The High Court refused Denis O’Brien’s application for an order requiring Red Flag Consulting Limited and the other defendants to identify a client whom he believed was behind a campaign against him and his business interests. Mr Justice Mac Eochaidh delivered the ex tempore judgment on 21 December 2015.
O’Brien alleged that journalists’ questions formed part of a campaign against him. An anonymously delivered memory stick contained material he said was defamatory and evidence of a conspiracy. The defendants’ counsel accepted that the dossier on the stick was work product of the defendants, particularly the first defendant.
Earlier in the proceedings, the President of the High Court had made evidence-preservation and non-disclosure orders, but did not make all the orders sought. Forensic imaging of the defendants’ computers was later ordered. O’Brien initially anticipated seeking inspection of those images, but instead applied for disclosure of the client’s identity.
Mac Eochaidh J held that the High Court had jurisdiction to order defendants to identify alleged concurrent wrongdoers, including at an interlocutory stage. But such an order required the plaintiff to establish the alleged unlawful activity to a high degree of certainty. The court also considered the defendants’ duty of confidentiality and the irreversible consequences of revealing the client’s identity.
The judge was not satisfied that the evidence established defamation to the required standard. He said there was no evidence sufficient to establish that the allegedly defamatory material had been published. A previous jury finding that a similar allegation was defamatory did not establish publication in this case.
The court also found the alleged conspiracy was not made out to the required level. For conspiracy using unlawful means, the relevant alleged means was defamation, which had not been established to the necessary standard. For conspiracy using lawful means, the judge found no evidence that O’Brien had suffered actual injury, and insufficient evidence of the unnamed person’s motivation.
The judgment also addressed the claim that disclosure was needed to prevent evidence being destroyed. The judge noted that the request for disclosure had not been pursued earlier in the proceedings and said the plaintiff had not maintained the non-disclosure protections in a way that would support that aim. The application for an order identifying the client was refused. The judgment did not determine whether the alleged campaign or torts had in fact occurred; it ruled that the evidence before the court did not justify disclosure at that stage.