The High Court has been asked, in an application where the FAI is the respondent, to make a determination if some of the files are covered by legal privilege and cannot be used by the ODCE as part of its probe.
UK-based Mr Delaney, who is a notice party to the action, wants more time to examine the material, which includes his emails, so he can set out what he says are covered by legal professional privilege and cannot be used by the ODCE.
The ODCE wants its application, which was initiated last February, heard in December. The matter returned before Ms Justice Leonie Reynolds on Friday who expressed the court’s strong displeasure at the pace of the inspection process.
The judge was critical of what she said was the ‘tit for tat tactics” being used by the ODCE and Mr Delaney regarding the inspection process.
Agreed time period
She also said that Mr Delaney had given assurances early on in the process about taking steps to make sure the inspection would be completed within an agreed time period, which she said had not been done.
The court heard that Mr Delaney, who is represented in court by Paul McGarry SC with Jack Tchrakian Bl, had been making progress with the inspection of a large number of documents.
Since the inspection progress began in July problems had arisen, which made it difficult to assess how many documents are private to him, or are covered by legal privilege.
In a sworn statement to the court Mr Delaney’s solicitor Aidan Eames said his client wants the matter dealt with as soon as possible so the former FAI CEO can “move on with is life as soon as he can.”
Mr Eames said that his firm has put a massive effort into the inspection process on behalf of its client.
However, co-operation and expedition “cannot be pursued at the price of compromising his client’s rights,”
Operating on a shoestring
Mr Eames added that Mr Delaney is operating on a shoestring relative to the vast resources the ODCE and FAI can devote to the inspection process.
Kerida Naidoo SC, appearing with Elva Duffy Bl, for the ODCE, said it was opposed to any further time being granted to Mr Delaney complete the inspection.
It had been suggested that Mr Delaney wanted to search the documentation using a new key search word, counsel said.
Counsel said there was “no substance” to any of the issues raised by Mr Delaney.
Evidence was put before the court that it was expected that one lawyer acting for the FAI will have reviewed all of the documentation in some 35 working days, and it will be completed in the next few weeks.
This was different to Mr Delaney, and the ODCE was concerned that at the current pace his review will take several more months to complete.
The ODCE said Mr Delaney had asserted that over 3,000 of the files he has reviewed are legally privileged.
It is seeking the appointment of an independent person to consider that material, who would then make a report to the court.
The ODCE was concerned, given that Mr Delaney is yet to review thousands more documentS that its investigation could be compromised.
Mr Delaney’s lawyers rejected the ODCE’s criticisms, and deny he is trying to delay the process.
Adjourning the case Ms Justice Reynolds said she wanted to know if Mr Delaney’s lawyers would take up an offer from the ODCE for assistance to speed up the process. If that offer was not being taken up, she wanted to know why not.
The judge also said the parties should discuss certain issues between themselves in order to make better use of court time.
The matter will return before the High Court in two weeks’ time.