High Court rules that case about investigation into FAI can be heard in public for now
THE HIGH COURT has ruled that proceedings brought arising out of the corporate watchdog’s seizure of documents from the Football Association of Ireland last year are to remain in public for the time being.© Eamonn Farrell RollingNews.ie
An application by former FAI CEO John Delaney for the proceedings to be held in camera (meaning the media could no longer report on them) can be revisited at a later stage if needs be, Ms Justice Leonie Reynolds said.
Delaney sought the order over his concerns that media reports of the action would result in legally privileged information being wrongfully put into the public domain.
His application was opposed by media outlets including the Sunday Times newspaper.
After hearing submissions from the parties on Tuesday, the judge said that while the proceedings remain in public, there may well be a need to revisit the in-camera issue at a later stage.
The judge said that there was nothing before the court that would allow the court have the action held in private.
The case arose following the seizure of some 280,000 files covering a 17-year period by the Office of the Director of Corporate Enforcement (ODCE) as part of its criminal investigation into matters at the FAI.
In proceedings brought by the ODCE against the FAI, where Delaney is a notice party, the judge has been asked to determine what material is covered by legal privilege and cannot be used as part of the probe.
To assist with this process, barristers Niall Nolan and Patrick Mair were appointed as independent persons to review materials over which claims of legal privilege are made by Delaney.
The assessors will prepare a report for the court to help it determine what material is privileged.
Claims of legal professional privilege have been made in respect of approximately 1,000 documents by the FAI and over 3,500 documents by Delaney.
Today, Paul McGarry said that Delaney was seeking a formal order under the 2014 Companies Act that the hearing be conducted in camera, where only the parties involved would be present.
Such a provision was in put in the act by the Oireachtas, counsel said, adding that his client was entitled to the benefit of it.
Solicitor Simon McAleese for the Sunday Times disagreed with McGarry’s submissions, saying that, in this case, the constitutional right that justice be aired in public is a relevant consideration.
In his submissions, he said the newspaper was sceptical about Delaney’s application for the hearings to be held in public.
He noted that had Delaney obtained a super-injunction against the Sunday Times in March 2019 aimed at preventing it from reporting a story about a €100,000 cheque Delaney wrote to the FAI in 2017.
McAleese said that if that application had succeeded, there might not be an ODCE investigation at all.
The ODCE, represented by Kerida Naidoo, said that it was neutral on the application for the hearing to be held in private, but added that it may revise that stance if the watchdog became concerned that information could be put into the public domain that could prejudice the investigation.
The FAI, represented by Brian Gageby, said it was neutral to the decision.
The judge said she was not making any order at this stage regarding in private hearings at this stage.
She also noted that the proceedings had been ongoing for some time before the issue of an in private hearing was raised.
The judge said that when the assessors’ report comes before the court, the court was willing to hear further submissions from the parties for an in-camera hearing if required.
She said that no dispute between the parties over any material could arise, and that there would therefore be no necessity for any part of the proceedings to be held in camera.
The judge added that much would depend on the contents of the assessor’s reports.
Both McAleese and McGarry said they had no issues with the judge’s decision.
The case, which has come before the courts on several occasions since February 2020, was adjourned until April.
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