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Court appoints one extra person to examine files seized from FAI

The ODCE’s application to appoint more people was objected by former FAI CEO John Delaney.

File image of John Delaney in 2019.
File image of John Delaney in 2019.
Image: Leah Farrell

THE HIGH COURT has approved the appointment of one extra person to aid in the examination of documents seized from the FAI over which claims of legal privilege were made.

The Office of the Director of Corporate Enforcement (ODCE) applied for the appointment of up to five additional people to aid in this examination. This was objected by the former CEO of the Football Association of Ireland (FAI), John Delaney. 

Delaney’s counsel had contended that the law made clear that only one person could be appointed to this task, and that the appointment of additional people is not permitted under the Companies Act 2014. 

Ms Justice Reynolds in her judgement today stated that one additional person should be appointed to this task. 

Last November, barrister Niall Nolan Bl was appointed as the independent person to examine and review materials over which claims of legal privilege are made by former FAI CEO John Delaney and the FAI.

However, due to the large volume of documents involved, it was proposed that extra resources be made available to speed up the process.

Some 280,000 files were sized by the Office of the Director of Corporate Enforcement as part of its criminal investigation into certain matters at the FAI.

Of those legal privilege is being claimed over some 3,800 documents, the court heard in January. 

The judgement found that counsel for the notice party (John Delaney) said that “an ambiguity” arose over the use of the singular rather than the plural in the “one person” appointed to the examiner role.

The court finding said that where the literal meaning of the words used is clear, it should be applied.

It said that the counsel omitted to state that any more than one person can be appointed.

The judge found that as the material in question is “potentially of a sensitive nature” and a “targeted and focused approach” by two individuals would “yield a more efficient and coherent report”, just one additional person would be appointed to examine the materials. 

Niall Nolan had advised that he would require just one other person to assist in examining the material and to expedite a report for the court. 

The inspection arises out of documents, covering a period of 17 years, seized by the ODCE from the FAI’s offices in February 2020 as part of the director’s investigation into Irish soccer’s governing body.

Arising out of the seizure the High Court was asked by the ODCE, in an application where the FAI is the respondent and Delaney is a notice party, to determine if some of those files are covered by legal professional privilege.

Any document deemed to be covered by legal privilege cannot be used by the corporate watchdog as part of its probe.

Application to hold action in private

Additionally, Delaney’s application to have an action over the inspection of thousands of documents seized from the FAI held in private will be heard later this month. 

The application arises out of Delaney’s concerns that media reports of the court case will result in what he claims is private and legally privileged information entering the public domain.

The ‘in camera’ application is opposed by Sunday Times News, which is being supported by several other media outlets including the Irish Times, RTÉ, the Irish Examiner and TheJournal.ie.

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Solicitor Simon McAleese for the newspaper says the media believes the order being sought is draconian, as the media would be excluded from the hearings, and should not be granted.

Last week Paul McGarry SC for Delaney told the court that arising out of the independent person’s work their client is seeking a formal order, under the 2014 Companies Act from that the hearing be conducted ‘in camera’ where only the parties involved would be present.

Delaney is concerned that material he claims is covered by Legal Professional Privilege (LPP) and or that is private to him comes before the court, counsel said. 

This potential dissemination he said is a matter of enormous concern to him, counsel added.

When the matter returned before Ms Justice Leonie Reynolds today, McGarry said that arising out of discussions some of the urgency that had prompted the in-camera application had eased.

However, the ‘in camera’ issue would have to be heard at some stage, counsel said. 

Ms Justice Reynolds fixed the hearing date of the in-camera application for 23 March.

- With reporting by Aodhan O’Faolain.

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