OUTDATED COMPANIES legislation is hampering the investigation by the Office of the Director of Corporate Enforcement into the affairs of Anglo Irish Bank, it has emerged at the High Court.
Director Paul Appleby has received a high level of co-operation from the bank in the investigation, the court also heard.
Mr Appleby yesterday made an unprecedented application to the court to approve a scheme devised in co-operation with the bank aimed at addressing issues of legal professional privilege relating to a massive amount of electronic information at bank premises. If the electronic information was printed out, it would run to millions of A4 pages, the court was told.
The issue arises after ODCE officials secured search warrants from the District Court last month to enter Anglo’s premises at Stephen’s Green and Lr Baggot Street in Dublin.
The director and bank have since been trying to agree a framework under which any claims of legal professional privilege over electronic information or printed documents may be speedily and efficiently assessed as the warrants have a limited duration of one month.
Paul O’Higgins SC, for the director, asked the High Court to approve a scheme involving a retired High Court judge classifying the electronic information and sitting as an independent assessor to adjudicate any claims of privilege. Where there was any issue on the judges finding, applications could be made to the court.
The scheme also involved using specialist software to electronically search the data to identify files that may attract privilege.
Mr O’Higgins said the director was anxious to achieve as much certainty as possible in relation to the propriety of the procedures adopted by him in the investigation into the bank’s affairs.
Mr Justice Peter Kelly ruled there was no authority under which the court could give its imprimatur to the proposed scheme, as it would effectively amount to the court approving an arbitration procedure and a “sub-contracting” out of the jurisdiction of the court to express an opinion on whether privilege attached to a document.
His ruling did not prevent the director and bank agreeing and operating the scheme as proposed, the judge stressed. If there was any dispute on the retired judge’s finding concerning any document/s, the sides could apply at short notice to the court.
The application arose because section 23 of the Companies Act 1990 provides a person shall not be compelled to disclose information covered by legal professional privilege and it does not authorise the taking of such information.
