A High Court judge has said the continuing assertion by Anglo Irish Bank of legal privilege over some electronic documents seized by the Director of Corporate Enforcement is delaying his investigation into the bank.
Mr Justice Peter Kelly today said the assertion of legal professional privilege (LPP) is “a considerable impediment” to the investigation and urged the State-owned bank to look again at whether it should maintain that claim.
The matter should be addressed urgently and “at the highest level” within the bank, he said.
While the bank is legally entitled to assert legal professional privilege over advices given to it, it should consider whether it is “wise or prudent” to do so, the judge said.
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 said.
Shane Murphy SC, for Anglo, said he would convey the judge’s comments to his clients. Counsel also stressed the bank is co-operating fully with the investigation and said the Director had not himself challenged the claim of LPP.
Paul O’Higgins SC, for the director, said his client had asked the bank at an earlier stage not to assert LPP over the seized material but, when the bank did assert privilege as it was entitled to do, the director had not challenged that.
The judge was also told the process of taking witness statements from some 20 persons in the employment of Anglo is continuing and is expected to take several more months.
Mr Justice Kelly adjourned the proceedings for two weeks to allow his concerns be raised with Anglo management. In the interim, he continued orders allowing the director retain electronic materials seized, including millions of emails.
The director’s investigation was before the court via an application for orders relating to the handling of electronic material seized from the dank.
The director had brought a motion seeking to extend the period to examine that material by a further six months. The additional time was sought because the electronic material included privileged material which, Mr O’Higgins said, was proving impossible to separate from the other material without damaging it. The director also sought orders to be permitted retain the privileged material on conditions.
Mr Justice Kelly’s interim orders allow the director retain the material at issue until the matter returns to the court on June 17th. If Anglo withdraws its assertion of LPP then, that would resolve a lot of the difficulties facing the director in his treatment of the material, the judge observed.
If Anglo maintains its assertion of privilege, the judge will then address how the material is to be dealt with.
The investigation is being assisted by Garda fraud officers and is progressing “satisfactorily”, according to an affidavit from a garda involved in the investigation.
