AN arrangement between Anglo Irish Bank and the Director of Corporate Enforcement means certain materials seized for the director’s investigation into the bank, including emails related to directors’ loans, may be used by the DPP when preparing any prosecutions arising from the investigation.
Mr Justice Peter Kelly yesterday made the arrangement part of a High Court order which also provides that public disclosure of the material by any person to whom it is shown in the context of actual or contemplated prosecutions, will be contempt of court.
The agreement by Anglo to partly waive its privilege claim over a certain amount of electronic material seized, including internal emails related to directors loans, is likely to result in a speedier investigation of Anglo as it will make available considerably more material to the ODCE and consequently the DPP.
The material may now be provided to the ODCE, his officials, expert witnesses, the DPP and any relevant persons in the context of actual or contemplated productions arising from the investigation.
The court has been told could take up to two years to complete any criminal prosecution arising out of ODCE investigation, one of several into the bank.
Barry O’Donnell, for Anglo, yesterday said this was not a general waiver of the bank’s claim of legal professional privilege.
The bank had concerns about the material being provided to witnesses and potential defendants in the context of contemplated rather than actual prosecutions and believed the ODCE was looking for a privilege waiver which was more extensive than the bank had contemplated, he said.
He also said the board of Anglo had given very detailed consideration to the issue of the privilege waiver.
It was both in the bank’s and the public’s interest that a general disclosure of the material does not occur, he said.
Mr Justice Kelly said he was aware of the bank’s concern that the documents over which privilege had been asserted should not be used in litigation against the bank.
He said the sides’ concerns could be met via an agreed protocol making clear this was a limited disclosure without a waiver of privilege.
Anyone to whom the documents were disclosed should also be informed that any breach of the arrangements entered into between the ODCE and the bank would amount to contempt of a court order.
Mr O’Donnell and Paul Anthony McDermott, for the ODCE, indicated agreement with the proposals.
The arrangement comes after the judge had urged the bank to reconsider its privilege claim, saying it was delaying the investigation by the ODCE.
The Minister for Finance subsequently also asked the bank to reconsider and the Anglo Board later agreed to the limited disclosure of a number of electronic documents over which it had previously asserted privilege.
The electronic material and data relates to some 20 people, employees of the bank, and covers the period from January 2008 to February 2009.
The Director’s applications to court arise out of amended company law 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.
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