The Supreme Court has been urged to bring “to an end now” a 2012 civil claim against former Irish Nationwide Building Society (INBS) chief executive Michael Fingleton alleging he negligently mismanaged the failed lender.
The 86-year-old, acting through his wife and son, Michael Fingleton jnr, under their powers of attorney, claims he cannot receive a fair trial due to being incapacitated after suffering a stroke several years ago. He denied the claims against him.
The High Court and Court of Appeal refused to halt the case brought by the liquidators of the State-owned Irish Bank Resolution Corporation (IBRC), which took over INBS after it collapsed.
Mr Fingleton’s lawyers submitted to a five-judge Supreme Court on Thursday that there was a “clear” unfairness in the case proceeding this far removed from the alleged events against someone who has lost the ability to defend himself.
Padraic Lyons SC said the case is missing the key witness. It is not supported by vast amounts of documents and the evidence of expert witnesses will play a “very limited role”, he submitted.
Alleged negligence of a director of a bank is fact-specific and director-specific, he said, with the court required to ascertain what happened and why. The role of running a bank is not analogous to the duties of other professionals such as architects and doctors, who must follow clear, established principles, he said.
The case concerns the business judgment exercised by Mr Fingleton when decisions were made to give out five key loans under scrutiny in the case, he said.
The liquidators’ right to get the case on for hearing is not greater than Mr Fingleton’s right to a fair trial, he said.
In the unusual circumstances of the case, the court should “bring the proceedings to an end now”, he added.
The liquidators’ lawyers submitted that there is a “high value” in allowing plaintiffs to bring their cases to hearing.
John D Fitzgerald SC said preventing a case from getting to trial is a “draconian step only to be exercised in exceptional cases and in clear cases”.
In the absence of clarity about evidence, there is a “clear preference” for proceeding to trial where the judge hearing the case necessarily knows more about the issues, he said.
“The trial judge has the luxury of seeing the evidence as it plays out ... It is at that time that the importance of missing evidence can best be determined,” he submitted.
He said this case was instituted in 2012 and served on Mr Fingleton the following year, six years before he became incapacitated. Yet, his side is still dealing with “bald assertions” of unfairness.
The Supreme Court reserved its decision in the case.
The claim against Mr Fingleton was originally pitched at €6 billion, the amount lost by the lender after the 2008 property crash. It has since significantly narrowed to about €290 million and centres around a series of five loans issued between 2006 and 2009.
The allegations against him are denied.
Mr Fingleton jnr has said his father, who was worth €75 million in 2006, had less than €25,000 in two personal bank accounts and outstanding judgment debts of more than €10.7 million as of late 2022.
Mr Fingleton led Irish Nationwide between 1971 and 2009, holding the role of managing director for much of the period, though his title was changed to chief executive close to the end of his time in charge.
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