Michael O’Higgins SC, for Seán FitzPatrick, began his closing speech at 14.51pm yesterday.
He said the loans by Anglo Irish Bank to the Maple 10 were in the ordinary course of business but that even if they were not, the jury would have to be sure that his client was aware of that and authorised the deal.
He said the financial regulator approved it as did the bank’s legal advisers and internal compliance department.
"If it wasn't in the ordinary course of business, did my client authorise it? Clearly he didn't. He got a call about it when he was in France, " Mr O'Higgins said. "The idea that a non-executive director could authorise a loan – it's a power he doesn't have."
Mr O’Higgins gave the analogy of a husband breaking a red light with his pregnant wife in the back. He said even if a garda gave you an escort, it was still breaking a red light. Even if it was a European commissioner or a presidential convoy, “it is still breaking a red light”.
“All the officialdom in the world cannot turn that light green,” he said, “but if such a case was to be prosecuted, you might think it’s absurd.”
Mr O'Higgins focused on a phone call between Anglo chief executive David Drumm and Con Horan from the financial regulator on July 8th.
"Wonderful records"
Mr Horan, he said, usually kept "wonderful records of his phone calls but there was none for this one. I wonder why?" It was at this meeting that the idea of placing some of Mr Quinn's shares with wealthy clients was discussed.
Mr O’Higgins said it was only the following day that Mr FitzPatrick, who was in France, was informed by Mr Drumm that a deal was going ahead.
There was “no evidence” that at that stage his client was told that the loans were only going to be of partial recourse to the borrower and that when he found out afterwards, he was, according to other witnesses, “unhappy” or “annoyed”.
“There is a sea of detail in this case but there is a very small rock pool that relates to Mr FitzPatrick,” Mr O’Higgins said. His client’s “impression” ahead of the deal, he said, was that the lending to the Maple 10 was 100 per cent recourse.
He said it was wrong of the prosecution to make the “Mafioso suggestion” that Mr FitzPatrick had not wanted to know the identities of the Maple 10. It was not proper for him to know as otherwise he could be accused of insider trading.
Mr O’Higgins said Mr FitzPatrick had asked the right questions as chairman of Mr Drumm and was reliant on him to tell the truth. “For the prosecution to suggest dereliction of duty is simply not tenable.”
Mr O’Higgins said his client had provided 100 pages-plus of evidence in Garda interviews and he was the only one of Anglo Irish Bank’s seven non-executive directors to be arrested.
Submit statements
Five of the non-executive directors had never even been interviewed by gardaí but had instead been allowed to submit statements via a corporate law firm. He said a garda had told Mr FitzPatrick he was the "face of Anglo".
He found it extraordinary that gardaí had not “shaken the tree” by at least interviewing other non-executive directors or “perhaps even arresting them”.