John Delaney's Legal Privilege Claim Rejected After Failure To Discharge Burden Of Proof

• Published date: 17 November 2022
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: William Fry
• Author: Ms Lisa Carty, Deirdre O'Donovan and Kate Abell

The Director of Corporate Enforcement (Director) applied to the High Court (Court) in 2021 concerning documents that were seized from the offices of the Football Association of Ireland (FAI) on foot of a search warrant. The Director sought a determination under the Companies Act 2014 (Companies Act) as to whether certain documents attract legal professional privilege (LPP).

Section 795 of the Companies Act requires the Court to determine whether a person is entitled to refuse to produce a document on the grounds of LPP.

Two independent persons were appointed under Section 795(6) of the Companies Act to prepare a report (Report) to assist the Court in determining the LPP question. This resulted in a significant reduction in the number of documents at issue. The FAI's former Chief Executive Officer, John Delaney, asserted LPP over these documents. LPP encompasses legal advice privilege and litigation privilege.

Legal Advice Privilege

The Court noted that legal advice privilege includes documentation prepared in contemplation of litigation and extends to any communication made for the purposes of obtaining legal advice. To successfully claim legal advice privilege:

• The communication must be between solicitor and client;
• The solicitor must be acting in a professional capacity;
• The document must be confidential; and
• The document must relate to legal advice rather than legal assistance.

Litigation Privilege

Litigation privilege allows parties to prepare for litigation without having to disclose those preparations in advance of the trial. The Court set out the criteria to be met when claiming litigation privilege as follows:

• The litigation must have been commenced or closely anticipated and there must be a connection between the communication and the litigation itself;
• The "dominant purpose" in the preparation of the document was to assist with the litigation;
• The onus is on the party seeking to assert privilege to establish that the "dominant purpose" was that it was created in contemplation of litigation;
• The litigation must be ongoing;
• The litigation privilege must relate to the same, or closely related, proceedings.

In the present case, Mr Delaney asserted litigation privilege over most of the documents.

Common Interest Privilege

Common Interest Privilege can protect privilege where there is disclosure to a party with a common interest.

The Court outlined that a client may waive privilege, either expressly or impliedly. Unless privilege is...