Director of Corporate Enforcement v Cumann Peile Na Héireann

• Jurisdiction: Ireland
• Judge: Ms. Justice Reynolds
• Judgment Date: 10 August 2021
• Neutral Citation: [2021] IEHC 651
• Court: High Court
• Docket Number: [2020 No. 66 COS]

In the Matter of the Companies Act, 2014

Between

Director of Corporate Enforcement

Applicant

and

Cumann Peile Na Héireann

“Football Association of Ireland”

Respondent

and

John Delaney

Notice Party

[2021] IEHC 651

[2020 No. 66 COS]

THE HIGH COURT

Legal professional privilege – Crime/fraud exception – Documentation – Applicant seeking determination of preliminary legal issue concerning crime/fraud exception to claim of legal professional privilege – Whether crime/fraud exception applied

Facts: The applicant, the Director of Corporate Enforcement, on the 11th February, 2020, applied for and obtained from the District Court a warrant permitting his servants and/or agents to enter the headquarters of the respondent, Cumann Peile na hÉireann (the FAI), and seize material comprising hard copy documents and an email folder pertaining to Mr Delaney during his period of employment with the FAI. This arose in circumstances where the Office of the Director of Corporate Enforcement (the ODCE) was undertaking a criminal investigation into suspected criminal wrongdoing relating to certain matters at the FAI. On the 14th February, 2020, the Director’s servants and/or agents entered the premises and seized materials. The warrant permitting the entry and seizure was obtained pursuant to s. 787 of the Companies Act 2014. The Director issued a motion on 17th February, 2020 in which he sought, inter alia, a determination pursuant to s. 795(4) of the 2014 Act as to whether any communications contained in the seized materials were subject to legal professional privilege. The FAI and ODCE progressed matters to the extent that the s. 795(4) application as between them had essentially resolved. The Director applied to the High Court for a determination of a preliminary legal issue raised by the Director concerning the crime/fraud exception to a claim of legal professional privilege being asserted by Mr Delaney. The application fell to be considered within the context of the s. 795(4) application. It arose in circumstances where the Director had identified 1,120 documents among the tagged “LPP” items in the “Independent Persons Report” which he asserted were subject to the crime/fraud exception.

Held by Reynolds J that a party seeking disclosure of otherwise privileged material must demonstrate clear evidence of crime or fraud, or at least demonstrate that “the allegation has a foundation in fact”. She held that the Director had made no attempt to outline the rationale or basis for his belief that the documentation was generated in furtherance of crime or fraud. She held that it was clear that the vast majority of the documentation seized pursuant to the warrant had been excluded from the investigation by agreement between the parties on the basis that they were not relevant. In the circumstances, she could not accept the proposition that the issuance of the warrant in itself was somehow sufficient to satisfy the court of the applicability of the crime/fraud exception. In her view, it did not amount to “prima facie evidence”. She was of the view that it would be premature to engage in a highly nuanced assessment of the material to determine whether the crime/fraud exception arose when the nature, scope and parameters of any alleged crime or fraud had not as yet been disclosed.

Reynolds J held that in the circumstances she was not in a position to resolve the issue as to whether the crime/fraud exception applied. She held that she would hear further from the parties as to how the next phase of the process was to be advanced.

Judgment approved.

JUDGMENT of Ms. Justice Reynolds delivered on the 10th day of August 2021

Introduction

1 On the 11th February, 2020, the Director of Corporate Enforcement (“the Director”) applied for and obtained from the District Court a warrant permitting his servants and/or agents to enter the headquarters of Cumann Peile na hÉireann (“the FAI”) and seize material comprising hard copy documents and an email folder pertaining to John Delaney during his period of employment with the FAI.

2 This arose in circumstances where the Office of the Director of Corporate Enforcement (“the ODCE”) is undertaking a criminal investigation into suspected criminal wrongdoing relating to certain matters at the FAI.

3 On the 14th February, 2020, the Director's servants and/or agents entered the premises and seized materials. The warrant permitting the entry and seizure was obtained pursuant to s. 787 of the Companies Act, 2014 (the “2014 Act”).

4 The Director issued a motion on 17th February, 2020 in which he sought, inter alia, a determination pursuant to s. 795(4) of the 2014 Act as to whether any communications contained in the seized materials were subject to legal professional privilege.

5 A number of procedural steps were embarked upon thereafter under the supervision of the court which allowed for considerable progress to be made in the proceedings.

6 Prior to the application being heard, the FAI and ODCE engaged further and have progressed matters to the extent that the s. 795(4) application as between them has essentially resolved.

Chronology

• — 11th February, 2020: Application to District Court for search warrant pursuant to s. 787 of the Companies Act, 2014 relating to the premises of the FAI, situate at the National Sports Campus, Abbotstown, Dublin 15.

• — 14th February, 2020: Search warrant executed and seizure of digital email folder of John Delaney and thirteen hardcopy documents.

• — 17th February, 2020: Ex parte application for short service of a notice of motion dated 17th February, 2020.

• — 20th February, 2020: John Delaney joined as a Notice Party to proceedings by order of the High Court.

• — 24th June, 2020: Examination Strategy for the purposes of privacy and privilege rights approved by the High Court and directions to the parties to liaise in relation to its implementation by 22nd July, 2020.

• — June, 2020: The ODCE's Digital Forensics Specialist conducts an initial examination and assessment of the digital email folder consisting of 675,240 files. After removal of duplicate and immaterial items, remaining dataset constitutes 285,028 files.

• — 6th July, 2020: The Notice Party's review of the dataset commences.

• — 15th July, 2020: An extension of time granted to the Notice Party for implementation of the Examination Strategy.

• — 20th July, 2020: Notice Party's digital forensics team attend at the ODCE offices to assist in the notice party's review.

• — 22nd July, 2020: The High Court issues further directions to progress the review.

• — 29th July, 2020: Notice Party correspondence with the ODCE confirming approx. 29,500 documents “potential LPP”.

• — 31st July, 2020: Further directions granted to assist in the isolation of the privacy and potentially privileged datasets.

• — August, 2020: Notice Party identifies 35,406 records as “LPP/Privacy”, 29,070 records as “Potential LPP” and 35,406 records as “Private”.

• — 3rd September, 2020: Privacy aspect of the application (s. 788 of the Companies Act, 2014) is concluded. Further directions granted to progress legal professional privilege (“LPP”) aspect of the review.

• — 8th September, 2020: Respondent commences review of the FAI dataset and upon completion, dataset is refined to 11,066 items.

• — 10th November, 2020: On foot of the Director's application, Mr. Niall Nolan BL appointed as an independent person to assist the High Court pursuant to s. 795(6) of the Companies Act 2014. The Court further directs the Respondent and Notice Party to complete the review of material and finalise their assertions of LPP by 11th January, 2021.

• — 19th November, 2020: Mr. Niall Nolan BL commences his review in furtherance of his appointment by the High Court pursuant to s. 795(6) of the Companies Act, 2014.

• — 11th January, 2021: The Respondent and Notice Party complete their review of the datasets. As a result, 3,818 items required to be reviewed by Mr. Nolan; 2,805 at the assertion of the Notice Party, and 1,013 at the assertion of the Respondent.

• — 3rd March, 2021: On foot of an application by the Director made by way of Notice of Motion dated 1st February, 2021, the High Court directs the further appointment of Mr. Patrick Mair BL pursuant to s. 795(6) of the Companies Act, 2014.

• — 11th May, 2021: The High Court directs the “Independent Persons Report” be delivered to the court on the 17th May, 2021.

• — 17th May, 2021: The Report is delivered to the court by the ODCE. Of the 1,013 items contained in the FAI volume of the Report, the Independent Persons make recommendations in favour of assertions of privilege as regards 976 of these items, representing approx. 96.35% of the material. Of the 2,805 items contained in the John Delaney volume of the Report, the Independent Persons make recommendations in favour of assertions of privilege as regards 1,613 items representing approx. 57.5% of the material.

• — 18th May, 2021: The High Court directs the circulation of the Report to the respective parties on the 19th May, 2021.

• — 18th June, 2021: The ODCE advises the High Court that there are approximately 1,100–1,200 documents which the Independent Persons have recommended as privileged but which it believes fall under the “crime/fraud” exception and in respect of which a preliminary ruling is sought from the court. The court sets a hearing date of 20th July, 2021 for the hearing of this application.

• — 20th July, 2021: The application for the preliminary ruling was heard by the court.

This application:

7 The within application is for a determination of a preliminary legal issue raised by the Director concerning the crime/fraud exception to a claim of legal professional privilege being asserted by Mr. Delaney and falls to be considered within the context of the s. 795(4) application.

8 It arises in circumstances where the Director has identified 1,120 documents among the tagged “LPP”...