Lenihan to have final say over Anglo legal privilege

THE MINSTER for Finance will have the final say over whether State-owned Anglo Irish Bank continues to assert legal privilege over documents seized by the Office of the Director of Corporate Enforcement (ODCE).

The High Court yesterday asked the bank to reconsider its decision as it was impeding the ODCE investigation of the events resulting in the collapse of the bank.

The bank is to respond within two weeks, but a Department of Finance spokesman says it will have to consult the Minster for Finance on its response under the framework agreement governing the Government’s relationship with the nationalised bank.

Mr Lenihan can overrule the bank’s decision at that stage if he wishes.

The bank is understood to be trying to protect the confidentiality of customer dealings as well as assist the ODCE’s investigation, but fears that clients of the bank may issue civil proceedings if Anglo discloses certain matters.

Mr Justice Peter Kelly said the assertion of legal professional privilege is “a considerable impediment” to the investigation and urged the bank to look again at whether it should maintain that claim. The matter should be addressed urgently and “at the highest level” within Anglo.

While Anglo was legally entitled to assert professional privilege over advice given to it, it should consider whether it is “wise or prudent” to do so, he said.

The assertion of privilege was adding considerably to delays in the “already protracted” investigation which ought to end sooner rather than later, he added.

It was curious that Anglo, a wholly State-owned bank, should continue to assert privilege in an investigation being carried out by a State official into the affairs of the bank prior to it being taken into State ownership, he said.

Shane Murphy SC, for Anglo, said he would convey the judge’s comments to his clients. He said the bank was co-operating fully with the investigation and said the director had not himself challenged the claim of privilege.

Paul O’Higgins SC, for the director, said his client had earlier asked the bank not to assert privilege over the seized material but, when the bank did assert privilege as it was entitled to do, the director had not challenged that.

The judge was told that the process of taking witness statements from 20 people working at Anglo was continuing and was expected to take several more months.

Mr Justice Kelly adjourned the proceedings for two weeks to allow his concerns to be raised with Anglo management. He continued orders allowing the director to retain electronic materials seized, including millions of e-mails.

The director’s investigation was before the court via an application for orders relating to the handling of electronic material seized from the bank.