The High Court has directed Barry Seymour to attend the trial of a director-disqualification action to be cross-examined on affidavits he filed in the proceedings. If he does not attend for cross-examination, those affidavits may not be used at the hearing.
The order, made by Mr Justice Diarmuid B. O’Donovan on 16 November 2006, concerns an application by the Director of Corporate Enforcement. The Director seeks to disqualify Seymour from acting as a company director under section 160(2) of the Companies Act 1990. The judgment addresses only whether Seymour should be required to attend for cross-examination; it does not determine the disqualification application.
The case arises from an inspectors’ report into National Irish Bank Limited and National Irish Bank Financial Services Limited. The judgment recounts the report’s findings that internal audit material and a December 1994 DIRT audit indicated irregularities involving non-resident accounts, including accounts that might be bogus, and failures to meet requirements for DIRT-exempt status. The report concluded that Seymour, who was an executive director and de facto chief executive of National Irish Bank Limited from April 1994 to July 1996, should have been aware of the problems and had failed to discharge his responsibility for ensuring DIRT was deducted where required.
Those are findings and conclusions attributed in the judgment to the inspectors’ report, not findings made in this ruling. Seymour disputed the report’s inferences and opinions, while accepting, as described by the judge, the material underlying facts. He maintained that he had put corrective measures in train and that compliance improved during his term.
The Director argued that cross-examination was warranted to test Seymour’s challenge to the inspectors’ conclusions and the adequacy of his response to the acknowledged compliance problems. The judge accepted that there was substance to the view that Seymour did not materially dispute the relevant facts. But he held that the court still needed to examine his contrary interpretation of those facts and his account of the steps taken.
The judge said cross-examination was necessary to assess the reliability and reasonableness of Seymour’s views, and that without it the trial judge would have difficulty reaching a reasoned conclusion on the commercial probity of his conduct. He therefore ordered Seymour to attend the trial for cross-examination on his affidavits. The order leaves the underlying disqualification claim for determination at trial.