Failure to prove public interest stays judge’s hand on O’Brien

The High Court judgment in the case of Denis O’Brien v RTÉ fills in some of the detail around the statement made by Deputy Catherine Murphy in the Dáil.

However Mr Justice Donald Binchy ruled that, apart from what was already in the public arena, and some other matters covered in his judgment, O’Brien’s banking arrangements should stay private.

While parts of the judgment are redacted, it appears that the large part of the story has now emerged, in general terms anyway.

In October 2013, according to information obtained by RTÉ, O’Brien contacted IBRC liquidator Kieran Wallace saying he had an agreement with the former IBRC management and former chief executive Mike Aynsley to repay the outstanding balance of his loans over a three-year period, as opposed to the one-year period previously agreed.

Mr Justice Binchy says that from the information presented to court, it does not seem the existence of any such agreement was accepted by IBRC, either before or after the liquidation.

Subsequently, in 2014, O’Brien bought back the loans from IBRC, effectively refinancing them, reportedly via an international bank.

The documents obtained by RTÉ say that at some point prior to the liquidation of IBRC in February 2013, O’Brien had discussions with Aynsley and another senior executive, Richard Woodhouse, with a view to extending his loans.

The suggestion is that O’Brien subsequently told Wallace that he had such an agreement, and sought for it to continue. The former management of IBRC say no agreement was reached and it appears there was no approval from the IBRC credit committee for such an agreement.

Public interest

RTÉ argued there was a public interest in this because some €300 million of borrowings were involved and there was an assertion that former IBRC management had agreed the deal without referring it to the credit committee - a special committee which would normally sign off on alterations to major loans or any new lending.

A finding by Mr Justice Binchy that the court had not been presented with evidence that such a verbal agreement existed was central to the decision to injunct RTÉ from releasing further details of O’Brien’s banking arrangements – because if there was no agreement, then the credit committee could not have been bypassed, and the public interest argument collapses.

In a statement issued last week, Aynsley denied that O’Brien, or any other borrower, had received any special treatment.

He said the general policy for large borrowers was to agree a two-stage process.

First a repayment schedule was set for the first phase of repayment, involving a large part of the loan, and this was signed off by the credit committee and, in larger cases, the board also.

An agreement would then have been reached with the borrower on the repayment of the rest of the loan. It would have been expected that this “phase 2” agreement would have been reached “automatically”, and then it would have proceeded back to the credit committee and the board.

Proposed extension

Subsequent information obtained by RTÉ was that O’Brien wrote to the IBRC liquidators in relation to the proposed extension of the repayment period, a matter on which IBRC took legal advice.

In the judge’s view this was a normal commercial negotiation, and RTÉ stated repeatedly it was not inferring any misconduct on O’Brien’s part.

O’Brien again emphasised in his affidavit that he met all the repayment terms and had made no suggestion that the credit committee be bypassed.

RTÉ’s reporter David Murphy argued that any loan extension would have conferred a benefit on O’Brien – and that while any such agreement without credit committee approval was not a criticism of O’Brien, it would identify “a significant issue of corporate governance within IBRC”.

However, a key part of the judgment was that the court had not been presented with “evidence of a substantive nature” that there had been a verbal agreement between O’Brien and the former IBRC management.

If there had been such an agreement without credit committee approval, that might have justified publication of more details of O’Brien’s private affairs, according to Mr Justice Binchy.

However, RTÉ had failed to prove a connection between the public interest in alleged failures of corporate governance at IBRC and O’Brien’s personal dealings, the judge said.

So, for the moment, this is as far as we get in terms of discovering what actually happened.

Further court hearings lie ahead in this case, however, and the Government’s expected decision to establish a Commission of Investigation into certain transactions at IBRC suggests the general controversy surrounding the bank is set to continue.