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court battle John Delaney’s bid for private court hearing over FAI emails is opposed

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Former FAI chief executive John Delaney. Photo: Stephen McCarthy/Sportsfile

Former FAI chief executive John Delaney. Photo: Stephen McCarthy/Sportsfile

Former FAI chief executive John Delaney. Photo: Stephen McCarthy/Sportsfile

An application from ex-Football Association of Ireland (FAI) chief executive John Delaney for a court hearing to be held in private is being opposed by a media outlet.

Mr Delaney wants the High Court to order an “in camera” hearing when it considers whether 3,500 FAI emails seized by the Office of the Director of Corporate Enforcement (ODCE) can be studied by investigators.

The former FAI boss claims the emails are legally privileged and his lawyers argue the issue cannot be decided unless some of the issues contained in the emails are aired in court.

Some 280,000 files were seized by the ODCE as part of a criminal investigation into certain matters at the FAI.

Neither the ODCE nor the FAI are objecting to Mr Delaney’s application.

However, Ms Justice Leonie Reynolds heard on Wednesday the Sunday Times newspaper would be opposing the application, while RTÉ was also considering a challenge.

Mr Delaney’s application was made under Section 795 (7) of the Companies Act, which says a court can direct that certain hearings about allegedly privileged material can be held “otherwise than in public”.

Solicitor Simon McAleese for the Sunday Times said it was “all very well” for the ODCE and the FAI to adopt a position of neutrality in relation to the imposition of a “very draconian” in camera ruling because it was provided for in the Act.

“But the court has a substantial duty upon it, which has been set out in great detail by the Supreme Court, to scrutinise an application of this nature,” he said.

Mr McAleese also said he believed the application to be premature in the context of the proceedings before the court.

Paul McGarry SC, for Mr Delaney, denied it was premature. He argued that the reason why his side say the material should not be provided to the ODCE is because it relates to certain matters.

Even referring to them potentially breaches or impinges upon the privilege, he said.

Mr McGarry said that up until now his side had been proceeding on the basis their application was being unopposed.

However, Ms Justice Reynolds told Mr McGarry he should never have taken the view that it was going to be an unopposed application.

“The simple reason is the court has to take a view on it whether or not parties are neutral. Clearly there are very wide-ranging implications in relation to such an application,” she said.

The judge said it was not feasible for the application to be dealt with there and then. She directed that Mr McAleese be provided with the notice of motion and grounding affidavit so he could prepare his objection.

She also set out a timetable for the filing of submissions by Mr McGarry and Mr McAleese.

The judge said that if RTÉ or any other media organisation required the notice of motion and grounding affidavit, these could be supplied by her registrar.

Meanwhile, Ms Justice Reynolds will give a decision later on whether five more people can be appointed to aid an examination of the FAI documents over which claims of legal privilege have been made.

Last November barrister Niall Nolan was appointed as an independent person to examine and review the material.

However, due to the large volume of documents involved, it was proposed by the ODCE that extra resources be made available to speed up the process.

Mr Delaney left his role as chief executive of the FAI in March 2019 to a newly created position of executive vice president in the wake of revelations he provided a €100,000 bridging loan to the association in 2017.

It emerged in April 2019 the ODCE was investigating matters related to the FAI’s finances.

Mr Delaney eventually resigned from the FAI the following September. He is now based in England.

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