RTE may broadcast further confidential information relating to National Irish Bank and its customers, the Supreme Court decided yesterday. But the court warned the station against publishing names of "innocent investors" in a scheme operated by the bank.
RTE has alleged it has information that NIB operated a scheme which attracted up to £30 million from investors and enabled customers with "sensitive" accounts to put their money beyond the reach of the Revenue Commissioners.
Earlier this month the High Court lifted an interim injunction restraining RTE from publishing information confidential to the bank. NIB had asked the court to continue the order pending the hearing of its action against RTE.
NIB appealed the High Court decision to the Supreme Court which yesterday upheld Mr Justice Shanley's decision.
However, the Supreme Court, in its three-two majority decision, warned RTE that if it decided to publish names of any investors it "should be very sure and should take all necessary steps to ensure they do not publish the names of innocent investors".
Mr Justice Lynch, delivering the majority judgment, said the allegation which RTE made was of serious tax evasion. It was of genuine interest and importance to the general public and especially the vast majority who were lawabiding taxpayers.
He was satisfied it was in the public interest that the general public be given such information.
He also agreed that RTE should give its information to regulatory authorities, especially if it is asked. Mr Justice Lynch said if RTE were to publish the names of persons who lawfully invested in the scheme then mere publication of their names would involve a serious libel.
Outlining the background to the case, the judge said that Mr Edward Mulhall, RTE Director of News, had claimed the station had information that certain NIB customers were invited to participate in a scheme which involved closure of their NIB accounts and using the proceeds to buy a life assurance-linked investment bond from Clerical Medical Insurance (CMI), an Isle of Man company.
Mr Mulhall claimed RTE's information was that, within days, most of the money withdrawn for investment was back in the same NIB branch in an account deposited by CMI in trust for the investor.
Mr Justice Lynch said there was no ambiguity in RTE's allegation that the scheme was used by the greater part of investors for tax evasion; that the bank knew the scheme could enable customers evade tax and that it deliberately targeted customers who would be interested in such a scheme.
NIB denied having any policy to act in a manner which facilitated or encouraged or achieved tax evasion by its customers. The bank claimed it was conducting an investigation to decide whether there had been any wrongdoing on its part or on the part of its agents. If there was such wrongdoing, it proposed to notify the appropriate regulatory authorities.
Mr Justice Lynch said there was no doubt there existed a duty and a right of confidentiality between banker and customer. This duty extended to those into whose hands confidential information might come and such parties could be injuncted to prohibit the disclosure of such confidential information.
There was a public interest in the maintenance of such confidentiality for the benefit of society at large.
On the other hand, there was also a public interest in defeating wrongdoing, he said. Where the publication of confidential information might be of assistance in defeating wrongdoing, then the public interest in such publication might outweigh the public interest in the maintenance of confidentiality.
Mr Justice Lynch said NIB relied heavily on the fact that the court had not been informed of the precise information in RTE's possession which it wished to publish.
This was certainly a matter to be put into the scales having regard to the usual case where the court was furnished with a copy of the information, the judge said.
But in this particular case the absence of copies of what RTE might wish to publish was not of such great weight when RTE had made it clear what its information was.
In a minority judgment, Mr Justice Keane said that, with certain exceptions, he would grant an interlocutory injunction against the television station. He would restrain RTE disclosing confidential information about NIB customers to anyone other than the Revenue Commissioners.
The exceptions were where RTE was in possession of information that named customers evading tax or contemplating evasion and where it had given that information to the Revenue.
Mr Justice Keane said he would also, in those circumstances, have required RTE to notify the bank and the customer and each would have seven days to apply to the courts for a restraint order.