A High Court judge said today he was satisfied an Irish Nationwide Building Society home loans manager has made out a strong case that an investigation by the Society into his conduct was motivated by an attempt to "deflect attention away from senior management" in relation to loans given to solicitors Michael Lynn and Thomas Byrne.
Mr Justice Frank Clarke yesterday lifted the suspension of Mr Brian Fitzgibbon after finding there was "a lack of clarity" by the Society in relation to its disciplinary procedures. He also continued an injucntion preventing a disciplinary meeting taking place against Mr Fitzgibbon.
The judge added that any future enquiry by the society into Mr Fitzgibbon's conduct involving any person close to or answerable to INBS Managing Director Michael Fingleton would be tainted and in breach of the rules of natural justice.
The injunctions are to remain in place pending the full hearing of proceedings by Mr Fitzgibbon alleging INBS has scape-goated him over the loans to both solicitors, who are now under Garda and Law Society investigations.
However, it is not clear if the full action will proceed. Mr Ercus Stewart SC, for the Society, said yesterday it might be possible to resolve the situation internally and he needed to take instructions. The judge adjourned the case for mention in two weeks time.
Mr Fitzgibbon, INBS home loans manager, claimed he had been victimised over the granting of loans to the solicitors, including €4.1 million for Mr Lynn's proposed new family home, Glenlion House, in Howth, Dublin.
He claimed Mr Fingleton was responsible for granting the Lynn loan and for another loan to Mr Byrne and that he had had bypassed normal procedures to do so. He claimed Mr Fingleton had turned against him in June 2006 when he (Mr Fitzgibbon) declined to reveal details about branch managers.
INBS disputed Mr Fitzgibbon's scapegoat claims and said it was merely conducting a fact finding enquiry into his conduct, including the approval of nearly €1.25 million in bonus payments to branch managers which, it said, Mr Fitzgibbon had an involvement in.
It also denied his claims that the inquiry concerned loans only to Messrs Lynn and Byrne and said there are eight other anonymous people to whom loans were given and which are also the subject of the investigation.
Mr Fitzgibbon said he was initially told last August that the inquiry was about his own home loan with INBS. Later, he was told it was about alleged non-adherence to loans policies and a branch managers' bonus payments scheme which Mr Fitzgibbon had initiated.
He said it was not until early November that he was first informed that it was also in relation the accounts of Lynn and Byrne. Matters came to a head when he refused to attend one meeting. When another meeting was called for Monday last, he went to the High Court last week to seek the injunction which was kept in place yesterday.
In his decision, Mr Justice Clarke agreed with Mr Fitzgibbon's counsel that his client had had little choice but to seek that injunction. The judge said there was a lack of clarity about whether the meetings were for the purpose of fact-finding or for a disciplinary purpose which might lead to his dismissal.
"I was and remain confused as to this and if I remain confused, it seems not unreasonable to say Mr Fitzgibbon had a strong arguable case that he was also confused," the judge said.
Mr Fitzgibbon also had a strong case that the whole process (of inquiry) had gone "'so far off the rails that it cannot be resurrected."
The judge said the Society had not to date, although it might in the future, responded to Mr Fitzgibbon's assertions that the motivations of the INBS actions had pre-dated the Lynn and Byrne affair.
Mr Fingleton had taken a "dim view" of Mr Fitzgibbon before the Lynn/Byrne affair came to light, the judge said.
Correspondence between the parties between August and October last showed that the focus of the investigation had only recently turned to the loans to Lynn and Byrne, he said.
In the absence of any replying evidence from INBS, the judge said he was satisfied Mr Fitzgibbon had made a strong case that the investigation was motivated by an attempt to "deflect attention away from senior management" in relation to the Lynn/Byrne loans. He stressed he was not making a finding in that regard.
The judge said Mr Fitzgibbon had made an arguable case to warrant the injunctions sought and he also rejected the Society's argument that the injunctions should be refused on grounds damages would be an adequate remedy if he succeeded in his main action.
Damages would not be an adequate remedy particularly if the disciplinary meetings were to take place which could result in Mr Fitzgibbon becoming "totally unemployable", the judge said.
On the question of whether there should be an injunction preventing the Society from making statements or leaking matters to the media, the judge said he was satisfied this was not necessary as the Society [which had denied leaking any material to the media] had said confidentiality would be respected in all future procedures.
If this was to change, Mr Fitzgibbon had leave to come back to the court, the judge said.
After the decision, Mr John Gordon SC, for Mr Fitzgibbon said he was ready to immediately submit a statement of claim in relation to the full action. Mr Stewart SC, for INBS, said that might not be necessary as it might be possible to "resolve this internally".