Anglo Irish Bank has been given time by the Commercial Court to provide evidence to support its claim of “regulatory investigation privilege” over certain documents being sought by its former chief executive David Drumm.
They include documents relating to directors loans and emails between former Anglo Chairman Sean Fitzpatrick and Mr Drumm.
Mr Justice Peter Kelly ruled today Anglo had not properly set out the basis for its claim the documents are privileged because they were prepared for the “dominant purpose” of defending some five regulatory investigations into the bank.
Anglo is so far facing some 20 civil claims arising from matters under investigation, the court heard.
The judge said there appeared to be no authority in the common law world supportive of a claim of “regulatory investigation privilege” (RIP) but he would give the bank time to make its case and to supply the required affidavits and specific detail which was absent as of now.
Anglo was also given an opportunity to deliver a fresh affidavit from its chief executive Mike Aynsley in a form which makes clear that he accepts responsibility relating to whether full discovery of documents has been made.
The bank is to supply the affidavits and information required by June 30th and the matter will be mentioned on July 5th when the court will be told whether or not Mr Drumm’s lawyers, on the basis of the material, accept Anglo can assert such a privilege. If not, the privilege issue will be determined at a later date.
The judge noted the documents over which RIP privilege is claimed, while not specifically detailed, include internal Anglo emails including between Mr Fitzpatrick and Mr Drumm on January 4th 2009. They also include emails between Anglo and Ernst & Young, plus documents predating the investigations into the bank, including documents from 2004, 2006, 2007 and 2008.
The documents are being sought by Mr Drumm for the action, fixed for October next, in which Anglo is seeking orders requiring him repay loans of over €8 million.
Mr Drumm, who resigned in December 2008, claims the demand for immediate repayment of the January 2008 loans breaches loan agreements and is counter-claiming his employment was not validly terminated in early 2009. He claims Anglo owes him some €2,620,695 in salary, pension and deferred bonus payments and also wants damages, including for mental distress.
After the loans action concludes, the court will hear Anglo’s action against Mr Drumm and his wife Lorraine to set aside Mr Drumm’s transfer of the family home at Abbington, Malahide, Co Dublin, to his wife. Anglo claims the transfer is a fraud on creditors but the couple, now living in Cape Cod, US, claim it was for “taxation reasons”.