The Court of Appeal has refused an application by solicitor James Flynn and his firm, J.T. Flynn & Co, for an interlocutory injunction preventing gardaí from examining data downloaded from Flynn’s mobile phone under a second search warrant.
The ruling, delivered by Mr Justice Edwards on 4 November 2024, leaves the substantive judicial review challenge unresolved. The court said the appeal had narrowed to whether examination of the phone data should be stopped pending trial. It agreed with the parties that the appellants had an arguable case, but held that the balance of justice did not favour granting an injunction at this stage.
Gardaí seized the phone on 4 March 2022, when they searched the solicitors’ offices under a warrant and arrested Flynn as part of an investigation into suspected money laundering. The phone was forensically downloaded later that month. The judgment says the investigation team had not examined the data by the time of the appeal.
After Supreme Court decisions concerning searches of digital material, the respondents considered that a further warrant was needed to examine the phone’s data. They obtained one on 29 March 2024. The sworn information supporting it disclosed that Flynn was a solicitor, acknowledged that some data could be covered by legal professional privilege (LPP), and included a proposed protocol for separating potentially privileged material before investigators examined the remaining data.
The protocol proposed using defined search terms and date limits to create a subset of the phone’s data. Flynn would identify material claimed to be privileged, and an independent barrister or solicitor would assess those claims. Material found to be privileged would not be examined by investigators. The appellants had rejected the proposal without engaging with its details, the court said.
The appellants argued that examination could irreversibly breach their privacy and privilege rights and leave them without an effective remedy. The respondents said an injunction would impede a criminal investigation and prevent the operation of legislation that continued to enjoy a presumption of constitutionality.
Edwards J said the court was not endorsing the protocol’s specific terms. But he found it was a reasonable, good-faith proposal and said parties seeking an injunction should make a serious effort to engage with workable safeguards. The absence of such engagement, together with the public interest in the orderly operation of the law, meant the balance of justice did not favour relief.
The court refused the application and agreed that the High Court had been right to refuse relief. It did not decide the underlying constitutional and human-rights challenges to the search powers, nor whether the proposed protocol would ultimately be adequate. Those issues remain for the substantive proceedings.