How far is too far in pursuit of former Anglo chiefs?

BUSINESS OPINION: AN INTERESTING question is just how far should Anglo Irish Bank go in its pursuit of monies owed to it by …

BUSINESS OPINION:AN INTERESTING question is just how far should Anglo Irish Bank go in its pursuit of monies owed to it by Seán FitzPatrick, David Drumm and other former managers.

"To the ends of a earth itself" is, one suspects, the kneejerk reaction of most taxpayers. It is certainly the case if the public reaction to the the level of narcissism and corporate vandalism at the bank revealed in Simon Carswell's book Anglo Republicis anything to go by.

But the issue is probably worthy of a more measured assessment. It is really two questions.

The first is how far should any organisation go in pursuit of executives who it believes should be held to account for their stewardship of the organisation. The second question is how far should an organisation like Anglo go.

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The answers are not necessarily the same. The answer to the first question has to take into account the law of diminishing returns. There must come a point at which the cost to the organisation exceeds any possible benefits that might accrue.

That is not to say that it is all about money. Reputational and fiduciary reasons could still compel an organisation to pursue someone long after the money being spent on lawyers passes out the potential money that might be realistically recouped. At some point, though, the organisation has to decide if the game is worth the candle.

When it comes to Anglo, it is pretty clear that this point would not be reached – if it is ever reached at all – until long after it would have been expected to be reached in what you might call a “normal” company. The explanation is pretty obvious.

No other organisation in living memory has inflicted so much pain on a country.

The cost of preventing the collapse of Anglo from dragging down the entire country will be somewhere between €29 and €35 billion, almost half the total bill for sorting out the banks. This cost has been spread across all taxpayers and every citizen and has resulted in a material reduction in their standard of living.

The result is a lot of very angry people, most of whom have votes and would not be expected to look very kindly on any politician who approved of a State-owned bank letting the architects of this disaster off the hook.

We can take it as read that the Government approves of the gung-ho attitude being exhibited by Anglo in its attempts to recoup debts from former executives and David Drumm in particular.

Anglo’s chasing of Drumm has gone far beyond merely trying to get its money back.

It is now objecting to his efforts to have himself discharged from bankruptcy in the United States having gone through the year-long process.

As part of its case, it has levelled accusations of fraud and perjury against him as a result of his actions during the bankruptcy process. These in turn could have very serious consequences for Drumm.

The bank’s enthusiasm may be something of a doubled-edged sword as far as its owners go.

The speed at which it has moved and the gusto it has exhibited stands in contrast to the efforts of the State apparatus to hold Drumm and others to account.

Neither the Office of the Director of Corporate Enforcement nor the Garda has yet to finish their investigations, never mind bring any legal actions or prosecutions.

The comparison is not strictly fair given that Anglo is involved in a civil action, while the State agencies are looking at criminal offences which require a higher standard of proof.

Indeed, in that context, the reality has to be confronted that they may not be able to bring any charges, never mind successful prosecutions. The Irish experience to date of prosecuting white-collar crime does not give rise to much optimism.

As a result, it is not beyond the bounds of possibility that we could arrive at the ridiculous situation where one of main architects of the Anglo calamity is held to account in the US courts rather than the Irish courts.

On top of that, it may turn out that he will be held to account for his behaviour during his bankruptcy proceedings rather than the events that precipitated it, which cost the Irish State €35 billion.

And the State may only be able to do this because luck – if that is the right word – would have it that Anglo has a US business and thus can be its proxy in the US bankruptcy court.

If things do turn out this way, it may prove sufficient to hide the worst of the Government’s blushes and satisfy the national requirement for atonement, but it would also be tantamount to the absolute failure at almost every conceivable level of the Irish criminal justice system.

John McManus

John McManus

John McManus is a columnist and Duty Editor with The Irish Times