The Court of Appeal has rejected Denis O’Brien’s appeal seeking the identity of the client who instructed public relations consultancy Red Flag Consulting Limited to compile a dossier about him. It upheld the High Court’s refusal to order disclosure of the client’s identity and dismissed the appeal concerning documents sought to support the defendants’ pleas of qualified privilege and honest opinion.
The appeal concerned a discovery order made by the High Court on 12 January 2017. That order required disclosure in five of nine categories sought by O’Brien, but required redaction of the client’s identity and information that might identify the client. The Court of Appeal also considered the defendants’ appeal against discovery of certain communications with the client.
O’Brien alleges that Red Flag, its personnel and its client conspired to harm him through unlawful means, which he identified as alleged defamation. The defendants admitted collecting and compiling the dossier and authoring original material in it, but denied the alleged legal wrongs. They pleaded qualified privilege and honest opinion. The Court of Appeal made no finding on whether the alleged defamation or conspiracy occurred.
On the client’s identity, the court held that O’Brien had not shown how the client’s name would be relevant to the claims against Red Flag. Even if the name suggested hostility towards O’Brien, the court said, that would not establish that the defendants shared the client’s motive. It also rejected the argument that a separate route under Norwich Pharmacal principles entitled O’Brien to disclosure, finding no sufficient factual basis and concluding that the issue had already been addressed in an earlier unsuccessful application.
The court also upheld the refusal to order discovery of documents intended to support the defendants’ qualified privilege and honest opinion defences. It considered the request difficult to define because those pleas concern the defendants’ states of mind, and would effectively require a broad search for documents relating to the defences.
The High Court’s order for communications between the defendants and their client concerning the dossier or O’Brien, with the client’s identity redacted, remained in place. The Court of Appeal found no reasonable or legal objection to that limited discovery. It noted that such documents might overlap with other categories already ordered, but did not set the category aside.
The ruling concerned discovery at an interlocutory stage. It did not decide the merits of O’Brien’s underlying claims or establish whether the dossier was published. The court concluded that he was not entitled to identify the client through discovery from Red Flag in this action.