THE HIGH COURT has directed John Delaney to provide the Office of the Director of Corporate Enforcement with certain details about legal actions the FAI’s former CEO was involved in.
The ODCE has sought the details as part of its review into recommendations that some 1,100 documents, relating to the now UK-based Delaney, seized by the corporate watchdog are covered by Legal Professional Privilege (LPP).
The recommendations were contained in a review by independent lawyers to help establish how many of the 280,000 documents seized are covered by LPP.
Any documents deemed covered by LPP cannot be used by the ODCE as part of its ongoing criminal investigation into certain matters at the FAI.
At the High Court today, Kerida Naidoo SC for the ODCE said his client remains sceptical about assertions that 1,100 documents relating to Delaney are covered by LPP.
Delaney has claimed that the documents contained certain legal advice given to him regarding litigation that occurred during the many years he was with the Association, and therefore are covered by LPP.
The ODCE, which does not know what is contained in the documents, claims that LPP may not apply to many of these documents.
This was because it appeared that some of the material was sent to non-lawyers, the court heard.
Counsel said that the ODCE had sought information from Delaney, regarding the litigation in question.
He had not provided it, and the ODCE wanted an order from the court directing him to provide details including what litigation relating to him remains outstanding.
The ODCE also want Delaney to state the reasons why he thinks the litigation is outstanding, counsel added.
Counsel said that once it gets that material the ODCE could make submissions to the court on whether the material is covered by LPP.
Concern over delays
Paul McGarry SC, for Delaney, said it would be difficult for his client to provide the information sought by the director.
This was because some of the litigation occurred decades ago, and that his client did not have access to the files on the cases.
Counsel said that in order to comply with any direction from the court his client would require access to files seized by the ODCE, and some time to carry out the work.
The court heard that the ODCE was not prepared to allow Delaney’s lawyers access to the material.
Justice Leonie Reynolds directed Delaney to provide the ODCE with the information it sought regarding litigation involving Delaney.
This is to be done in the next two weeks, she said.
She further directed that Delaney’s lawyers be provided with access to the material seized by the ODCE so he could comply with the order.
His lawyers are to be provided access for a period of five days, the judge directed.
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The material at the centre of the dispute between the ODCE and Delaney was taken as part of 280,000 documents covering a 17-year period, seized from the FAI’s offices in February 2020.
The ODCE wants to use the material as part of its ongoing criminal probe. 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 recommended that approximately 1000 documents relating to the FAI are covered by LLP.
The independent barristers also made recommendations regarding documents relating to Mr Delaney are covered by LLP.
During the course of today’s proceedings, Justice Reynolds also expressed her concerns about the length of time it has taken to complete the overall process.
The Judge said that the issue of delay could become relevant in any possible future criminal proceedings.
The matter commenced 18 months ago, and after many hearings had yet to be completed, the judge noted.
The case was adjourned to a date in November.
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