The Court of Appeal will rule at a later date on an appeal by former Football Association of Ireland chief executive John Delaney against a decision allowing the Corporate Enforcement Agency (CEA) access certain documents it seized as part of a criminal investigation into the football association.
Mr Delaney had argued before the High Court that the corporate watchdog, formerly known as the Office of the Director of Corporate Enforcement, was not entitled to use just over 1,100 documents relating to him that were seized from the FAI on the grounds that they were covered by legal professional privilege.
In a decision delivered last October, Ms Justice Leonie Reynolds rejected that argument and said the documents were not covered by legal professional privilege and could be accessed by the CEA as part of its ongoing criminal probe.
The judge was “satisfied that Mr Delaney has failed to discharge the requisite burden of proof required to maintain his assertion that the documents at issue are privileged”.
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Mr Delaney appealed that decision to the Court of Appeal.
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Represented by Paul McGarry SC, with Jack Tchrakian, Mr Delaney claimed the judge erred by not explaining why she found the documents were not covered by legal professional privilege when independent assessors appointed to review the material in advance of the High Court hearing had found that some or all of it was covered by legal professional privilege.
The appeal was opposed by the CEA, represented by James Dwyer SC, who argued that the judge was perfectly entitled to make the findings that she did, irrespective of what the assessors had decided.
After the conclusion of submissions by the parties, the Court of Appeal, composed of Ms Justice Caroline Costello, Mr Justice Seamus Noonan and Ms Justice Mary Faherty, reserved their judgment.
In her decision last year, Ms Justice Reynolds said it was “not her role to make out any claim of privilege for Mr Delaney”. The onus was on him to do so.
He had been afforded every opportunity to furnish the necessary information to substantiate his claim but had “resolutely failed to do so”.
She said that in the circumstances where it was not necessary to go through all of the individual documents, she was satisfied to reject his claim of legal professional privilege and directed all the outstanding documentation to be disclosed to the CEA.
The judge said she was making the orders “mindful of the contents of the Act”, which state that the publication or disclosure of any material obtained under the search warrant used by the CEA to seize the documents to anyone other than a competent authority is “a criminal offence sanctioned by way of fine or term of imprisonment”.
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The action arose out of the corporate watchdog’s 2020 seizure of 280,000 documents from the FAI’s offices covering a 17-year period.
The CEA, which brought proceedings against the FAI seeking certain orders allowing it to examine the documents, wants to use the material as part of its investigation.
Mr Delaney, who left the FAI in 2019, was made a notice party to the proceedings because some of the documentation seized related to him.
The action concerning the documents between the FAI and the CEA was resolved prior to the High Court’s decision.
Mr Delaney claimed these documents contain certain legal advice given to him regarding litigation that occurred during the many years he was with the association, and therefore are covered by legal professional privilege.
The CEA claimed legal professional privilege did not apply to the material in question.