FORMER FAI CEO John Delaney’s application to have an action over the inspection of thousands of documents seized from the FAI held in private is “very draconian,” the High Court has heard.

The application arises out of Delaney’s concerns that media reports of the court case will result in private and legally privileged information being wrongfully put in the public domain.

However, solicitor Simon McAleese for the Sunday Times newspaper told Ms Justice Leonie Reynolds today that his client is opposed to Delaney’s bid to have ongoing hearing heard ‘in camera’.

In February 2020, some 280,000 files were sized by the Office of the Director of Corporate Enforcement (ODCE) as part of its criminal investigation into certain matters at the FAI.

In proceedings brought by the ODCE, where Delaney is a notice party, Ms Justice Leonie Reynolds has been asked to determine which of the material is covered by legal privilege and cannot be used by the ODCE as part of its probe.

To assist with this process barrister Niall Nolan Bl was appointed as an independent person to examine and review materials over which claims of legal privilege are made by Delaney.

As part of his role, Nolan will prepare a report for the court which will aid Ms Justice Reynolds to determine which of the material is privileged and which is not.

Reporting of information an ‘enormous concern’

Today, Paul McGarry SC for Delaney told the judge that arising out of Nolan’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.

Counsel said his client, was not trying to delay things, but is very concerned about material being aired in public.

If Delaney’s application is successful, the media would not be allowed to attend nor report on the proceedings.

The order was being sought over his concerns when material he claims is covered by Legal Professional Privilege (LPP) and or that is private to him comes before the court.

If the ODCE wishes to challenge any of Delaney’s claims that certain material is covered by LPP, he fears that matters will come into the public domain that should not be aired in public.

Delaney says that material relates to legal advice he received, and should not be disseminated to the ODCE or anyone else without his consent.

This potential dissemination he said is “a matter of enormous concern,” to him. The public and the media he said have no right of access to the material seized nor to challenge his assertions of privilege.

In order to protect the integrity of his privilege claims and his family’s privacy the court should hear matters in camera, or in the alternative restrain reporters from reporting details in the hearing until the issues concern privilege are determined.

‘Very draconian’ application

In response, McAleese said his client wished to make submissions, including the importance that justice be seen to be administered in public, to the court outlining its opposition to the “very draconian” application.

He said that the application for the matter to be held in camera raised a net legal point, adding that it was premature at this stage of the proceedings.

He added that other media organisations may also wish to take part in the proceedings, adding that RTÉ had been in contact with him regarding the matter.

Kerida Naidoo SC for the ODCE, which in a separate application is seeking orders including one allowing more persons to appointed to assist Mr Nolan, said his client was neutral regarding the in-camera application.

Brian Gageby Bl for the FAI said it was also neutral in relation to Delaney’s application.

Ms Justice Reynolds questioned if the application was “premature,” given that no report has been furnished to the court by Nolan.

Decision

The judge adjourned the matter for a week to allow the sides exchange legal submissions.

The judge also remarked that while the ODCE and FAI were not objecting, it should have been foreseen that the media would seek to make submissions or oppose Delaney’s application for the hearings to be held in camera.

To date, claims of legal professional privilege have been made in respect of approximately 1,000 documents by the FAI and over 3,500 documents by Delaney.

The inspection arises out of documents, covering a period of 17 years, that were 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 has been 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.

Through his lawyers, the UK-based Delaney has been allowed inspect the files, including thousands of emails, to see which ones are private to him or covered by professional legal privilege.

The matter first came before the courts shortly after the documents were seized and has been adjourned on several occasions over the last 12 months.

While time tables for the completion of the inspection were agreed, the matter has not concluded due to factors including the volume of documentation involved and the covid19 pandemic.

The case will return before the court next week.