The Director of Corporate Enforcement is seeking documents from the inspectors who investigated the National Irish Bank tax evasion scandal of the 1990s in a bid to "reopen" the investigation and "turn it into some sort of phase two inquisition", it was claimed before the High Court yesterday.
Michael Collins SC, for former NIB executive director Barry Seymour and former NIB head of finance Patrick Byrne was making submissions opposing an application by the director, Paul Appleby, to procure, under Section 12 of the Companies Act, certain documents from the inspectors who investigated the affairs of NIB.
Mr Collins said that, while it had been acknowledged in the inspectors' final report of July 2004 that Mr Seymour was only with the bank for some 22 months and had taken corrective action to address problems within the bank which predated his arrival there, it appeared that the director was now seeking documents to build a fresh case to hold Mr Seymour responsible for not leaving "a perfect" bank behind him and for not turning "the Titanic around 360 degrees".
He said Patrick Byrne had also said he was not part of senior management within NIB and now it appeared the director wished to run some kind of "mini-plenary inquiry" into that.
The intent appeared to be to "get Mr Byrne in as some kind of senior manager" and "stick him with responsibility" for the problems identified in NIB, counsel argued.
The Section 12 application was also opposed by Paul Anthony McDermott, for the inspectors. He said that the inspectors had been asked to produce a report and had done so and they should not now be required to revisit their findings.
Counsel for NIB said it too opposed the application. He said that the application could lead to more costs for the bank, which had already paid some €61.5 million in costs of the inspectors' inquiry.
The bank was prepared to discover any documents sought through normal discovery channels.
Discovery under Section 12 was also opposed by lawyers for others among the eight directors or other bank officials against whom the director has taken proceedings, under Section 160 of the Companies Act. These aim to have them declared unfit to be involvement in the management of any company.
One of those eight, Kevin Curran, is not opposing the director's application, while it was indicated to Mr Justice Peter Kelly yesterday that another two of the eight - Tom McMenamin and Dermott Boner - have been in correspondence with the director's office regarding the application and were reserving their position.
The judge was told the eight respondents have disputed the adverse findings of the inspectors in relation to themselves, while some of the eight were disputing to varying degrees the findings of fact made by the inspectors.
Among the documents being sought by the director are transcripts of interviews between the eight respondents and any documents indicating that the operational environment of the bank was "target driven" and that managers felt under pressure to achieve "unreasonable" targets.
The four categories of documents sought are:
1) any documents relevant to the inspectors' adverse findings against the eight respondents;
2) copies of transcripts of their evidence to the inspectors;
3) documents related to whom Patrick Byrne reported within NIB while he held the position of head of finance;
4) documents relating to responsibility for the various practices within the bank identified by the inspectors.
The director wants the documents to answer defences advanced by the respondents in the disqualification proceedings against them.
Those proceedings were initiated after publication in July 2004 of the report of the inspectors on the affairs of NIB and NIB Financial Services Ltd (NIBFS) between 1988 and 1998.
The inspectors concluded both NIB and NIBFS were involved in a number of improper practices which enabled customers to evade tax and that responsibility for the improper practices rested with the senior management of the bank during the 10-year period covered by the inspectors' investigation.
The eight respondents are - Jim Lacey, Pine Haven, Grove House Gardens, Blackrock, Co Dublin; Mr Seymour, Beaumond, Amersham, Bucks, England; Mr Boner, Chesterfield Avenue, Castleknock, Dublin; Michael Keane, Corr Castle, Howth, Co Dublin; Frank Brennan, Ardglass, Dundrum, Dublin; Mr McMenamin, College Grove, Castleknock, Dublin; Mr Byrne, St Helen's Road, Booterstown, Co Dublin, and Mr Curran, Avondale Court, Blackrock, Co Dublin.
A similar disqualification application was brought by the director against another former NIB executive, Nigel D'Arcy of Castledillon, Straffan, Co Kildare.
However, Mr D'Arcy did not oppose the application and an order was made in October disqualifying him from involvement in the management of any company for 10 years.
