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Court of Appeal dismisses appeal by John Delaney over allowing seized documents to be used in criminal investigation

Former FAI chief executive argued that more than 1,100 documents seized by Corporate Enforcement Agency were legally privileged

John Delaney appealed against a High Court decision made last October. On Monday the three-judge Court of Appeal upheld that decision. Photograph: Laura Hutton

Aodhan O'Faolain
Mon Sep 25 2023 - 12:44

The Court of Appeal (CoA) has dismissed an appeal by former FAI chief executive John Delaney against a decision allowing the Corporate Enforcement Agency (CEA) to access certain documents it seized as part of a criminal investigation into the association.

Mr Delaney had appealed against the High Court’s decision that the CEA, formerly known as the ODCE, was entitled to use more than 1,100 documents relating to him that were seized from the FAI.

He had claimed that the documents were covered by Legal Professional Privilege (LPP) because they contain legal advice given to him regarding litigation that occurred during the many years he was with the FAI.

The CEA claimed that LPP does not apply to the material in question.

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In a decision delivered last October Ms Justice Leonie Reynolds rejected Mr Delaney’s arguments, said that the documents were not covered by LPP and ruled that they could be accessed by the CEA as part of its ongoing criminal probe.

The judge 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”.

Mr Delaney appealed that decision to the CoA.

In its judgment on Monday the three-judge CoA, comprised of Ms Justice Caroline Costello, Mr Justice Seamus Noonan and Ms Justice Mary Faherty, dismissed the appeal and upheld the High Court’s findings.

Mr Delaney’s grounds of appeal included that the judge had erred by not explaining why she found the documents were not covered by LPP when independent assessors appointed to review the material in advance of the High Court hearing found that some or all of it was covered by LPP.

The appeal was opposed by the CEA, represented by James Dwyer SC, who said the High Court was perfectly entitled to make the findings that she did, irrespective of what the assessors had decided.

Giving the CoA’s decision Mr Justice Noonan said that primary alleged error contended for by Mr Delaney was that the High Court did not give any reasons for rejecting the assessors’ reports.

Mr Justice Noonan said that there was some merit to that claim, adding that the reports were not something that could be “simply dismissed with the wave of a hand”.

However, in the “unusual circumstances” of this case, the CoA said it was “possible to infer” those reasons with a sufficiently high degree of confidence.

The reasons, the CoA said, were clearly based on the CEA’s objections to the assessors’ report, Mr Justice Noonan added.

Mr Justice Noonan also rejected Mr Delaney’s claims that he was treated unfairly by the process, including that he was not afforded enough time to comply with a disclosure order, requiring him to provide certain details to the agency, made against him in the course of the proceedings.

Mr Justice Noonan went on to reject other grounds of the appeal, including the suggestion that the High Court “had an obligation to consider each document individually before adjudicating on the privilege question”.

Ms Justice Reynolds, he said, had concluded that this was not possible and there was therefore nothing to be gained by looking at them all and “was entitled to arrive at this conclusion”.

The action 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 CEA, 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 investigation.

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

The action between the FAI and the CEA was resolved before the High Court’s decision.

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