independent

Thursday 17 April 2014

Developers Bailey Bros disqualified from acting as company directors

The award was made at Dublin High Court earlier today
The judgement was made at the High Court earlier today

Developers Michael and Thomas Bailey have been disqualified from acting as company directors for seven years.

The move came after the High Court found them guilty of "particuarly serious" misconduct and fraud in the conduct of the affairs of their company, Bovale Developments.

The fraud included understating their gross remuneration over a two year period by some €6m.

The disqualification orders have been stayed to January 20th to facilitate the bringing of an application to vary them so the brothers may continue to co-operate with the National Assets Management Agency concerning Bovale.

The brothers had not disputed that evidence put before the court by the Director of Corporate Enforcement was enough to satisfy the court they, as directors of Bovale, were guilty of a fraud in relation to Bovale and the Revenue over two years to end June 1998.

They did not oppose the disqualification orders but argued mitigating factors should reduce the disqualification period to be applied. they also acknowledged and apologised for the misconduct.

In her judgment today, Ms Justice Mary Finlay Geoghegan said the "particularly serious" misconduct, involving "systemaic falsificatio"n of books of account, plus a €6m understatement of the brothers gross remuneration, would justify a period of 14 years disqualification were it not for certain mitigating factors.

Thosse factors included that the fraud and misconduct at issue occurered more than 15 years ago and the brothers had in 2000 made what they described as "voluntary disclosure" to the Revenue, leading to their having paid tax, interest and penalties in "significant amounts", the judge said.

While the Director of Corporate Enforcement had "with some justification" queried to what extent the disclosure was voluntary, it was still disclosure even if, in practice, the brothers had no option, she said.

In relation to corporate governance, the brothers had also sworn they had since 2001 ensured that Bovale kept proper books and records. 

There was some objective support for those sworn statements arising from a "forensic review" of Bovale's accounts conducted by PriceWaterhouse Cooper and arising from their co-operation with the National Assets Management Agency, she said.

Bovale has been in NAMA since 2010 and the judge was told an application will be made for an affective variation of her orders so as to allow that co-operation continue. 

The judge has placed a stay on her orders, made under Section 160 of the Companies Act, to January 20th to facilitate the bringing of that application.

The Office of the Director of Corporate Enforcement initiated the disqualification proceedings in 2006 but they were delayed after the Baileys brought proceedings challenging the admissiblity of material which the Director wanted to rely upon in his proceedings. 

The Supreme Court later ruled the ODCE could rely on the PWC report in the disqualification proceedings but could not use reports of the planning tribunal as additional evidence of wrongdoing by the brothers or evidence of alleged wrongdoing over a 12 year period from 1988 to 2000. 

The PWC report was confined to an analysis of the affairs of Bovale for the two years to end June 1998.  The Director had alleged wrongdoing over a longer period, from 1988 to 2000, but that claim was based on much of the material excluded by the court.

The Director had claimed the reports from PWC and the planning tribunal, in addition to a €22 million settlement by the company with the Revenue Commissioners, made clear the alleged misconduct was very serious.

The excluded material included a statment by the planning tribunal that Michael Bailey provided a benefit or payment to former Minister Ray Burke and also paid former Asistant City and County Manager for Dublin George Redmond three cash payments amounting to between IR16,000 and IR20,000 in the 18 months prior to July 1989.

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