By Ann O'Loughlin
An application by the State’s corporate watchdog to examine material on computers taken from the suicide counselling charity Console has been further adjourned at the High Court.
The Office of the Director of Corporate Enforcement (ODCE), having obtained the computers from the charity's liquidator, wants orders allowing it examine them for its investigation into the conduct of Console's affairs before its liquidation in July 2016.
Console’s founder Paul Kelly and his wife Patricia are the only persons "materially" opposing the application, Kerida Naidoo SC, for the ODCE, said on Friday.
The application has been adjourned a number of times while the couple seek legal aid to fund their opposition.
Mr Justice Denis McDonald was told today they wanted a further adjournment pending a decision by the Civil Legal Aid Board on their application.
Opposing a further adjournment, Mr Naidoo said the couple have a digital copy of the material and had failed to engage with the ODCE's requests to identity material they say is private, irrelevant or covered by legal privilege. The ODCE was prepared to place all that material in a “black book” and not look at it pending any further application, he said.
The matter of accessing the material is not as legally complicated as was being suggested and it is in the public interest to have the issues concerning Console investigated, he said.
Solicitor James MacGuill said he was appearing for the Kellys out of courtesy to the court.
The couple's accounts remain frozen, they are dependent on social welfare and, if they get legal aid, the matter would have to be progressed by the relevant law centre because it involved intricate and complex legal issues and examination of potentially hundreds of thousands of documents, he said.
This was a situation where the Kellys must get legal aid, whether on the civil or criminal legal aid side, there had been progress in processing their application and the ODCE would not be prejudiced by another adjournment, he said.
In response, Mr Naidoo stressed the ODCE has not made allegations against the Kellys.
In granting a further adjournment, Mr Justice McDonald said the ODCE application will ultimately have to proceed whether or not the couple get legal aid and he was very conscious the proceedings need to be heard as soon as possible.
While it was hard to see how there could be an objection to the methdology proposed by the ODCE for treating the digital material, there are always arguments to be made over methodologies, he said.
It was "highly desirable" the Kellys have legal representaiton if at all possible, especially when issues as to whether documents are legally privileged or not would present difficulties for a lay person.
He said the balance "just about favours" a further adjournment but he expected a decision to be made by the civil legal aid board by time the case next comes before court.
While aware the legal aid boards are "hugely under-resourced", this matter is pending before the High Court and the court's ability to further adjourn it was "not elastic".
If there is a lacuna in the law concerning the nature of legal aid for such an application, that can be dealt with in a further way, he observed. He directed the matter be mentioned in the High Court's chancery list next Thursday for the next hearing date to be fixed.