The High Court has directed that Denis O’Brien’s discovery motion be heard before a separate motion by the first six defendants to strike out two paragraphs of his amended claim. The ruling addressed only the order in which the motions should be considered; it did not decide either motion on its merits.
The dispute concerns paragraphs 16A and 16B of the amended statement of claim. They allege, among other things, that the defendants encouraged or facilitated the disclosure by former Department of Finance assistant secretary Neil Ryan of information concerning O’Brien and that they briefed politicians and journalists with adverse material. Those remain allegations in the pleadings, not findings by the court.
The Red Flag defendants sought to strike out the paragraphs and an associated schedule. They argued that the allegations were inadequately particularised, unsupported and disclosed no reasonable cause of action. Their evidence included an affidavit from Red Flag chief operations officer Garret Doyle, who disputed the pleaded account of text messages and said there was no evidence that Ryan held or disclosed confidential information, or that the defendants encouraged any disclosure.
O’Brien opposed that application and sought discovery of documents concerning the alleged efforts to obtain information from Ryan, communications and their consequences, briefings to politicians and journalists, and the defendants’ knowledge of confidential banking affairs. He argued that the conduct was alleged to have been clandestine and that he could not fully particularise his claim without access to material held by the defendants. His solicitor also said O’Brien was not in possession of the documents sought.
The judge accepted the defendants’ general point that discovery is assessed by reference to the pleadings and that defining their permitted scope first is ordinarily the logical approach. But he said that default did not dictate the sequence in every case, particularly where alleged covert wrongdoing could leave a claimant unable to know its full extent. He also noted that defendants’ rights against wide-ranging or oppressive discovery could be considered at the discovery hearing.
The judge made a preliminary observation that he could not conclude at this stage that there was no evidence of conduct on which an argument about wrongdoing could be made. He stressed that this was tentative, did not determine whether the allegations were bare assertions and should not be taken as indicating the outcome of either substantive motion. The court hearing the discovery motion must still decide whether the requests are relevant, necessary and proportionate, and whether any discovery should be ordered.
The court therefore directed that the discovery motion proceed first. It did not grant discovery, strike out any pleading, or determine the underlying allegations.