Did Caroline Wozniacki play a role in one of the key events that led to the legal bust up between Rory McIlroy and Horizon Sports Management? On the face of what was said in the High Court in Dublin on Friday, the world No 1’s former fiancée was not short of an opinion on what is one of the major events in the proceedings — a supposedly face-saving donation made to UNICEF by Horizon on McIlroy's behalf but against McIlroy’s wishes.
The Commercial division of the High Court heard that the Danish tennis star told McIlroy that making donations to “big NGOs” like UNICEF was “stupid”.
The revelation came in a hearing before Mr Justice Raymond Fullam in which Horizon Sports Management was applying for the inspection of mobile phones and other electronic devices used by McIlroy, his father Gerry, the current CEO of Rory McIlroy Inc Donal Casey and his Chief of Staff, former Horizon employee Sean O’Flaherty.
Friday’s hearing dealt exclusively with the request for inspection of Mr O’Flaherty’s mobile devices and phone bills, during which counsel for the Horizon, Maurice Collins SC, read out an email sent by Horizon's Conor Ridge to his business partner Colin Morrissey.
Dated March 29th, just days before being formally told by McIlroy that he wanted to end their relationship, Ridge wrote of the fallout over a $166,000 donation made by him to UNICEF on McIlroy’s behalf — a donation later reversed as, apparently, McIlroy had indicated that he did not wish to to be made.
“That decision [to make the donation] was made in particular circumstances which will be explained at trial,” Mr Collins said. “But it is the subject of dispute and was the subject immediately of controversy when Mr McIlroy learned of it.”
The email from Conor Ridge to his business partner Colin Morrissey — which was also sent to Mr O’Flaherty — explained the reasons behind the donation:
“The whole thing is a mess Moz [Colin Morrissey]. Following a conversation I had with Rory some months ago, he committed to donating $500,000 for three years from himself and the Rory Foundation. He seemed to do a U-turn a couple of weeks ago because Woz (Wozniacki) told him that giving donations to big NGOs like that is stupid because you don’t know where the money goes and also because she had spoken to him about focussing their efforts of having a Foundation together. UNICEF makes if very clear where the money is going to go and intend to show this to him next week.”
McIlroy had planned to cancel a scheduled visit to Haiti as a UNICEF ambassador the week before the 2013 Masters in order to play in the Valero Texas Open.
According to Conor Ridge, UNICEF told him that if they didn’t get payment before McIlroy arrived in Haiti, they would have to call the trip off.
“Clearly that would have been a disaster,” Ridge wrote, going on to explain that McIlroy’s agreement as a UNICEF ambassador included a visit in 2013, a fundraising golf day in the US in March 2014 and another in 2015.
Mr McIlroy’s donations would total $500,000 over three years [$166,666 x 3] with the money destined to fund projects to do more for children in the area he was set to visit the following week.
“They told me that every ambassador they have donates money to the cause when they do a field visit like this, even the GAA guys who earn nothing… UNICEF are going mental.”
McIlroy is suing Dublin-based Horizon Sports Management Ltd and two other companies, Gurteen Ltd, with a registered address in Malta, and Canovan Management Services which is also based in Dublin.
He claims a representation agreement signed by him in December 2011 is invalid and unenforceable on a number of grounds including alleged undue influence.
He alleges the agreement was signed when he was aged just 22, inexperienced, and without the benefit of independent legal advice.
The defendants deny the claims and have counter-claimed for some US$3 million allegedly outstanding under the agreement for off-course revenues. That figure has now risen to US$9m.
Horizon was applying for inspection of mobile phones and better disclosure of material allegedly held McIlroy and others in advance of the full hearing, scheduled for the Commercial division of the High Court on February 3.
Friday’s hearing dealt exclusively with a request for inspection of electronic devices held by O’Flaherty, who was McIlroy’s personal assistant at Horizon until he resigned and took up an offer — made on April 1 — to join Rory McIlroy Inc as Chief of Staff in May last year.
Horizon are alleging that despite the existence of legal proceedings, McIlroy, his father Gerry, Sean O’Flaherty and another former Horizon employee, current Rory McIlroy Inc CEO Donal Casey, destroyed relevant data on their mobile phones by “factory resetting” them.
In dealing with the order referring to Mr O’Flaherty, Mr Collins told the court that he asked to back up his mobile and laptop before handing them back and had then “forensically” wiped clean his laptop by using a software package. He had also installed “a type of software [at Horizon] that if it had been allowed to operate would have deleted all the information on the Horizon IT system.”
He went on to deal with documents prepared by O’Flaherty and sent to businessman Dermot Desmond as part of a request for legal advice, listing reasons why Rory McIlroy should terminate his contract with Horizon.
In a sworn affidavit, Mr McIlroy said that in April 2013, a dispute had come to light in respect of Horizon’s management of his affairs and a crisis, caused by a combination of a number of issues had come about in their relationship the week before the 2013 Masters.
He said he had met Mr Desmond at the Masters and Mr Desmond suggested to him that he might be able to get him legal advice.
McIlroy said documents were supplied to Mr Desmond and Ms Maria O’Sullivan [in house counsel at Desmond’s firm IIU]. They were prepared by O’Flaherty and were passed on to Mr Desmond by his caddie JP Fitzgerald. He said he had not see the documents.
Dermot Desmond had asked for copy of McIlroy’s contracts. McIlroy had them sent by Horizon Sports Management to his house in Florida and then passed the envelope to O’Flaherty and said to send it to Dermot Desmond. He had not read the documents in the envelope.
The documents included one headed “Reasons for Termination”, which listed “BMW, CAA, Contract, Etihad flights and Unicef”, the court was told.
The court was also told that Mr O’Flaherty was extremely knowledgeable about Information Technology and was responsible for the IT systems at Horizon and that before he left the defendants, he installed a type of software [Google Vault] that if it had been allowed to operate would have, effectively, deleted all the information on the Horizon Sports Management IT system.
Mr Collins told the court that before he returned his phone and laptop to Horizon, Mr O’Flaherty had completed a forensic wipe of the laptop at a time when he knew, because he had already sought legal advice, that Mr McIlroy was contemplating legal proceedings against Horizon.
He said that in his first effort at discovery, Mr O’Flaherty didn’t explain that he had wiped devices, “still less that he had forensically wiped devices to make it impossible to retrieve any data”, and didn’t attempt to explain why the documents that were wiped from his computer were not discovered.
The court heard that in a previous affidavit from his solicitor Kevin O’Meara, Mr O’Flaherty objected to “unsubstantiated allegations” that were “scandalous” as his client was a non-party in the proceedings.
Mr O’Meara said his client didn’t breach his obligations to Horizon and remained a loyal employee.
Mr Collins remarked that Mr O’Flaherty was a loyal employee who before giving due notice was procuring legal advice intended to provide a basis for terminating a very valuable contract that his employer had with Mr McIlroy.
“That’s the extent of Mr O’Flaherty’s loyalty,” Mr Collins said.
“It is surprising that even now when this position has been highlight he should be, it seems unable to remember that he had been involved in procuring advice for Mr McIlroy and in that context had even as en employee of Horizon Sports, created two documents, one of which purported to set out the reasons why Horizon’s contract should be terminated.”
As for the Google Vault issue, Mr Collins claimed that what Mr O’Flaherty did was dramatically shorten the period of time when, had it not been spotted in time, all of the information would have been deleted on the IT system.
The thrust of Horizon’s request over the last four court sessions, which will resume after the Christmas holidays with Mr Justice Fullam ruling on the orders requesting inspection of mobile phones and better disclosure of material allegedly held McIlroy and his close associates, has concentrated on one general theme.
The defendants allege that “in the period subsequent to January 2013, Mr. Casey, Mr. O'Flaherty and Gerry McIlroy Senior made a concerted effort to destabilise the relationship between Rory McIlroy and Horizon.”
Mr Casey, through his company K3 — a specialist consultancy group founded by Casey, economic analyst Kevin McConnell and former European Tour player Stephen Browne — had been employed by Horizon and helped negotiate new deals for McIlroy following his move from ISM at the end of 2011.
Those deals included the $100m, five-year Nike contract but as the bag was not included in the deal, there was a dispute with Conor Ridge over the size of Mr Casey’s commission and he left the company at the end of December 2012. It had been explained in court at an earlier date by counsel for Mr Casey that this dispute was resolved to his satisfaction early in 2013.
In dealing with the motion relating to Mr O’Flaherty, Mr Collins told the court that the current Chief of Staff of Rory McIlroy Inc had used a phone provided by Horizon from September 2012 to May 2013.
Examination of the phone bills showed that Mr O’Flaherty phoned Stephen Browne [O'Flaherty caddied for Browne when he was a professional], one of Donal Casey’s partner at K3, 18 times between 15 December 2012 (the day after the dispute between K3 and the defendants began) and December 28, 2012.
He didn't call Browne again from his work phone until April 2013 despite the fact that it was known that he had met Mr Browne during this period, Mr Collins said. He was using another phone, a pay-as-you-go or credit phone, because of what he said were problems with his employer over cell phone budgeting.
Mr Collins went on to describe how in early 2013, Mr O’Flaherty and Mr Casey had created or had access to a Dropbox called “Insights” and that neither of then remembered what was in that Dropbox and that discovery had not been made of the material in it.
Mr Collins explained that Mr O’Flaherty’s first sworn affidavit did not refer to the wiping of any phones or laptops or list any documents he had earlier had in his possession but no longer possessed.
In his most recent affidavit, sworn last week, Mr O’Flaherty did not explain why two specific documents he had wiped from the laptop were not discovered. He explains in his affidavit that he backed up selectively and didn’t back up Whatsapp messages.
But it appeared that he had deleted two documents provide to Dermot Desmond’s in-house solicitor at IIU, Maria O’Sullivan, “Reasons for Termination” and “Existing Arrangements” and didn’t back them up. Mr Collins said that he had provided no explanation for this “selective” back-up policy and appeared to have made a deliberate decision not to back up documents he had created that would be of central relevance to any proceedings that McIlroy might bring against Horizon, or vice-versa.
[ An earlier hearing was told that Mr McIlroy made Discovery of and claimed privilege over a memo — an e-mail from Mr Desmond to Mr McIlroy's caddy JP Fitzgerald — which included a memo from Maria O'Sullivan to Desmond. Privilege was challenged on the basis that Maria O'Sullivan was not at any stage a legal advisor to Mr McIlroy and this was not a document addressed to Mr McIlroy]
In his second affidavit, replying to complaints for shortcomings in his discovery, Mr O’Flaherty said he backed up his electronic devices on an on-going basis, including the mobile he’d returned to Horizon when he resigned. He said he backed up certain key functions, including apps, photos, contacts, calendars, reminders, Safari, documents and data, keychain and Find My Phone.
He hadn't back up Whatsapp messages as it was data intensive application and would take up too much of his storage space on his iCloud account. He did not back up text messages either and that a text to Dermot Desmond on April 16 was, as far as he recalled, a simple thank you on behalf of his wider group for Mr Desmond's hospitality during the 2013 Masters.
Mr Collins said he believed this was a doubtful explanation considering Mr O’Flaherty had around this time created two documents to complement other documents sent to Mr Desmond so that he could offer legal advice.
Mr Collins also told the court how Mr O’Flaherty had opened a sealed envelope of an agreement between Horizon and Rory McIlroy and passed on or forwarded information from internal Horizon emails, some of them confidential, to Rory McIlroy, Gerry McIlroy and Donal Casey
In reply, Mr O’Flaherty said in affidavit he there was no discussion in which he was involved or of which he was aware prior to Rory McIlroy formally informing Conor Ridge on 1 April 2013 that he want to end his relationship relationship, relating to the setting up of a new management structure for McIlroy.
Mr O’Flaherty also said that any suggestion that he was involved in January 2013 to take part in a conspiracy to undermine Horizon’s relationship with Rory McIlroy was wholly without foundation.
He added that he had become increasingly concerned during the early part of 2013 about conduct of Conor Ridge and Horizon that it was particularly damaging to the interests of Rory McIlroy and his reputation but did not encourage McIlroy to terminate prior to his giving notice.
“I was not consulted and would not expect to be consulted by him in relations to said decision,” Mr O’Flaherty said.
Counsel for Mr O’Flaherty, Mark Connaughton SC, said he felt the whole drive of the proceedings appeared to be designed to treat his client like he was a defendant and that he had complied with the only order made against him.
Mr Connaughton added that the defendants was asking to be allowed to police Mr O’Flaherty’s conduct in order to see if they could discover something that might be of use in the case. He said there was no basis fo the defendants to ask for his devices and examine them to see what tracks he may have left or what might be there.
“It is a purely speculative exercise,” he said.
He went on to say that Mr O’Flaherty was a man who was clearly dedicated and devoted to Mr McIlroy and was concerned with how obligations to Mr McIlroy were being discharged.
“This is not a an who is trying to ferret away information or withhold information that is of benefit or of use,” Mr Connaughton said.
Regarding the 18 phone calls to Stephen Browne, he said the court might be able to see he was speaking frequently to others also.
“So what?” he said.
In reply, Mr Collins insisted that “a very significant swathe of communication” between those centrally involved in the decision “to terminate wrongly the contract Mr McIlroy had with Horizon,” had not been discovered.
He said Mr O’Flaherty was claiming that before 1 April 2013, he did nothing prior to that in terms of wrongful engagement with Mr McIlroy.
“That is not an answer to the application,” Mr Collins said. “We are entitled to see whether that is correct or not so far as it is possible to do so.”
Summing up, Mr Collins said that the situation was clear. While still employed by Horizon Sports Management, Mr O’Flaherty put together a brief intended to gain advice to the effect that the contract with Horizon Sports Management could be terminated.
As for Mr O’Flaherty’s concerns about the treatment of Mr McIlroy, he never brought any of those concerns to the attention of Horizon, his employers but to Rory McIlroy and did so without their consent.
Mr Collins said that the court could not ignore the orders and the “striking feature” that “device after device after device after device” was deleted, wiped or forensically cleaned by Mr McIlroy Snr, Mr McIlroy Jnr, Mr Casey and Mr O’Flaherty.
“I am not asking the court to make orders based on some sense of unease or sense of concern because it is much more than that,” Mr Collins said. “The court is concerned with a factual position in circumstances where the evidence clearly indicates that the central players engaged in daily electronic communication and that all of the relevant devices have all been lost in the sense that the data is gone.
“It is clear that the parties concerned were aware of the proceedings because we now know Mr O’Flaherty and Mr Casey were intimately involved in the design of these proceedings. Not simply the events which led to the proceedings but the actual architecture of them.
“What Mr Connaughton dismisses as “traces and footsteps” may be very significant because deletion of data is itself can be pursued effectively only if there is inspection because the exercise cannot be replicated at trial. The information won’t be there.”
Mr Justice Fullam said he would make his decision over the Christmas holiday period.