ODCE may make further submissions on documents sought in FAI investigation

The Office of the Director of Corporate Enforcement (ODCE) has said it may make further submissions to the High Court about 1,100 documents former FAI chief executive officer John Delaney claims are covered by legal professional privilege.

In a judgement last month, regarding a preliminary issue in proceedings arising out of the seizure of documents by the ODCE, Ms Justice Leonie Reynolds dismissed an application by the corporate watchdog for sight of the disputed documents.

To make such an order at this stage would be premature, the judge held.

Mr Delaney says the material cannot be used as part of the investigation because they are covered by Legal Professional Privilege (LPP).

When the matter returned before the judge on Monday lawyers for the ODCE said that following the court’s decision the director may seeks to make further submissions on the disputed 1,100 documents.

The court heard that the director does not accept that these documents are covered by LLP.

Nothing could be ruled out at this stage, the ODCE’s counsel Kerida Naidoo SC.

In reply Paul McGarry SC for Mr Delaney expressed some surprise that the ODCE was considering making submissions on the disputed material given the court’s ruling.

Ms Justice Reynolds said that the parties should discuss between themselves how best to advance matters.

The judge then adjourned the case to allow those discussions take to a date in October.

The material at the centre of the dispute between the ODCE and Mr Delaney was taken as part of 283,000 documents covering a 17-year period, seized from the FAI by the ODCE in February 2020.

The ODCE seized the documents as part of its criminal investigation into certain matters at the FAI, in proceedings where Mr Delaney is a notice party.

It wants to use the material as part of its ongoing inquiry. However, both the FAI and Mr Delaney claimed that some of the material cannot be used as it is covered by LLP.

Following the implementation of an examination strategy, and a review by two independent barristers the FAI claims that out of all the material seized approximately 1,000 documents are covered by LLP.

On Monday the judge made final orders under the Companies Act regarding documents which the association deemed are covered by LLP.

Those orders were agreed by both the ODCE and the FAI and effectively bring the FAI’s direct involvement in these proceedings, which commenced almost two years ago, to an end.

Arising out of the examination process it was also recommended to the court Mr Delaney that some 1,600 documents relating to Mr Delaney are covered by LLP.

In her preliminary ruling on the issue of LLP last month Ms Justice Reynolds dismissed the ODCE application to examine some 1,120 out of the the 1,600 documents relating to Mr Delaney.

Mr Delaney opposed the application.

The ODCE claimed it was in the public interest that it be allowed examine what it says is relevant material as part of its continuing criminal investigation.

It claimed the disputed material is subject to a legal exemption called the crime/fraud exemption and was entitled to examine them despite the recommendations the material was covered by LLP.

In her ruling the judge said that she was not prepared to make an such an order at this stage.

To do so would have had the practical effect of displacing privilege over the material, she said.

There was little or no dispute that the documents have all the characteristics of LLP, the judge said.

It was also well established that the claim of LLP can be lost if such a claim is used to conceal a crime or fraud.

However, she said that while the ODCE says it requires sight of the documents, the court said that any party seeking disclosure of privileged material “must demonstrate clear evidence or fraud”.

The director had made no attempt to outline the rationale or basis for his belief that the documentation was generated in a furtherance of crime and fraud, she held.

The court could not accept the ODCE’s proposition that the search warrant itself was somehow sufficient to satisfy the court that the crime fraud exception should apply.

She said that the court had limited knowledge of the nature of the ongoing investigation.

The judge said it would be “premature to engage in such an assessment of the material to see if the crime fraud exception arises”.

In all the circumstances she said she was not in a position to resolve the issue at this time.