Cantillon: Bailey’s called to account, maybe

Ireland's bust, as Alice from Alice in Wonderland might say, just gets "curiouser and curiouser."

Michael and Tom Bailey, of Bovale Developments, made a €22.7 million settlement with the Revenue Commissioners as far back as 2006. The settlement, as far as we know, was the product of the Revenue having gone back through company records for an extended period, and discovering a pattern of understating profits and the brothers' income.

Yesterday, in the High Court, Ms Justice Mary Finlay Geoghegan characterised what they had been up to as fraud and "particularly serious" misconduct, involving "systemic falsification" of the Bovale books of account. There had been a €6 million understatement of the brothers' gross remuneration over just two years, she noted.

In fact, things were worse than the evidence on which the judge based her harsh criticism. The original case taken against the brothers involved malpractices over a 12-year period, but the brothers argued successfully that aspects of the assembled case against them should not be allowable as evidence, and the case that went ahead only looked at dodgy practices over a two-year period, to mid-1998, as against a 12-year period.

The case was appealed to the Supreme Court where the admissibility of certain evidence, including material from the Flood tribunal, was argued over before the case when back to the High Court. Because of all this, a case initiated in 2006 only resulted in a judgment yesterday.

Yet the mitigating factors taken into account by the court, when reducing the order against the brothers from a 14-year prohibition from acting as directors to seven, included the fact that the fraud at issue had taken place more than 15 years ago. Almost half of that, of course, is due to the seven years it took for the proceedings to reach conclusion.

And they haven't reached the end of the road yet. The brothers' Bovale loans have been transferred to the National Asset Management Agency and the recently filed Bovale accounts make it clear it needs Nama support if the brothers are to stay in business. Next month, they will apply to the court for the order to be made against them to be modified, so they can continue to assist the maximisation of Nama's return on its Bovale loans.

The case taken against the Bovale brothers was a civil as against a criminal one, and the fact that no criminal proceedings were ever taken against them is a legitimate point of public interest.

And the civil judgment against them may be modified so that they can avail of millions of euro in financial support from a publicly-funded agency.

Is this a healthy state of affairs? It is certainly curious.