The High Court has allowed Denis O’Brien to add Declan Ganley as a co-defendant in his conspiracy case against Red Flag Consulting Ltd and five other defendants, and to amend his pleadings. The ruling concerns who may be sued and how the claim may be framed; it does not determine whether the allegations are true or whether O’Brien will succeed at trial.
Ms Justice O’Regan delivered the judgment on 22 March 2018, after hearing the application on 13 and 14 March. O’Brien sought Ganley’s joinder and permission to amend his plenary summons and statement of claim. His solicitor said the information grounding the joinder application had been provided to O’Brien on 13 October 2017. An affidavit from Colm Keaveney said he believed Ganley was the client who had engaged the defendants to prepare a dossier. Ganley denied in an affidavit that he was that client. The existing defendants took a neutral position on joinder.
The judge said disputed facts had to be resolved in O’Brien’s favour for the purpose of this application. Ganley argued that the claim was in substance defamation and out of time. O’Brien relied on a limitation provision concerning alleged fraud and delayed discovery. The judge found there was “some doubt” about how the limitation rules applied to Ganley and therefore allowed him to be joined. The judgment did not decide that the claim was within time.
O’Brien also sought amendments concerning alleged encouragement or assistance in the disclosure of information said to be official information or subject to confidence, and an alleged campaign of briefing politicians and journalists. The proposed pleading alleged unlawful conduct and conspiracy, and sought damages for breach of confidence. These remain allegations, not findings by the court.
The defendants challenged the evidential basis and particulars for the amendments, and argued that the first proposed amendment would radically change the case. The judge concluded that the amendments did not radically differ from the existing pleadings. She considered the pleadings, the timing of information relied on for one amendment, and the absence of argued prejudice beyond the defendants’ point that the pleadings were advanced. She said the particulars supplied through text messages might be less than ideal, but that was not a reason to refuse permission.
The court ordered that Ganley be joined as a co-defendant and granted O’Brien liberty to amend the plenary summons and statement of claim in the form exhibited to the solicitor’s affidavit. The judgment records no ruling on the truth of the allegations or final liability.