U2 guitarist Adam Clayton gave his former personal assistant full authority to operate his bank accounts but “couldn’t be bothered” to read bank statements suggesting he was “haemhorraging” huge sums of money, a court heard today.
Michael McDowell SC, for Bank of Ireland Private Banking Ltd, said Mr Clayton seemed to think the bank should have noticed more than €4 million was missing from his accounts between 2004 and 2009 when he had not.
Mr Clayton was “putting the cart before the horse” in trying to fast-track this “derivative” case against the bank and his accountants when his separate action against his former assistant Carol Hawkins had yet to be heard, counsel said.
Mr Clayton also decided to keep Ms Hawkins on after she confessed in September 2008 to misappropriating “about €15,000” but it was not even suggested there was any effort by him to notify the bank of that.
Paul Sreenan SC, for Mr Clayton, said his client is “not an ordinary consumer” but a professional musician who had a personal assistant dealing with his financial affairs. His claim related to the duties owed by bankers to their professional clients and he had also employed a firm of accountants to monitor and reconcile his accounts.
This “substantial fraud” had emerged in October 2009 when the bank rang up to say some of the transfers on Mr Clayton’s account were “unusual”, counsel added. If the bank had spotted it earlier, Mr Clayton’s loss “might have been a lot less”.
Mr Sreenan said the €15,000 which Ms Hawkins confessed to misappropriating was much less than the actual amount and Mr Clayton could not be faulted for relying on the bank and his accountants. He was assured in October 2008 by the accountants the
amount was €13,585 and had instructed his accountants the bank be notified.
It is claimed the sum misappropriated was about € 4.3 million in October 2008 while a further €450,000 was misappropriated up to October 2009.
Mr Clayton, Danesmoate Demesne, Kellystown Road, Rathfarnham, Dublin, is suing Bank of Ireland Private Banking Ltd and Gaby Smyth & Co, chartered accountants, Merrion Road, Ballsbridge, Dublin 4. He is claiming €4.38 million damages and €4.8 million damages respectively against the defendants for alleged negligence and breach of contract arising from the alleged misappropriation by Ms Hawkins of more than €4.8 million.
Mr Clayton last year initiated separate proceedings in the High Court against Ms Hawkins, Crannagh Road, Dublin 14, which have yet to be heard in which he claims an apartment was bought in New York with his money and some €900 per month was spent on a syndicate which maintained horses
Mr Justice Peter Kelly today refused an application by Mr Sreenan to fast-track into the Commercial Court the proceedings against BOIPB and Gaby Smyth & Co.
BOIPB opposed the transfer application on several grounds, including the fact and extent of the alleged misappropriation had yet to be established in the High Court, while Marcus Dowling, for the accountants, did not object to transfer.
While the proceedings were eligible for the Commercial Court, the judge said he was exercising his discretion to refuse transfer as the High Court proceedings by Mr Clayton against Ms Hawkins had yet to be heard and would move at a slower pace than this case. The judge also noted Garda fraud squad detectives are also investigating the alleged fraud.
