Courts

John Delaney’s claims of legal privilege over FAI documents ‘wholly unsubstantiated’, judge rules

The mere existence of outstanding litigation was not in itself “a shield for Mr Delaney to seek to hide behind”, said Ms Justice Leonie Reynolds

The judge described John Delaney's 'bald and blanket' assertions as entirely inadequate. Photograph: Cyril Byrne / THE IRISH TIMES

Aodhan O'Faolain
Fri Oct 21 2022 - 15:32

The High Court has ruled that documents relating to former Football Association of Ireland (FAI) chief executive John Delaney are not covered by legal professional privilege and can be used by the Office of the Director of Corporate Enforcement (ODCE) as part of its ongoing criminal investigation into the association.

Mr Delaney had argued before the High Court that the corporate watchdog was not entitled to use just over 1,100 documents relating to him that were seized by the ODCE from the FAI on grounds that they were covered by legal professional privilege.

In her judgment on Friday, Ms Justice Leonie Reynolds 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”.

The judge said it was not her role to make out any claim of privilege for Mr Delaney. The onus was on him to do so, she said.

READ MORE

He had been afforded every opportunity to furnish the necessary information to substantiate his claim but had “resolutely failed to do so”.

It was not necessary to go through the individual documents, and she was satisfied to reject his claim of privilege. She ordered that all the outstanding documentation be disclosed to the ODCE.

She was making the orders while “mindful of the contents of the Act”, which states that publication or disclosure of any of the seized material to anyone other than a competent authority is “a criminal offence sanctioned by way of fine or term of imprisonment”.

It is not known if Mr Delaney intends to appeal the ruling.

The lengthy proceedings arose out of the ODCE’s seizure of 280,000 documents covering a 17-year period from the FAI offices in February 2020.

The ODCE, which brought proceedings against the FAI seeking orders that would allow it to examine the records, wants to use the material as part of its ongoing probe.

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

The issues between the FAI and the ODCE were resolved some time ago.

Any documents deemed covered by privilege cannot be used by the ODCE as part of the investigation into certain matters at the FAI.

Following a review by two court-appointed independent barristers, recommendations were made to the court regarding which documents should be deemed covered by privilege.

Mr Delaney claimed these documents contain certain legal advice given to him regarding litigation that occurred during the many years he was with the association and, therefore, are covered.

The ODCE claimed privilege did not apply to the material.

In her decision, the judge said Mr Delaney was given ample time to adequately review the documents.

She said the evidence in support of his claim amounts to “no more than vague and nebulous claims which are wholly unsubstantiated”.

The claims were so generalised they “lack substance” and are “devoid of any material evidence” that would assist either the ODCE or the court with the task at hand, she said.

His “bald and blanket” assertions were entirely inadequate, she added.

His expectation that mere assertions of privilege, together with a belief that his compliance with the spirit of a previous order requiring him to provide the ODCE with details of legal actions he was involved in, will suffice was “misconceived”.

Not only had Mr Delaney failed to comply with the spirit of that order, “he has manifestly failed to comply with it in its entirety”, she said.

The mere existence of outstanding litigation was not in itself “a shield for Mr Delaney to seek to hide behind,” she said.

She said the documents were being sought as part of preliminary enquiries being carried out by the ODCE to see if a formal criminal prosecution is warranted.

If a prosecution ensues, it will be open to Mr Delaney’s lawyers to raise the issue of privilege within the context of a criminal trial.

Equally, it will be open to the ODCE to make submissions about the issue of exceptions to legal privilege to a judge hearing any criminal case.

Ultimately, it would be a matter for a trial judge to resolve these issues, she added.

LATEST STORIES