Findings of 'utmost gravity' made at NIB

The inspectors investigating the affairs of National Irish Bank have made findings "of the utmost gravity", a High Court judge said yesterday. These include findings that:

bogus non-resident accounts were opened and maintained in the bank's branches enabling customers to evade tax;

accounts were opened in fictitious names;

there was improper charging of fees;

these activities were widespread throughout the bank, and were carried on for a long period.

Mr Justice Kelly said it was in the public interest that the report of the six-year investigation by inspectors' Mr John Blayney and Mr Tom Grace into matters which were "very serious" be published in full.

Publication is expected next Friday at 10 a.m.

He also directed that NIB pay the multimillion euro costs of the investigation, saying he agreed with the bank's view that the costs should not be borne by the taxpayer.

The judge disclosed yesterday that the report had made findings against "well in excess of a dozen" senior NIB personnel "who carry or share responsibility for some or all of those activities".

The judge noted the bank itself had described these matters as "of the utmost gravity". In a letter a chief operating officer with NIB had expressed its "deepest regret" about them. The bank, the officer wrote, was "profoundly sorry that these events could have occurred, and apologises to all those who have been affected by these events".

He said at an estimated cost of €64 million, the bank had put in place a package of measures to deal with the matters identified by the inspectors, and had said it believed those measures would remedy any disability that affected persons may have unfairly suffered.

Some €28.7 million had already been paid in legal and bank costs arising from the inspectors' investigation, and for programmes to deal with the matters identified.

A further €6.7 million had been paid for a Revenue audit. A fees and interest refund programme to customers had cost some €1.9 million to date, and it was estimated that would cost a further €10.6 million.

An offshore investors' settlement programme had also been established, which to date had offers totalling some €8.9 million accepted, and a further €1.9 million had been offered.

Mr Justice Kelly set out some of the inspectors' conclusions in his judgment yesterday on an application for directions by the inspectors following the completion of their report and its presentation to the court on July 12th.

The judge said it was in the public interest that the 200-page report, with an additional 200 pages in appendices, be published in full. The report will be published through the office of the Director of Corporate Enforcement. Mr Brian Murray SC, for the director, said it was hoped publication would happen at 10 a.m. on July 30th. However, he cautioned that there was the possibility of "slippage".

The judge refused applications on behalf of NIB, former Fianna Fáil TD Ms Beverley Flynn and two former senior NIB officials against whom adverse findings have been made - Mr Barry Seymour (a former chief executive of the bank) and Mr Patrick Byrne (a former head of finance) - for advance copies of the report.

In explaining his refusal to give an advance copy to NIB, the judge said the bank had not advanced persuasive arguments for such a course.

The bank had received a draft of the inspectors' report in August 2003, and responded to that draft nine months later, without taking issue with anything in the draft report.

There was a provision that the inspectors could not in their final report make findings which were worse than those of the draft report. The bank had, therefore, been aware for some considerable time of the likely findings against it.

The judge said he would direct that the Central Bank and Irish Financial Services Regulatory Authority receive the report now.

He directed that copies of the report should be made available at the time of general publication to NIB, National Irish Bank Financial Services Ltd (NIBFSL), the bank's auditors, the Minister for Enterprise, Trade and Employment, Ms Flynn, Mr Seymour, Mr Byrne, Mr Pat O'Donovan (a creditor of the bank who claims monies were misappropriated from his accounts) and all other persons named in the report.

A copy is also to be given to the Revenue Commissioners which is conducting its own investigation into customers of NIB and National Irish Banks Financial Services Ltd, with 288 cases concluded and 47 outstanding.

Copies will also be made available on general publication to the DPP, the Institute of Chartered Accountants in Ireland and various financial and regulatory authorities in Britain, the US, Australia, New Zealand and the Isle of Man.

The judge held it would not be in the public interest to make an order for the winding up of the bank. To explain his position on the winding-up order, he said it was necessary to disclose some of the inspectors' conclusion.

He said he was making his decision against a winding-up order after balancing the inspectors' findings "of the utmost gravity" against the measures adopted by the bank to address those findings, and the consequences for the repayment programmes if a winding-up order was made.

He also took into account that the Director of Corporate Enforcement and the inspectors were opposed to making a winding-up order, "to say nothing of the consequences for the bank's customers and the banking system".

He regarded the measures outlined by the bank as "concrete manifestations of a purpose of amendment" in support of the contrition expressed in the letter from its officer.

If the structures to remedy the improper practices proved to be insufficient any person who was allegedly wronged would be able to access the courts, and could use the inspectors' report in any civil proceedings as evidence, the judge added.

The judge also directed that NIB should pay the full costs of the inspectors' six-year investigation, and the associated legal costs of the inspectors, the Director of Corporate Enforcement and the Minister for Enterprise, Trade and Employment.

He directed that those legal costs be paid at the highest level - solicitor and own client cost - given that the bank had said it did not believe any of the costs of the investigation should be borne by the taxpayer.

No figure was given for the total cost of the investigation, including legal costs, but it will be several million euro. Any future dispute regarding the amount of those costs will have to come before the court.

In further directions, the judge said three categories of documents held by the inspectors, including a copy of NIB documents and transcripts of interviews between the inspectors and persons relevant to their investigation, are to be held in the offices of PricewaterhouseCooper for a three-year period. After that period, unless an application was made to the court, the documents were to be destroyed.

He noted the Director of Corporate Enforcement had indicated he wished to secure access to the documents, and said an application for access could be made to the court later. Any other persons or organisations who wish to access the documents would also have to apply to the court.