Private hearings keep key facts secret

THE BOTTOM LINE:WITHIN THE past fortnight, the issue of private or "in camera" hearings has surfaced in cases concerning big-name Irish property investors.

In the first, on April 26th last, Paddy McKillen failed to have the High Court in London hear in private his case that he has the financial wherewithal to buy the stake of fellow shareholder Derek Quinlan in the Berkeley, Connaught and Claridges hotels had he been offered it, as he claims he should.

In the second, the following day, Bank of Ireland secured an order in camera from Mr Justice Peter Kelly allowing lawyers for the bank together with a valuer and photographer to compile an inventory of art and other valuables at the Vico Road home of solicitor Brian O’Donnell in Killiney, Co Dublin.

The reasons for the in camera hearings in both cases differs considerably, but they have one thing in common. A secret hearing was sought by one side to prevent the other – or in McKillen’s case, others – from finding out information they could use to their advantage.

McKillen feared that if the Barclay brothers, whom he is battling for control of the hotels, knew how much he owed, and to whom he owed it, they could damage him.

Bank of Ireland was concerned that if Brian O’Donnell and his wife, who the bank is pursuing over debts of €75 million, got wind of its intentions, they could stymie its efforts.

The bank had been spooked by O’Donnell’s evidence during his cross-examination in court last month dismissing valuations of €5 million and €7.5 million previously put on an art collection in various statements of net worth submitted on behalf of the couple.

In London, Mr Justice David Richards ruled against McKillen’s application for a private hearing (which was challenged by The Irish Times), saying it “comes nowhere near overcoming the basic requirements for open justice”. The part of the trial dealing with McKillen’s finances begins tomorrow.

In Dublin, Mr Justice Peter Kelly permitted Bank of Ireland, albeit with strict conditions attached, to demand entry to the O’Donnells’ home to catalogue art and other values without giving advance warning to the couple.

The judge said that, based on O’Donnell’s evidence, there was a risk of the “very mischief” the bank sought to prevent taking place. (This column is in fact the first time this reason for the judge’s ruling has been made public, some 12 days later.)

Last Friday, the couple’s daughter, Blaise O’Donnell, went to the Supreme Court to challenge the constitutionality of the “in secret” court hearing and her family home being entered on threat of imprisonment.

While it is common in commercial cases for only the judge to see financially sensitive material – to prove the existence of a buyer for a distressed firm, for example – in camera hearings are rare. And, unlike family law cases, the extent of their use is generally limited to prevent the other side knowing about an order only until it is executed.

One of the last high-profile uses of a private hearing in a commercial case was remarkable in that it was applied for by the Government.

The emergency banking legislation allowed lawyers for then minister for finance Brian Lenihan to exclude the media – namely, this reporter and court reporter Mary Carolan – from his application to pump €3.7 billion of public cash into AIB, nationalising Ireland’s erstwhile biggest bank early one snowy morning two days before Christmas in 2010.

This was to prevent the markets knowing what was happening until it had happened.

For almost every significant injection of public funds into a bank since then, the Government has instead chosen to redact sensitive financial details rather than have its application heard behind closed doors.

This is still far from ideal, given the vast sums of taxpayer money involved.

The financial crash has shone a light into dark corners and the courts have been instrumental in revealing incredible business dealings from the hubris of the boom years.

To use Warren Buffett’s oft-quoted phrase, not being able to see who is swimming naked now the tide has gone out – or understanding how they became so exposed – would be a setback for understanding the mistakes of the past and improving business for the future.

Outside the courts, the equivalent of in camera secrecy has fallen around crucial public policy decisions that have cost the State dearly – most scandalously, the still private discussions leading to the decision to guarantee the banks that night in September 2008, the worst commercial decision of our time. Whether an Oireachtas committee can lift those heavy shutters remains to be seen.