The Conspiracy

The dossier contained 82 newspaper reports and opinion pieces relating to O’Brien. It also had judge Donald Binchy’s judgment in O’Brien’s case against RTE earlier this year, and the draft terms of reference for the commission of investigation into the conduct of Irish Bank Resolution Corporation (IBRC).

The analysis of the data was compiled by Espion, an IT consultancy hired by O’Brien. It found the documents were created on computers registered with Red Flag Consultants, an Irish PR firm run by people who have crossed swords with O’Brien in the past. Its chief executive is Karl Brophy, a former journalist with the Irish Mirror. An article he wrote in 1998 led to O’Brien winning €750,000 in libel damages, later reduced on appeal. Brophy was removed from his senior management job at Independent News & Media (INM) when O’Brien took control of the company in 2012.

Red Flag’s chairman is Gavin O’Reilly, a former chief executive of INM who was also forced out by O’Brien.

Late last Tuesday afternoon, O’Brien launched what he hoped would be a decisive strike against Red Flag in an attempt to find out who its paymasters might be. A legal team led by Michael Cush SC applied for an Anton Piller order. This would have allowed O’Brien’s staff to launch a surprise raid on Red Flag’s offices to search for and seize material for inspection.

Judge Nicholas Kearns, president of the High Court, balked at giving O’Brien such a draconian order. Instead, he issued a ruling preventing Red Flag interfering with the dossier or equipment, and a temporary super injunction preventing any reporting of this order.

The reporting restriction was lifted on Wednesday morning. By 2pm Red Flag, O’Reilly, Brophy and three other defendants — Seamus Conboy, director of client campaigns; Brid Murphy, an account manager; and Kevin Hiney, an account executive — had instructed lawyers. Their legal team was led by Michael Collins SC and Eugene F Collins, who had represented RTE against O’Brien earlier this year.

The case was transferred to the judge Colm Mac Eochaidh. This would be O’Brien’s first encounter with Mac Eochaidh since the High Court judge gave the billionaire a verbal ticking-off two years ago over remarks the latter made about the judge Michael Moriarty.

The case before Mac Eochaidh was that O’Brien had uncovered what he described as a surreptitious conspiracy to damage him and Digicel, his Caribbean-based telecommunications company, through the dissemination of an allegedly defamatory dossier.

The businessman wants the court to allow his IT consultants to examine the computers and files of Red Flag so they can establish who wrote the files, who received them, and who commissioned the company to compile and circulate the material. He wants damages for defamation and for conspiracy to harm him and his businesses.

O’BRIEN put on a brave face earlier this month after Digicel’s planned initial public offering (IPO) on the New York Stock Exchange was pulled. Why sell your front garden at a discount, the businessman asked a TV interviewer, clearly unhappy that investors would not pay the $13-$16 a share Digicel hoped to achieve.

In a statement, Digicel blamed market conditions. Now its chairman and majority owner is alleging that the company also had to contend with a secret campaign to damage its reputation.

Recently, O’Brien hired private detectives to investigate who was behind what he believed to be an orchestrated campaign of negative media coverage. Presumably prompted by these inquiries, O’Brien says, someone decided to send him the USB stick anonymously.

In court before the judge Mac Eochaidh last week, Cush said O’Brien was aware that Red Flag had prepared what he described as a defamatory dossier, but needed to find out who had commissioned it, and to whom it was circulated. The lawyer said O’Brien had serious concerns about whether the defendants would abide by the court order not to interfere with or destroy evidence.

Collins dismissed this attack on Red Flag and the defendants as unwarranted. He said the company would fully defend the action. The case was put back to Friday for Collins to take further instructions.

Red Flag told the court it would permit copies of its hard drives to be taken and stored with an independent solicitor ahead of a hearing to determine whether O’Brien should be allowed to inspect them. Judge Mac Eochaidh ordered that the memory stick received by O’Brien should be preserved so it could be examined by Red Flag’s experts.

Cush argued that O’Brien had a right to discover who was driving a conspiracy to damage him and his companies. The lawyer asked who had paid Brophy to write a speech attacking O’Brien, which is in the dossier. He said Espion had established that words written by Brophy were spoken by Keaveney in the Dail on June 9. This echoed a theme Cush had raised on Tuesday when he said O’Brien believed that Red Flag was feeding TDs negative material to deliver under privilege in the Oireachtas.

Collins emphasised that it was a mystery to his clients how O’Brien could have obtained their documents, because it must have been by hacking or through persuading someone to send the material outside the company. Red Flag made a complaint to the gardai on Thursday that the material on the USB stick was taken illegally from its systems.

Collins asked O’Brien to clarify whether the delivery of the memory stick was connected to the work of his private investigators. The Red Flag barrister then queried the basis of O’Brien’s whole case. He asked if the businessman were claiming it was unlawful for a PR company to compile press cuttings on a public figure.

Cush responded that the three memos in the dossier were rife with defamatory statements, and that the file had been circulated with the intention to harm O’Brien and Digicel’s recently cancelled IPO. This made it an unlawful conspiracy, he claimed. Cush insisted the dossier had been disseminated by Red Flag, notwithstanding its allegations of being hacked.

The parties will exchange affidavits within the next four weeks. Cush agreed that O’Brien did not deserve a preferment for an urgent hearing, ahead of other citizens. A trial date was preliminarily set for December.

So what of O’Brien’s allegation of a conspiracy against him and Digicel’s IPO involving TDs? The billionaire, who was found by the Moriarty tribunal to have made a series of payments to Michael Lowry as communications minister, has no shortage of political critics. Many TDs have expressed frustration in the Dail that, despite the findings of the Moriarty tribunal, O’Brien has not faced sanctions.

Since the tribunal delivered its report in early 2011, O’Brien’s personal wealth has ballooned thanks to Digicel dividends and the acquisition of distressed companies in Ireland that he has successfully turned around. Among those who have argued that O’Brien deserves greater scrutiny is Anne-Marie McNally, a Social Democrats candidate in the next general election and parliamentary assistant to Catherine Murphy TD, who has raised questions about O’Brien’s purchase of Siteserv.

Before the intended Digicel IPO, McNally emailed the Securities and Exchange Commission (SEC) in New York to ask whether the regulator were aware of what the Moriarty tribunal had concluded in relation to what O’Brien had done to obtain a mobile phone licence in Ireland.

O’Brien is still facing two High Court actions for damages from two of the losing bidders in the 1996 licence competition. Persona and Ganley allege the “corrupt” actions of O’Brien and Lowry wrongly prevented them winning. O’Brien, Lowry and the state deny the allegations.

Neither this litigation nor the findings of the Moriarty tribunal were declared in the Digicel prospectus before its IPO. The SEC rules on foreign filers do not require companies to declare litigation or investigations involving a chief executive or a major shareholder.

Asked whether Murphy ever received assistance from Red Flag for speeches she made, McNally said: “No material was ever, at any stage, provided by Red Flag for the purposes of any utterance made by Catherine Murphy TD in the Dail.”

O’Brien may be a serial litigant, but he tends to win. The billionaire will be hoping to win once again come December.