Lenihan asks Anglo to rethink legal privilege

THE MINISTER for Finance has asked the board of Anglo Irish Bank to reconsider its assertion of legal privilege over some electronic documents seized by the Director of Corporate Enforcement for his investigation into the bank, the Commercial Court heard yesterday.

The electronic material and data relates to about 20 employees of the bank and covers the period January 2008 to February 2009.

The court heard the Anglo board had yesterday morning received a reply from Brian Lenihan. This reply was to its letter to him after Mr Justice Peter Kelly had urged the bank “at the highest level” to look again at whether it should maintain the assertion of legal professional privilege (LPP) over some documents in circumstances where that claim was delaying the director’s investigation.

On June 3rd, the judge said the assertion of LPP was “a considerable impediment” to the investigation and urged the bank to address that issue urgently.

While the bank is legally entitled to assert LPP over advice given to it, it should consider whether it is “wise or prudent” to do so, the judge said.

The assertion of privilege was adding considerably to delays in the “already protracted” investigation which ought to come to an end sooner rather than later, he added. It was curious that Anglo, a wholly State-owned bank, should continue to assert LPP in an investigation being carried out by a State official, the director, into the affairs of the bank prior to it being taken into State ownership, he also said.

When the matter came before the judge again yesterday, he was told by Shane Murphy SC, for Anglo, the board had just received a letter from the Minister that morning asking it to consider a number of important matters.

In the circumstances, the board was not yet in a position to address the court’s query relating to privilege, counsel said, and he sought an adjournment to allow the board consider the issues raised in the Minister’s letter. Paul O’Higgins SC, for the Office of the Director of Corporate Enforcement, agreed to the adjournment.

Mr Justice Kelly, noting the Minister had asked the board to reconsider important matters in light of the judge’s comments on June 3rd, agreed to adjourn to July 2nd.

The judge also continued to July 2nd orders allowing the director retain electronic material, including millions of e-mails, seized for the purpose of examination.

Copies of the documents are being examined by staff from the director’s office, assisted by Garda fraud squad officers especially seconded for that purpose.