When lawyers for Denis O’Brien sent a notice of appeal to the Court of Appeal at the end of January in the businessman’s marathon legal joust with Red Flag Consulting, there was no great urgency to matters.
“Will you request a priority hearing?” asked the standard Notice of Expedited Appeal form lodged with the office of the Court of Appeal.
“No,” was the succinct, firm answer given on O’Brien’s behalf – with no elaboration.
Thus, what began in October 2015 with an air of almost manic urgency appeared to have lost its head of steam altogether.
There had been the initial ex parte application for an Anton Piller order against Red Flag (in essence, a civil search-and- seize warrant), which the president of the High Court refused. That was followed by equally urgent and insistent pleas for a preservation order, lest the people O’Brien characterised as illegal conspirators and purveyors of defamatory and malicious falsehoods about him destroyed any evidence that might prove their alleged guilt.
At the heart of O’Brien’s case is a USB memory stick the contents of which were compiled by Red Flag on behalf of an undisclosed client – a stick that held hundreds of newspaper cuttings and a clutch of unflattering and uncomplimentary profiles about O’Brien and the findings of the Moriarty Tribunal, together with a draft speech similar to one delivered in the Dáil in June 2015 by former Fianna Fáil TD Colm Keaveney.
Dossier shared Red Flag shared the dossier with Mark Hollingsworth, a sometime UK journalist who, unknown at the time, was also working with a London-based corporate intelligence-gathering firm named Alaco. Within days, the very same set of files, unaltered and now placed on the USB stick by persons unknown, somehow found their way, by a route also unknown, to
O’Brien’s office in Dublin.
O’Brien says that he was shocked by the dossier’s contents, which he found “simply extraordinary” and confirmed, in his eyes at least, a campaign of demonisation of him by defamation. It prompted him to rush to the High Court with Red Flag, and its unknown client, in his sights.
That was October 2015 and the High Court in due course granted O’Brien the preservation order he sought, having denied his request to enter Red Flag’s offices and seize, in effect, whatever he wanted. The legal battle then turned into a fight for discovery, the device through which a court, at the request of a litigant, orders a defendant to hand over documents relevant to the litigant’s case.
Client’s identity
But last December, the trial judge, Mr Justice Colm Mac Eochaidh, delivered a severe blow to O’Brien’s efforts. He would not force Red Flag to reveal the client’s identity, ruling that identity was not relevant to his case, which was against the PR company. Further, he said that O’Brien had failed to show how he had been defamed by the memory stick’s contents.
In a rebuke, he said the full story as to how the stick came into O’Brien’s possession had not been told and he described as “very surprising” and “odd” that O’Brien had provided no evidence to substantiate the alleged conspiracy against him.
Discovery was permitted in just one category sought and then in such restricted terms that its value was questionable at best.
Thus the appeal against this discovery refusal, lodged with the appeal court on January 27th, was devoid of any sense of urgency. However, The Irish Times understands O'Brien is determined to breathe new life into the long-running saga due in part, it is thought, to his realisation that a two-year time limit exists within which defamation actions must be brought – a deadline that in this instance expires next October.
In their notice of appeal, O’Brien lawyers – solicitor Diarmuid Coen of Eames Solicitors, who has personally sworn numerous affidavits in the case, together with senior counsel Michael Cush, Martin Hayden and Frank Beatty, and Jack Tchrakian BL – list all the affidavits and transcripts of proceedings they will rely on at the Court of Appeal.
Attached to several of these affidavits are reports by Martin Coyne, whom O’Brien and his lawyers say they regard as a qualified expert. Coyne, who runs a company named Digitpol, was given the USB stick on O’Brien’s personal instructions, and subsequently kept it outside the jurisdiction of the High Court for a time after the court directed that it be kept only with Eames Solicitors.
Coyne wrote three reports for Eames detailing his alleged examination of the USB, which leaves open the possibility that Coyne will be called upon to testify.
The Irish Times has reported previously on Coyne's absence of stated qualifications, despite protestations to the contrary, and on his interference with the contents of the stick by creating and deleting files on it.
From Dublin, Coyne is based in the Netherlands and a curious cast of characters there emerged in his reports as having handled the USB while it was in his, and not O’Brien’s solicitors’ possession, as it should have been.
The cast includes Coyne’s then girlfriend, a Dutch police friend (neither of whom have digital forensic expertise) and the mysterious “employee number 18883”, allegedly from Digitpol’s “covert unit”.
“In light of this associate’s role in Digitpol’s covert unit,” wrote Coyne in a March 4th report for O’Brien, “his current involvement in a sensitive criminal investigation and the high degree of publicity attaching from the current proceedings it is not proposed to disclose this individual’s identity further”.
Police contractor Following further inquiries, it is now possible to reveal more about Coyne. He became a civilian contractor with the Rotterdam police in 2009, having met one of their vehicle crash investigators, an officer named Hans Bot, at a professional gathering in the United States the previous year.
In his CV, which the police requested when considering him for contract work (which was to develop methods of extracting digitally stored information from crashed vehicles, a field in which he has expertise), Coyne claimed to have a doctorate.
According to several credible Dutch sources, Coyne told the Netherlands’ police in his CV that “he has two bachelor degrees, in software engineering and integrated circuit engineering, and then he has masters in digital technology processing, and there was talk of him having a PhD”.
In correspondence seen by The Irish Times, Dutch police refer to Coyne as "Mr Martin Coyne PhD" and a separate source says that Coyne claims his PhD came from "the US military" but the subject of his alleged thesis was so secret that it could not be disclosed.
None of these claims, all of which originate with Coyne himself, can be verified.
During his time as a contract employee with the Dutch police (from mid-2009 to 2012), Coyne had a business card with the police logo and his name on it. He styled himself as “Head of Technology & Developments” but no such position existed.
Almost everyone interviewed in the course of investigating Coyne describes him as a Walter Mitty figure.
Several interviewed say Coyne told them he was involved in car chase shoot-outs with Amsterdam drug gangs, high-speed Mediterranean patrols with Interpol and the Spanish police) and that he secured the release of a helicopter seized by overzealous police from a multimillionaire Dutch playboy pal in Andalucía.
None of these claims could be verified.
Reinventions In recent months, Coyne’s Digitpol, which he portrays – both to the High Court and online
– as an international cyber investigation company with multiple departments run by experts but which appears to have no employees, has been through several online reinventions.
Digitpol’s Twitter account boasts having more than 18,000 followers, though there are questions about many.
Dutch sources say that at the start of their relationship with Coyne he was a valued member of the team trying to develop crash-investigation technology but that the limitations of his knowledge became apparent.
Over time, especially at the end of the project, they noticed what he was relating was not always true, or original, said a Dutch source. “He kept people at a distance; he had fights with his co-workers over all kinds of small things, so it was difficult to work together with him.”
As a result of this and the project wind-down, Coyne’s contract was not renewed. Sources say also the Dutch police would not work with him again.
Coyne carries on, however, and remains a key component in O’Brien’s case against Red Flag, an expert witness whose reports, with their multiple rewritings and scenarios as to what was done to the USB memory stick, are part of the businessman’s legal action.
Some weeks ago, Coyne emerged on Digitpol’s Twitter feed. A tweet, together with a photo of a white van parked on a darkened street, said: “On site in limburg . . . early briefing!”
The post was accompanied by a hashtag that said “police”.
He’s not there for us, said a Dutch source.
