The High Court disqualified former National Irish Bank Financial Advice and Services Division head Nigel D’Arcy from company management for 10 years, after finding that his conduct made him unfit to manage a company.
In a judgment delivered on 26 October 2005, Mr Justice Kelly made the order under section 160(2)(e) of the Companies Act 1990, following a report by court-appointed inspectors. The Director of Corporate Enforcement had sought disqualification under several parts of the section. D’Arcy did not contest the application and consented to an order, but the judge said the court still had to be satisfied that the statutory conditions were met.
The inspectors’ report found that bank personnel promoted Clerical Medical Insurance policies as secure investments for funds not disclosed to the Revenue Commissioners. According to the report, customers were assured that investments could remain confidential from Revenue and, if placed in trust, could pass to beneficiaries without probate. The inspectors said these practices facilitated the evasion of revenue obligations by third parties.
D’Arcy headed the bank’s Financial Advice and Services Division from its establishment in 1989. The inspectors found that he became aware in 1992 of how the policies were being promoted, could have stopped the practice, and failed to do so. They considered him primarily responsible for its continuation, with division managers acting with his tacit approval. The judge relied on the inspectors’ report as evidence under section 22; its findings against D’Arcy were not contested in the application.
The judge concluded that the sustained conduct demonstrated a lack of commercial probity and made D’Arcy unfit to be involved in company management. He said a lesser restriction order under section 150 was not appropriate. The ruling did not decide whether D’Arcy qualified as an “officer” for the separate grounds under sections 160(2)(b) and (d); the judge said that issue was unnecessary to determine because section 160(2)(e) applied.
The judge said 12 years would otherwise be appropriate, but reduced the period by two years because D’Arcy had agreed not to contest the application, consented to an order, tendered his resignation from two companies, and offered to undertake not to become involved in company management. The order runs for 10 years from the judgment date.