Minister for Finance Brian Lenihan has asked the board of Anglo Irish Bank to reconsider its assertion of legal privilege over some electronic documents seized by the Director of Corporate Enforcement for his investigation into the bank.
The electronic material and data relates to some 20 persons, employees of the bank, and covers the period January 2008 to February 2009.
The Commercial Court heard today heard today the Anglo board received a reply this morning from the Minister to its letter sent to him after Mr Justice Peter Kelly had urged the bank “at the highest level” to look again at whether it should maintain the assertion of legal professional privilege (LPP) over some documents in circumstances where that claim was delaying the director’s investigation.
On June 3rd, the judge said the assertion of LPP was “a considerable impediment” to the investigation and urged the bank to address that issue urgently.
While the bank is legally entitled to assert privilege over advices given to it, it should consider whether it is “wise or prudent” to do so, the judge said. The assertion of privilege was adding considerably to delays in the “already protracted” investigation which ought to come to an end sooner rather than later, he added.
It was curious that Anglo, a wholly State owned bank, should continue to assert privilege in an investigation being carried out by a State official, the director, into the affairs of the bank prior to it being taken into State ownership, he also said.
When the matter came before the judge again today, he was told by Shane Murphy SC, for Anglo, the board had just received a letter from the Minister this morning asking it to consider a number of important matters.
In the circumstances, the board was not yet in a position to address the court’s query relating to privilege, counsel said, and he sought an adjournment to allow the board consider the issues raised in the Minister’s letter. Paul O’Higgins SC for the ODCE agreed to the adjournment.
Mr Justice Kelly, noting the Minister had asked the board to reconsider important matters in light of the judge’s comments on June 3rd, agreed to adjourn to July 2nd next.
The judge also continued to July 2nd orders allowing the director retain electronic material, including millions of emails, seized for the purpose of examination. Copies of the documents are being examined by staff from the director’s office assisted by Garda fraud squad officers especially seconded for that purpose.
The director’s investigation had come before the court via an application for orders extending for some six months the period to examine electronic material obtained from the bank. The additional time was sought because the electronic material included privileged material which the court heard was proving impossible to separate from the other material without damaging it. The director also sought orders to be permitted retain the privileged material on conditions.
The judge had expressed concern about the time sought but was told the director’s team faced an enormous task in trying to examine voluminous documents in the context of the claim of privilege over some of those documents.
The court heard the director did ask the bank at an earlier stage not to assert LPP over the seized material but, when the bank did assert privilege, as it was entitled to do, the director had not challenged that.
The judge was also told the process of taking witness statements from some 20 persons in the employment of Anglo is continuing and is expected to take several more months.
The court applications arise as a result of amending companies legislation enacted last July to address legal issues relating to search warrants and claims of LPP. The general nature of the Anglo investigation is into possible offences under the Companies Acts involving the giving by a company of financial assistance for the purchase of its own shares.