A High Court judge has said it appears fugitive solicitor Michael Lynn has not told the truth about being unable to testify by video-link in a case here because he has the flu.
Mr Justice Frank Clarke postponed until today a decision whether to reschedule Mr Lynn's proposed evidence by video-link.
The deferral was to allow further inquiries be made into documents provided by Mr Lynn about the reasons preventing him from testifying in a multi-million euro case being taken by the Cunningham Group against First Active over loans issued for a number of major developments.
The High Court earlier heard that Mr Lynn — who is missing with fraudulent mortgage debts of €80m and faces arrest on his return to Ireland — was prepared to give evidence for the Cunninghams provided he could do so from abroad.
Mr Justice Clarke ruled Mr Lynn could give such evidence and the court scheduled today for that to take place with Mr Lynn expected to travel from Portugal to London to do so. He cannot be arrested in London as he has not been charged with any criminal offence.
However, yesterday, the court was initially told there was only a 50/50 chance Mr Lynn he would do so and the judge was informed this was because Mr Lynn had the flu. The question of whether the video-link evidence would be rescheduled until November 3rd, when Mr Lynn would be available, would only be considered if a medical certificate was produced to the court, Mr Justice Clarke said.
The court heard Mr Lynn's London-based lawyers, Merriman White, had been told by Mr Lynn's wife, Brid Murphy, who is a nurse, that he would not be able to travel this week or next week to give evidence because he was "ill with influenza."
Yesterday, the court heard certain documents had been faxed to the Cunningham lawyers, including waht was described as an illegible medical cert in Portuguese.
Hugo Page QC, for the Cunningham Group, said he had left a message with Mr Lynn's London lawyer telling him what was required by the court.
Donal O'Donnell SC, for First Active, said it did not appear the document provided to Cunninghams had advanced matters and there was a need for a complete account to be provided to the court.
Mr Justice Clarke said he would defer the issue of reorganising the video-link evidence until matters have been clarified. "Prima facie (on the face of it), it appears Mr Lynn may have given a false account of why he was not available," the judge said.
There was no reason to suggest Merriman White had not acted in good faith, the judge said. But if a rescheduling was to take place, the judge said he would have to be properly satisfied. He said he would review the matter this morning.
Witnesses on behalf of Cunninghams are continuing to give evidence in the marathon lawsuit which arises out of a series of multi-million euro loans First Active issued to development companies owned by the group's founder, Brian Cunningham.
Michael Lynn acted as solicitor for Mr Cunningham before the group was placed into receivership and was also present at a key meeting to agree loan facilities, it is claimed.
First Active has denied Mr Cunningham's claim that he lost out on a IR£310m (€393m) property deal because the bank "deceived" him into selling a lucrative site.
