The attempt to investigate the Ansbacher deposits other than through a tribunal may be about to be tested, writes Colm Keena

Back in September 1997, the population was up in arms about Mr Charles Haughey and the Ansbacher deposits. At the heart of the controversy was the idea that a golden circle existed in Irish business during Mr Haughey's years as a politician, a circle of non-tax compliant business people who provided personal financial support to Mr Haughey and had undue influence. At its worse it was a vision of the State as a banana republic.

However, the government opted not to instruct the Moriarty tribunal to identify and publicly name all those who did business with the secret financial system run by the late Mr Des Traynor. Fine Gael was supportive of the government in this regard.

There the matter would have rested were it not for the Tánaiste, Ms Harney. It seems she may not have agreed with the government's decision. She appointed an authorised officer to Celtic Helicopters and he, Mr Gerry Ryan, in time and because of that firm's connections with the Ansbacher deposits, was appointed to investigate firms linked to the Ansbacher deposits.

When he produced his confidential report into Ansbacher Cayman, Ms Harney went to the High Court seeking the appointment of inspectors. The court duly appointed the inspectors, under Section 8 of the Companies Act 1990. The reports of inspectors can be published. The inspectors were charged to investigate Ansbacher's activities in this jurisdiction, naming those who had done business with it. What the government had opted not to do, was to be done by way of a back door - the Companies Acts.

Now, as that process nears conclusion, two unidentified business people are seeking to question the basis for the inspectors' work. In their view, what the inspectors are doing is not what the Companies Act was set up to do, i.e. investigate firms' activities. In this instance, the Act is being used to get at people who may (or may not) have been involved in tax evasion. But, they want to argue that the Act does not give the courts power to direct inspectors to inquire into the activities of individuals in this way. In other words, they dispute the Tánaiste's power to use the Companies Acts to do what the government chose not to do by way of a tribunal.

Yesterday, Mr Justice McCracken reserved his decision on an initial and crucial matter which must be decided if this case is to be heard. The applicants want to make their case without being named.

Mr Justice McCracken will decide, having heard legal argument, if he has jurisdiction even to listen to an argument for such a privilege. It is only if he decides he does, that the pair will make their case for anonymity. A decision on the initial point may be given in a week or so.

If the judge eventually finds that the applicants can make their case anonymously, then the case proper can go ahead. The Attorney General is likely to appeal any decision that the case can be heard without the applicants identifying themselves. The applicants may go to the Supreme Court if Mr Justice McCracken rules against them. This will all take some time.

Yesterday Mr Michael Collins SC, for the applicants, revealed that if he was unsuccessful in his argument, that the court had no right to instruct the inspectors to name Ansbacher clients, he would take a second case. In that case he will argue that the inspectors were mistaken in their interpretation of the word client. Specifically, he will say the inspectors are wrong to decide the applicants were clients of Ansbacher, when they had never consented to be. (It seems the applicants' case is that they became clients of Ansbacher without ever asking to be or being told they were.)

The court has been told the inspectors wrote to Mr David Clarke, solicitor for the applicants, in November 2001 and said that they would "make it absolutely clear in the course of our report that the persons we have identified as clients of Ansbacher conducted their business with the company in many different ways, and that the fact that a person is so identified does not imply that he or she evaded the payment of taxes".

Mr Collins, for the applicants, has said in court that the general public will not make any distinction between those who are named in the report. All will be considered by the public to have been up to no good.

So one way or another the case before the courts looks likely to run for some time. The cases the applicants want to make may never be heard if the courts rule they cannot make their case anonymously. But theoretically someone who has or has not already been identified as an Ansbacher depositor might be inclined to take a case. No doubt there are rich and powerful people out there who would be grateful to anyone who took such an action, especially if it were successful.