A HIGH COURT judge said she cannot determine at this stage if 1,100 disputed documents relating to former FAI CEO John Delaney can be used as part of an ongoing criminal investigation.

Ms Justice Leonie Reynolds said she was not prepared to make any order in relation to the Office of the Director of Corporate Enforcement’s bid for sight of the documents until hearing further from the corporate watchdog and Delaney’s lawyers.

The material in question, which were taken as part of 283,000 documents covering a 17-year period, was seized from the FAI by the Office of the Director of Corporate Enforcement in February 2020.

The ODCE seized the documents as part of its investigation into certain matters at the FAI.

The matter has been before the courts on many occasions over the last 18 months in proceedings, where Delaney is a notice party, concerning which of the seized documents are covered by Legal Professional Privilege (LPP).

Following the implementation of an examination strategy, and a review by two independent barristers, the FAI claims that out of all the material seized approximately 1,000 documents are covered by LLP.

In Delaney’s case, the court heard that following that process it is recommended that some 1,600 documents relating to him are covered by LLP.

In a preliminary ruling concerning the issue of LLP, Ms Justice Reynolds said she had been asked by the ODCE to allow it to examine some 1,120 out of the 1,600 documents relating to Delaney.

The judge said that in a motion to the court the ODCE said it was in the public interest that it should be allowed examine what it says is relevant material as part of its continuing criminal investigation.

Delaney, represented by Paul McGarry SC, has argued the disputed documents and emails are covered by LPP, and therefore cannot be used by the corporate watchdog as part of its criminal investigation.

However, the ODCE claims the disputed material is subject to a legal exemption called the crime/fraud exemption and is entitled to examine them despite the recommendations they are covered by LLP, the judge said.

The ODCE claims that all of the documents, including those in dispute, were seized on foot of a warrant obtained from a district court judge.

Ruling

In her ruling the judge said that she was not prepared to make an order at this stage sought by the ODCE.

To grant such an order would have the practical effect of displacing privilege over the material.

There was little or no dispute that the documents have all the characteristics of LLP, the judge said.

It was also well established that LLP can be lost if such a claim is used to conceal a crime or fraud.

However, she said that while the ODCE says it requires sight of the documents, the court said that any party seeking disclosure of privileged material “must demonstrate clear evidence or fraud”.

It must at least demonstrate that the allegation has a foundation in fact, she said.

To date the director had made no attempt to outline the rationale or basis for his belief that the documentation was generated in a furtherance of crime and fraud.

The judge added that the vast majority of the documentation seized has now been excluded from the investigation.

The court could not accept the ODCE’s proposition that the search warrant itself was somehow sufficient to satisfy the court that the crime fraud exception should apply.

The court, she added, was in the invidious position of being asked to make a determination on material that would otherwise attract privilege.

This was in circumstances where the court has limited knowledge of the nature of the ongoing investigation.

It was difficult to see how the court could embark on any meaningful determination in respect of resolving this particular issue “in a vacuum”.

The Judge said it would be “premature to engage in such an assessment of the material to see if the crime fraud exception arises”.

In all the circumstances she said she was not in a position to resolve the issue at this time, and will hear further from the parties as to how the next phase of the process is to be advanced.

The case will return before the court after the new legal terms commences in October.

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