The High Court rejected John Delaney’s claims of legal professional privilege over 1,123 digital documents and a small number of hard-copy documents seized from the Football Association of Ireland (FAI), and directed that they be disclosed to the Director of Corporate Enforcement (ODCE).
In a judgment delivered on 21 October 2022, Ms Justice Reynolds found that Mr Delaney had not provided the evidence needed to establish that the documents were privileged. She said his assertions were vague and unsubstantiated, despite a court order requiring him to explain the basis for each claim. The court did not determine privilege by examining every document individually; it considered categories and a random sample, and said there was not enough information to conduct the required analysis.
The documents were taken from the FAI’s offices under a search warrant on 14 February 2020. The Director brought the application under section 795 of the Companies Act 2014, which requires the court to determine whether information taken under the Act is privileged legal material. Independent reviewers had helped reduce the material under consideration. The judgment records that Mr Delaney claimed litigation privilege over most of the remaining documents and legal advice privilege over 163.
The court said Mr Delaney had been directed to identify the litigation relied on for each claim, say whether it had concluded, explain how privilege could remain where third parties were copied or no lawyer was involved, and clarify whose privilege was being asserted. The court found his subsequent affidavit and analysis did not answer those questions with sufficient detail. It also noted that the FAI’s position was that no continuing litigation involving it and Mr Delaney existed, while Mr Delaney asserted privilege in relation to ongoing proceedings.
The court rejected the claim over the outstanding material in its entirety and directed disclosure to the Director. It noted that section 790 restricts publication or disclosure of material obtained under a search warrant, subject to statutory exceptions, and makes unauthorised disclosure an offence.
The judgment described the ODCE’s work as preliminary enquiries to establish whether a formal prosecution was warranted. It did not decide whether any prosecution would follow or whether the crime-fraud exception applied. If a prosecution ensued, Mr Delaney could raise privilege at trial, and the Director could raise the crime-fraud exception; those issues would then be for the trial judge. The court said it would hear from the parties on the form of order and ancillary matters, including costs.