants have met this application. The plaintiff says as follows:-

"In the present case, the defendants appear to be arguing not that the identity of the client is information whose relevance has not been established as a matter of probability but which is irrelevant as a matter of principle. It is thus submitted that once relevance in principle is established, the present case is not one in which the probability of relevance is an issue ..."

'I disagree with this statement. It mischaracterises the defendants' case. But even if it correctly states the defendants' case, in my view, the burden of establishing relevance rests on the plaintiff, and it must be discharged regardless of the attitude of the defendants to the issue. The court must be independently satisfied that the plaintiff had discharged the...