The State’s corporate law watchdog has raised further concerns with an Oireachtas committee about the legal protections around a report on the collapse of former Anglo Irish Bank chairman Sean FitzPatrick’s trial.
Director of Corporate Enforcement Ian Drennan has offered the Joint Oireachtas Committee on Business, Enterprise and Innovation a 415-page report explaining the reasons behind the collapse of the 2017 case so it can scrutinise the regulator’s role along with new legislation strengthening its powers.
After the committee agreed to accept the report following Mr Drennan’s appearance last month, he has sought clarifications in two letters, the most recent sent about 10 days ago, about whether the document would be subject to privilege, affording him legal immunity from defamation or other legal actions.
His last letter was sent to the committee’s secretariat and referred to the Office of the Parliamentary Legal Adviser for consideration. The committee will discuss Mr Drennan’s latest letter at a meeting on Wednesday.
Mr FitzPatrick was accused of furnishing false information to the bank’s auditors Ernst & Young, now EY, over the loans at the bank running to tens of millions of euro. He denied any wrongdoing.
His first trial collapsed in 2015 after Kevin O’Connell, the then legal adviser to the ODCE who led the investigation into Mr FitzPatrick’s loans, admitted shredding papers relevant to the case in “a panic”.
The judge directed an acquittal of Mr FitzPatrick in 2017 after a lengthy retrial over concerns raised about the ODCE’s mishandling of the investigation. He criticised the office’s coaching of witnesses and the contamination of evidence.
Mr Drennan told the Oireachtas committee last month that the factors leading to the collapse extended “well beyond” the failures within the ODCE.
Response awaited
A spokesman for the ODCE said it awaited a response from the committee about the concerns raised by Mr Drennan.
The spokesman referred to previous correspondence between the ODCE and the committee released under the Freedom of Information Act outlining Mr Drennan’s concerns about privilege around his report.
The director wrote to the committee in December 2017 saying that he would require clarification before submitting his report on the issue of privilege “and minimising any risk of legal challenge from any of the persons/organsiations whose names appear, or who are otherwise identifiable”.
Among the people named in his report were, he said, current and former ODCE staffers, current and former members of A&L Goodbody solicitors, EY staff, current and former gardaí, and current and former staff members of the Office of the Director of Public Prosecutions and counsel engaged by that office.
“This is a critical issue in that, quite aside from the associated professional and personal risks, litigation of this nature would, were it to crystallise, have the potential to absorb significant human and financial resources,” Mr Drennan told Marie Fennell, clerk to the committee in a letter on December 22nd, 2017.
Mr O’Connell has agreed to testify before the committee but only after Mr Drennan’s report and any follow-up appearance by him before it. He told the committee in a letter on March 5th that his own testimony “can only ever be ancillary” to Mr Drennan’s report and any follow-up discussions with the director.
