THE HIGH COURT has ruled that documents relating to former FAI CEO John Delaney are not covered by legal professional privilege and can be used by the Office of the Director of Corporate Enforcement (ODCE) as part of its ongoing criminal investigation into the association.

Delaney had argued before the High Court that the Corporate Watchdog was not entitled to use just over 1,100 documents relating to him that were seized by the ODCE from the FAI on the grounds that they were covered by legal professional privilege (LPP).

In her judgement on today Justice Leonie Reynolds said she was “satisfied that Mr Delaney has failed to discharge the requisite burden of proof required to maintain his assertion that the documents at issue are privileged.”

In her decision Justice Reynolds said that it was “not her role to make out any claim of privilege for Delaney.” She said the onus was on him to do so.

He had been afforded every opportunity to furnish the necessary information to substantiate his claim but had “resolutely failed to do so.”

She said that in the circumstances where it was not necesscery to go through all of the individual documents she was satisfied to reject his claim of LLP and directed that all the outstanding documentation be disclosed to the ODCE.

The judge said she was making the orders “mindful of the contents of the Act” which state that the publication or disclosure of any material obtained under the search warrant used by the ODCE to seize the documents to anyone other than a competent authority is “a criminal offence sanctioned by way of fine or term of imprisonment.”

It is not known if Delaney intends to appeal the finding to the Court of Appeal.

The lengthy and complicated proceedings arose out of the corporate watchdog’s seizure of 280,000 documents from the FAI’s offices covering a 17-year period, in February 2020.

The ODCE, which brought proceedings against the FAI where it sought certain orders allowing it to examine the documents, wants to use the material as part of its ongoing probe.

Delaney who left the FAI in 2019 was subsequently made a notice party to the proceedings because some of documentation seized related to him.

The action between the FAI and the ODCE was resolved some time ago.

Any documents deemed covered by LPP cannot be used by the ODCE as part of the investigation into certain matters at the FAI.

Following a review by two court appointed independent barristers’ recommendations were made to the court regarding what documents should be deemed covered by LPP.

Delaney had claimed these documents contain certain legal advice given to him regarding litigation that occurred during the many years he was with the Association, and therefore are covered by LPP.

The ODCE claimed that LPP did not apply to the material.

In her decision the judge said Delaney was given ample time to adequately review the documents.

She said that Delaney had only put forward evidence in support of his claim “amounts to no more than vague and nebulous claims which are wholly unsubstantiated.”

The claims were essentially so generalised as to “lack substance” and are “devoid of any material evidence” which would assist either the ODCE or the court with the task on hand, she said.

She said his “bald and blanket” assertions were entirely inadequate.

The expectation on his part that his mere assertions of privilege over documents together with a belief that his compliance with the spirt of an order previously made by the court to provide the ODCE with details of legal actions he was involved in, will suffice was “misconceived.”

Not only had Delaney failed to comply with the spirt of that order the judge said that “he has manifestly failed to comply with it in its entirely.”

The mere existence of outstanding litigation was not in itself “a shield for Mr Delaney to seek to hide behind,” she said.

She said that the documents were being sought as part of preliminary enquires being carried out by the ODCE to see if a formal criminal prosecution is warranted.

In the event that a prosecution ensues it will be open to Delaney’s lawyers to raise the issue of privilege within the context of a criminal trial.

Equally it will be open to the Director to make submissions about the issue of exceptions to the law on legal privilege to a judge hearing any criminal case.

Ultimately it would be a matter for a trial judge to resolve these issues in the ordinary way.