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High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> National Irish Bank, Re [1998] IEHC 89 (11th June, 1998)
URL: http://www.bailii.org/ie/cases/IEHC/1998/89.html
Cite as: [1998] IEHC 89

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National Irish Bank, Re [1998] IEHC 89 (11th June, 1998)

THE HIGH COURT
1998 No. 89 COS

IN THE MATTER OF NATIONAL IRISH BANK LIMITED
(UNDER INVESTIGATION) AND
IN THE MATTER OF THE COMPANIES ACT, 1990

JUDGMENT of Mr. Justice Kelly delivered the 11th day of June 1998.

1. On the 30th March, 1998 I appointed The Honourable John Blayney and Mr. Tom Grace as Inspectors to National Irish Bank Limited (the Bank) pursuant to the provisions of Section 8(1) of the Companies Act, 1990.

2. They were directed to investigate and report to the Court on the affairs of the Bank relating to the following matters:-


(a) the alleged improper charging of interest to accounts of customers of the Bank between 1988 and the 30th March, 1998;
(b) the alleged improper charging of fees to accounts of customers of the Bank between 1988 and the 30th March, 1998;
(c) the alleged improper removal of funds from accounts of customers of the Bank between 1988 and the 30th March, 1998;
(d) all steps and action taken by the Bank, its directors and officers, servants or agents, in relation to the charging of such fees or interest or the removal of any funds without consent of the account holders and their actions arising from the issues when discovered;
(e) the manner in which the books, records and accounts of the Bank reflected the foregoing matters;
(f) the identity of the person or persons responsible for or aware of any of the practices referred to above, and
(g) whether other unlawful or improper practices existed or exist in the Bank from 1988 to the 30th March, 1998 which served to encourage the evasion of any revenue or other obligations on the part of the Bank or third parties or otherwise.

3. I directed the Inspectors to deliver an interim report to the Court not later than the 22nd June, 1998 and fixed the 29th June, 1998 for the purpose of considering that report.

4. Yesterday the Inspectors, pursuant to Section 11(1) of the Act, reported to me of their own motion concerning certain issues which had arisen in the course of their investigation. They sought directions from the Court as to the resolution of these issues.

5. Yesterday's hearing was held in camera but I indicated that I would give my ruling on the matter in open Court and that I now do today.

6. The issues which have arisen before the Inspectors relate to employees and former employees of the Bank.

7. Having carried out extensive preparatory work, the Inspectors intended to commence interviewing such persons on the 28th May, 1998. That did not prove possible because of representations made by solicitors acting on behalf of such personnel.

8. Four firms of solicitors have written to the Inspectors on behalf of employees or former employees. One firm represents seventy-five such persons, another five, another a single retired employee and the fourth firm also represents a single retired employee. The issues raised in the solicitors' letters can be summarised as follows:-

(a) They assert that their clients in attending before the Inspectors have the right to be legally represented.
(b) They assert that their clients may attend before the Inspectors with their own legal representation at any time when evidence is being given concerning their clients.
(c) They wish to have the right to cross-examine anyone who is giving evidence concerning their clients.
(d) They seek copies of all documents concerning their clients.
(e) They seek advance information on questions which the Inspectors propose to ask at interview.
(f) They seek confirmation that their clients may refuse to answer questions where the answers to such questions might possibly incriminate them.
(g) They seek to have draft copies of any interim or final report made available to their clients prior to its submission to the Court or prior to publication and they wish their clients to be given adequate time to review the contents of such draft report, to obtain clarification where necessary and to make representations to the Inspectors in respect of it.

9. These concerns raise two substantial issues for determination. The first is whether interviewees in the context of an investigation under Part II of the 1990 Act have a right to refuse to answer questions put by the Inspectors on grounds of possible self-incrimination. The second relates to procedures to be followed so as to protect the legitimate rights and entitlements of prospective interviewees.

10. I am satisfied that these are serious issues and ought to be determined by this Court as a matter or urgency. I am also satisfied that it would not be in the interests of an expeditious and efficient conduct of the investigation or indeed in the public interest that these matters be left to be dealt with under the procedures prescribed in Section 10(5) of the Act. They would involve a cumbersome, time-consuming and wholly unsatisfactory way of dealing with these matters, particularly in the context of a large number of proposed interviewees. The operation of that subsection would require individuals to be called before the Inspectors and upon refusing to answer questions, the Inspectors in each case certifying that refusal to this Court and a subsequent hearing on the matter.

Under Section 7(4) of the Act the Court is entitled to give directions. That subsection reads:-

"Where the Court appoints an inspector under this section or Section 8, it may, from time to time, give such directions as it thinks fit, whether to the inspector or otherwise, with a view to ensuring that the investigation is carried out as quickly and as inexpensively as possible".

11. I am satisfied that this is an appropriate case in which to give directions so that these issues may be determined fairly, efficiently and with a minimum of costs being incurred. I therefore direct as follows:-


1. The Inspectors are directed to write to the firms of solicitors representing employees and former employees today indicating the orders which I am now making. These solicitors will be asked to agree amongst themselves on the nomination of one named individual to represent all of their clients. They will be asked to nominate one firm of solicitors and one team of Counsel to appear on the hearing of these issues. This will avoid unnecessary duplication. They should signal their agreement to this course by 5 p.m. on Monday next.

12. I hope that the Court can count on the co-operation of these solicitors as officers of the Court in this regard. If it is not forthcoming, then the Inspectors have leave to apply on Tuesday next for a representative order and for such further directions as they think appropriate.


2. On the assumption that the steps that I have outlined are followed, the Inspectors are at liberty to serve Notice of Motion in the form of the draft proffered to the Court on the nominated solicitor. These documents should also be served on the following:-

(a) the solicitors representing the Bank,
(b) the Chief State Solicitor on behalf of the Attorney General, and
(c) the solicitor representing the Minister applicant.

3. The Motion will be returnable for hearing at 11 a.m. on Thursday the 25th June, 1998 in the Chancery 2 list.

4. The Motion and grounding Affidavits must be served as soon as possible but not later than 5 p.m. today on the Bank, the Attorney General and the Minister. They are to be served on the solicitors representing the employees and former employees as soon as may be but in any event not later than 3 p.m. on Tuesday next.

5. Any replying Affidavits on the part of the Notice Parties must be sworn, served and filed not later than 5 p.m. on Monday the 22nd June, 1998.

13. The issues which are to be determined by the Court are principally ones of law and so I direct an exchange of skeleton legal arguments. The Inspectors are the moving parties in this application. They have been advised that the privilege against self-incrimination does not apply to investigations of the type being carried out by them. Accordingly, I direct that they file the first skeleton legal arguments and that they furnish them to the Court and to the Notice Parties by 5 p.m. on Thursday next, the 18th June, 1998. The replying skeleton arguments are to be furnished to the Inspectors' solicitors and to the Court by 5 p.m. on Tuesday the 23rd June, 1998.

14. In accordance with Section 11(3) of the Act, I direct the Registrar of the Court to forward a copy of the Inspectors' report to the Minister. I do not consider it necessary or desirable that the report be furnished to any other party at this stage.

15. In the light of these developments I absolve the Inspectors from the necessity to prepare an interim report by the 22nd June, 1998 and the hearing date of the 29th June, 1998 is vacated.

16. There is liberty to apply to the Judge who tries the issues which I have directed as to the furnishing of an interim report on the part of the Inspectors.

17. The costs of this application are reserved.

© 1998 Irish High Court

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URL: http://www.bailii.org/ie/cases/IEHC/1998/89.html