The High Court has refused an application by businessman Declan Ganley to have selected issues in Denis O’Brien’s civil case heard before trial, finding that the proposed questions were premature and not sufficiently clear to justify a preliminary hearing.
Mr Justice Michael MacGrath delivered the judgment on 22 May 2020. The application concerned whether parts of Mr O’Brien’s claims were barred by the Statute of Limitations and whether his claim alleging damage to reputation through lawful means conspiracy could proceed. The judge did not decide those substantive questions.
Mr O’Brien alleges that the defendants were involved in producing or distributing a dossier about him and in communications intended to damage his personal and business reputation. The dossier was on a USB memory stick he received in 2015. The claims also include allegations concerning confidential information and other alleged wrongdoing. All defendants deny the claims. Mr Ganley denies being the client behind the dossier.
Mr Ganley argued that the proposed issues could be resolved on the pleaded or accepted facts, saving time and expense. His counsel said the alleged defamatory material had been published by 9 October 2015 and that Mr Ganley was joined to the proceedings in April 2018. Mr O’Brien relied on section 71 of the Statute of Limitations, arguing that alleged fraudulent concealment could postpone the limitation period. He said the relevant facts were disputed and required evidence and discovery.
The judge said a preliminary issue should generally be discrete, capable of a clear answer on agreed or accepted facts, and likely to determine a substantial part of the case or produce a clear saving of time and cost. Although limitation questions can be suitable for this procedure, the facts said to support fraudulent concealment had not yet been pleaded, agreed or accepted. The judge considered the section 71 issue likely to depend substantially on the facts and premature in the state of the pleadings.
The proposed lawful means conspiracy issue also presented complications. Special damages had been pleaded against the Red Flag defendants, though not expressly against Mr Ganley, and Mr O’Brien contended that those defendants acted as Mr Ganley’s servants or agents in some of the alleged wrongdoing. Other claims, including unlawful means conspiracy and breach of confidence, would remain even if Mr Ganley succeeded on the proposed issues. The judge was not satisfied that the likely savings in time and expense had been established.
The court therefore refused the application to set preliminary issues. It made no ruling on whether the claims are time-barred or legally sustainable, and expressed no view on the separate requests to strike out claims as scandalous, vexatious, inadequately pleaded or disclosing no cause of action. The judgment said Mr Ganley remained entitled to bring a separate application on those grounds.