Court of Appeal: Denis O’Brien refused order for identification of PR firm’s client

About this case:

• Judgment:
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Mr Justice Sean Ryan, president of the Court of Appeal, stated that Mr O’Brien would have had a remedy if Red Flag had published the dossier at the centre of the proceedings, but that discovery could not be granted in circumstances where Mr O’Brien was seeking “discovery of a document to see if the document might be relevant”.

Introduction

In October 2014, Businessman Mr Denis O’Brien came into possession of a USB memory stick which held a dossier relating to Mr O’Brien consisting of memoranda, drafts of a speech by a TD and media articles. He claimed that the materials are of a most negative and disparaging nature.

The collection was compiled by Red Flag Consulting Limited, a public relations consultancy company, who also produced some of the documents.

Mr O’Brien claimed that Red Flag and the personal defendants, together with an unknown instructing client, were engaged in a conspiracy to damage him in a variety of ways, including defamation.

His claim was pleaded in conspiracy, causing loss by unlawful means and defamation. He claimed compensatory as well as aggravated and exemplary damages

High Court

Red Flag admitted collecting and compiling the information in the dossier and authorship of original material therein, but denied wrongdoing. As well as containing a general traverse, Red Flag pleaded defences under the Defamation Act 2009; qualified privilege and honest opinion.

In a notice for particulars, Mr O’Brien sought the name of Red Flag’s client but that was refused.

He brought a motion to have the identity revealed to him pursuant to the jurisdiction that was applied in Norwich Pharmacal v. HM Commissioner for Customs & Excise A.C. 133

In the High Court, the judge refused the application because Mr O’Brien had not made out a sufficient case as required under that jurisprudence.

While granting some of the items applied for in discovery, the High Court refused to order identification of the client, a restriction that was embodied in the discovery by the addition to each category ordered of the words “subject to redaction of the identity of the said client and of any information which might enable the client to be identified”.

It was held that the identity of the defendants’ client was not relevant to the proceedings, and that a party may not seek discovery of a document to find out whether the document may be relevant.

The most Mr O’Brien could say was that gaining the identity of defendants’ client might assist with proving the motivation of the client, which in turn might assist in attributing that motivation to the defendants in compiling the Dossier.

This fell short of what was required – the burden of establishing relevance rested on Mr O’Brien and it had to be discharged regardless of the attitude of the defendants to the issue.

Court of Appeal

Red Flag’s client in this case was free to collect and/or publish material critical of Mr O’Brien. He was also entitled to engage others to do that very thing, but subject to doing so lawfully, either by himself or by his servants or agents.

Red Flag, as a consultancy, does not have to ensure that its clients’ motives are pure, legitimate and not simply hostile or “malicious”.

Even if the person is actuated by the bitterest and most unjustified and unfair malice, actual hostility or other mean intentions, it is a full defence to an action for defamation to prove that the statements are true.

There is no equivalent at common law of the sin of detraction.

Furthermore, a public relations consultant or company such as Red Flag does not have to validate the motive of an informant, but a publisher is liable if the information is defamatory and untrue.

Conclusions

President Ryan stated that Mr O’Brien’s case was really a case of defamation although conspiracy causing loss by unlawful means were pleaded.

The legal principles applying to discovery have been settled for 135 years since Lord Justice Brett’s expansive definition in Peruvian Guano (1882) 11 Q.B.D. 55 at 63/6, as such, Mr O’Brien could only seek discovery of the identity of the defendants’ client or any other matter for the purpose of this action against these defendants.

President Ryan stated that it was difficult to see how Mr O’Brien could succeed in an alternative form of relief in getting the same thing that he is looking for by way of discovery application, but under another heading of a quasi-Norwich Pharmacal jurisdiction.

If the Dossier was actually published by Red Flag, then Mr O’Brien would have had his remedy under the Defamation Act 2009.

President Ryan stated that the fundamental point was that Red Flag’s client was entitled to have the dossier prepared.

Even if this was done for malicious motives, this was not sufficient to establish a conspiracy on the part of that client or to demonstrate that Red Flag was itself a co-conspirator with the client.

Mr O’Brien’s appeal was dismissed.