Appleby's agency poised to clean up corporate Ireland

Since the publication of the McCracken report in August 1997, a few rooms in the office block over Reynards nightclub on South Frederick Street, Dublin, have been at the centre of exposing Irish corporate misdeeds.

A small group of civil servants based there and reporting to the Tanaiste, Ms Harney, has been the engine room behind investigations into the Ansbacher deposits, National Irish Bank and NIB Financial Services Ltd, Mr Ciaran Haughey's Celtic Helicopters and Mr Michael Lowry's Garuda Ltd.

Highly-sensitive information gathered by these inquiries and concerning the affairs of some of the State's most senior business figures has been kept under lock and key in these offices, available only to the select group of civil servants involved.

The head of that group, the company law administration section of the Department of Enterprise, Trade and Employment, is principal officer Mr Paul Appleby (46), the man who has now been appointed director-designate of the new Corporate Enforcement agency.

As Director of Corporate Enforcement, Mr Appleby will next year take over direct responsibility for many of the investigations currently under way as a result of decisions taken by Ms Harney. Reports of authorised officers will be submitted to him and it will be his decision as to whether the High Court should be petitioned for the appointment of inspectors.

The reports of inspectors appointed by the High Court to NIB and Ansbacher Cayman, if not completed before the end of this year, will be sent by the High Court to him and it will be his office that will make representations to the courts in relation to such matters.

Mr Appleby's appointment therefore is to the key post in Irish corporate governance and one of the more sensitive posts in the State. His office, like that of the Director of Public Prosecutions, will be largely exempt from the provisions of the Freedom of Information Act and his staff will be expected to keep confidential the sensitive information that will cross their desks on a regular basis.

The staff in the agency, whom Mr Appleby will soon begin selecting, will include accountants, lawyers and seven gardai on secondment. The agency may convey information to and receive information from the Central Bank, the Revenue Commissioners and the Garda, including the Criminal Assets Bureau.

Gardai working with Mr Appleby will have the power to arrest, detain and question people suspected of serious corporate fraud. As the Attorney General Mr Michael McDowell SC said earlier this year: "The era where serious fraudsters can tell investigating gardai to contact their solicitors is over and going to end with a bang."

The number of inquiries initiated by Ms Harney since 1997 has far exceeded the number initiated by her predecessors. One of the key results of the decision to set up the new agency is that decisions in relation to company law investigations will now be taken out of the political domain.

The creation of the new agency was recommended in the 1997 report of the Company Law Compliance and Enforcement Working Group, which was chaired by Mr McDowell, and Ms Harney later explained why it was decided to accept the recommendation.

"It was judged to be more cost-effective, more efficient and less politicised if the decision on whether to initiate a company law investigation or a criminal investigation in any particular case was centralised with the director."

Ms Harney has alluded to pressures that she is widely believed to have come under when deciding to initiate inquiries under company law. Her decisions have presumably made her very unpopular with some senior figures in the corporate sector.

Her decision to appoint an authorised officer to two companies in the Dunnes Stores group has been strongly resisted by Ms Margaret Heffernan and other Dunnes directors. A six-figure legal bill has been worked up as the two sides have locked horns in the High Court and Supreme Court, with Dunnes contesting the validity of the decision made by Ms Harney.

The next round, a judicial review in the High Court, is pending and is likely to be followed by another Supreme Court hearing. As the issue at the heart of these proceedings is the decision by Ms Harney to make the appointments, she will remain involved in the case even subsequent to the coming into being of the new enforcement agency.

However, when the court process is completed, Mr Appleby may assume a role in the overall affair, depending on the outcome of the court hearings and the position assumed by Mr Appleby in the wake of that process.

Mr Appleby has drafted and sworn affidavits used in some of the high-profile court battles with Dunnes Stores. It was his affidavit to the High Court, on behalf of Ms Harney, that led to the appointment of inspectors to Ansbacher Cayman. The content of that affidavit caused some discomfort to companies and persons identified in it, not least Cement Roadstone Holdings (CRH) and the property developer Mr John Byrne.

However, Mr Appleby has to date remained a largely unknown figure for the general public. That is likely to change over the coming years as his new agency becomes involved in what are certain to be high-profile investigations into corporate wrongdoing. One of his functions will be to report to Oireachtas committees on the success or otherwise of the agency.

While the powers that are available to the new agency are likely to be sufficient, the same may not be true of resources. The agency will have a budget next year in excess of £2 million, an amount that is unlikely to allow for the employment of experienced accountants and lawyers, who can charge fees in excess of £1,000 per day.

Investigations, such as the one into the Ansbacher deposits, can soak up huge amounts of resources and require the services of experienced and expensive experts in such matters as trust law and banking and tax law.

In addition, the high-profile and costly inquiries, in which the agency will inevitably be involved, will not be allowed to use all of the resources available, as the range of other tasks that the agency will have to carry out is quite wide. However, the legislation does provide for money expended on investigations being recouped from companies found to have been guilty of breaches of company law.

In time, no doubt, Mr Appleby will be hoping his budget will be increased. A career civil servant who was promoted to his current position in 1996, Mr Appleby had previously worked with the Department of Trade and Tourism. His appointment follows a competitive process conducted by the Civil Service Commissioners and is for a five-year term, renewable by the minister.

Mr Appleby is a graduate in public administration from Trinity College, Dublin, and is married with two children.