The Court of Appeal has dismissed John Delaney’s appeal against a High Court decision rejecting his claims of legal professional privilege over more than 1,000 documents seized from the Football Association of Ireland (FAI). It also declined to interfere with the High Court’s order that he pay the costs of the proceedings, subject to an exception for the costs of a crime/fraud application.
The appeal concerned a statutory process under section 795 of the Companies Act 2014. The Corporate Enforcement Authority (CEA), which was investigating a criminal matter whose subject was not identified in the judgment, seized material at the FAI’s premises under a search warrant. The judgment says the CEA was required to keep potentially privileged information confidential pending the court’s determination.
Two assessors recommended that 1,123 documents attracted privilege. The High Court later rejected the claims in full, finding that Mr Delaney had not provided the specific evidence needed to establish privilege document by document. The Court of Appeal said the assessors’ report was to assist the court, not determine the issue. It also found the High Court was entitled to require further information after controversy over a letter sent to the assessors that the CEA had not seen before their report was completed.
The High Court’s October 2021 order required Mr Delaney to identify the litigation relied on for each claim, say whether it had concluded, explain how privilege applied where third parties were copied or no lawyer was involved, and clarify whose privilege was being asserted. The appeal judgment recounts the CEA’s position that Mr Delaney’s later reports did not supply that information, and the High Court’s finding that the claims were too general to establish privilege.
Mr Delaney argued on appeal that the High Court should have given reasons for rejecting the assessors’ recommendations and should have examined every disputed document. The Court of Appeal accepted that the High Court’s reasons for rejecting the report were not stated specifically, but inferred them from the circumstances and the disclosure order. It held there was no general obligation to inspect every document and that the High Court’s approach fell within its discretion. The court dismissed the appeal.
On costs, the Court of Appeal upheld the High Court’s order requiring Mr Delaney to pay the costs of the proceedings, including those associated with both assessors, except for the crime/fraud application, for which there was no order as to costs. The CEA had not succeeded on that application because the information before the court was insufficient. For appeal costs, the court said the CEA appeared entitled to its costs, but gave Mr Delaney 21 days to make a written submission proposing another order, with the CEA then having the same period to respond.