Director of Corporate Enforcement v Cumann Peile Na H-Eireann “Football Association of Ireland”
| Jurisdiction | Ireland |
| Judge | Ms. Justice Reynolds |
| Judgment Date | 21 October 2022 |
| Neutral Citation | [2022] IEHC 593 |
| Court | High Court |
| Docket Number | [2020/66 COS] |
In the Matter of the Companies Act, 2014
and
[2022] IEHC 593
[2020/66 COS]
THE HIGH COURT
Legal professional privilege – Disclosure – Companies Act 2014 s. 795 – Applicant seeking a determination as to whether certain documents attract legal professional privilege – Whether the court was bound by the recommendations of the report prepared by the independent reviewers pursuant to s. 795(6) of the Companies Act 2014
Facts: The applicant, the Director of Corporate Enforcement (the Director), applied to the High Court seeking a determination as to whether certain documents attract legal professional privilege. The documents in question were seized from the offices of the respondent, the Football Association of Ireland (the FAI), pursuant to a search warrant on the 14th February, 2020 and constitute the contents of a digital work email folder of the notice party, Mr Delaney, being the FAI’s former Corporate Executive Officer. The parties were in broad agreement regarding the applicable legal principles. What was at issue was how the principles were to be applied in the context of this application and in particular, the evidence required to justify the claim of privilege. Counsel for Mr Delaney submitted that the court was bound by the recommendations of the report prepared by the independent reviewers pursuant to s. 795(6) of the Companies Act 2014. Mr Delaney’s legal advisors submitted that if the court was to look beyond the recommendations in the report in order to reach its determination pursuant to s. 795(5), it must examine each and every document before making its finding in respect of legal professional privilege. Further, it was contended that upon completion of that process, the court was obliged to: “receive further submissions from the Notice Party, based on him and his legal team being able to comprehensively re-familiarise themselves with the Deemed LPP Documents themselves.” Conversely, the Director posited that in circumstances where there is a very considerable number of documents to which broad arguments apply, and the court finds that the documents concerned fall within these arguments, then the court will not be required to further enquire into such documents and can discount them and proceed to make a finding that legal professional privilege does not apply. Further, the Director relied on the decision in DPP v The Special Criminal Court [1999] 1 IR 60 as persuasive authority to refute the suggestion by Mr Delaney that the court is required to analyse each and every document with a view to reaching a determination.
Held by Reynolds J that whilst the legislation provides for the preparation of a report, it is readily apparent that the purpose of the report is for “assisting or facilitating the court in the making by the court of its determination”. Reynolds J was satisfied that every opportunity had been afforded to Mr Delaney and his legal team to adequately review the documents and put forward clear and cogent evidence (where such evidence exists) as required by the court; the only evidence which had been proffered essentially amounted to no more than vague and nebulous claims which were wholly unsubstantiated. Reynolds J held that the mere existence of outstanding litigation (should such outstanding litigation exist) did not of itself provide a shield for Mr Delaney to seek to hide behind. Reynolds J was in broad agreement with the Director’s proposition that it is unnecessary for the court to go through each and every outstanding document individually and that a consideration of the categories of documentation is sufficient. Reynolds J simply did not have the requisite information to carry out the necessary analysis and to scrutinise the documents in the manner as required before reaching a reasoned determination. Reynolds J held that to embark on the exercise as contended for by Mr Delaney would prove fruitless, time consuming and utterly meaningless; it would also create further needless delay in the Director’s investigations. In circumstances where Mr Delaney had failed to discharge the necessary burden of proof required, Reynolds J rejected Mr Delaney’s claim of privilege and directed that the outstanding documentation in its entirety, both soft and hard copies, be disclosed to the Director.
Reynolds J proposed making the necessary determination pursuant to s. 795 of the Act.
Application granted.
JUDGMENT of Ms. Justice Reynolds delivered on the 21 st of October, 2022
. In this application, the Director of Corporate Enforcement (“ the Director”) seeks a determination as to whether certain documents attract legal professional privilege.
. The documents in question were seized from the offices of the Football Association of Ireland (“ the FAI”) pursuant to a search warrant on the 14 th February, 2020 and constitute the contents of a digital work email folder of the notice party (“ Mr. Delaney”), being the FAI's former Corporate Executive Officer.
. The material background is set out in two previous judgments which I delivered last year ( Director of Corporate Enforcement v Cumann Peile Na H-Eireann & Delaney [2021] IEHC 141 & [2021] IEHC 651. For this reason, I do not propose to regurgitate same.
. However, an updated chronology as set out succinctly in the applicant's submissions provides useful additional context as follows:-
“14/02/20 A search warrant was executed at the offices of the Respondent.
17/02/20 A motion issued under s. 795(4) of the Companies Act 2014 seeking a determination as to whether legal professional privilege (hereinafter “LPP”) attaches to material seized.
20/02/20 The Notice Party was joined to proceedings
24/06/20 An examination strategy was approved, and c. 285,000 files were identified
06/07/20 A review of material on behalf of the Notice Party began.
15/07/20 The court granted an extension of time for the review
29/07/20 The Notice Party identified c. 29,500 documents potentially attracting LPP.
10/11/20 Counsel was appointed under s. 795(6) to report on LPP
03/03/21 Reynolds J delivered judgment allowing for appointment of second counsel
17/05/21 A report was delivered to court
18/06/21 The Applicant asserted crime-fraud exception over the remaining documents.
20/07/21 A hearing was conducted in relation to the crime-fraud exception argument.
10/08/21 Reynolds J delivered judgment in relation to the crime fraud exception.
12/10/21 An issue was ventilated about the Notice Party document[s] being handed over to the Applicant.
22/10/21 Reynolds J directed the solicitor for Notice Party could attend the office of the Applicant for reviewing documents to identify LPP and file an affidavit by November 24th.
26/11/21 The Notice Party sought copy documents.
11/01/22 The court adjourned the case to March 6th, 2022 and directed a timeline for the exchange of submissions.
09/02/22 On the application of the Applicant, the timeline was altered.”
. At the outset, the application concerned c. 273,000 documents which were seized on foot of a warrant issued pursuant to s.787 of the Companies Act 2014 ( “the Act”).
. A number of procedural steps were undertaken which facilitated the court eliminating from its considerations a significant volume of documentation (which did not attract legal professional privilege).
. This included the appointment of two independent persons pursuant to s. 795(6) of the Act for the purpose of preparing a report ( “the report”) to assist the court in its determination.
. Subsequent to the delivery and circulation of the report and consequent upon further engagement between the parties, the number of outstanding documents was further whittled down.
. What now remains are 1,123 digital documents over which Mr. Delaney has asserted legal professional privilege.
. In addition, there is a small number of hard copy documents (which were also seized during the search) for the court's consideration.
. Section 795 of the Act requires the court to come to a determination as to whether a person is entitled to refuse to produce a document on the grounds of legal professional privilege.
. Section 795(1) defines information and privileged legal material as follows:-
“‘information’ means information contained in a document, a computer or otherwise; ‘privileged legal material’ means 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(4) provides:-
“(4) Without prejudice to subsection (5), 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 (unless the person has, within the period subsequently mentioned in this subsection, been served with notice of an application under
subsection (5) in relation to the matter concerned) 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 7 days after the date of disclosure or the taking of possession.
Section 795(5) states:-
“A person who, in the circumstances referred to in subsection (3), is compelled to disclose information, or from whose possession information is taken, pursuant to the powers in this Part, may apply to the court for a determination as to whether the information is privileged legal material.”
. Section 795(6)(b) further provides for:-
“(b) the appointment of a person with suitable legal qualifications possessing the...
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