Depends on how you interpret the 'ordinary course of business' bit of s. 60 Companies Act 1963. Given the strict construction you need for a criminal conviction, I'd say it would be hard to get a conviction, but it may be possible to rely on the section in a civil action to annul the transaction.
If I was the DCE I'd look to the Market Abuse regs rather than s. 60 for a conviction.
The problem with the legal advise is that it avoids the overall context and purpose of the loans. The question is not the influence of the individuals but the overall intent of such lending.
It is clear that the Board by asking for the advice must have considered the decision problematic. It sounds more like advice on the line of defence to take. It is a distraction into a side issue.
I think for a transaction of that magnitude where there is lack of certainty on the issue, a board will always get some CYA professional advice. In such circumstances though, the advice giver does usually realise that they are being asked to put their reputation (and indemnity insurance) "on the line" and , like hanging, that should concentrate the mind !
The advice reads as self-serving and disingenuous in the extreme.
I wonder how much Anglo paid for this skein of legal advice to cover the the bank directors.
Amazing how small the difference is between common prostitutes and leading law firms. Paying for the best available advice is like paying for a high class hooker.
There are times when you are simply required to be impolite. There are times when condescension is called for!
- Aaron Sorkin writing as President Bartlet to Obama, NYT 21/09/2008
You can't build a smart economy based on dumb decisions.
- Richard Bruton 18/12/2008
How can Anglo call the funds given to the Golden Circle lads "loans", they were advised only 25% of the amount had recourse but to date nobody has been requested to cough up their 25%.
At the outset in theory they were a form of loan but in application and hindsight they were nothing of the sort.
I always thought the only obvious issue for Anglo was a potential breach of EU regulation in terms of "hiding" debt on another institutions books then shipping it back after the audit*. In any event, one wonders if the DCE has taken a view at this stage. The obvious move would be for him to invoke the Companies Act's and ask the High Court for an order restricting persons as directors. It would then be a matter for the High Court.
*Can't remember the regulation or the Irish Act incorporating it, at this second*
"......... we must sometimes listen to those who, consumed with zeal, have scant judgment or balance. To such ones the modern world is nothing but betrayal and ruin.........We feel bound to disagree with these prophets of doom who are forever forecasting calamity -- as though the world's end were imminent."
I take it "Not Unlawful" isn't the same as "Lawful"?
"WAKE UP! THE RICH ARE RAPING YOU!"