The High Court has ordered John Delaney to pay the Corporate Enforcement Authority’s costs from 20 February 2020 in proceedings over claims of legal professional privilege. The order excludes the costs of an unsuccessful application concerning the crime/fraud exception, on which the court made no order.
In an ex tempore judgment delivered on 24 November 2022, Ms Justice Reynolds said the Authority had succeeded in the proceedings after Mr Delaney failed to establish privilege over any of the impugned documents. The underlying statutory application had concluded with a judgment on 21 October 2022.
The proceedings began after material was seized from the Football Association of Ireland under a search warrant. The Office of the Director of Corporate Enforcement was required under section 795(4) of the Companies Act 2014 to ask the court to determine whether legal professional privilege applied. The Office was later dissolved and succeeded by the Corporate Enforcement Authority, which was substituted as applicant.
Mr Delaney, who was not required to take part, sought to be joined as a notice party and was represented by lawyers. He accepted that the costs of the final privilege hearing would normally follow the outcome, but argued that earlier stages should be treated separately. He contended that he should receive costs for parts of the process where the Authority was required to apply to the court and had been unsuccessful, with those costs potentially set against the final costs award.
The judge considered the parties’ conduct and the statutory costs rules. She said the applications to appoint independent counsel were warranted by the time taken for Mr Delaney’s review of the material. Although he consented to the first appointment, he resisted the second, which the judge said prolonged the proceedings and caused unnecessary costs.
The Authority’s application to determine whether the material fell within the crime/fraud exception was unsuccessful because there was insufficient information for an informed decision. The judge said Mr Delaney would ordinarily have a good argument for his costs of that application. Having regard to the overall conduct of the proceedings, however, she made no order for those costs.
The order directs Mr Delaney to pay the Authority’s costs from 20 February 2020, including all reserved costs and costs associated with both court-appointed independent counsel. Costs are to be adjudicated if the parties cannot agree, and either may apply for clarification of the order’s scope.