Prosecution begins setting out case in Anglo trial

Wednesday 05 February 2014 21.33
(L-R) William McAteer, Pat Whelan and Seán FitzPatrick
(L-R) William McAteer, Pat Whelan and Seán FitzPatrick

The trial has begun at Dublin Circuit Criminal Court of the former chairman of Anglo Irish Bank and two former Anglo executives, charged with providing unlawful financial assistance to 16 people to buy shares in the bank.

Seán FitzPatrick, 65, from Greystones in Co Wicklow, 51-year-old Patrick Whelan of Malahide in Dublin and 63-year-old William McAteer of Rathgar in Dublin have pleaded not guilty to the charges.

Mr Whelan has also denied seven charges of being privy to the fraudulent alteration of a loan facility letter.

Mr FitzPatrick, the former chairman of Anglo, Mr Whelan, the former director of Irish operations, and former finance director Mr McAteer all deny providing unlawful financial assistance to 16 people to buy shares in Anglo, in July 2008.

Mr Whelan has also pleaded not guilty to being privy to the fraudulent alteration in October 2008, of seven facility letters relating to loans to purchase Anglo shares.

Prosecuting counsel Paul O'Higgins SC outlined to the jury aspects of company law and its relevance to the trial.

He said the officers of a company can be prosecuted if it does something wrong.

Mr O'Higgins said part of this case was about what happened to the shares or a certain portion of the shares in Anglo Irish Bank in July 2008.

Mr O'Higgins told the jury that it was a bedrock of Irish law that the three accused remain innocent until proven guilty.

He told the jury it was important to remember that shares represent to people a person's stake in a company.

"They mean big things in people's lives and how they are dealt with is a very, very important thing to people," he said.

"These are the expression of people's property in the company and their entitlement to expect regular lawful and proper behaviour. It's not something academic and in the air, it is about real people," he said.

Mr O'Higgins said the first 16 charges contain the allegation that in July 2008 actions were taken by the accused, which were contrary to Section 60 of the Companies Act.

It is alleged that as officers of the bank they authorised or allowed the bank to give unlawful financial assistance to people in connection with the purchase of shares in Anglo in breach of the Companies Act.

To put it in context, he said: "A company's shareholding is meant to represent the voting public's honest opinion of the value of a company as represented by the company and if the company itself uses company money, lends company money or uses it to purchase the company's own shares' then in fact it might be listing the real value of the company but the public can't see that because they may think the shares are being bought by outsiders when in fact they are being bought from inside."

He said it can affect the rights of shareholders and potential shareholders who see the company appears to be in its place in the financial popularity stakes when in fact it is in a different place.

"There is a rationale for Section 60, it is not just a rule with no meaning it is designed to protect various people who deal with a company,"

He said if the company commits an offence every officer who is in default is liable.

It is the duty of the directors to ensure the requirements of the companies act are complied with, he added.

The prosecution says there was lending by Anglo Irish Bank for the purchase of its own shares and that the three officers on trial, at the very least, all knew about it and not only did not take all reasonable steps to prevent it, but in fact, did authorise it, carried it out, or took no step whatsoever to prevent it and were guilty of an offence under Section 60 of the Companies Act.

This case he said involved "lending in very extraordinary circumstances, which had nothing to do with the bank's ordinary business and that is a very important part of the case."

Mr O'Higgins said a scheme of lending designed to unwind a significant shareholding in Anglo Irish Bank by businessman Sean Quinn was "absolutely illegal" and designed to given an impression of stability for the bank.

He told the jury the bank issued loans totalling almost €625m to 16 people including the Quinn family and others in an attempt to unwind Mr Quinn's position.

He said Mr Quinn had amassed a significant stake in the bank through a complicated investment product known as contracts for difference.

He was essentially betting on the price of the bank's shares without actually purchasing them.

He had done very well in the beginning but when the tide turned he began to lose.

As financial markets got into difficulty and the bank's share price dropped there was concern that the bank was exposed to the fortunes of one person.

The financial regulator had been anxious in various respects, the court was told.

The markets were fluctuating and the whole financial world was jittery and efforts were made by Anglo to get people to buy the Quinns' stake by converting them into actual shares.

The Quinn family were given loans to buy the shares and the bank insisted on full personal recourse for the loans.

A scheme was devised by the bank where it assembled a list of ten others in order to unwind the Quinn position but loaned them the money to buy the shares.

Mr O'Higgins said there would be a market announcement afterwards saying that the Quinn CFD position had been resolved and it was "choreographed" so the public would be told the Quinns were buying the shares where in practice Anglo really dealt with it itself by supplying money.

He said the financial regulator was involved at regular stages and was at meetings in which the transactions were discussed.

The loans bore no resemblance to the ordinary course of lending and were made with "extraordinary haste".

Mr O'Higgins said on hearing the evidence the jury would hear that many others were involved but they had to decide the case on the three men before the court and not wonder about others who could have or should have been charged.

The loans were absolutely illegal and designed to give the impression that stability existed. It was a breach of the Companies Act.

The prosecution says Mr Whelan was very much involved, Mr McAteer was not as involved but knew all about it, and that Mr FitzPatrick was told about the lending and did nothing to stop it.

The court was told that Mr Whelan was making a number of admissions including that the loans were made to enable an orderly unwinding of substantial contracts for difference position in relation to the bank's shares which had been built up by Mr Quinn.

He admits he was one of those who helped implement the plan but did so on the basis and in the belief that the lending involved was in the ordinary course of the bank's business.

His lawyer said this was in circumstances where his understanding was and is that the Irish and English financial regulators had agreed to the plan and that the bank's own compliance department had obtained positive legal expert advice from a leading law firm in relation to it.

His lawyer also told the court he had cooperated fully with the authorities before any criminal investigation had been contemplated and had prepared a report detailing the so-called Maple Transaction.

Mr FitzPatrick admitted to being a non-executive director of the bank and that the loans were made to enable the orderly unwinding of Mr Quinn's position.

It is the first time in the history of the State that 15 jurors have been sworn in to hear a trial due to its expected length, but only 12 will retire to consider a verdict at the end.

This morning one juror was excused and replaced with a new juror.

Expected witnesses include Mr Quinn, his wife and children, property investors and developers named in the charges, the former financial regulator and former Anglo and Central Bank employees.

The jurors have been told the trial could last until the end of May.