O'Brien v Red Flag Consulting Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IEHC 867
• Docket Number: [2015 No. 8265 P]
• Court: High Court
• Date: 21 December 2015

[2015] IEHC 867

THE HIGH COURT

Mac Eochaidh J.

[2015 No. 8265 P]

BETWEEN

DENIS O'BRIEN

PLAINTIFF

AND

RED FLAG CONSULTING LIMITED, KARL BROPHY, SEAMUS CONBOY, GAVIN O'REILLY, BRÍD MURPHY

AND

KEVIN HINEY

DEFENDANTS

Tort – Defamation – Conspiracy – Disclosure orders – Duty of confidentiality – Onus of proof

Facts: The plaintiff sought an order requiring the named defendants to disclose the identity of the unnamed client. The plaintiff contended that on the basis of investigations conducted by him, he had reason to believe that the said unnamed client was behind the campaign to harm the business interests of the plaintiff. The defendants contended that the plaintiff was not entitled to the order sought due to want of candour and they owed a duty of confidentiality to their client.

Mr. Justice Mac Eochaidh refused to grant the desired order to the plaintiff. The Court held that it had jurisdiction to make disclosure orders against actual wrongdoers in order to aid the person who needed special protection and for the preservation of evidence. The Court held that it was not appropriate to make a finding concerning lack of candour of the plaintiff due to lack of evidence supporting that contention. The Court held that in an application for disclosure of an identity of unnamed persons, the plaintiff had to establish wrongdoings by such persons with utmost certainty so that it could outweigh the duty of confidentiality. The Court observed that in order to plead tort of defamation, publication of material was a prerequisite while conspiracy to injure was premised upon the cause of an actual injury, none of those requirement had been fulfilled in the present case. The Court held that since the plaintiff failed to meet the high threshold requiring strong proof of alleged wrongdoing by an unnamed person, the revelation of the identity of the said person would be highly prejudicial to the interests of that person as wells as the defendants.

EX TEMPORE JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 21st day of December, 2015.

1 This is an application on behalf of the plaintiff who seeks an order requiring the defendants or the appropriate defendant to reveal the name of one of their clients.

2 The plaintiff says that he has become aware over a period of about a year of a campaign against him and against his business interests. He says that one of the manifestations of that campaign was the grouping together of certain questions posed by journalists, which aroused his suspicions. He does not give any examples of these questions and he does not, for example, exhibit any questions that were e-mailed by any journalists. He simply makes the assertion as to the fact that this happened. He says that because of these suspicions he instigated an investigation to discover who might be behind the campaign by instructing a solicitor, though it was not clear to me why a solicitor would be instructed to investigate such matters. Needless to say there is nothing wrong with engaging a solicitor to commence an investigation of some sort.

3 In addition an (apparently) Irish accountant based in Kiev in the Ukraine was engaged in connection with the investigation. No explanation was provided as to why a Kiev based accountant with expertise in corporate matters was engaged to investigate why journalists had asked certain sorts of questions and who might be behind a campaign to harm the plaintiff.

4 During the course of this investigation, and possibly or probably before any result at all had been achieved, a memory stick contained in an envelope was anonymously delivered to the plaintiff. According to the affidavit evidence, the memory stick appears to have been produced no later than 1st October, 2015, and the plaintiff was in a position by 8th October to give it to his solicitors, who gave it to technical experts who examined it apparently on 9th October, and who were on that date able to identify who had authored or allegedly authored material on that memory stick, which the plaintiff says is defamatory of him and evidence of a conspiracy against him.

5 Approximately four days later the plaintiff's lawyers made an ex parte application to the President of the High Court, for an Anton Piller order, (see Anton Piller K.G. v. Manufacturing Processes Ltd [1976] Ch 55). Such order, if granted, requires co-operation from a person suspected of wrongdoing. It permits, and these are the words used by the plaintiff, “a civil search party” to enter premises to search and seize information and documents and to protect items of possible evidential value to ensure that suspected wrongdoing can be prosecuted. The courts are empowered in exceptional circumstances to come to the aid of a litigant in this manner.

6 A litigant may persuade a court that it is necessary to move in exceptional and extraordinary ways to protect evidence and even in some circumstances to grant “super injunctions” directing that the existence of the proceedings not be revealed. Such orders have been made in the United Kingdom and there are academics who argue that such orders may be made in this jurisdiction.

7 The plaintiff had enough information on the day he made the ex parte application to the President of the High Court to ground an application that the named defendants be required to identify other unnamed wrongdoers. Throughout his affidavit grounding the ex parte application, on a number of occasions, he indicates that he wants the Court to order that the existing defendants be required to identify others.

8 Critically, he also asked for non-disclosure orders, such that anybody against whom an order might be made would not be permitted to tell anybody that such order had been made. Obviously the purpose of this non-disclosure order was to ensure that there would not be any destruction of evidence. The plaintiff had made applications which, in appropriate circumstances, are entirely proper, and a court may come to the aid of a person who needs that level of special protection, where untoward and secret activity is underway seeking to damage a person. A court will, in an appropriate case, make such extraordinary orders.

9 The President did not make all the orders sought but instead decided to balance the interests of the plaintiff and the defendant by making evidence preservation orders and non-disclosure orders. The matter came back before this Court a couple of days later and in an attempt to further balance the interests of all the parties, and considering that the defendants would need to have access to their documents and their hardware and software, orders directing forensic imaging of the defendants' computers were made.

10 Matters were then adjourned in circumstances where the Court anticipated that there would be an application by the plaintiff for inspection of the forensic images so that it might be possible for the plaintiff to identify the first named defendant's client who the plaintiff believes is behind the campaign to harm him.

11 In the course of these applications counsel for the defendant conceded that the material found on the memory stick (referred to as ‘the dossier’) which had been produced in evidence to back up the application for the Anton Piller orders was indeed the work product of the defendants, in particulars the first named defendant. Ultimately the plaintiff decided that it did not immediately need to inspect the digital images but moved the Court for an order requiring the defendants to disclose the identity of the unnamed client.

12 The application came before this Court and there was a considerable legal debate as to the jurisdiction of the Court to make such disclosure orders. The Court was concerned at first to see whether the orders sought were discovery orders or whether they might be some other type of orders. Much of the case law was considered by the Court and read carefully and the seed case in all of this is a case called Norwich Pharmacal Co. v. Commissioners of Customs and Excise [1974] A.C. 133. In that case a patent...