The Anglo verdicts
On the evidence that was presented to it, and the law as its stands, the Dublin Circuit Court jury in the Anglo trial could have done nothing else. Notwithstanding the clear public appetite for sacrifical lambs over a saga that contributed to the near-bankrupting of the country, and the huge complexity of a case that lasted 47 days, the jury successfully navigated its way to a conclusion that reflects credit not only on the stamina, fairness and concentration of the twelve, but on the often-criticised jury system itself. It had not been asked to render a verdict on responsibility for the crisis.
That Sean FitzPatrick, the non-executive chairman of Anglo who had come to personify in the public mind the free-wheeling excesses of the bank, would be acquitted of involvement in the Maple loans may be galling to the public, but moral responsibility and legal responsibility are profoundly different concepts, and the court’s remit is adjudicating on the latter. A sense that he shared a broader culpability, in this matter or the broader crash, may well call into question the adequacy of current company law provisions on the responsibilities of directors, but we can have no argument with the jury on this account.
The convictions of former directors Pat Whelan and Willie McAteer, however, are an important and welcome drawing of a line in the sand in holding financial executives to public account. Section 60 of the Companies Act, prohibiting firms from giving financial assistance for the purchase of their own shares, is not an obscure technical provision, but a longstanding and important protection for those buying shares to protect the market’s integrity against manipulation. And Anglo was unequivocally involved in a bid to prop up the value of its own shares, albeit to save itself from collapse.
On the exception to that rule, Judge Martin Nolan made his view clear. It was “very difficult to see how these monies could ever be ‘in the ordinary course of business’ since the main purpose of the share purchase was to stabilise the share price.” In the end the critical onus was on the defence to prove precisely that. It found it could not plausibly do so with monies lent at a 25 per cent recourse. The jury was persuaded that, when lent at 100 per cent recourse to the Quinn family, a loan could be regarded as a straighforward commercial transaction, whatever its purpose in terms of market support, a perhaps overly generous permissive view.
Judge Nolan’s ruling that favourable advice on the Maple deal from lawyers or the regulator could make no difference to the legality of the transactions or provide a “good faith” defence was a logical application of sound well-established legal principle. To have done otherwise would be to have undermined the principle that it is for the courts, not others, to interpret the law authoritatively. In taking legal advice, caveat emptor .