The High Court has declined, for now, to decide whether a crime/fraud exception applies to legal professional privilege claims over 1,120 documents seized during an investigation involving the Football Association of Ireland (FAI). Ms Justice Reynolds said the Director of Corporate Enforcement had not outlined the basis for believing the documents were generated to further crime or fraud.
The decision, delivered on 10 August 2021, leaves the privilege issue unresolved. The judge said she would hear further from the parties about how the next stage of the process should proceed. She did not determine whether the crime/fraud exception applies to any of the documents or order their disclosure.
The documents are part of an email folder belonging to John Delaney, a notice party in the proceedings, seized with 13 hard-copy documents from the FAI’s headquarters on 14 February 2020. The seizure followed a District Court warrant issued under the Companies Act 2014. The ODCE is investigating suspected wrongdoing relating to matters at the FAI; the judgment does not identify any charge or finding of wrongdoing against Delaney.
The Director applied to the High Court for a determination of whether seized material was legally privileged. Court-supervised reviews reduced an initial digital dataset of about 285,000 files to 3,818 items requiring assessment: 2,805 associated with Delaney’s claims and 1,013 with the FAI’s. Independent reviewers recommended privilege for 1,613 items in Delaney’s volume. The Director then asserted that the crime/fraud exception applied to 1,120 of those items.
The Director argued that the material was relevant to the investigation and that the warrant process had already addressed relevance. The judgment records that Delaney opposed the application. It also notes that the warrant judge had found reasonable grounds to believe the seized documents might provide evidence relating to an offence. Justice Reynolds said that finding, by itself, did not amount to prima facie evidence supporting the crime/fraud exception.
The judge said a party seeking to displace privilege must provide at least prima facie evidence that the allegation has a foundation in fact. She noted that the vast majority of seized material had been excluded from the investigation by agreement as irrelevant. With the nature, scope and time frame of the suspected wrongdoing not disclosed to the court, she said she could not meaningfully assess the exception in the present circumstances.
The ruling addressed only the preliminary legal issue raised by the Director within the statutory privilege proceedings. It did not resolve the remaining privilege claims or the underlying investigation.