THE SUPREME COURT has dismissed former FAI CEO John Delaney’s bid to hear his appeal against a lower court’s decision to allow the Corporate Enforcement Agency (CEA) access to certain documents it seized as part of a criminal investigation into the football association.
Last year, the Court of Appeal rejected Delaney’s appeal against an earlier High Court 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 in 2020.
He claimed 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, and therefore cannot be used as part of the investigation.
The CEA claimed that LPP did not apply to the material in question.
After the Court of Appeal dismissed his appeal he asked the Supreme Court to consider hearing a further appeal, arguing that his action raised a point of law of public importance that required to be determined by the Supreme Court.
In a written determination, a three-judge panel of the Supreme Court – consisting of the Chief Justice Donal O’Donnell, Ms Justice Iseult O’Malley and Mr Justice Gerard Hogan – found it was “not in the interests of justice” to allow a further appeal go before the courts.
To do so, the judges held, would be “to allow a further hearing of arguments that have already been fully ventilated in both the High Court and the Court of Appeal”.
When the matter was before the High Court two assessors had recommended that over 1,100 of the seized documents relating to Delaney be deemed to be covered by LPP.
That was challenged by the CEA, which took issue with the procedures followed by the assessors.
The High Court ordered Delaney to clarify his claims of privilege in respect of each document his claims where that claim had been made.
In reply, Delaney swore an affidavit saying that it was not appropriate to conduct what he described as “a deep dive” in relation to the documentation but provided a numerical analysis of the documents described as giving a “broad flavour” of what the assessors had reported.
In her decision delivered in October 2022, Ms Justice Leonie Reynolds concluded that Delaney had failed to comply with the order and that he had failed to establish that any individual document was entitled to privilege.
Rejecting Delaney’s arguments, the judge said 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 last year, the Court of Appeal dismissed the appeal and upheld the High Court’s findings.
Delaney had argued in his appeal 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.
In its ruling, the Court of Appeal said that primary alleged error contended for by Delaney was that the High Court did not give any reasons for rejecting the assessors’ reports.
The Court of Appeal 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.
The Court of Appeal also rejected Delaney’s argument 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.
The Court of Appeal 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 was “very difficult 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 Court of Appeal ruled.
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.” were also rejected.
In its determination, the Supreme Court said Delaney had asserted that the Court of Appeal’s decision involves an issue of general public importance regarding the execution of search warrants under the 2014 Companies Act, and the determination of issues relating to privilege.
Issues regarding the treatment and status of the assessors’ report were also raised, the Supreme Court noted.
The Supreme Court said that while the procedures provided for in this case was novel, issues relating to LPP were not unusual.
The panel said that the procedures used to assess the LPP of the documents did not raise any issue of complexity or general public importance.
The panel also added that the High Court’s departure from the recommendation of the assessor’s assessments, was “quintessentially a matter” for the Court of Appeal to determine and not something that raised any issue of general public importance.
The Supreme Court’s ruling brings to an end a long running action that 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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