The Court of Appeal has ordered discovery of documents about alleged briefings of politicians and journalists in Denis O’Brien’s conspiracy claim against Red Flag Consulting Limited and five associated defendants. It upheld the existing two-year limit on the discovery period and dismissed the defendants’ cross-appeal against that limit.
The judgment, delivered by Ms Justice Donnelly on 11 June 2021, concerned an order made by the High Court on 7 July 2020. That order had granted discovery in categories A, B and D, but refused category C, which sought documents about briefings of politicians, their assistants and journalists with material adverse to O’Brien’s interests, including evidence of the purpose or motive of those briefings.
O’Brien alleges that Red Flag, its directors and employees, and a seventh defendant conspired to injure him or cause him loss. He claims the defendants briefed politicians and journalists as part of that alleged conspiracy. The Red Flag defendants deny the conspiracy and deny engaging in the alleged campaign of briefings. The seventh defendant has denied being Red Flag’s client.
In allowing the appeal, the Court of Appeal found that the category was relevant to the pleaded conspiracy claim and sufficiently particularised by communications set out in schedule 5 to the amended statement of claim. Those particulars included text and email exchanges involving a Red Flag director and former TD Colm Keaveney. The court considered that the alleged conspiracy was clandestine and that the documents could provide a line of enquiry capable of advancing O’Brien’s case or weakening the defendants’ case.
The court rejected the defendants’ arguments that category C was an impermissible fishing exercise, too subjective to apply, or an attempt to circumvent earlier refusals of discovery. It also found that the defendants had not provided evidence that making discovery would be oppressive or disproportionate. The court did not decide whether the alleged conspiracy occurred; it decided only that the requested documents were discoverable in the proceedings.
The Red Flag defendants’ cross-appeal challenged the period set by the High Court: 1 January 2014 to 31 December 2015. The Court of Appeal found no clear error of principle or injustice warranting intervention. It directed that the same period apply to category C.
The court proposed that O’Brien receive the costs of both appeals, subject to the defendants notifying the Court of Appeal within 14 days if they wished to argue for a different costs order. The judgment does not state a final costs determination.