The High Court has ordered limited discovery of communications between Red Flag Consulting Limited and its unnamed client in proceedings brought by Denis O’Brien, while refusing to compel disclosure of the client’s identity or order discovery about alleged publication of a dossier.
Mr Justice Mac Eochaidh delivered the ruling on 13 December 2016 on O’Brien’s application for discovery. His action alleges conspiracy, defamation and causing loss by unlawful means. The defendants admit producing the dossier but deny conspiracy and do not admit that it was published. They say it was produced in the ordinary course of business under a client retainer, and rely on qualified privilege under the Defamation Act 2009.
The defendants had agreed to provide documents about the retainer, instructions and preparation of dossier materials, except anything that would identify the client. The court refused O’Brien’s request for discovery that would reveal the client’s identity. It said O’Brien had not shown, as a matter of probability, that learning the identity would help establish the defendants’ motivation in compiling the dossier. The possibility that the identity might reveal the client’s motive, and in turn help connect that motive to the defendants, was too speculative. The court also rejected confidentiality as an independent reason to refuse discovery, but did not decide whether confidentiality could prevent disclosure because relevance had not been established.
The court also refused discovery of documents concerning who received or saw the dossier and their responses. It found that O’Brien had not adequately pleaded facts supporting publication. He relied on an anonymously delivered memory stick and questions put to him by journalists, but had not supplied details connecting the journalists’ questions to the dossier or fully explained how he came to possess the memory stick. The court said discovery could not be used to obtain evidence needed to make or prove an otherwise unsubstantiated plea.
By contrast, the court ordered discovery of communications between the defendants and their client insofar as they relate to the dossier or O’Brien. It said those communications were likely to help establish the relationship between the parties and why the dossier was compiled. The order permits redactions concealing the client’s identity or anything that might reveal it.
Requests for documents the defendants intended to rely on for qualified privilege and honest opinion were refused. The plaintiff did not pursue a request concerning the employment or officer status of several defendants, so the court made no decision on that category. The ruling concerned discovery only; it did not determine the underlying claims.