The High Court has refused the Director of Corporate Enforcement access to documents held by inspectors who investigated National Irish Bank Limited and National Irish Bank Financial Services Limited, and rejected an alternative request for non-party discovery.
Mr Justice Kelly ruled on 10 February 2006 that the inspectors should not be required to revisit their completed investigation or identify which documents supported particular findings in their final report. He also refused the requests on their merits, citing other available sources for some material and the scale of the work sought for the rest.
The inspectors were appointed in 1998 and delivered their final report in July 2004. The report made findings about improper practices, including practices that facilitated tax evasion and unwarranted fees and interest charges. The Director subsequently brought nine separate applications seeking disqualification orders against people named and criticised in the report. One resulted in a 10-year order against Mr Nigel D’Arcy in October 2005; eight other applications remained contested.
The Director sought documents in the inspectors’ possession to support his case in those eight proceedings. The requests included records relating to findings against eight named respondents, transcripts of evidence given by them and Mr D’Arcy, documents about Mr Patrick Byrne’s role at the bank, and records relevant to claims about senior management responsibility and pressure on branch managers to meet targets.
The judge said documents in the first three categories were likely obtainable from the respondents or the bank. He noted that Byrne could be asked directly about his reporting line and responsibilities. For the broader request about management responsibility and targets, the inspectors said they held material in 52 bankers’ boxes, six filing cabinets and four roll-covered cabinets. Identifying the relevant documents would require a review of the material gathered during their six-year investigation.
The Director had applied under section 12 of the Companies Act 1990, as amended, or alternatively for non-party discovery under Order 31, rule 29 of the Rules of the Superior Courts. The judge held that the inspectors’ statutory task ended with delivery of their final report, and that section 12 did not provide for the further work sought. He said the discovery request could not be used to bypass that conclusion.
He also found no sufficient need for an order concerning documents available elsewhere and considered the wider review oppressive and unlikely to provide substantial benefit. The applications were refused. The ruling concerned access to the inspectors’ files; it did not determine the merits of the eight outstanding disqualification applications.