LAST UPDATE | 25 Sep 2023

THE COURT OF Appeal has dismissed former FAI CEO John Delaney’s appeal against a decision allowing the Corporate Enforcement Agency (CEA) access certain documents it seized as part of a criminal investigation into the football association.

Delaney’s appeal was against a High Court’s ruling that the Corporate Watchdog, formerly known as the ODCE, was entitled to use just over 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 certain legal advice given to him regarding litigation that occurred during the many years he was with the Association.

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

In her decision delivered last October, Ms Justice Leonie Reynolds rejected Delaney’s arguments, said that the documents were not covered by LPP and ruled 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”.

Delaney appealed that ruling to the Court of Appeal.

In its judgement today, the three judge Court of Appeal 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.

Delaney’s grounds of appeal including 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, had 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.

Decision

Giving the Court of Appeal’s decision, Mr Justice Seamus Noonan said that primary alleged error contended for by 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 Court of Appeal said it was “possible to infer” those reasons with a sufficiently high degree of confidence.

The reasons, the Court of Appeal said were clearly based on the CEA’s objections to the Assessors’ Report, Mr Justice Noonan added.

Mr Justice Noonan also rejected 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.

That claim, Mr Justice Noonan said had “a somewhat hollow ring”.

Mr Justice Noonan said that the manner which Delaney chose to assert privilege over certain of the documents had, “perhaps by design”, rendered it “virtually impossible for the CEA to meaningfully interrogate the claim of privilege”.

“It is very difficult to my mind to avoid the conclusion that Mr Delaney’s manifest failure to comply with the order of the court is not due to circumstances beyond his control but is rather a deliberate attempt to shield documents from disclosure which he does not wish to disclose,” the judge added.

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”.

Mr Justice Noonan said that Delaney complained that the High Court only examined a random selection of documents but did not identify them and this, it was argued was “an impermissible approach”.

Rejecting this proposition, Mr Justice Noonan said that in his view the High Court could had legitimately elected not to examine any of the documents but chose to do so in a number of cases with a view to ascertaining whether it might be possible to reach conclusions on privilege based on what the documents contained.

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.

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

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

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