Arguments set out in Ansbacher anonymity case

Two unidentified persons have taken High Court proceedings to prevent their names from being published in the report by court-appointed inspectors into the affairs of Ansbacher (Cayman) bank.

They are also seeking that their identities not be revealed during the legal action.

Being identified as an Ansbacher client is understood by the public as being part of a "gilded elite" engaged in "wholesale tax evasion".

In addition, it is perceived as part of the worst unacceptable face of Ireland in the 1970s and 1980s, said Mr Michael Collins SC, for the two applicants.

The expression "Ansbacher client" had become synonmous with saying a person was a tax evader who used offshore accounts to evade tax.

Unless the court initially directed that the application be heard without disclosing his clients' identities, there was little point in proceeding with it. It was a "chicken and egg" situation.

The Director of Corporate Enforcement, Mr Paul Appleby, and the Attorney General, representing the public interest, are opposing the preliminiary application.

Mr Eoghan Fitzsimons SC, for the Director, said Article 34.1 of the Constitution provided for justice to be administered in public except in "special and limited cases as may be prescribed by law" .

The article could not be qualified and gave no discretion to direct the applicants not be identified.

He also argued the application should never have been brought against the director.

The applicants' complaint was with the inspectors and they should wait until the inspectors' report was given to the court.

The applicants' remedy was via judicial review proceedings against the inspectors when the latter had issued summons against them under the Companies Act 1990, he said.

They should have acted when they were summoned and it was now too late.

As a preliminary issue, Mr Justice McCracken must first decide whether he has discretion to direct the identities of the two not be disclosed in the court proceedings. If he decides he has, he will then have to consider whether the identities should be disclosed.

Yesterday he heard submissions on the preliminary point from Mr Collins and Mr Fitzsimons. He will hear further submissions today from Mr Feichin McDonagh SC, for the Attorney General, after which Mr Collins will reply. The judge may then reserve his decision.

Mr Collins said his clients had been in contact with the inspectors, had made submissions and had received the inspectors' final findings in relation to the former.

In the main action, he will argue there is no express power vested in the inspectors to identify customers of a company unless that is necessary to report on the affairs of the company.

If he were to lose lost that point, he would claim the inspectors' definition of Ansbacher clients was wrong in that it included people who were unaware they were clients. There had to be consent to being a client.

He said the Supreme Court, in a decision upholding a challenge taken by the Irish Times Limited and other media to a decision to ban contemporaneous reporting of a major drugs trial in Cork, had held there was judicial discretion to place restrictions on reporting of trials.

Where there was a conflict between the requirement to have justice administered in public and individual rights, the courts were required to harmonise the rights. In this case, the conflict had to be resolved in favour of the constitutional rights of his clients. The rights involved were the right to privacy and to vindication of one's good name.

He did not accept the argument that just because a litigant's name was not disclosed, there was an infringement on the requirement to administer justice in public.

But, Mr Fitzsimons asked, if the applicants were right, where did that leave others accused of criminal offences against whom the most appalling allegations were made and later dismissed?

It would mean such accused had an equivalent right to have their anonymity preserved until the end of their criminal trials.

That would be an intolerable invasion of the people's right to know what was going on in the courts.

The applicants could not seek this "enormous favour" that they should not be named when all other proceedings go ahead without that concession. It was his case there was no judicial discretion to depart from the literal wording of Article 34.1.

He was relying on a High Court decision that found Mrs Brigid McCole was not entitled to anonymity during her legal action against the Blood Transfusion Service Board.

He also argued the Supreme Court decision in The Irish Times case, referred to by Mr Collins, applied to criminal trials and not to the exercise of the supervisory type of jurisdiction at issue in this case.

He added that the Supreme Court had not yet settled the issue, the present case did not relate to the very important right to a fair trial which right was at issue in The Irish Times case and it was open to the judge to take a different view.

When companies are investigated, individuals are necessarily involved and they must of necessity be named in reports, if those reports were to have any efficacity. The High Court had discretion to take whatever steps it considered necessary regarding those individuals.