Business Irish

Friday 24 November 2017

Bank urged to explain why seized files are confidential

Dearbhail McDonald Legal Editor

FINANCE Minister Brian Lenihan has demanded the board of Anglo Irish Bank explain why it claims documents seized by the corporate watchdog are confidential.

Yesterday, High Court Judge Mr Justice Peter Kelly accused the nationalised bank of contributing to a delay into the "already-protracted" investigation of its affairs by the Office of the Director of Corporate Enforcement (ODCE).

The bank is insisting it has legal privilege over some electronic documents seized last year by the ODCE.

Just weeks after a public furore over the refusal by the Health Services Executive to hand over its files on children who had died in its care to a state inquiry, Mr Justice Kelly said it was curious that Anglo -- a wholly state-owned bank -- should continue to claim legal professional privilege in an investigation carried out by another officer of the State.


Under the act setting up the banking guarantee, Mr Lenihan can intervene in the affairs of Anglo but will not use those powers to compel Anglo to waive confidentiality until he has received a report from its board.

It is understood the report must be delivered before the case comes before the courts again in two weeks' time.

Mr Justice Kelly said claiming legal professional privilege (LPP) was "a considerable impediment" to the investigation and the judge urged the bank to look again at whether it should maintain that claim. The matter should be addressed urgently and "at the highest level" within Anglo, he said.

While the bank is legally entitled to claim that privilege, the judge said it should consider whether it was "wise or prudent" to do so.

Shane Murphy, representing Anglo, said he would convey the judge's comments to his clients. Counsel also stressed the bank was co-operating fully with the investigation and said the ODCE had not challenged the claim of LPP.

The bank was entitled to protect its commercial interest, said Mr Murphy.


Paul O'Higgins, representing the ODCE, said his client had already asked the bank not to claim LPP over the seized material but, when the bank did claim it, as it was entitled to do, the ODCE had not challenged that.

The judge was also told the process of taking witness statements from some 20 Anglo employees was expected to take several more months.

Mr Justice Kelly adjourned the proceedings for two weeks so his concerns could be raised with Anglo management. In the meantime, he has allowed the ODCE to retain seized electronic materials, including millions of emails.

The ODCE investigation was before the court because it had applied to extend the time allowed to examine electronic material by six months.

The additional time was sought because the electronic material included privileged material which, Mr O'Higgins said, was proving impossible to separate from the other material without damaging it.

Mr Justice Kelly's interim order allows the ODCE to retain the electronic material until the case resumes on June 17.

If Anglo withdraws its claim to LPP then that would resolve a lot of the difficulties facing the ODCE in his treatment of the material, the judge observed.

Irish Independent

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