Ruling next week on whether John Delaney should pay costs over failed privilege claim

The High Court will give its decision next week on whether former Football Association of Ireland CEO John Delaney should pay the costs of his failed effort to claim legal professional privilege over documents seized from the FAI by the corporate watchdog.

The Office of the Director of Corporate Enforcement (ODCE) seized some 280,000 documents in February 2020 as part of a criminal investigation into the FAI.

The ODCE then sought certain orders from the High Court allowing it to examine the documents for its probe. Mr Delaney was later joined as a notice party in the case as such an order would affect him.

He opposed the ODCE application on grounds that many of the documents were legally privileged.

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The main action between the FAI and the ODCE was resolved some time ago

But there followed a lengthy series of hearings between the ODCE and Mr Delaney’s lawyers over whether he was entitled to claim privilege of the documents.

It ultimately led to two independent assessors being appointed to whittle down the number documents. The assessors, two barristers, decided 1,100 documents may attract privilege. This meant it was up to the court to decide whether they were privileged.

In a judgment last month, Ms Justice Leonie Reynolds ruled Mr Delaney had failed to discharge the requisite burden of proof required to maintain his assertion that the documents at issue are privileged and the onus was on him to do so.

The case came back before her Wednesday for the judge to hear arguments from the ODCE and Delaney lawyers on who should pay the costs of the numerous hearings over the privilege issue.

The court also heard Mr Delaney would be seeking a stay on her main order refusing privilege over the 1,100 documents pending an appeal.

In his submissions on behalf of the ODCE, James B Dwyer SC said full costs should be awarded against Mr Delaney over what the court had found was his failure to demonstrate that even one of the documents attached privilege. The entire proceedings were based on the “entirely nebulous suggestion” that the documents attracted privilege, he said.

Among the submissions from Paul McGarry SC, for Mr Delaney, it was argued the law requires the court to determine whether there is privilege over documents in these types of investigation cases. Even if Mr Delaney had never participated in this case, the court would still have to have carried out that exercise of determining privilege, he said.

It had been repeatedly said by the ODCE that the seizure was part of an overall criminal investigation and it was therefore not correct for it to now say they are civil proceedings, he said.

Ms Justice Reynolds said she hoped to give a verbal judgment next week and deal with final orders in the case the following day.

She also wanted to hear arguments on costs in a separate hearing relating to Mr Delaney’s application that the privilege issue should be heard by the court in private as Mr Delaney had claimed they would affect family law proceedings. The judge had ordered the case should continue in public until the family law issue arose but it never did.