The High Court ruled that most passages in records produced by the Football Association of Ireland (FAI) and Deloitte Ireland LLP to the Director of Corporate Enforcement were protected by legal professional privilege and could not be disclosed to the Director.
In a judgment delivered on 30 July 2019, Ms Justice Reynolds determined applications under section 795(4) of the Companies Act 2014. The Director had sought rulings on privilege claims made over passages in 16 documents obtained under statutory requests. The documents were minutes and related records concerning the FAI. Their confidentiality was maintained while the court considered the claims.
The FAI claimed legal advice privilege and litigation privilege over passages in the records. At the hearing, the Director conceded, for this application only and on a without-prejudice basis, that Ms Walsh, an FAI employee, was acting as the Association’s legal adviser at the relevant times.
The court found the claimed passages in documents 1, 2, 3 and 5 to 11 privileged. They included minutes recording legal advice, advice concerning prospective or ongoing litigation, and proposed litigation strategy. Documents 13 to 16, produced by Deloitte, duplicated documents 2, 3, 5 and 6, so the court applied its determinations on those records to the duplicates.
The court did not uphold every claim. In document 4, minutes of a Domestic Committee meeting on 5 December 2017, the passage concerned the need to seek legal advice but recorded no specific advice and did not refer to pending litigation. The court found no privilege attached to it.
Document 12 was the minutes of an FAI Board of Management emergency meeting on 15 April 2019. The court found no privilege attached to a passage referring to a meeting with A&L Goodbody that disclosed no legal advice, or to a final item referring to advice to be sought. Two intervening passages, which referred to advice given at the meeting, were privileged.
The court’s conclusion was that all passages under review, except those identified in documents 4 and 12, were privileged and not disclosable to the Director. The ruling determined the privilege status of these passages; it did not determine any underlying allegations or matters discussed in the minutes.