The High Court has ruled that it can appoint additional independent people to help assess material claimed to be legally privileged in an investigation involving the Football Association of Ireland (FAI). It directed that one additional person be appointed to assist with the review and report to the court.
The judgment, delivered by Ms Justice Reynolds on 2 March 2021, arose from an application by the Director of Corporate Enforcement (ODCE) to vary an earlier court order. The ODCE sought provision for up to five additional legally qualified people to examine the material and prepare a report under section 795(6) of the Companies Act 2014.
The material is subject to claims of legal professional privilege by the FAI and John Delaney, who is a notice party. In November 2020, the court appointed barrister Niall Nolan to examine it and report on whether each item constituted privileged legal material. His recommendations were to be shared with the parties so they could make submissions before the court made a final determination on the items.
After starting the examination, Nolan advised the parties that the volume and complexity of the material meant he needed another independent person to help. He estimated the report could be completed in May or June 2021, and said that adding a reviewer would shorten the timeline without substantially changing the total hours required.
Delaney’s position was that the legislation’s reference to appointing “a person” allowed only one appointment. The ODCE argued that the court could appoint more, and the FAI supported that interpretation.
Justice Reynolds held that section 795(6) gives the court broad power to make appropriate interim or interlocutory directions. She said the listed power to appoint a person was inclusive, not exhaustive. She also relied on section 18 of the Interpretation Act 2005, which provides that words in the singular may include the plural.
The court concluded that it had jurisdiction to appoint further independent people. But it did not grant the ODCE’s request for authority to appoint up to five additional people. Taking account of Nolan’s request, the sensitive nature of the material and the value of a focused review, the judge directed one additional appointment. She said she would hear further from the parties about that appointment.
The judgment did not determine whether any of the disputed material was privileged. That determination was to follow the examination, report and any submissions from the parties.