Court of Appeal: Former FAI CEO’s appeal over seized documents dismissed

About this case:

• Citation:
  [2023] IECA 226
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Seamus Noonan

Delivering judgment for the Court of Appeal, Mr Justice Seamus Noonan found that Mr Delaney’s lack of compliance with a disclosure order of the High Court meant that he could not rely on legal professional privilege to withhold access from the CEA.

Background

On 11 February 2020, the plaintiff applied for and obtained a search warrant from the District Court pursuant to s.787(1) of the Companies Act 2014 authorising it to search the premises of the Football Association of Ireland in the course of a criminal investigation. The notice party, Mr John Delaney, asserted legal professional privilege over many of the documents seized.

On 17 February 2020, the plaintiff issued a motion pursuant to s.795(4) of the Companies Act 2014 seeking a determination as to whether legal professional privilege attached to the seized documents.

On 24 June 2020, the court approved an examination strategy which permitted Mr Delaney’s solicitor to examine the documents, which took approximately six months. The High Court also appointed an assessor to examine the documents, to whom Mr Delaney furnished a “context letter” dated 28 January 2021. Soon after, the High Court appointed a second assessor, and on 12 May 2021 an assessors’ report was delivered upholding legal professional privilege in respect of 1,123 of the documents.

On 20 October 2021, the plaintiff swore an affidavit setting out concerns regarding the assessors’ report, noting that it was unclear on what basis the assessors had advised in favour of legal professional privilege over the documents. On 22 October 2021, the Court ordered Mr Delaney to swear an affidavit explaining factual matters which could only be relevant to legal professional privilege, and which could assist the court to arrive at conclusions concerning the specific documents in respect of which further information was sought.

Mr Delaney swore a further affidavit, stating that as he was not supplied with copies of the documents, he was not in a position to explain why legal professional privilege applied to them.

The High Court

The matter came back before Ms Justice Leonie Reynolds, who found that the court was not bound by the recommendations of the assessors concerning legal professional privilege, and noted that the report “is simply a tool to be utilised by the court to aid its considerations and does not usurp the function of the court”.

The judge further found that Mr Delaney had not equipped the plaintiff with adequate information to allow it to scrutinise his privilege claims, finding that the onus remained on Mr Delaney to explain all relevant facts and processes which led to the creation of the material, noting that she “made it crystal clear that there was insufficient evidence solicited on his behalf to allow the Director to probe…his assertions of privilege”.

Agreeing with the plaintiff’s submission that it was unnecessary for the court to scrutinise each document to arrive at a conclusion, Ms Justice Reynolds noted that she was “left in the invidious position whereby I simply do not have the requisite information to carry out the necessary analysis”. Finding that Mr Delaney had not discharged the necessary burden of proof, the judge rejected his claim of privilege and ordered the outstanding documentation to be disclosed to the plaintiff.

The Court of Appeal

Mr Justice Noonan noted that Mr Delaney’s primary complaints were that the High Court disregarded the assessors’ report without giving reasons for doing so, and that if the High Court was going to reject the report, it was at a minimum obliged to examine the documents in question before coming to a conclusion on whether they were privileged.

Examining excerpts from a schedule annexed to Mr Delaney’s submissions which purported to demonstrate that the High Court had ample information available to it to determine whether the documents were privileged, Mr Justice Noonan commented that “there is a total failure on the part of Mr. Delaney to comply in any meaningful way with the requirements of the Disclosure Order. Where explanation is clearly called for, none is forthcoming.”

Noting that the procedure under s.795 for determining questions of legal professional privilege is “bespoke”, the court rejected the suggestion of an obligation to consider each document individually before adjudicating on privilege, finding that Ms Justice Reynolds had chosen to examine a selection of random documents, but “could have legitimately elected not to examine any of the documents”.

Turning to Mr Delaney’s ground of appeal concerning the failure of the High Court to give reasons for rejecting the assessors’ report, Mr Justice Noonan remarked that “there is some validity in this criticism”, observing that while the trial judge characterised the report as a tool to aid its consideration, he did not think that the High Court meant to suggest that it was free to disregard the report without giving reasons for doing so, being that the report enjoys “some status as a report commissioned on foot of a statutory power” and “cannot simply be dismissed with a wave of the hand”.

The court placed the report in context, highlighting that the volume of documentation presented to the assessors meant they could do no more than express a conclusion on each document, without giving reasons — had the report been presented in May 2021 and at that stage rejected by the High Court “without further ado or explanation, clearly a difficulty would arise”.

Mr Justice Noonan emphasised that the original assessor sought information from Mr Delaney at an early stage, but when that information was not forthcoming the assessor had no choice but to fulfil his task. The judge also noted that it was “extraordinary” that the plaintiff did not see the context letter until several months following the presentation of the report to the High Court, and those concerns were obviously shared by Ms Justice Reynolds as they formed part of her order of 22 October 2021.

Finding that the order was made to address the imbalance between the parties created by the insistence of Mr Delaney’s lawyers that the assessors not disclose the context letter to the plaintiff, Mr Justice Noonan held that the High Court had clearly concluded that the report could not be relied upon, and though “undesirable” that the Court of Appeal was left to speculate about the reasons for the outcome, it was possible to infer them with “a sufficiently high degree of confidence”.

Conclusion

Dismissing Mr Delaney’s appeal, Mr Justice Noonan found it was 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 awarded costs to the plaintiff and refused to interfere with the costs order made by the High Court.

Corporate Enforcement Authority v. Cumann Peile Na H-Éireann [2023] IECA 226