Thursday 20 June 2019

Insurers refused costs of O'Mahoney trials

Former Anglo executive had faced retrial after appeal

A judge has refused to grant insurers the costs of two trials in which they covered a former senior Anglo Irish Bank executive charged with conspiring to falsify records.

In late 2017, Tiarnan O'Mahoney (59) of of Glen Pines, Enniskerry, Co Wicklow was acquitted by direction of the trial judge of conspiring to destroy, mutilate or falsify books and documents relating to the affairs of Anglo Irish Bank Corporation PLC. The court heard these records were linked to Anglo's former CEO Sean FitzPatrick.

He was also acquitted, by direction, of conspiracy to defraud the Revenue Commissioners, who were conducting an investigation into bogus non-resident accounts which may have been liable for Deposit Interest Retention Tax (DIRT).

Judge Martin Nolan had directed a jury to acquit Mr O'Mahoney of these offences, following a trial at Dublin Circuit Criminal Court.

Mr O'Mahoney had pleaded not guilty to the charges, which were alleged to have occurred between March 25, 2003, and December 31, 2004, and referred to eight named bank accounts. All of these accounts were connected to Sean FitzPatrick.

Earlier this week, Brendan Grehan SC, defending, submitted to Judge Nolan that the 2017 trial was a retrial. He said this arose after the jury conviction from a 2014 trial had been quashed by the Court of Appeal.

Mr Grehan said his client had spent eight months in prison before this conviction was overturned and the DPP decided to bring the case for retrial on remaining charges against Mr O'Mahoney.

He submitted that one 'pertinent' matter was that his client was not out-of-pocket for both the trial or retrial as he had been indemnified for costs under an insurance policy taken out by Anglo.

Mr Grehan said Mr O'Mahoney had been covered under this policy as the allegations arose in the context of his employment at the bank. He said the insurance company was extending its rights in seeking to recover the costs it had paid out for both trials.

Dominic McGinn SC, prosecuting, asked Judge Nolan to take into account that the Court of Appeal had awarded Mr O'Mahoney costs of his appeal only. Mr McGinn said that court had declined to make an order about costs of the original trial.

Counsel asked the judge to consider Mr O'Mahoney's lack of co-operation with the investigation and that he denied knowledge of a company that had been associated with deletion of data.

Mr McGinn said the prosecution claim this was 'a deliberate lie' which should be borne in mind. He said an insurance company is in the business of insuring against risk, and when the risk happens, it is obliged to pay out.

Judge Nolan said an insurance company is entitled to recover costs if it can take that avenue.

On Friday, Judge Nolan said he was satisfied the DPP had acted appropriately in bringing the prosecutions and was also satisfied that Mr O'Mahoney had engaged appropriately with proceedings. He said that while the insurers are entitled to bring the application there was no financial distress to the applicant and nothing extraordinary about the matters.

Judge Nolan also made 'no order' with regard to a DPP application for costs of the application by Mr O'Mahoney for costs.

During the November 2017 trial, Judge Nolan concluded that the case was 'too tenuous' to go to the jury and a conviction would be 'perverse'.

He said he was not satisfied that any properly directed jury could convict, as it would be asked to speculate and to fill in gaps in the evidence adduced during the trial.

Wicklow People