Director of Corporate Enforcement v Cumann Peile Na H-Éireann “Football Association of Ireland”

• Jurisdiction: Ireland
• Judge: Ms. Justice Reynolds
• Judgment Date: 02 March 2021
• Neutral Citation: [2021] IEHC 141
• Docket Number: [2020 No. 66 COS]
• Court: High Court
• Date: 02 March 2021

In the Matter of the Companies Act 2014

Between

Director of Corporate Enforcement

Applicant

and

Cumann Peile Na H-Éireann “Football Association of Ireland”

Respondent

and

John Delaney

Notice Party

[2021] IEHC 141

[2020 No. 66 COS]

THE HIGH COURT

Appointment – Jurisdiction – Companies Act 2014 s. 795(6) – Applicant seeking directions varying the previous order of the High Court and providing for the appointment of additional people to carry out the functions of examining the information and preparing a report for the court in the manner prescribed by s. 795(6) of the Companies Act 2014 – Whether the High Court had jurisdiction to appoint further additional independent persons pursuant to s. 795(6)(b) of the Companies Act 2014

Facts: The applicant, the Director of Corporate Enforcement, applied to the High Court seeking directions pursuant to s. 795(6) of the Companies Act 2014 varying the previous order of the court dated 10th November, 2020 and providing for, inter alia, the appointment of up to five additional people with suitable legal qualifications to carry out the functions of examining the information and preparing a report for the court in the manner prescribed by the section, together with other ancillary relief. The applicant asserted that the powers set out in s. 795(6)(a) and (b) are enumerated powers which exist without prejudice to the unenumerated powers specified in general terms at the beginning of the subsection. The applicant contended that just because the provision explicitly allows for the appointment of one person does not mean that it does not implicitly allow for the appointment of more. The notice party, Mr Delaney, contended that the contents of sub. (b) make it clear that only one person can be appointed and that the appointment of further persons is simply not permitted by the Act. The respondent, Cumann Peile na hÉireann, supported the view expressed by the applicant in respect of the provisions and submitted that the list set out under s. 795(6) is not an exclusive list and allows for the appointment of additional persons.

Held by Reynolds J that, in all the circumstances, the court had jurisdiction to appoint further additional independent persons pursuant to s. 795(6)(b) of the Act. However, in exercising such jurisdiction, Reynolds J was mindful that Mr Nolan, who had already been appointed under the provisions, had sought the appointment of a second person to assist in examining the material due to the volume and complexity of same and to assist with the preparation of the report. The Director, however, had sought to vary the order of the court providing for the appointment of up to five additional people with a view to expediting the process. Whilst Reynolds J accepted the need for expedition in these matters, she was mindful that Mr Nolan who had commenced his examination of the relevant material was the person best placed to assess what additional resources were required to assist him in carrying out his functions pursuant to the relevant legislative provisions; he had already indicated that such additional resources, as he had requested, would facilitate a much reduced timeline for the provision of the report. Reynolds J was further conscious that the material concerned was potentially of a sensitive nature and that a targeted and focused approach by two individuals working closely together would in her view yield a more efficient and coherent report within the timeline envisaged by Mr Nolan. In all the circumstances, Reynolds J proposed directing the appointment of one additional person pursuant to s. 795(6) of the Act.

Reynolds J held that she would vary the order of the 11th November, 2020 to provide for the appointment of an additional independent person pursuant to s. 795(6) of the Act and would hear further from the parties in that regard.

Application granted.

JUDGMENT of Ms. Justice Reynolds delivered on the 2nd day of March, 2021.

Introduction

1 This is an application brought on behalf of the Office of the Director of Corporate Enforcement (“ODCE”) seeking directions pursuant to s.795(6) of the Companies Act 2014 varying the previous Order of this Court dated 10th November, 2020 and providing for, inter alia, the appointment of up to five additional people with suitable legal qualifications to carry out the functions of examining the information and preparing a report for the court in the manner prescribed by the section, together with other ancillary relief.

Background

2 Further to the Director's application on 11th November, 2020, this Court directed, inter alia, the appointment of Mr. Niall Nolan BL pursuant to s.795(6) of the Act of 2014 for the purposes of:-

• (i) Examining the reviewed material (“the LPP Material”) over which an assertion of privilege has been claimed by the notice party (‘Mr. Delaney’) and the respondent (‘the FAI’), and

• (ii) preparing a report (‘the Report’) for the court with a view to assisting or facilitating the court in the making of a determination as to whether or not the LPP Material constitutes privileged legal material pursuant to s.795 of the Act of 2014.

3 In addition, the Court made an Order, with the consent of all parties, providing for the preparatory process of the Report by Mr. Nolan as follows:-

• (i) The ODCE to automatically generate schedules of the material over which an assertion of privilege has been made by the respondent and notice party (‘the Schedules’) for provision to each of the parties. If required by the parties, the subject line is to be omitted from the Schedules so as to avoid revealing any potentially privileged material and/or to ensure the redaction of the Schedules is not necessitated.

• (ii) Mr. Nolan to be provided with copies of the said Schedules and access to all of the substantive material underpinning the Schedules by way of the Nuix System.

• (iii) Mr. Nolan to engage in a review of the material itemised within the Schedules for the purpose of preparing a report to assist or facilitate the court in making its determination as to whether the material is in fact privileged legal material.

• (iv) The Report to include a recommendation by Mr. Nolan to the court with respect to each piece of material itemised within the Schedules as to whether each item does or does not constitute privileged legal material (‘the Recommendations’).

• (v) The Report to be submitted to the court to assist or facilitate the court in its determination as to whether the material is privileged legal material.

• (vi) A copy of the Recommendations to be provided to each of the parties to assist them in consideration of whether or not they wish to make legal submissions to the court with respect to any of the material itemised within the Schedules in advance of the court making any final determination as to whether each such item does or does not constitute privileged legal material.

4 Since the making of the Orders, Mr. Nolan has commenced his examination of the LPP Material.

5 Due to the complexity and volume of the material, Mr. Nolan advised the parties in correspondence that he would require the appointment of a further independent person pursuant to s.795(6)(b) of the Act of 2014 to assist in examining the reviewed material and to expedite the Report for the court. Mr. Nolan has further advised that even with the...