Judge lifts Irish Nationwide suspension

A High Court judge has said he was satisfied that the head of homeloans at Irish Nationwide Building Society (INBS) had made a strong case that an investigation by the society into his conduct was motivated by an attempt to "deflect attention away from senior management" in relation to loans given to solicitors Michael Lynn and Thomas Byrne.

Mr Justice Frank Clarke yesterday lifted the society's suspension of Brian Fitzgibbon after finding there was "a lack of clarity" by the society in relation to its disciplinary procedures. He also continued an injunction preventing a disciplinary meeting taking place against Mr Fitzgibbon.

The judge added that any future inquiry by the society into Mr Fitzgibbon's conduct involving any person close to or answerable to INBS managing director Michael Fingleton would be tainted and in breach of the rules of natural justice.

The injunctions are to remain in place pending the full hearing of proceedings by Mr Fitzgibbon alleging INBS has scapegoated him over the loans to both solicitors, who are now under Garda and Law Society investigations.

However, it is not clear if the full action will proceed. Ercus Stewart SC, for the society, said yesterday it might be possible to resolve the situation internally and he needed to take instructions. The judge adjourned the case for mention in two weeks' time.

Mr Fitzgibbon, INBS head of homeloans, claimed he had been victimised over the granting of loans to the solicitors, including €4.1 million for Mr Lynn's proposed new family home, Glenlion House, in Howth, Co Dublin.

He claimed Mr Fingleton was responsible for granting that loan and for another loan to Mr Byrne, and that he had bypassed normal procedures to do so.

He claimed that Mr Fingleton had turned against him in June 2006 when he (Mr Fitzgibbon) declined to reveal details about branch managers.

INBS disputed Mr Fitzgibbon's scapegoat claims and said it was merely conducting a fact-finding inquiry into his conduct, including the approval of nearly €1.25 million in bonus payments to branch managers in which, it said, Mr Fitzgibbon had an involvement.

It also denied his claims that the inquiry concerned loans only to Mr Lynn and Mr Byrne and said there were eight other anonymous people to whom loans were given and which are also the subject of the investigation.

In his decision, the judge agreed with Mr Fitzgibbon's counsel that his client had had little choice but to seek that injunction. The judge said there was a lack of clarity about whether the meetings were for the purpose of fact-finding or for a disciplinary purpose which might lead to his dismissal.

"I was and remain confused as to this and, if I remain confused, it seems not unreasonable to say Mr Fitzgibbon had a strong arguable case that he was also confused," the judge said.

Mr Fitzgibbon also had a strong case that the whole process (of inquiry) had gone "'so far off the rails that it cannot be resurrected".

The judge said the company had not to date, although it might in the future, responded to Mr Fitzgibbon's assertions that the motivations of the INBS actions had pre-dated the Lynn and Byrne affair. Mr Fingleton had taken a "dim view" of Mr Fitzgibbon before the Lynn/Byrne affair came to light, the judge said.

Correspondence between the parties between August and October last showed that the focus of the investigation had only recently turned to the loans to Mr Lynn and Mr Byrne, he said.

In the absence of any replying evidence from INBS, the judge said he was satisfied that Mr Fitzgibbon had made a strong case that the investigation was motivated by an attempt to "deflect attention away from senior management" in relation to the Lynn/Byrne loans. He stressed that he was not making a finding in that regard.

The judge said Mr Fitzgibbon had made out an arguable case to warrant the injunctions sought and he also rejected the society's argument that the injunctions should be refused on grounds damages would be an adequate remedy if he succeeded in his main action.

Damages would not be an adequate remedy, particularly if the disciplinary meetings were to take place which could result in Mr Fitzgibbon becoming "totally unemployable", the judge said.