High Court fixes date for John Delaney's application to have action heard in private

Mr Delaney is worried that media reports of the case will result in what he claims is private and legally privileged information entering the public domain.
High Court fixes date for John Delaney's application to have action heard in private

The judge also ruled that an additional independent person should be appointed to assist barrister Niall Nolan Bl in the examination and review of materials over which claims of legal privilege are made by John Delaney (pictured). File photo: Brian Lawless/PA

Former FAI CEO John Delaney's application to have an action over the inspection of thousands of documents seized from the FAI held in private will be heard later this month.

The application arises out of Mr Delaney’s concerns that media reports of the court case will result in what he claims is private and legally privileged information entering the public domain.

The in-camera application is opposed by Sunday Times News, which is being supported by several other media outlets including the Irish Times, RTÉ, the Irish Examiner and the Journal.ie.

Solicitor Simon McAleese for the newspaper says the media believes the order being sought is draconian, as the media would be excluded from the hearings, and should not be granted.

Last week, Paul McGarry SC for Mr Delaney told the court that arising out of the independent person's work their client is seeking a formal order, under the 2014 Companies Act that the hearing be conducted in-camera where only the parties involved would be present.

Mr Delaney is concerned that material he claims is covered by Legal Professional Privilege (LPP) and/or that is private to him comes before the court, counsel said.

This potential dissemination, he said, is a matter of enormous concern to him, counsel added.

When the matter returned before Ms Justice Leonie Reynolds today, Mr McGarry said that arising out of discussions some of the urgency that had prompted the in-camera application had eased.

However, the in-camera issue would have to be heard at some stage, counsel said.

Ms Justice Reynolds fixed the hearing date of the in-camera application for March 23 next.

Another person allowed to help review material

Also today, the judge ruled that an additional independent person should be appointed to assist barrister Niall Nolan Bl in the examination and review of materials over which claims of legal privilege are made by Mr Delaney.

The two independent people will prepare a report for the court which will aid the judge in determining which of the material is privileged and which is not.

The judge said the additional person, who will be identified later this week, was sought by Mr Nolan in order to speed up the process, so it will be concluded by May or June of this year.

The judge, however, was not prepared to appoint an additional five independent people to help with the examination of the files, as had been sought by the ODCE.

The judge said that two people working together, as suggested by Mr Nolan, would yield a more efficient and coherent report within the timeline envisaged by Mr Nolan.

Case background

The examination arises out of the seizure of 280,000 files by the Office of the Director of Corporate Enforcement (ODCE) in February 2020 as part of its criminal investigation into certain matters at the FAI.

In proceedings brought by the ODCE, the judge has been asked to determine which of the material is covered by legal privilege, and cannot be used by the ODCE as part of its probe.

The inspection arises out of documents, covering a period of 17 years, that were seized by the ODCE from the FAI's offices last year as part of an investigation into the FAI.

Arising out of the seizure, the High Court has been asked by the ODCE, in an application where the FAI is the respondent and Mr Delaney is a notice party, to determine if some of those files are privileged and cannot be used by the ODCE.

Mr Delaney has been allowed to inspect the files, including thousands of emails, to see which ones are private to him or covered by professional legal privilege.

The matter has been before the courts on many previous occasions, but the completion of the examination has been delayed due to factors including the volume of documentation involved and the Covid-19 pandemic.

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