John Delaney must pay bulk of costs of failed bid to claim privilege on seized FAI documents

The High Court has ordered former Football Association of Ireland chief executive John Delaney to pay the bulk of the costs of his failed effort to claim legal professional privilege over documents seized from the FAI by the corporate watchdog.

Ms Justice Leonie Reynolds granted most of the costs of the prolonged hearings over privilege to the Office of the Director of Corporate Enforcement (ODCE).

She also granted costs against him in relation to his separate failed application to have the privilege issue heard by the court in private as Mr Delaney had claimed they would affect family law proceedings.

Solicitor Simon McAleese, on behalf of the Sunday Times, which had objected to Mr Delaney’s in-camera application, urged the judge to grant his client’s costs as the court had pointed out at the time that the application was premature. Ms Justice Reynolds had ordered the case should continue until the family law issue arose, but it never did.

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Paul McGarry SC, for Mr Delaney, urged that both sides pay should their own costs because ultimately no final order was made by the court in relation to the in-camera application.

Ms Justice Reynolds said when the in-camera application was before her some 18 months ago, she formed the view that it was premature and no specific issues had been raised by Mr Delaney as to why it should be in private.

She had given liberty to raise it again as the case went on, but it had “never arisen” and she was therefore striking out Mr Delaney’s application and awarding costs to the newspaper.

The judge was also told by Patrick Gageby BL, for the FAI, that his client was concerned Mr Delaney was trying to go behind another order of the court where privilege over certain association documents was granted. Mr Gageby said Mr Delaney’s lawyers had sought access to information via the Data Protection Commissioner (DPC) which his side was concerned were protected by the court order.

The judge said the DPC is now aware of the court order and Mr Delaney’s side should be well aware of the steps available (to the FAI) if there is any breach of those matters. “They are simply out of my hands at this stage but there are avenues open to your client,” she told Mr Gageby.

The judge also granted a stay on her finding against Mr Delaney on the privilege question in the event of an appeal.

The lengthy and complicated proceedings arose out of the ODCE’s seizure of 280,000 documents from the FAI’s offices covering a 17-year period, in February 2020.

The ODCE brought proceedings against the FAI in which it sought certain orders allowing it to examine the documents as part of its ongoing inquiry.

Mr Delaney, who left the FAI in 2019, was subsequently made a notice party to the proceedings because some of the documentation seized related to him.

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

Any documents deemed covered by legal professional privilege cannot be used by the ODCE as part of the investigation into certain matters at the FAI.

Following a review by two court-appointed independent barristers, recommendations were made to the court that 1,100 may be privileged if the court so decided.

Mr Delaney had claimed these documents contain certain legal advice given to him regarding litigation that occurred during the many years he was with the association and were therefore covered.

The ODCE claimed it did not apply to the material.

Last month, Ms Justice Reynold ruled Mr Delaney had failed to discharge the requisite burden of proof required to maintain his assertion that the 1,100 documents were privileged and the onus was on him to do so.