The Corporate Enforcement Authority has sent the Siteserv report to gardaí after examining findings by a High Court judge that State-owned bank IBRC was deceived during the company’s 2012 sale to businessman Denis O’Brien.
The body responsible for enforcing company law has also handed to gardaí findings that certain witnesses provided false information to Mr Justice Brian Cregan’s seven-year investigation into the affair.
Siteserv, a company which provided building services such as scaffolding and telecommunications networks to public and private projects, was sold in 2012 for €45 million to a company controlled by Mr O’Brien.
The sale came as the State-owned Irish Bank Resolution Corporation (IBRC) — the former Anglo Irish Bank — wrote off €118 million of the €150 million that Siteserv owed.
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The judge’s 1,542-page report was published in September, saying the deal was based on “misleading and incomplete information” that Siteserv provided to IBRC, the nationalised former Anglo Irish Bank.
The publication of the report ended the investigation by Mr Justice Cregan, of the High Court, into the contentious sale of the building services company to Mr O’Brien a decade ago.
Mr Cregan was appointed in 2015 to lead a commission of inquiry to examine the Siteserv deal and 37 other IBRC transactions during the crash, which involved an aggregate €1.88 billion write-off from outstanding loans.
Responding to questions about the case, the enforcement body said some of issues it examined related more to Isle of Man company law than Irish company law while others relate to taxation matters, which are overseen by the Revenue.
“That review concluded that the issues … relate predominantly to matters other than Irish company law,” the Corporate Enforcement Authority said.
A Garda spokesman said the force was assessing the report “to see if allegations meet the threshold for investigation”
“The CEA has however referred certain matters to An Garda Síochána (ie, matters relating to the Commission’s findings that IBRC was deceived and that the Commission was provided with false information).”
Asked about that intervention, a Garda spokesman said the force was assessing the report “to see if allegations meet the threshold for investigation”.
The company law enforcer has also sent the Siteserv report to the Manx Attorney General and Financial Services Authority in the Isle of Man, the island’s financial regulator.
The attorney general referral cites “accounting issues” relating to Boundary Equity Holdings Ltd, an Isle of Man entity controlled by Siteserv co-founder Niall McFadden and owned by him and/or his wife Leisa Benner.
The referral to the Manx regulator relates to Mine Developments, another Isle of Man company that was controlled at different times by Mr McFadden and Siteserv co-founder Brian Harvey, chief executive of Siteserv.
IBRC wrote off €118 million of the €150 million Siteserv owed as part of the €45 million sale of the building services business to Mr O’Brien, crystallising a loss for the State that led to Dáil ructions in 2015. Despite deep misgivings about the duration of the inquiry, the Government said the report “shines a light on unacceptable practices by certain parties” in the deal.
Mr McFadden and Mr Harvey were pivotal deal figures. The judge said “undisclosed” engagements led to an “extraordinary situation” where they secured 15 per cent of the O’Brien company that bought Siteserv without anyone in the company knowing, or anyone in IBRC, the main creditor.
The enforcer reviewed both a Siteserv bonus awarded to Mr Harvey that he exchanged for shares in Mr O’Brien’s company Cathkin and a “false loan” for Mr Harvey that the judge described as a “sham”. The enforcer also reviewed Mr McFadden’s €480,000 finder’s fee from the deal, which was concealed from IBRC.
Such “issues relate, in significant measure, to taxation matters”, the Corporate Enforcement Authority said.
In addition to the corporate enforcer, the Cregan report went directly to other bodies such as the IBRC special liquidators, the Central Bank and the Revenue.
Following a legal review of the report that concluded in the past week, Mr McFadden and Mr Harvey are set to avoid any claims against them by the special liquidators in relation to their involvement in the affair.
It is understood liquidators Kieran Wallace and Eamonn Richardson received legal advice that no follow-up actions were required of them.
At issue were loans to Mr McFadden and Mr Harvey, which were sold on by IBRC. As a result, the liquidators were told any claims would go the loan buyers or Mr McFadden’s bankruptcy assignee and not to the IBRC liquidation.
Other matters could not be pursued because of the statute of limitations, which means action in certain cases cannot be taken after a specific period except in fraud cases.
Asked about Central Bank scrutiny of Mr Justice Cregan’s findings, a bank spokeswoman said it “has been in contact with the Department of the Taoiseach in relation to the Report and is considering the recommendation relating to the bank”.
