LAWYERS for the former Anglo Irish Bank have claimed confidentiality over documents, including legal advice the lender obtained after it was nationalised, the Circuit Criminal Court has heard.
The Office of the DPP has not been able to review the documents because the Special Liquidator of the IBRC (formerly Anglo) claims they are not relevant to the alleged transactions at the heart of the forthcoming prosecution of three former Anglo executives including former chairman Sean FitzPatrick.
Mr Fitzpatrick (65) of Whitshed Road, Greystones, William McAteer (62) of Auburn Villas, Rathgar and Pat Whelan (51) of Coast Road, Malahide have been charged with 16 counts of allegedly providing unlawful financial assistance to individuals to buy shares in the bank.
The case is due to proceed early next year.
Judge Martin Nolan heard today that Legal Professional Privilege, a form of confidentiality, has been asserted over certain documentation in the position of the IBRC (formerly Anglo) and some of that material had been seized by the Office of the Director of Corporate Enforcement.
Judge Nolan heard that up to to December 18, 2008, when the Government appointed a new board to the bank, LPP had been waived by Anglo.
However confidentiality, or LPP, was subsequently asserted after that date.
Brendan Grehan SC, for Mr Whelan, said that the issue of legal advice would be "crucial to this trial" especially if it had been subsequently sought or revisited after the alleged transactions.
"Ultimately, it (the decision not to waive privilege) goes back to the Minister for Finance," said Mr Grehan.
Mr Grehan said that the issue of legal advice was "a live issue" and potentially relevant to the question of whether a director acted reasonably.
Mr Grehan said that the IBRC, formerly Anglo and now in Special Liquidation - which was not being prosecuted but was asserting legal privilege - was a corporate entity that had been "dissolved at a rate of noughts".
Mr Grehan told Judge Nolan that the defence had "received very little" documentation from the Department of Finance.
The DPP has asked the Department of Finance to waive privilege over a 2009 report entitled "Project Atlas" compiled for the department by Dublin law firm Arthur Cox.
That request is now being considered by Attorney General Maire Whelan SC.
This morning, Anglo's former Chief Financial Officer was ordered to provide statements, known as depositions, for the purposes of the forthcoming trial.
Three other men, including an external legal adviser, have also been ordered to provide depositions by the Circuit Criminal Court.
The quartet includes Matt Moran, former CFO; Fiachra O'Neill, former group head of compliance at the now liquidated lender, solicitor Robert Heron of Dublin law firm Matheson (formerly MOP) and Con Horan, the former prudential director of the Financial Services Authority.
The Director of Public Prosecutions (DPP) did not object to he application by Brendan Grehan SC, representing former Anglo exec Pat Whelan.
The depositions were ordered by Judge Nolan at the Criminal Courts of Justice.
Mr Grehan said that the forthcoming prosecution would be "a very challenging trial for all" said that the four men were "substantial" witnesses involved in intricate matters" relevant to the charges.
Key issues in the trial would centre on "who knew or authorised what", said Mr Grehan, adding that this included the provision legal and financial advice.
There is no law in Ireland allowing the courts to compel third parties, such as banks, to hand over documentation for the purposes of a criminal trial.
The DPP described this situation as "novel" and "uncharted territory" as there was no regulations or court precedent to govern such disclosure of documentation.
By Dearbhail McDonald, Legal Editor