Judge reserves judgment on seized FAI documents

The ODCE and former FAI chief executive John Delaney are in dispute over whether some 1,120 documents are covered by Legal Professional Privilege
Judge reserves judgment on seized FAI documents

A High Court judge has reserved judgement on whether over 1100 disputed documents seized from the FAI can be used as part of an-ongoing criminal investigation into the association.

The Office of the Director of Corporate Enforcement (ODCE) and former FAI chief executive John Delaney are in dispute over whether some 1120 documents relevant to him seized by the corporate watchdog are covered by Legal Professional Privilege.

The ODCE has asked the court to make orders allowing it to examine the disputed material, which were taken as part of 283,000 documents covering a 17-year period, seized from the FAI by the ODCE in February 2021.

Their application has been opposed by Mr Delaney, who is a notice party to the directions action against the FAI over the seized material.

Following the conclusion of extensive legal submissions from the parties on Tuesday afternoon Ms Justice Leonie Reynolds reserved her decision.

The judge said she was conscious that the ODCE was seeking a quick decision, and said that she would do her best to give judgement as soon as possible.

Independent barristers

She also noted that there was no issue between the FAI and the ODCE as to any of the documentation seized from the association which the director seeks is covered by privilege.

Seeking the order Kerida Naidoo SC for the ODCE said that the court had previously received a report, compiled by independent barristers where recommendations were made regarding which documents are covered by privilege.

Counsel said that arising out of that report some 1120 documents remain in dispute between his client and Mr Delaney.

They said the ODCE’s position is that the disputed material should be made available to it for examination as part of its continuing criminal investigation.

It was “in the public interest to do so”, particularly given that the material was taken as part of a criminal investigation.

Counsel said the ODCE rejected Mr Delaney’s objection against the application.

Disputed documents

What the notice party’s lawyers were seeking to do was effectively asking the ODCE to open up its investigation to date before the court.

Such an action, counsel said would have the potential effect of compromising its investigation.

Lawyers for the currently UK-based Mr Delaney argued the disputed documents and emails are covered by Legal Professional Privilege, and therefore cannot be used by the corporate watchdog as part of its criminal investigation.

In his submissions to the court Paul McGarry SC for Mr Delaney said that the court is not entitled to make the order sought by the ODCE, until the court has gone through all of the disputed material.

What the ODCE is trying to do, counsel said, is to override provisions made in the relevant legislation regarding material over which claims of Legal Professional Privilege are made.

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