Day Six: Anglo Irish Bank Trial

Wednesday 12 February 2014 16.35
Lorcan McCluskey, a former associate director of lending at Anglo Irish Bank, gave evidence this morning
Lorcan McCluskey, a former associate director of lending at Anglo Irish Bank, gave evidence this morning

Key Points:

- Day six of the Anglo Irish Bank trial at Dublin Circuit Criminal Court

- Former chairman Seán FitzPatrick and former executives Patrick Whelan and William McAteer have pleaded not guilty to providing unlawful financial assistance to 16 people to buy shares in the bank

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

16.25 The day's evidence has finished with the cross-examination of Mr O'Sullivan by Mr Whelan's counsel, Brendan Grehan SC.

Mr O'Sullivan first started with Anglo when they took over his previous employer, Smurfit Paribas.

Mr Grehan asked him if it was him who brought Seán Quinn to Anglo when he moved.

"Unfortunately, yes," he replied, to laughter from the court.

Mr O'Sullivan went on to describe the moment when he found out how much of Anglo Mr Quinn controlled in CFDs.

"It was one of those moments that you will never forget in your life," he said.

He agreed with Mr Grehan's summary of the situation - "This was a very dangerous position. It could destabilise the bank."

The Central Bank, the Financial Regulator and the Department of Finance had become involved because they were worried about "contagion", ie, that the situation would "infect other banks".

Evidence has now finished for the day.

Join us in the morning when we will hear more from Mr O'Sullivan before moving on to some Maple Ten witnesses, including Gerry Gannon.

16.20 Mr O’Sullivan said he later raised the matter several more times with Mr Whelan. He was concerned that the 0% recourse had not been properly authorised and that it had not gone through Group Risk.

The witness said that on 16 December 2008 he approached Niall Tuite in the Group Risk section of Anglo and told him about the situation.

Three days later he spoke with Mr Whelan again "but got no satisfaction." At this stage the bank was in the middle of being bailed out.

The witness said that two days after this on 21 December he went to Matt Moran about the situation.

Mr Moran was the Chief Financial Officer at the bank and was negotiating the bailout terms at the time.

Shortly after this Mr Whelan called Mr O’Sullivan. The witness said there was "a very heated exchange." Mr Whelan said he was "very disappointed that Mr O’Sullivan hadn’t come to him about his issues".

Mr O’Sullivan said he responded that he tried several times to discuss the issues "with no satisfaction."

"I felt comprised by what had taken place and in my 36 years in financial services, that had never happened before," the witness said.

On 22 December Mr Whelan agreed that new facility letters should be sent to the Maple Ten. These letters would return the loans to a 25% recourse basis and take away the possibility that the borrowers might have no liability whatsoever.

These letters were sent to the Maple Ten. Nine of the ten signed, Mr O’Sullivan said.

He said Mr Whelan had spoken to most of the borrowers before the letters were sent and that Mr O’Sullivan visited several borrowers directly to get them to sign.

16.00 The court has heard about the altered facility letters, which Pat Whelan allegedly had the witness sign.

As heard many times already, the first facility letter from 10 July 2008 to the Maple Ten required them to repay 25% of the loan amount if the Anglo shares fell to zero.

Mr O’Sullivan has told the prosecution that Mr Whelan came to him on 11 October 2008 and asked him to amend the loan facility letters which had been sent out in July.

One of the changes was the insertion of the amended line: "Recourse to the Borrower will be limited to 25% of the balance outstanding under the facility or to the value of the shares at the expiry of the facility."

The witness said his understanding of this sentence was "that if the value of the shares were zero the value of the recourse would be zero."

He asked Mr Whelan why they were making these changes. Mr Whelan told him it had been approved by David Drumm and the board.

Mr O’Sullivan responded: "Well if it is, you sign it so."

The witness said he then signed the letter and it was sent out to the borrowers.

The witness said that several weeks later he attended an "asset review meeting" with non-executive directors, Donal O’Connor and Lar Bradshaw as well as Mr Whelan.

During the meeting it became clear to Mr O’Sullivan that Mr O’Connor was unaware that the Maple Ten were no longer subject to the 25% recourse.

He said he was annoyed that the board had not being informed of this.

He confronted Mr Whelan after the meeting. Mr Whelan responded that he would speak to the CEO about it and the matter was left at that.

15.10 Michael O’Sullivan has described the meeting with David Drumm and Pat Whelan where he was told about Seán Quinn controlling a quarter of the bank’s shares through Contracts for Difference (CFDs).

He said he was shocked to learn Mr Quinn controlled that level of shares in the bank.

"We had a good relationship with them, it was a huge surprise, not something I expected," he said.

Mr O’Sullivan said on May 8, 2008 he went with Mr Whelan to a meeting with the Financial Regulators.

He said Anglo had an unlimited personal guarantee from Mr Quinn as security on his loans. There was additional security in the form of a list of international properties.

They discussed with the Regulator how they could reduce Mr Quinn’s exposure by selling Quinn assets. The witness said it was a productive meeting.

They continued to fund Mr Quinn’s margin calls up until June, amounting to about €2 billion, Mr O’Sullivan said.

The CFDs were now a "major concern", he said.

The bank were not allowed go above 25% of their own funds and they were approaching that number with Mr Quinn.

On 10 and 11 July 2008 Mr O’Sullivan was on annual leave. Lorcan McCluskey called him to tell him a solution had been reached to unwind Mr Quinn’s CFDs.

This was the Maple Ten deal.

He came in on 14 July when the paperwork was being finalised and the deal was ready to go before the credit committee.

14.50: Evidence has resumed after lunch with Judge Martin Nolan telling the jury that the trial will break during Easter between 15 and 22 April.

However, he warned that if the trial is near the end, they might keep going, "so I wouldn't advise you to book any holidays".

Michael O'Sullivan is now in the witness box. He joined Anglo in 1999 when they acquired his employers, Smurfit Paribas. He climbed the ranks to associate director and then divisional lending director.

The previous witness, Mr McCluskey, reported to him and he in turn reported to Pat Whelan.

Mr O'Sullivan was responsible for a mixed portfolio of property developers and builders.

He worked quite closely with Mr McCluskey. The normal lending process would start with a meeting with clients and then progress to bringing a proposal to the bank.

He said the lending team would examine a proposal. If it was a new client there would be extra due diligence carried out.

There would then be a "mini-credit committee", two a week, ahead of the main credit committee meetings.

If the mini-credit committee agreed it was a good deal, they would pass it on to the main credit committee.

At the main credit committee, senior management would ask questions and maybe seek changes to the application.

Executive directors, senior lenders and members of the risk committee would sit on the credit committee.

Two "A Signatures" were required for a loan over €5 million.

"A Signatories" were executive directors, divisional directors and the risk director.

Mr O'Sullivan said he was an "A Signatory".

He said that loans over €25 million would be sent to the non-executive directors for "noting".

Loans had to meet certain credit requirements but there could be exceptions for various reasons, including "competitive pressures", the witness said.

13.02: Mr McCluskey has been cross-examined by counsel for Seán FitzPatrick, Michael O'Higgins SC.

He described the process of how loans were decided upon and granted by Anglo.

He said that the ultimate power in this regard was with the credit committee.

He agreed with Mr O'Higgins that the only people who could authorise a loan being paid out were the members of the credit committee.

The witness said that loan conditions, such as pricings, repayment terms and facility durations could be stricter for certain borrowers.

He agreed with counsel that the opposite was also true, that conditions could be loosened up for some clients if, for example, there was a danger of the bank losing their business.

13.00: The jury has heard that one of the changes in the second facility letter sent to the Maple Ten was to reduce the loan amount from €60 million to €45 million to reflect the lower value of the shares.

Mr Whelan’s defence counsel, Brendan Grehan SC, put it to Mr McCluskey that one of the reasons for the new letter was because one of the Maple Ten, Jerry Conlon, came back asking to borrow the extra €15 million.

"If one came back looking for the extra €15 million, then the rest of them could too," counsel said.

He put it to the witness that "the purpose of the second letter was to stop this from happening".

Mr McCluskey agreed this is correct, that there was a need to correct the facility letters for this reason.

Mr Grehan asked Mr McCluskey who decided that the date of 17 July 2008 should go on the second letter, which Mr McCluskey claims was drafted in October 2008.

The witness said he believes Mr Whelan decided the date should go on the letter.

Mr Grehan put it to the witness that he presented himself to the jury as "the mouse that roared" when he refused to sign the October letter.

Counsel put it to Mr McCluskey that he never told the investigating gardaí that he refused to sign, he merely said he was uncomfortable with the new letter.

The witness repeated that he refused to sign it.

12.50: Mr McCluskey said that in October a facility letter came to him from his line manager, Michael O'Sullivan, which required his signature.

He said he had no direct dealings with the accused, Pat Whelan, about this new facility letter.

The instructions came through his line manager.

Mr McCluskey said he understood the instruction to sign the letter had come from a meeting between Mr O'Sullivan and Mr Whelan.

He said Mr O'Sullivan told him the CEO, David Drumm, as well as the board wanted the new facility letter drafted.

Defence counsel, Brendan Grehan SC, asked the witness if there was anything wrong with the first facility letter that was sent in July.

Mr McCluskey said the only error he was aware of was that the loan should have been €45 million, not €60 million.

This is because the shares' price had fallen, meaning a smaller loan was required to buy them.

The witness said the original facility letter was in existence from the date of draw down, 15 July 2008.

It was then changed in October and the terms of the recourse were altered.

Mr McCluskey has previously said this alteration removed the original 25% recourse Anglo could recoup.

It put in place a new recourse agreement, which meant the Maple Ten might be subject to no recourse whatsoever.

This 0% recourse was later amended in a third letter, which reinstated the original 25% recourse.

11.45: An email sent from Mr McCluskey to Fiachra O’Neill on 10 July 2008 is now being shown to the court.

The subject reads: "Proposed wording - prepared by ANL (no identities of clients and/or stock revealed)."

This email references a condition Mr O'Neill sought to have imposed on the loans to the Maple Ten.

The condition would require the ten to give Anglo advance notice if they wanted to sell the bank's shares which had been purchased using Anglo loans.

Mr McCluskey said he definitely did not draft this letter and that it was probably drafted by a solicitor.

He said he believes that this document was never used, as it was replaced by a new set of documents drawn up by solicitors firm Matheson Ormsby Prentice (MOP).

Mr McCluskey said he had no dealings with MOP himself, but that they did act for the bank and acted as part of the share deal with the Quinn children.

11.30: Welcome to live coverage of day six of the trial of Seán FitzPatrick, William McAteer and Pat Whelan.

Lorcan McCluskey, a former associate director of lending at Anglo Irish Bank, has continued his evidence this morning.

He identified a letter presented to him by the prosecution.

It is a typed loan facility letter dated 10 July 2008 with handwritten notes made in several places.

Mr McCluskey said the notes are in the handwriting of himself, Pat Whelan and Michael O'Sullivan.

One note states: "To replace letter dated 10/7/2008."

This note is crossed out but legible. Mr McCluskey said he believes it is Mr Whelan's writing.

Another of the notes states: "Ten heroes Rec SAT 11/10/08."

The witness said this note was also in Mr Whelan’s handwriting. A further note changes the loan amount to the borrower from €60 million to €45 million.

Mr McCluskey said he believes he first saw this letter on 13 October 2008. He has previously said he refused to sign this updated letter because it would weaken the bank’s position.

He also said he kept a copy of the letter at the time as evidence that its contents had not been drafted by him or his line manager, Mr O’Sullivan.

Under cross-examination, Mr McCluskey denied his account of events "has evolved over time".

Counsel for Mr Whelan, Brendan Grehan SC, put it to him that up until now he never said he refused to sign the letter, that the furthest he went was to say he was uncomfortable with its contents.

Mr McCluskey repeated that he refused to sign it.