High Court approves one extra person to assess John Delaney documents for ODCE

Issues surrounding in camera aspect to be heard by High Court on March 23rd

An application by John Delaney’s legal representative to have aspects of the High Court proceedings between the Office of the Director of Corporate Enforcement (ODCE) and the FAI held in camera so as to prevent the contents of emails he is claiming privilege over becoming public is to be held on Tuesday, March 23rd.

The date was set after Paul McGarry SC for Delaney said that the motion to exclude the press was not as pressing now as had been thought last month when it was initially raised.

This was because Ms Justice Reynolds refused a request by the ODCE to have five people work with court-appointed barrister Niall Nolan on assessing which of the roughly 3,800 documents over which the former FAI chief executive claims legal privilege should be handed over.

The documents involved were initially seized as part of the ODCE’s investigation into events at the FAI in February 2020. Delaney then asked on more than one occasion for more time to review the documents in order to decide which ones he would claim privilege over.

Nolan, who was appointed last November, has had his request for one additional person to work alongside him granted on Tuesday but the ODCE had pushed for four more on the basis that it would speed the process up.

Delaney had opposed the move and in her judgment on the application, Justice Reynolds said that she was “conscious that the material concerned is potentially of a sensitive nature and that a targeted and focused approach by two individuals working closely together would in my view yield a more efficient and coherent report within the timeline envisaged.”

Kerida Naidoo SC for the ODCE said that “the director is very anxious” to progress the investigation but accepted that this will now take slightly longer than had been hoped due to the ruling. The portion of the proceedings that Delaney is hoping to have held behind closed doors will only take place after all of the emails have been assessed and a report compiled on which should be subject to privilege.

Simon McAleese, representing the Sunday Times, said that he had made a written submission opposing the move and told the court that The Irish Times, the Irish Examiner, RTÉ and the Journal had all contacted his office to express their opposition to the motion. “All of them take the view that there is no point in having representation before the court if we are all saying the same thing,” he said.

The appointment of the person to work with Nolan on reviewing the documents is now set to be made on Wednesday when the case comes before the court again with the in camera issue deferred for three weeks.

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