Anglo agrees to partial waiver of privilege claim

AN ARRANGEMENT between Anglo Irish Bank and the Director of Corporate Enforcement means certain materials seized for the director’s investigation into the bank, including e-mails related to directors’ loans, may be used by the Director of Public Prosecutions (DPP) when preparing any prosecutions arising from the investigation.

Mr Justice Peter Kelly yesterday made the arrangement as part of a High Court order which also provides that public disclosure of the material by any person to whom it is shown in the context of actual or contemplated prosecutions will be contempt of court.

The agreement by Anglo to partly waive its privilege claim over a certain amount of electronic material seized, including internal e-mails related to directors’ loans, is likely to result in a speedier investigation as it will make available considerably more material to the ODCE and consequently the DPP. The material may now be provided to the ODCE, his officials, expert witnesses, the DPP and any relevant persons in the context of actual or contemplated prosecutions arising from the investigation.

The court has been told it could take up to two years to complete any criminal prosecution arising out of the ODCE investigation, one of several into the bank.

Barry O’Donnell, for Anglo, earlier yesterday said this was not a general waiver of the bank’s claim of legal professional privilege. The bank had concerns about the material being provided to witnesses and potential defendants in the context of contemplated rather than actual prosecutions and believed the ODCE was looking for a privilege waiver which was more extensive than the bank had contemplated, he said.

He also said the board of Anglo had given very detailed consideration of the issue of the privilege waiver. It was both in the bank and the public interest a general disclosure of the material at issue does not occur, he said.

Mr Justice Kelly said he was aware the bank’s concern was that the documents over which privilege had been asserted should not be used in litigation either in being or contemplated against the bank.

He said the sides’ concerns could be met via an agreed protocol making clear this was a limited disclosure without a waiver of privilege. Anyone to whom the documents were disclosed should also be informed any breach of the arrangements entered into between the ODCE and the bank concerning these documents would amount to contempt of a court order.

After Mr O’Donnell and Paul Anthony McDermott, for the ODCE, indicated agreement with those proposals, the judge said the court would receive the agreed arrangement and make it subject of a court order.

The arrangement comes after the judge had urged the bank to reconsider its privilege claim, saying it was delaying the investigation by the ODCE.