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Denis O'Brien application to have costs awarded against Red Flag and Declan Ganley delayed

O’Brien had sought to have costs awarded against Red Flag Consultants (and five others) and Declan Ganley regarding amendments he secured last month.

HC W Murphy 3 Source: William Murphy

THE HIGH COURT has ordered that costs, in the matter of an amended action by Denis O’Brien against Red Flag Consulting, and in a concurrent action joining millionaire Declan Ganley to the defamation suit against Red Flag, not be awarded until the overarching action has been concluded.

Billionaire businessman O’Brien had wished to have costs awarded against the defendants, Red Flag (and others) and Ganley. Such a move would not be usual when applying to amend a statement of claim, where the party calling for that amendment would normally expect to incur costs.

At today’s hearing before Justice Miriam O’Regan, counsel for O’Brien, Frank Beatty SC, argued that it was appropriate that costs be awarded against Ganley and Red Flag as the applications made by O’Brien last month were relatively simple ones, which had been complicated by the defendants raising issues “not germane” to the application at hand.

That had led to an extended hearing, lasting two days, which had not been necessary, Beatty argued.

pjimage (1) Denis O'Brien (left) and Declan Ganley Source: Rollingnews.ie

Justice O’Regan, in her decision, agreed with counsel for Declan Ganley, that costs in the cause would be the most appropriate outcome.

This means, in effect, that the decision on costs will be delayed until O’Brien’s overarching case against the defendants is decided in the fullness of time.

Defamation action

Regarding directions as to discovery in the action proper, which had also been due to happen today, counsel for Red Flag argued that it would be necessary to delay that decision due to the separate hearing in the High Court yesterday concerning the Office of the Director of Corporate Enforcement’s attempt to have inspectors appointed to investigate corporate governance at Independent News and Media.

In that event, representatives for Red Flag (and many more) had argued that they should be given sight of all filings in that case as information that could well be very pertinent to them appeared to be contained in those filings. A decision on that matter is expected from Justice Peter Kelly, the president of the High Court, next week, 24 April.

Red Flag CEO Karl Brophy is among the 19 persons of interest, otherwise known as the INM 19, who allegedly had their data interrogated by a company outside the Irish jurisdiction following an alleged breach at the offices of INM from October 2014.

“There is some suggestion that the plaintiff (O’Brien) is connected” to what had occurred at INM, counsel for Red Flag said today.

The relevance is that we don’t know for sure – there is the significant possibility that what may be obtained from the other matter will have a bearing on the defence we wish to plead in these proceedings.

Saying that she had to take into account both sides’ view on proceedings, Justice O’Regan ordered that a hearing on discovery regarding the next phase of O’Brien’s defamation action be held on Monday, 2 July.

O’Brien’s action against Red Flag and five (six including Ganley) others (including Karl Brophy, Seamus Conboy, and Gavin O’Reilly) dates from late 2015 and the anonymous delivery to his office of a USB stick containing a dossier of information concerning him, which he alleges was compiled by the consultancy to defame him.

On 22 March O’Brien won the right to join communications millionaire Ganley to that defamation action. He alleges that Ganley was the client of Red Flag who initially commissioned the dossier of information contained on the USB stick.

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