The High Court has refused an application by former National Irish Bank chief executive Mr J. Lacey to cross-examine the Director of Corporate Enforcement’s authorised officer, Mr O’Rafferty, or to strike material from his second affidavit.
Mr Justice Murphy delivered the ruling in Dublin on 3 October 2007 in proceedings concerning an application under section 160 for the disqualification of directors. The court made a consent order allowing Mr Lacey to be cross-examined. The remaining questions were whether Mr O’Rafferty should also be cross-examined and whether parts of his second affidavit should be expunged.
Mr Lacey argued that the affidavit included opinion, argument and submissions presented as facts outside the authorised officer’s knowledge. His counsel also objected to comments about the seriousness of the practices under examination, directors’ duties, a Central Bank visit and Mr Lacey’s responsibility. The court noted there had been no application based on hearsay.
The judge reviewed the affidavit under Order 40, Rule 4 of the Rules of the Superior Courts, which addresses affidavit material including hearsay and argument. He distinguished the Director’s statutory role from that of a plaintiff in an ordinary civil case. The Director relied on the inspectors’ report, whose stated facts and opinions could be admitted under section 22 of the 1990 Act, subject to the possibility that the contrary might be shown at trial.
The judgment said the authorised officer could respond to Mr Lacey’s affidavits and refer to documents disclosed by the parties, the inspectors’ report and relevant public records. Some passages would have been better left to legal submissions, the judge said, and he described parts of the affidavit as comment or argument. But he found no basis to remove them or to order cross-examination. He said the material did not take the affidavit outside the relevant categories and that a trial judge would distinguish facts from comment.
The judgment records that Mr O’Rafferty had characterised a Central Bank visit as likely to have been summary and information-gathering. Mr Lacey disputed that account in his affidavit, saying the bank had conducted a full-scale examination over several weeks. The judge said the point had been answered by Mr Lacey and did not require court intervention at this stage.
The court refused both applications concerning Mr O’Rafferty’s evidence: cross-examination and striking out any part of the second affidavit. The ruling did not determine the underlying disqualification application or the disputed allegations about the bank’s practices.