There is a "complete lack of reality" to the bid by developer brothers Michael and Thomas Bailey to have certain documents excluded from a forthcoming action by the Director of Corporate Enforcement aimed at restraining them from involvement in the management of any company, counsel for the director has told the High Court.
The documents sought to be excluded include certain financial statements for Bovale Developments Ltd, signed and certified as true statements by the brothers themselves as directors of the company, and containing notices by the company's auditors to the effect that proper books and records were not kept by the company,Denis McDonald SC said.
The brothers were also seeking to exclude a memo by the company's auditor which stated the brothers had agreed with the auditor that proper books and records were not kept, counsel added.
It was necessary, counsel argued, that the judge who would ultimately hear the director's proceedings should have all the relevant documents to assess the director's action in its full and proper context.
The director has brought the Section 160 proceedings against Thomas Bailey, Coolcommon, Batterstown, Co Meath and Michael Bailey, Killamonan House, The Ward, Co Meath. The director is also seeking that the brothers pay the costs of the four-year investigation by his office into the Bovale company's affairs.
The director claims both brothers are responsible for breaches of law and duty in the conduct of the affairs of Bovale. Reports from PricewaterhouseCoopers and the planning tribunal, in addition to a €22 million settlement by the company with the Revenue Commissioners, made clear the misconduct was of a very serious character and extended over a prolonged period, the director claims.
The brothers claim some of the documents sought to be relied on by the director contain hearsay and inadmissible evidence, including evidence relating to the contents of two reports of the Flood tribunal.
They also contend some documents are based on information in documents unlawfully seized by gardaí from various financial institutions under Section 63 of the Criminal Justice Act.
The hearing continues today before Ms Justice Mary Irvine.
