Anglo asked to reconsider legal privilege

THE Minister for Finance 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 Commercial Court heard yesterday.

The electronic material and data relates to some 20 persons, employees of the bank, and covers the period January 2008 to February 2009.

The court heard yesterday the Anglo board had that morning received a reply from the Minister Brian Lenihan 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 3 last 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 LPP over advices given to it, it should consider whether it is “wise or prudent” to do so. 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 LPP 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 yesterday, he was told by Shane Murphy SC, for Anglo, the board had just received a letter from the minister asking it to consider a number of important matters.

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 2. He also continued to July 2 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 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.