Friday 23 August 2019

FAI to hand over more documents following request from watchdog

Rea Walshe pictured with John Delaney
Rea Walshe pictured with John Delaney
Shane Phelan

Shane Phelan

The FAI is providing more documentation to the Office of the Director of Corporate Enforcement (ODCE) following requests from the corporate watchdog.

The High Court heard further additional material may also be requested by the ODCE under Companies Act legislation.

The disclosure came as proceedings initiated by the watchdog, to determine whether certain documents handed over by the FAI contained privileged legal material, were adjourned for six weeks.

The ODCE has been examining issues related to the football association's finances since revelations earlier this year that then chief executive John Delaney gave it €100,000 in 2017.

The amount, described by the FAI as a "bridging loan", was later paid back to Mr Delaney, but was not disclosed in the association's accounts or notified to Sport Ireland.  

The documents at the centre of the legal privilege proceedings include the minutes of board meetings which contain advice given by the FAI's interim chief executive, solicitor Rea Walshe, on a number of matters.

Legal professional privilege attaches to communications between a lawyer and cannot be disclosed without the permission of the client, in this case the FAI.

Kerida Naidoo SC, for the ODCE, told Ms Justice Leonie Reynolds the matter could be adjourned on consent to June 25.

He said additional non-privileged material was being provided by the FAI and that there may be further material to be provided under Section 778 of the Companies Act.

Under this section, the ODCE director Ian Drennan can give a direction to any company requiring it to produce specified books and documents.

Mr Naidoo did not elaborate on the nature of the additional material.

Mr Naidoo said the additional non-privileged material may help resolve some of the issues between both sides.

Ms Justice Reynolds agreed to the adjournment and said all matters could be dealt with at the next court date.

Shane Murphy SC told the court that in order to facilitate the investigation, issues regarding documents would be discussed between both sides "in relation to a practical resolution".

The court has previously heard Ms Walshe provided legal advice that certain information in ten documents provided to the ODCE cannot be disclosed to third parties.

The material is contained in the minutes of several meetings of the FAI board held between February 2016 and March 2019.

She was described by the FAI as having been its "internal legal advisor".

The documents to be examined include reference to legal advice the FAI received from Ms Walshe in February 2016 over an agreement with a prospective sponsor.

It also includes advice in November that year of the FAI's potential liability over possible and ongoing legal actions against it.

It is also said to include legal advice regarding an internal investigation and the rights of affected parties to bring appeals to the Court of Arbitration for Sport in June 2017.  

Other matters the FAI seeks to claim privilege over include legal advice from Ms Walshe regarding disciplinary matters in December 2017.

Privilege is also claimed over legal advice concerning an application from one of its members for a licence in January 2018.

It is also claimed over legal advice the FAI received in February 2018 over a strategy to meet a potential injunction by a third party, and over legal advice concerning a complaint regarding a member organisation in April 2018. 

Privilege has also been claimed over material put before board meetings in February and March 2019 concerning the FAI's litigation strategy in a matter before the Court of Arbitration for Sport, and over an entitlement of a third party to evidence relating to a matter under investigation by the association. 

At an earlier hearing, Ms Justice Reynolds said an issue which needed to be clarified was whether Ms Walshe could be considered to have been the association's internal legal advisor. 

This is because of the number of different titles Ms Walshe has held with the association, including company secretary, since she was appointed as the FAI's head of legal and licensing in 2014. 

The FAI says despite holding the different titles, Ms Walshe has worked principally as a legal advisor and provided legal advice to it on a range of issues.

The ODCE claims there is insufficient evidence that Ms Walshe was qualified to give legal advice to the association at the relevant meetings given that she had different titles with the FAI.

Ms Walshe became the FAI's interim chief executive in March after Mr Delaney took up the newly created position of executive vice president.

He has since stepped aside from this role while a number of investigations are ongoing.

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