Denis O'Brien v Red Flag Consulting Ltd, Karl Brophy, Seamus Conboy, Gavin O'Reilly, Brid Murphy, Kevin Hiney and Declan Ganley

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 11 June 2021
• Neutral Citation: [2021] IECA 172
• Date: 11 June 2021
• Docket Number: Record No.: 2020/177
• Court: Court of Appeal (Ireland)

Between/

Denis O'Brien

Plaintiff/Appellant/Respondent to Cross Appeal

and

Red Flag Consulting Limited, Karl Brophy, Seamus Conboy, Gavin O'Reilly, Brid Murphy, Kevin Hiney and Declan Ganley

Defendants/Respondents/Cross Appellant

[2021] IECA 172

Donnelly J.

Noonan J.

Binchy J.

Record No.: 2020/177

THE COURT OF APPEAL

Discovery – Errors in principle – Temporal limitation – Plaintiff seeking discovery – Whether errors in principle had been established on the part of the motion judge

Facts: The plaintiff, Mr O’Brien, applied for discovery by the first to sixth defendants, Red Flag Consulting Ltd, Mr Brophy, Mr Conboy, Mr O’Reilly, Ms Murphy and Mr Hiney (the Red Flag defendants), of certain categories of documentation relating to the plaintiff’s claim against the Red Flag defendants and the seventh defendant, Mr Ganley, for conspiracy, defamation and the causing of loss by unlawful means. On 7 July 2020, the High Court made an order for discovery. The plaintiff’s appeal to the Court of Appeal and the Red Flag defendants’ cross-appeal related to that order for discovery. The plaintiff submitted that there were two clear errors in principle and that furthermore it would be an injustice if the plaintiff was refused discovery in relation to category C. The Red Flag defendants pleaded that the temporal limitation ordered by the motion judge gave rise to an injustice.

Held by Donnelly J that the documents sought at category C were discoverable. She held that clear errors in principle had been established on the part of the motion judge hearing the case. She was satisfied that there was no basis for interfering with the temporal limit imposed by the motion judge on the discovery. She held that no clear error in principle had been established and it was not unjust to impose that particular temporal limit on discovery.

Donnelly J held that she would: (a) allow the appeal in respect of the application for discovery of category C; (b) dismiss the cross-appeal in relation to the temporal limit on discovery; and (c) order that the same temporal limitation be applied to category C. She held that as the plaintiff’s appeal was wholly successful the plaintiff appeared entitled to the costs of the appeal. Similarly, she held that as the Red Flag defendants’ appeal was wholly unsuccessful, the plaintiff appeared entitled to the costs of the cross-appeal.

Appeal allowed. Cross-appeal dismissed.

Unapproved

JUDGMENT of Ms. Justice Donnelly delivered on the 11th day of June, 2021

Introduction

1 . This appeal by the plaintiff and cross-appeal by the first to sixth defendants (together the “Red Flag defendants”) relates to an order for discovery made by the High Court on 7 July 2020. The plaintiff's underlying application was for discovery by the Red Flag defendants of certain categories of documentation relating to the plaintiff's claim against the Red Flag defendants and the seventh defendant for conspiracy, defamation and the causing of loss by unlawful means.

2 . I will structure this judgment by addressing the issues in the following sequence;

a) the nature of the case and the pleadings generally,

b) the categories of discovery sought,

c) the High Court judgment,

d) the appeal and

e) the cross appeal.

The nature of the case and the pleadings

3 . The plaintiff issued these proceedings against the Red Flag defendants on 13 October 2015. His claim was initially pleaded in a statement of claim delivered on 4 December 2015. Following the joinder of the seventh defendant (not a party to this appeal or cross appeal) by order of the High Court, the plaintiff delivered an amended statement of claim on 23 March 2018. The discovery application which is the subject matter of this appeal arises from the amendments made in that statement of claim.

4 . The plaintiff's claim against the Red Flag defendants may be very briefly summarised. The plaintiff claims that the first named defendant, Red Flag Consulting Limited (hereinafter “Red Flag”), together with its directors and employees, the second to sixth defendants, conspired with the seventh defendant, wrongfully and with the sole or predominant intention of injuring and/or causing loss to the plaintiff. In his original claim, the plaintiff alleged that the conspiracy was between the Red Flag defendants and their client, whose identity was then unknown. It was only at the time of the amendment to the statement of claim that the plaintiff claimed that the client was the seventh defendant. The seventh defendant has filed a defence, denying, inter alia, that he is that client.

5 . The plaintiff claims that, in furtherance of the alleged conspiracy, all the defendants commissioned, compiled, authored and published a dossier of documents contained in schedule 1 to the statement of claim (“the dossier”). He further claims that the defendants suggested amendments to a draft speech to be delivered in Dáil Éireann by (now former) TD Colm Keaveney (hereinafter “Deputy Keaveney”). The plaintiff claims that the defendants have published the statements contained in schedule 2 to the statement of claim, which are said to be defamatory of the plaintiff. Those statements comprise extracts from the dossier.

6 . In his amended statement of claim at para.16A, the plaintiff also claims that the defendants encouraged and facilitated Mr Neil Ryan, a former assistant secretary at the Department of Finance, to disclose confidential information concerning the plaintiff. The plaintiff pleads that such disclosure was a breach of the Official Secrets Act 1963 and a criminal offence, and that the alleged actions of the defendants amounted to soliciting, aiding, abetting, counselling or procuring the commissioning of a criminal offence or a breach of confidence. As these actions are said to be criminal wrongs it is alleged that the defendants conspired to injure the plaintiff by unlawful means.

7 . The plaintiff claims at para.16B, that, pursuant to and in furtherance of that conspiracy, the defendants engaged in a campaign of briefing politicians and journalists with material adverse to his interests, with the express purpose of having those politicians and journalists promote and publish that material with the predominant intention of injuring the plaintiff or causing him loss.

8 . The Red Flag defendants delivered an amended defence on 27 June 2018. They admit that Red Flag compiled the dossier (which comprises mostly material in the public domain) and produced some of the documents contained therein. They plead that the dossier was compiled and, where applicable produced, in the ordinary course of Red Flag's business and pursuant to its retainer by a client. The alleged conspiracy is denied and the plaintiff is put on strict proof of the alleged publication of the dossier and the statements.

9 . The Red Flag defendants plead that the appellant has not adequately particularised his allegations concerning the alleged disclosure of material by Mr Ryan. They further plead that they are strangers to the plaintiff's assertion that Mr Ryan possessed information concerning the plaintiff or companies with which he is associated. They deny that they sought to encourage or facilitate the disclosure of such information by Mr Ryan, and they deny that they are guilty of soliciting, aiding, abetting, counselling or procuring the commissioning of a criminal offence or a breach of confidence. The Red Flag defendants also deny that they engaged in the alleged campaign of briefing politicians and journalists.

The categories of discovery sought

10 . The plaintiff sought discovery of the following four categories of documents:

Category A

11 . All documents relating to and/or evidencing the first to sixth named defendants bearing hostility and/or ill feeling towards the appellant (including communications between him, his servants or agents and the defendants).

Category B

12 . All documents relating to and/or evidencing the defendants (including their servants or agents) seeking to encourage and/or facilitate the disclosure by Mr Neil Ryan (and/or his servants or agents) of information (including information relating to the appellant's confidential private banking affairs with IBRC) relating to the appellant and/or companies with which the appellant is associated including documents relating to and/or evidencing the consequences and/or results of any communications between the defendants and Mr Neil Ryan.

Category C

13 . All documents relating to and/or evidencing the defendants briefing politicians, their parliamentary assistants, servants and/or agents and/or journalists with material adverse to the interests of the appellant, including documents relating to and/or evidencing the purpose and/or motive of such briefings.

Category D

14 . All documents that evidence, record or relate to the defendants' awareness and/or knowledge of the confidential banking affairs of the appellant and/or companies associated with him.

The High Court Judgment

15 . The High Court granted discovery of categories A, B and D. The motion judge, in an ex tempore judgment, stated her reason for refusing discovery of category C as follows:

“It seems to me that [Category C] is overbroad in the extreme and has nothing to do with a temporal limit. The Defendants will of course be briefing politicians, assistants and journalists in or about their day-to-day business and they may well have material adverse to the interests of the Plaintiff. But that of itself does not suggest that because they may be speaking to parliamentarians and their servants or agents and/or journalists and their servants or agents with such material that that that (sic) would amount to a conspiracy. And in these circumstances I do not believe that it is appropriate to make an order under paragraph C in favour of the Plaintiff.”

16 . The motion judge, in limiting the period for discovery...