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Bill to give CEA more time on privilege

Lawyers at McCann FitzGerald have highlighted proposed changes to the court process for determining whether documents seized by the Corporate Enforcement Authority (CEA) are privileged.

The proposals are contained in a bill aimed at giving regulators more powers to encourage and enforce compliance with company law.

In a note on the firm’s website, the McCann FitzGerald lawyers say that the proposals follow challenges encountered by the CEA in an application to the High Court to determine whether legal professional privilege attached to emails of the former FAI chief executive John Delaney, which were seized from the FAI in 2020.

The issue was resolved only in recent months when the Supreme Court refused Delaney leave to appeal a High Court decision on the issue.

Thousands of documents

If enacted, the Companies (Corporate Governance, Enforcement and Regulatory Provisions) Bill 2024 would give the CEA 14 days, rather than the current seven, to apply to the High Court to determine whether seized material is privileged.

The explanatory memorandum to the bill says that the extension is in consideration of cases where thousands of documents may be at issue, and where an examination of the documents to determine relevance may necessarily take some time.

The McCann FitzGerald lawyers also point out that the bill would explicitly allow for the appointment of more than one independent assessor to examine potentially privileged material and prepare a report for the court.

They add, however, that the bill published last month does not include all of the provisions contained in the earlier general scheme, such as a provision that an application for a privilege determination would be made on an ex parte basis, rather than on notice.

“This amendment has not been retained in the bill as introduced so, if enacted in its current form, such applications would continue to remain on notice,” the lawyers conclude.