Second person should help ODCE examine seized FAI documents, court says

A judge has recommended a second person be appointed by the State’s corporate watchdog to help examine materials seized from the Football Association of Ireland (FAI) over which claims of legal privilege are made.

Last November, barrister Niall Nolan BL was appointed as the independent person to examine and review materials over which claims of legal privilege are made by former FAI chief executive John Delaney and the FAI.

Some 280,000 files were seized by the Office of the Director of Corporate Enforcement (ODCE) as part of its criminal investigation into certain matters at the FAI.

Mr Nolan has been engaged to prepare a report for the court to aid Ms Justice Leonie Reynolds in determining what material is privileged.

On Thursday at the High Court, Ms Justice Reynolds said the ODCE should consider appointing a second qualified person to assist Mr Nolan in “a mammoth task”. The judge made the recommendation after Mr Nolan told the court good progress has been made in regard to the documentation.

Claims of legal professional privilege have been made by the FAI in respect of approximately 1,000 documents by the FAI and by Mr Delaney over some 3,500 documents. Mr Nolan said, in order to speed up matters, consideration should be given to appointing an additional suitably qualified person to assist the inspection.

Mr Nolan added he was also seeking certain basic, general information from the parties about the material being examined to assist him in determining what material should be covered by legal professional privilege.

Kerida Naidoo SC, for the ODCE, said the director would consider an application to appoint another person to assist Mr Nolan. However, the director was not prepared at this stage to disclose any details of what is a criminal investigation to any party, including to Mr Nolan, counsel said.

The judge, in adjourning the matter to later this month, said she would not make any rulings on Mr Nolan’s requests but she wanted consideration to be given to the appointment of an additional person to assist the process.

Giving Mr Nolan basic, general information about matters could help speed up the process, and any information he was given would be treated in the strictest of confidence and would not be disclosed to any party, she said.

The inspection arises out of documents, covering 17 years, seized by the ODCE from the FAI’s offices in February 2020 as part of the director’s investigation into Irish soccer’s governing body.

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 covered by legal professional privilege. Any such document cannot be used by the ODCE as part of its investigation.

Through his lawyers, UK-based Mr Delaney has been allowed inspect the files, including thousands of emails, to see which are private to him or covered by professional legal privilege. The matter first came before the courts shortly after the documents were seized last February and has been adjourned from time to time. While time tables for the completion of the inspection were agreed, the matter has not concluded due to factors including the volume of documents and the Covid-19 pandemic.

Ms Justice Reynolds has said she hopes the inspection process can be completed in the coming weeks.