The inspectors investigating the Ansbacher deposits will be prevented from naming account holders if a High Court case which began yesterday is successful, writes Colm Keena.
The case is being taken by two individuals who want to remain anonymous. If successful it would mean an authoritative list of those who held funds in the deposits might never be disclosed.
The process aimed at identifying the people who had accounts in the secretive deposits has been ongoing since 1997. It has cost the State millions in legal fees, and is believed to be near completion.
The two unidentified individuals are due to be named in the report. In their case they want to argue that the High Court exceeded its powers in September 1999, when it directed the inspectors to name account holders.
However, they are asking the court to be allowed to make their case without having to reveal their identities. This issue will have to be ruled on first.
Whichever way this ruling goes, it is likely to be appealed to the Supreme Court, meaning the Ansbacher report will now almost definitely not be published before the general election.
The request for anonymity is being opposed by the Attorney General, Mr Michael McDowell, and the director of corporate enforcement, Mr Paul Appleby. Yesterday an initial hearing on this point began before Mr Justice McCracken. It resumes this morning.
Mr Michael Collins SC, for the unidentified individuals, said there would be no point in his clients continuing with the case if the court ruled they had to identify themselves.
However, Mr Eoghan Fitzsimons SC, for Mr Appleby, said the application for anonymity would, if granted, be "an enormous favour" from the courts. People charged with "the most appalling crimes" were named publicly and later found innocent. If the application was granted then everyone brought before the courts should have an equivalent right and that would be "an intolerable invasion of the right of the people to know what is going on". The two individuals seeking anonymity were "simply people named in a report".
The court heard that the two applicants exchanged information with the inspectors and were allowed make representations on the findings the inspectors intend to make about them. However, they disagreed with the inspectors' finding that they were customers of Ansbacher (Cayman).
Mr Collins said the inspectors had adopted a definition of customer which was "extraordinary". He said people who had never heard of Ansbacher and had never intended doing any business with it were being described as customers.
The names of the two applicants are known to Mr Appleby and the court. Mr Fitzsimons said the findings being made in the report on the applicants were innocuous and their good names would not be affected by what has been found in relation to them.
However, Mr Collins said that to be named an Ansbacher client would mean the public would view you as a member of a "gilded elite" who was involved in tax evasion over the years and probably involving millions of pounds. It would associate you with the "worst face" of Ireland in the 1970s and 1980s. It would not matter what else was said about you in the report. Once you were named in it, your good name would be damaged.
Mr Fitzsimons said that on the main issue of the application the individuals wished to make, his argument would be that they had no right to make it. If they wanted to make a case about the report, they should do so when it was completed and being presented to the High Court. It would be up to the High Court to then decide if the report should be published in whole or in part.
The Ansbacher deposits were set up and operated by the late Mr Des Traynor, a top business figure from the 1960s up to his death in 1994. He was a close associate of a former Taoiseach, Mr Charles Haughey, who had an account in the deposits. A number of leading business figures who are already known to have had accounts were business associates of Mr Traynor.
The existence of the deposits was discovered in 1997 when the McCracken tribunal, chaired by Mr Justice McCracken, was investigating payments by Mr Ben Dunne to Mr Haughey.
The inspectors were appointed on the application of the Tánaiste, Ms Harney.
Their report will be presented to the High Court. A copy will also be given to Mr Appleby, who has taken over Ms Harney's role in relation to company law investigations.