Corporate Enforcement Authority v Cumann Peile na hÉireann “Football Association of Ireland”
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 25 September 2023 |
| Neutral Citation | [2023] IECA 226 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 2023/9 |
In the Matter of the Companies Act 2014
and
[2023] IECA 226
Costello J.
Noonan J.
Faherty J.
Record Number: 2023/9
High Court Record Number: 2020/66 COS
THE COURT OF APPEAL
JUDGMENT of Mr. Justice Noonan delivered on the 25th day of September, 2023
. The issue in this appeal concerns claims of legal professional privilege (“LPP”) asserted by the notice party (Mr. Delaney) over certain documents seized by the applicant on foot of a search warrant in respect of the premises of the respondent (“the FAI”). Mr. Delaney's assertion of LPP over in excess of 1,000 of the seized documents was rejected in its entirety by the High Court (Reynolds J.). Mr. Delaney brings this appeal against that judgment and a subsequent costs judgment of the High Court. At the time the High Court delivered its judgment on the 21 st October, 2022, the applicant was the Director of Corporate Enforcement, also referred to as the ODCE, now replaced by the applicant in the title hereof and for ease of reference, I shall refer to the applicant throughout as the CEA. The FAI is not a party to this appeal.
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• 11 th February 2020 – The CEA applied for and obtained a search warrant from the District Court authorising it to search the premises of the FAI.
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• 14 th February 2020 – the warrant was executed and various items were seized by the CEA's officers which included electronic equipment containing a digital work email folder created by Mr. Delaney, the FAI's former Chief Executive Officer.
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• 17 th February 2020 – the CEA issued a motion pursuant to s. 795(4) of the Companies Act, 2014 seeking a determination as to whether LPP attaches to the seized material. Although the motion was initially directed only to the FAI, Mr. Delaney was joined as a notice party some days later.
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• 24 th June 2020 – The court approved an examination strategy and some 285,000 files were identified.
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• 6 th July 2020 – A review of the material was commenced by Mr. Delaney's solicitor who was subsequently assisted by an IT expert. Initial examination took some six months until January 2021.
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• 29 th July 2020 – Mr. Delaney's solicitor identified about 29,500 documents which were claimed to potentially attract LPP.
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• 10 th November 2020 – On the application of the CEA, the court made an order pursuant to s. 795(6) of the 2014 Act appointing an experienced barrister (“the First Assessor”) to examine the documents and prepare a report for the court on the question of LPP.
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• 28 th January 2021 – Mr. Delaney's solicitors wrote a letter to the Assessor, which became known as the “context letter” and to which I refer further below.
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• 5 th March 2021 – The High Court appointed a second counsel (“the Second Assessor”) to assist in examining and reporting on the documents.
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• 12 th May 2021 – The Assessors' Report was delivered to the court upholding LPP in respect of 1,123 documents. This led to a further application by the CEA asserting the crime/fraud exception over these documents.
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• 10 th August 2021 – Having heard the parties on the latter issue, Reynolds J. delivered judgment declining to hold that it had been established that the exception applied.
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• 22 nd October 2021 – The court made an order giving liberty to Mr. Delaney's legal team to attend at the CEA's office and further inspect the documents over five days. The order further directed Mr. Delaney to swear an affidavit clarifying certain specified issues in relation to each document in response to questions raised by the CEA.
. Following this order, a number of additional affidavits were sworn, a further hearing held and the judgment under appeal was delivered.
. The warrant obtained by the CEA was one provided for under the provisions of s. 787(1) of the Act which provides that a judge of the District Court may issue a search warrant under this section if satisfied by information on oath made by a designated officer that there are reasonable grounds for suspecting that any material information is to be found on any premises. “Material information” is defined as including, inter alia, any books, documents or other things (including a computer) which the designated officer has reasonable grounds for believing may provide evidence of, or be related to, the commission of an offence under the Act. The investigation undertaken by the CEA is accordingly criminal in nature, but nothing further is known of the subject of the investigation or what or whom is being investigated.
. The application in the present case is one that arises under s. 795 which defines “information” as being information contained in a document, a computer or otherwise and “privileged legal material” as meaning information which, in the opinion of the court, a person is entitled to refuse to produce on the grounds of legal professional privilege. Section 795(3) provides:
“The disclosure of information may be compelled, or possession of it taken, pursuant to the powers in this part, notwithstanding that it is apprehended that the information is privileged legal material provided the compelling of its disclosure or the taking of its possession is done by means whereby the confidentiality of the information can be maintained (as against the person compelling such disclosure or taking such possession) pending the determination by the court of the issue as to whether the information is privileged legal material.”
. It is evident from the very fact of this application that the CEA apprehends that the information in its possession which was seized from the premises of the FAI is, at least potentially, the subject of legal professional privilege. Subsection (3) requires the CEA to maintain the confidentiality of the information until the court has determined whether it is privileged legal material. The CEA is accordingly unaware at this juncture of the nature of the information on the computers it has seized.
. Subsection (4) goes on to provide in relevant part as follows:
“Without prejudice to subsection (5) [which does not arise here], where, in the circumstances referred to in subsection (3), information has been disclosed or taken possession of pursuant to the powers in this part, the person –
(a) to whom such information has been so disclosed or,
(b) who has taken possession of it,
shall … apply to the court for a determination as to whether the information is privileged legal material and an application under this subsection shall be made within seven days after the date of disclosure or the taking of possession.”
. The obligation on the person seizing the material to apply to the court is avoided if the person from whom the material was taken themselves make an application to the court for a determination concerning privilege, but that does not arise here.
. It will accordingly be seen that s. 795 provides for a bespoke sui generis procedure to be availed of in order to obtain a determination from the court as to the privileged status of the information seized. As will be apparent from the cases I will shortly consider, a determination by the court of whether a communication benefits from LPP normally arises in the context of inter partes litigation where pleadings define the issues between the parties. In that respect, the procedure involved in this instance is significantly different as there are no proceedings in being between the parties where the pleadings would assist in defining what is at issue and thus, in some cases at least, whether, for example, litigation privilege may attach to the communication concerned.
. A very large number of affidavits were exchanged between the parties in the course of this application but many are not relevant to the issues that arise in this appeal. From an early juncture following the appointment of the first Assessor, it is apparent that the Assessor was seeking information from Mr. Delaney's legal team in order to assist him in his task and in particular in reaching conclusions as to whether LPP attached to documents or not. It was with a view to providing this assistance that the context letter of the 28 th January, 2021 was written by Mr. Delaney's solicitors to the then sole Assessor.
. That letter had attached to it what are described as “LPP schedules” the purpose of which was to assist the Assessor in arriving at a conclusion concerning LPP. The context letter was in fact furnished to the Assessor on the 5 th February, 2021. It was not however furnished to the CEA and this became a matter of considerable controversy. On the 16th February, 2021, Mr. Delaney's solicitors wrote to the Assessor making clear their objection to the context letter and schedules being furnished to the CEA. Various reasons were provided for this posture, including a suggestion that the LPP schedules had the potential to collaterally undermine Mr. Delaney's privilege in relation to the files in question. As matters transpired, at no time prior to the Assessors' report being completed and made available to the court in May 2021, was the CEA in possession of the context letter or made aware of its contents.
. In an affidavit sworn on the 20 th October, 2021, two days before the court made an order directing Mr. Delaney to swear a further affidavit responding to various questions raised by the CEA, Ms. Suzanne Gunn, Head of Criminal Enforcement in the CEA, swore an affidavit setting out the CEA's concerns about the Assessors' Report. In particular, Ms. Gunn explains in this affidavit that, having regard to the fact that Mr. Delaney was asserting personal LPP over documents on his employer's computer at its headquarters in...
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