JUDGMENT of Ms. Justice Irvine delivered on the 24th day of April 2018
Preliminary
1. This judgment is supplemental to the judgment just delivered by Finlay Geoghegan J. with which I am in agreement. As set out therein the appellant, Mr Fingleton, pursued his appeal on three distinct grounds; (1) the jurisdiction ground; (2) the settlement ground and (3) the delay ground. This judgment concerns only the latter two grounds.
Relevant background facts
2. In 2010 the Central Bank commenced an investigation into the conduct of Irish Nationwide Building Society (“INBS”) concerning its activities as a financial services provider (“FSP”) over the period the 1st August, 2004, to the 30th September, 2008.
3. In January, 2012, Mr. Fingleton was notified that the Central Bank suspected that INBS may have committed prescribed contraventions for the purposes of s. 33AO(i) of the Central Bank Act 1942 (“the 1942 Act”). He was advised that the Central Bank considered it necessary for it to examine whether there were reasonable grounds to suspect that as a person concerned in the management of INBS between the 1st August, 2004, and the 30th September, 2008, he may have participated in the commission by INBS of such contraventions.
4. By letter dated the 9th July, 2015, Mr. Fingleton was notified that the Central Bank had decided to hold an inquiry under part IIIC of the 1942 Act to determine whether INBS had committed a number of prescribed contraventions, and to determine whether certain persons concerned in the management of INBS, including himself, had participated therein. He was notified that under the “Inquiry Guidelines” made pursuant to s.33BD of the 1942 Act that the Central Bank’s Enforcement Division had referred the case to its Regulatory Decisions Unit in order that an inquiry be conducted under s.33AO of the 1942 Act.
5. In the aforementioned letter Mr. Fingleton was advised as to the names of the three persons appointed to conduct the inquiry (“the inquiry members”). He was also furnished with an outline of the prescribed contraventions, the commission of which by INBS, he was suspected of having participated in. Documents and investigation reports material to the inquiry were also enclosed.
6. Shortly thereafter, on the 15th July, 2015, the Central Bank entered into a settlement with INBS which it published on its website with immediate effect. The published document is entitled “Settlement Agreement between the Central Bank of Ireland and Irish Nationwide Building Society”. It is common case that as part of the settlement, INBS acknowledged having committed multiple breaches of the financial services law with the result that it was reprimanded by the Central Bank and the maximum available sanction, namely a fine of €5m, was imposed.
7. In its publicity statement of the 15th July, 2015, the Central Bank not only announced that it had entered into a settlement with INBS, but it advised, under a heading entitled “Next Steps,” that it would proceed in the following manner, namely:-
“The Central Bank will be holding an Administrative Sanctions Inquiry to establish whether certain persons who were concerned in the management of INBS during the Relevant Period participated in the commission by INBS of the above breaches. This Inquiry will be held in accordance with the Central Bank’s powers under Part IIIC of the Act.”
8. Mr. Fingleton in his affidavit dated the 7th September, 2015, supporting his application for judicial review, deposes to the fact that he is very concerned as to the impact of the aforementioned settlement upon his ability to defend himself against the charges in the notice of inquiry, and makes a complaint about the fact that it was made without him being afforded an opportunity to make submissions concerning same. He also maintains that, having regard to the adverse publicity to which he has been subjected, he would not be in a position to obtain a fair hearing before the inquiry.
9. Before dealing with the submissions of the parties on this aspect of the appeal, which were more extensive than those set out above, there are two further matters which should be noted. The first is that the letter of the 9th July, 2015, which in effect established the inquiry, makes clear that it was decided to hold an inquiry to determine both whether INBS committed the suspected prescribed contraventions, and whether the named individuals participated in the commission by INBS of the prescribed contraventions.
10. The second matter of particular relevance to Mr. Fingleton’s appeal is the fact that it is accepted by the Central Bank , and the inquiry itself has so ruled, that the settlement between INBS and the Central Bank and admissions made by INBS will not be admissible evidence in the inquiry. It will fall to the Central Bank to establish de novo the commission by INBS of the suspected prescribed contraventions in respect of which it is suspected Mr. Fingleton may have participated.
Judgment of the High Court
11. In the High Court, Noonan J. concluded that INBS had the statutory right to make the admissions which it did, and that its entitlement to do so was not dependant upon any consent or agreement on the part of Mr. Fingleton. Further, he held that the Central Bank had no power to prevent INBS making admissions in respect of suspected prescribed contraventions. Given that Mr. Fingleton had no power to influence the Central Bank concerning the admissions proffered by INBS, he did not, as he had maintained, have a right to make submissions concerning the settlement. The High Court judge also concluded that if Mr. Fingleton had a right to make any submissions to any party, it was to INBS before it decided to make its admissions. However, that right could not be asserted in these proceedings as INBS was not a party thereto. He also anticipated, as proved to be the case, that the inquiry members would likely take the view that any admissions made by INBS to the Central Bank would not bind the inquiry and thus could not prejudice Mr. Fingleton’s defence to his suspected involvement in the prescribed contraventions. In that regard, he concluded that any such concerns on the part of Mr. Fingleton were purely hypothetical in circumstances where it was not clear at the time that the inquiry would rely upon any such admissions.
12. The High Court judge also was satisfied that the decision of the Supreme Court in Dellway Investments Ltd. v. National Asset Management Agency [2011] 4 I.R. 1 was of no assistance to Mr. Fingleton in circumstances where he had failed to identify any legal right which had been adversely affected by the decision of INBS to make the admissions which it did. As to the submission that the settlement between INBS and the Central Bank amounted to prejudgment of the inquiry and gave rise to concerns of objective bias, he noted that the inquiry members had not been involved in the settlement, nor had their independence been impugned. The High Court judge noted that the inquiry members had been appointed in accordance with the statutory provisions, and thus the fact that they were appointed by the Central Bank who had already dealt with another party to the inquiry in a particular way could not give rise to objective bias in the absence of a challenge to the constitutionality of the statute.
13. The High Court judge also rejected the submission that Mr. Fingleton could not obtain a fair hearing from the inquiry because of the manner in which the Central Bank had dealt with INBS insofar as it had published details of the settlement and the sanction imposed.
14. Finally, in relation to a submission made that the delay on the part of the Central Bank was such that the Court should halt the inquiry, the High Court judge concluded that Mr. Fingleton had not discharged the onus of proof required before it could grant such relief. He had not established, as per the decision in Kennedy v. DPP [1994] 2 I.R. 465, that there was a real risk that he would not obtain a fair hearing.
The Settlement Ground of Appeal
Submissions on behalf of the appellant
15. Mr. Shipsey S.C., on behalf of Mr. Fingleton, submits that the publication of the settlement between the Central Bank and INBS and the fact that the maximum penalty was imposed in respect of the prescribed contraventions in advance of the inquiry into his client’s suspected participation therein warranted the making of an order of Certiorari quashing the notice of inquiry. The substance of the inquiry had been compromised by prejudgment as evidenced by the publication of the settlement and sanction particularly in circumstances where the members of the inquiry are agents of the Central Bank. Even independent of their agency their awareness of the settlement and sanction would give rise to an objective perception that the settlement would influence the outcome.
16. According to counsel, the Central Bank was not required to accept the admissions made by INBS before the inquiry into Mr. Fingleton’s suspected participation in the prescribed contraventions, much less to publish those admissions. Section 33AV did not require the Central Bank to publish details of any settlement agreement entered into with INBC. Further, the settlement procedure provided for in s.33AR, if that was the provision relied upon, gave the Central Bank the discretion not to publish details of the settlement or sanction. Under s. 33BC(4)(b)(ii), the Central Bank could have refrained from publishing details of the settlement and sanction as the same where likely to prejudice Mr. Fingleton’s reputation. Publication of the settlement and the sanction should and could have been withheld until after the inquiry into his suspected participation in the prescribed contraventions on the part of INBS was concluded.
17. Thus Mr. Shipsey submits that the High Court judge erred in law in failing to conclude that the publication of the settlement and the sanction imposed on INBS before the inquiry into Mr. Fingleton’s suspected participation in the prescribed contraventions had started or had been determined, was avoidable conduct, and as such was evidence of objective bias.
18. Counsel also submits that publication of the settlement and the sanction imposed has prejudiced Mr. Fingleton’s right to a fair and impartial hearing before the inquiry which is being conducted by its own three agents. The fact of the settlement and the sanction imposed should, he submits, have been withheld from the public arena and from the members of the inquiry until the inquiry into Mr. Fingleton’s suspected participation in the prescribed contraventions was concluded. The fact that the Central Bank took these unnecessary steps at a time when their agents were sitting to determine whether Mr. Fingleton and others concerned participated in the commission of the contraventions admitted by INBS gave rise to an apprehension of bias and reasonable concern that he would not receive a fair hearing. Applying the test for objective bias set out by this Court in The Commissioner of An Garda Síochána. v. Penfield Enterprises Ltd. [2016] IECA 141, the High Court judge, counsel submits, should have made an order precluding the further prosecution of the inquiry.
19. Finally, on the appeal on the settlement issue, Mr. Shipsey submits that the failure of the Central Bank to invite his client to make submissions before publication of the settlement agreement violated those rights to which he is entitled as per the decision in Dellway.
Submissions on behalf of the Central Bank
20. Mr. Gallagher S.C. submits that the circumstances surrounding the settlement and the publication of the sanction visited upon INBS are not such as to give rise to a reasonable apprehension of bias. Neither do they impact in any way on Mr. Fingleton’s rights to a fair and impartial hearing.
21. Counsel relies on the fact that the statutory scheme under the 1942 Act envisages that a FSP may acknowledge its commission of prescribed contraventions, and that the Central Bank may, in such circumstances, dispense with an inquiry and impose an appropriate sanction. In this case INBS had acknowledged that it had committed the contraventions alleged and had agreed that the Central Bank might dispense with an inquiry and impose the sanction which it did. The Central Bank, as a result of those acknowledgments, entered into an agreement with INBS under s. 33AV and having imposed a sanction under s. 33AR had published the particulars pertaining thereto in a formal manner as required by s. 33BC. Not only did the Central Bank have the power to publish particulars of the sanction and the contraventions in respect of which the same was imposed, it was obliged to do so. Section 33BC(4) does not contemplate that a settlement of the nature arrived at in this case would be kept private. The details were not confidential, and nothing disclosed could have injured Mr. Fingleton’s reputation.
22. Mr. Gallagher argues that the Central Bank is not obliged to refrain from informing the public of a settlement reached with a FSP and of the resultant imposition of a substantial penalty where it receives an acknowledgment by a FSP of its commission of serious prescribed contraventions. Such an approach by the Central Bank would not only lack transparency, but would undermine the entire regulatory scheme.
23. Mr. Gallagher accordingly submits that the reasonable, objective and informed observer would understand that the settlement and the sanction imposed did not evidence any prejudgment of Mr. Fingleton’s participation in the contraventions acknowledged by INBS. They would understand that the settlement did not remove the need for the Central Bank to establish in the course of the inquiry that INBS had committed the prescribed contraventions and that only thereafter would it be in a position to determine whether or not, and if necessary to what extent, Mr. Fingleton had participated therein. Material also in this regard, counsel submits, is the fact that the Central Bank is not entitled under the 1942 Act to refuse to accept admissions in respect of prescribed contraventions and in that respect, is in much the same position as the Director of Public Prosecutions, who must accept a guilty plea by an accused charged with a criminal offence. Neither does the 1942 Act anticipate the postponement of the acceptance of any such admissions.
24. Mr. Gallagher submits that objective bias is not to be inferred from the fact that the three inquiry members can be stated to be agents of the Central Bank. They are agents only of the Central Bank in a technical sense as the inquiry can only be conducted under the prevailing statutory scheme. The 1942 Act only gives the Central Bank two options if it considers it necessary to conduct an inquiry. The first is under s. 33BE(1) whereby the Central Bank may appoint certain of its own officers or employees to conduct the inquiry. The second is that the Central Bank may, as it did in the present case, under s. 33BE(2) designate persons who are not its own officers or employees to perform and exercise its functions and powers under that part of the 1942 Act. That being so, the appointment of the three members of the inquiry could not be evidence of bias.
25. Finally, counsel submits that the Central Bank was under no obligation to invite submissions from Mr. Fingleton in respect of the settlement agreement made with INBS or the sanction to be imposed in respect thereof. In his statement of grounds Mr. Fingleton made no challenge to the lawfulness of the inquiry based upon a claim that he was entitled to be heard in relation to the imposition of the sanction. INBS was entitled as of right to acknowledge prescribed contraventions without Mr. Fingleton’s consent, and the Central Bank had no power to prevent the making of any such admissions. It follows that Mr. Fingleton could not have benefited from the hearing to which he claims to be entitled. Further, as the admissions made by INBS have no legal effect on the inquiry, he cannot rationally claim that the High Court judge erred in law in failing to conclude that he would likely be prejudiced in his ability to defend his suspected participation in the commission by INBS of the prescribed contraventions.
Statutory provisions material to the appeal
26. For the purposes of considering the grounds of appeal set out at B 12-16 of the notice of appeal, which concern the refusal of the trial judge to make an order declaring that it would be unlawful to proceed with the inquiry, it is necessary to first refer to some of the statutory provisions material to the actions of the Central Bank, and thereafter to consider whether in light of the same Mr. Fingleton can sustain his complaint that the trial judge erred in law when he concluded that no case had been made out in respect of objective bias, prejudgment or prejudice by reason of the settlement or delay such as would have warranted the making of an order of certiorari quashing the Central Bank’s notice of inquiry.
27. Section 33AR provides as follows:
“33AR(1) If, in a case where the Bank suspects on reasonable grounds that a regulated financial service provider is committing or has committed a prescribed contravention, the financial service provider acknowledges that the financial service provider is committing or has committed the contravention, the Bank may:-
(a) with the consent of the financial service provider, dispense with an inquiry and impose on the financial service provider any sanction that it is empowered to impose on regulated financial service providers under section 33AQ, or
(b) hold an inquiry to determine what sanction (if any) should be imposed on the financial service provider in accordance with that section.
(2) If, in a case where the Bank suspects on reasonable grounds that a person concerned in the management of a regulated financial service provider is committing or has committed a prescribed contravention, the person acknowledges that the person is participating or has participated in the commission of the contravention, the Bank may:-
(a) with the person's consent, dispense with an inquiry and impose on that person any sanction that it is empowered to impose on persons concerned in the management of regulated financial service providers under section 33AQ, or
(b) hold an inquiry to determine what sanction (if any) should be imposed on the person in accordance with that section.
(3) At the conclusion of an inquiry under subsection (1)(b), the Bank shall notify its decision to the financial service provider concerned. The decision must set out in writing the sanctions (if any) imposed under that subsection in respect of the relevant contravention.
(4) At the conclusion of an inquiry held under paragraph (b) of subsection (2), the Bank shall notify the person concerned of its decision. The decision must set out the sanctions (if any) imposed under that paragraph in respect of the participation.
[…]
33AV(1) If the Bank suspects on reasonable grounds that:-
(a) a regulated financial service provider is committing or has committed a prescribed contravention, or
(b) a person concerned in the management of the financial service provider is participating or has participated in such a contravention,
it may enter into an agreement in writing with the financial service provider or person to resolve the matter.
(2) Such an agreement is to be on such terms as are specified in the agreement and is binding on the Bank and the financial service provider or person concerned. Those terms may include terms under which that financial service provider or person accepts the imposition of sanctions of the kind referred to in section 33AQ.
(3) The Bank may enter into an agreement under this section:-
(3A) Subject to subsection (4), where the regulated financial service provider or person concerned in the management of the financial service provider with whom the Bank has entered into an agreement under this section fails to comply with any of the terms of the agreement, the Bank may apply to the High Court for an order under subsection (3B).
(3B) If satisfied on application to it under subsection (3A) that the regulated financial service provider or person concerned has failed to comply with any of the terms of the agreement under this section, the High Court may make an order requiring that regulated financial service provider or person to comply with those terms or that term, as the case may be.
(4) The Bank may, by proceedings brought in a court of competent jurisdiction, recover as a debt due to the Bank the amount of any amount agreed to be paid under an agreement entered into under this section.
[…]
33BC(1) If on the holding of an inquiry under section 33AO the Bank has found that:-
(a) a regulated financial service provider is committing or has committed a prescribed contravention, or
(b) a person concerned in the management of the financial service provider is participating or has participated in such a contravention,
it shall publish, subject to subsection (4), in such form and manner as it thinks appropriate, the finding and such (if any) of the particulars specified in subsection (3) as it thinks appropriate.
(2) If the Bank has, in accordance with section 33AR, imposed—
(a) a sanction on a regulated financial service provider in respect of the commission of a prescribed contravention, or
(b) a sanction on a person concerned in the management of a financial service provider in respect of the person's participation in the commission by the financial service provider of such a contravention,
it shall publish, subject to subsection (4), in such form and manner as it thinks appropriate, the finding and such (if any) of the particulars specified in subsection (3) as it thinks appropriate.
(3) The particulars referred to in subsections (1) and (2) are as follows:-
(a) the name of the regulated financial service provider or person concerned on whom a sanction has been imposed;
(b) details of the prescribed contravention in respect of which the sanction has been imposed;
(c) details of the sanction imposed;
(d) the grounds on which the finding is based.
(4) Subsections (1) and (2) do not apply to the finding or particulars specified in subsection (3):-
Discussion and decision
The acceptance of the acknowledgment on the part of INBS of the prescribed contraventions
28. At para. 65 of her affidavit dated the 16th September, 2015, Ms. Louise Gallagher, on behalf of the Central Bank, confirms that the Central Bank entered into a settlement with INBS pursuant to s. 33AV of the 1942 Act, and this is not disputed. Further, as appears from the public statement published concerning the settlement (Exhibit “MF3” to Mr. Fingleton’s first affidavit), the same was entered into on the basis that INBS had acknowledged the commission of a number of serious prescribed contraventions with the result that the Central Bank had, under s. 33AR(1)(a) imposed the sanction earlier referred to.
29. As is apparent from the statutory provisions to which I have referred above, a FSP appears to enjoy a statutory entitlement to acknowledge the commission of prescribed contraventions under s. 33AR(1) and if it does so the Central Bank may, with its consent, dispense with an inquiry in relation to it and impose a sanction in respect thereof. The only inquiry which the Central Bank is entitled to hold in relation to the FSP where such an acknowledgment is forthcoming is one confined to the sanction to be imposed should the FSP not agree to that proposed by the Central Bank. It is clear that the use of the word “may” in the section refers only to the method whereby the sanction is to be determined in respect of the acknowledgments made. The section does not, as was submitted on Mr. Fingleton’s behalf, give the Central Bank the discretion to reject an acknowledgement of wrongdoing by a FSP and insist that an inquiry into the commission of those prescribed contraventions proceed and neither in my view can that right be implied. The words of the section in their ordinary and natural meaning make clear that it was the intention of the legislature to give a FSP the right to acknowledge prescribed contraventions which the Central Bank would be obliged to accept after which the Central Bank would remain entitled to hold an inquiry “to determine what sanction (if any) should be imposed” should it be unable to obtain the consent of the FSP to the imposition of sanction.
30. Accordingly, I reject the submission made on behalf of Mr. Fingleton that the Central Bank was not obliged to accept the acknowledgments made by INBS,
31. There is also no provision in the 1942 Act for the postponement of the acceptance of any acknowledgment made by a FSP to await the determination of any inquiry as may be pending into the conduct of any person concerned in its management and whom the Central Bank suspects may have participated in the commission of the relevant contraventions. Neither is there any provision which requires the Central Bank, prior to accepting any such acknowledgment, to consult with any person concerned in the management of that FSP. That being so, I am satisfied that the High Court judge was correct as a matter of law when he concluded that INBS was entitled as of right to make the acknowledgments which it did without the consent of Mr. Fingleton and that the Central Bank without his consent was equally entitled to accept that acknowledgment under s. 33AR(1).
32. There is in my view simply no support in the 1942 Act for the regime proposed on behalf of Mr. Fingleton which essentially is that the Central Bank was not entitled to accept any acknowledgment of the commission of prescribed contraventions from INBS before the inquiry into his suspected participation in those alleged contraventions had been concluded. If his submission was correct, it would have to follow that INBS could have been prevented from making the acknowledgements which it did had the matter proceeded to a full inquiry, and that is clearly an untenable proposition. Thus, I consider it incorrect that the acknowledgements made by INBS to the Central Bank somehow prevented the hearing of an inquiry into the alleged participation of certain persons in the alleged contraventions that would otherwise have run to a conclusion. It would also seem to follow that if this submission was correct as a matter of law or fair procedures that no corporate body could ever plead guilty to a criminal charge without first obtaining the consent, or at a minimum consulting with, all of its former executives who might have some potential exposure to a criminal charge by reason of their potential involvement in such activity. Thus, I tend to agree with the submission made on behalf of the Central Bank that the argument is flawed as one which proposes the “creation of an entirely new family of horizontal procedural rights as between co-accused and accessories and their various analogues in disciplinary and sanctioning processes”, and for which far reaching proposition there is no legal authority.
33. Further, whilst Mr. Fingleton alleges that he is prejudiced in the inquiry pending against him by reason of the acceptance by the Central Bank of the acknowledgement of the contraventions proffered by INBS, he does not explain the nature of such alleged prejudice. In circumstances where the inquiry is not entitled to rely upon the admissions made by INBS as evidence in the inquiry and the same are therefore not determinative of any wrongdoing on it or his part and do not limit or impair the defences which he may advance, I am satisfied that this aspect of Mr. Fingleton’s appeal must fail.
Was there an obligation to publish the terms of the settlement and sanction imposed?
34. As is apparent from the affidavit of Ms. Gallagher of the 16th September, 2015, the settlement entered into between INBS and the Central Bank was made pursuant to the provisions of s. 33AV. In accordance with s. 33AV(2) the agreement included terms under which INBS agreed to accept the imposition of a sanction of the kind referred to in s. 33AQ. In this case the maximum fine permitted was imposed. However, it is important to recognise that the sanction imposed by agreement in this case was based on the acknowledgment made by INBS under s. 33AR(1)(a) and that the Central Bank had the entitlement to enter into such a settlement agreement under s. 33AV(3)(a) without holding an inquiry.
35. Accordingly, I reject as legally incorrect the submission made on behalf of Mr. Fingleton that the Central Bank was not obliged to publish the fact of the settlement and the sanction imposed. Based upon the statutory provisions to which I have just referred, having imposed the sanction, which it did following the acknowledgments made under s. 33AR(1)(a), the Central Bank was in my view obliged to publish under s. 33BC(2)(a) certain statutory particulars including the identity of the FSP, the prescribed contraventions and the sanction imposed.
36. It is true to say that the Central Bank enjoys a discretion under s. 33BC(4) not to publish the statutory particulars specified in s. 33BC(3) if satisfied that to do so would unfairly prejudice a person’s reputation. Here, however, Mr. Fingleton was not named and none of the breaches of financial services law and regulations which had been acknowledged by INBS were published. Thus, it is difficult to see how it could be asserted that the Central Bank acted unlawfully in failing to exercise the discretion provided for under the section. In my view, the publication of the information required in relation to the imposition of administrative sanctions would not have been in compliance with s. 33BC(2) if the Central Bank had failed to identify the sanction imposed. It follows that I cannot accept a submission based upon an argument that s. 33 contemplates that a settlement and sanction such as occurred in the present case would be kept private between the Central Bank and the FSP concerned.
37. Given that I take the view that the Central Bank was obliged to publish the acknowledgment by INBS of the prescribed contraventions and the sanction imposed, the only other matter that needs to be considered is whether the Central Bank, in order to ensure that Mr. Fingleton would receive a fair and impartial hearing, was obliged to postpone the publication of those particulars until such time as the inquiry into his suspected participation into those contraventions was concluded. Any such argument, of necessity presupposes that the Central Bank had the right to postpone compliance with its statutory obligations.
38. Regarding this issue, I would first observe there is no statutory provision which provides for the postponement of the publication by the Central Bank of the statutory particulars following upon the imposition of a sanction on a FSP under s. 33AR or as to the circumstances in which the same might apply. Second, not only does the 1942 Act not contemplate such an approach but as was observed by Ms. Gallagher in her affidavit of the 16th December, 2015, it is legislation which demands that the Central Bank Act in a transparent manner. It follows that the objectives of the legislation would not be achieved if the approach advocated on behalf of Mr. Fingleton was correct. Third, if such an approach was mandated, it would seem to follow that the Central Bank would have to await the conclusion of every inquiry into the conduct of a FSP and those concerned in its management before it could make known any acknowledgment which it had received in respect of any suspected prescribed contravention and the resultant sanction imposed. I for one do not consider such an approach consistent with the statutory provisions and regulatory scheme earlier referred to.
Bias and prejudgment
39. I now turn to consider the submissions made by the appellant to the effect that the trial judge erred in law in failing to conclude that the inquiry against Mr. Fingleton should be brought to an end because of objective bias and/or prejudgment on the part of the members of the inquiry.
40. There is no dispute between the parties as to the relevant test for objective bias. This is stated succinctly by Denham J. in Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412 where she quoted, at p. 449, with approval from the judgment of the Constitutional Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union [1999] 4 S.A. 147 at para. 48 inter alia as follows:-
“The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience.”
41. In The Commissioner of An Garda Síochána v. Penfield Enterprises Ltd. [2016] IECA 141 I described the test for objective bias in the following terms at para. 70 of my judgment:-
“Accordingly, I am satisfied that a reasonable and fair-minded objective observer, who was not unduly sensitive, but who was in possession of all of the relevant facts, might reasonably apprehend that there was a risk that the High Court judge might not afford the appellants a fair and impartial hearing on the contempt motion.”
42. In his written submissions, counsel for Mr. Fingleton places reliance upon my use of the word “might” in the aforementioned quotation as material to the threshold at which bias should be considered to be established. That being so, I wish to make clear that in using the word “might” in the aforementioned passage I did not intend in any way to depart from the test laid down by Denham J. in Bula Ltd. v. Tara Mines Ltd. My use of the word “might” was not intended to refer to some marginal or remote concern on the part of the reasonable and fair-minded observer. In that sense, my use of the word “might” in the context in which it was used should not be distinguished from the use of the word “would” as appears in the test identified in The President of the Republic of South Africa v. South African Rugby Football Union.
43. It is important next to consider the relevant facts which ought to be imputed to the reasonable, objective, informed and fair-minded observer when considering the submission based upon objective bias. The starting point in this regard is the statutory scheme pursuant to which the settlement was entered into between INBS and the Central Bank, as earlier discussed, and in accordance with which the inquiry into Mr. Fingleton’s suspected participation in certain alleged prescribed contraventions is to be conducted.
44. In light of my conclusions as to the effect of the statutory provisions to which I have earlier referred, I believe the following are the relevant facts of this case as they ought to be understood by Mr. Fingleton and which should be imputed to the reasonable, objective, fair-mined and informed person for the purposes of considering the test in respect of objective bias, namely:-
(i) That under the 1942 Act the Central Bank was entitled to pursue an inquiry into suspected prescribed contraventions on the part of INBS and also as to Mr. Fingleton’s suspected participation therein as a person concerned in its management.
(ii) That the Central Bank in the course of its inquiry into Mr. Fingleton’s suspected participation in any alleged prescribed contraventions on the part of INBS will have to prove that INBS did indeed commit the prescribed contraventions and that the inquiry has itself ruled that this will be necessary.
(iii) That under the provisions of s.33AR, INBS was entitled to acknowledge the commission of the prescribed contraventions of which it had been notified without first consulting with or obtaining the consent of Mr. Fingleton.
(iv) That the Central Bank was obliged by statute to accept the acknowledgments made by INBS and in light of its consent to dispense with the inquiry and impose the agreed sanction.
(v) That there is no statutory provision whereby the Central Bank, if it was so minded, might have postponed its acceptance of the acknowledgments by INBS of the commission of prescribed contraventions.
(vi) That there is nothing in the statutory scheme which obliged the Central Bank , prior to accepting the acknowledgments from INBS, to obtain the consent of or hear submissions from any person such as Mr. Fingleton who the Central Bank suspects may have participated in the commission of such alleged contraventions.
(vii) That the Central Bank, having imposed a sanction on INBS as a result of its acknowledgment of the commission of the alleged prescribed contraventions, was required by law to publish the name of INBS, the details of the prescribed contraventions admitted and the sanction imposed and that on the facts of this case the Central Bank had no discretion in the matter.
(viii) That for the purposes of conducting its inquiry into the Mr. Fingleton’s possible participation in the commission by INBS of the alleged prescribed contraventions notified to him, the Central Bank had the option of appointing its own officers or employees to conduct the inquiry or in the alternative was entitled to designate persons who were not officers or employees for that purpose, and that in the present case it had opted to appoint three persons who were not officers or employees. It had appointed Ms. Marian Shanley, a solicitor with extensive legal experience including membership of the Law Reform Commission for the period 2002 – 2012; Ms. Ciara McGoldrick, a barrister and an accountant with significant experience in regulatory matters and Mr. Geoffrey McEnery, a former Chief Executive of Lloyds TSB Bank with over 40 years of banking experience.
(ix) That the members of the inquiry were not involved in any way in the settlement entered into by the Central Bank with INBS and had undertaken to carry out their functions in an independent and impartial manner.
(x) That each inquiry member had, pursuant to the relevant guideline (no. 2.5), confirmed in writing that they were not prevented from participating in the inquiry by virtue of any actual or apparent conflict of interest.
(xi) That there was no evidence to suggest that the three members of the inquiry selected to conduct the inquiry were in any respect unqualified or unsuitable for the role for which they have been selected. Nor was there evidence that by their own conduct they have demonstrated bias against Mr. Fingleton.
45. In my view, it is difficult to see how the reasonable, objective, fair-minded and informed person apprised of the relevant facts and the provisions of the statutory scheme governing the inquiry, which I have summarised above, would reasonably apprehend that Mr. Fingleton would not receive a fair hearing by reason of the settlement concluded between the Central Bank and INBS, its publication of that settlement, and the sanction so imposed to the public at large as well as to the members of the inquiry. They would surely understand that in doing so the Central Bank did no more than act in a manner consistent with its obligations and entitlements under that statutory scheme. They would know that the Central Bank had no power to reject the acknowledgments made by INBS of the alleged prescribed contraventions notified by letter of the 9th July, 2015, much in the same way as the Director of Public Prosecutions must accept a guilty plea. Nor, in my view, could they reasonably consider that the Central Bank, in imposing the sanction which it did on INBS, had demonstrated any bias against Mr. Fingleton in light of the acknowledgment of the relevant contraventions. Likewise, the reasonable, objective, fair-minded and informed observer would understand the Central Bank’s obligation, having imposed a sanction under s. 33AR(1)(a), to publish the particulars prescribed in the statute and the sanction so imposed as per s. 33BC(2)(a).
46. Accordingly, I am satisfied that the submission made that the High Court judge ought to have concluded that objective bias was to be inferred from the failure of the Central Bank to postpone acceptance of the acknowledgment and from its unnecessary publication of the details of the settlement and sanction is without foundation.
47. For the same reasons, it is impossible to see how Mr. Fingleton can maintain that the publication of the settlement with INBS and of the sanction so imposed could be considered to be evidence of prejudgment of the inquiry pending against him. The Central Bank made no judgment concerning the conduct of INBS when it accepted its acknowledgment of the prescribed contraventions. All it did was to accept the acknowledgment of wrongdoing as offered by INBS after which, with its agreement, it imposed a sanction commensurate with such admitted contravention. Further, it is not contested that the members of the inquiry who are to consider the possible involvement of Mr. Fingleton in the commission by INBS of the alleged prescribed contraventions, were not involved in any way in the settlement agreement or the sanction imposed. Also, while it could not be stated with certainty at the time of the High Court hearing what approach the inquiry members would take to the settlement between the Central Bank and INBS, it is now clear from the ruling which it has made and which was notified to this Court that the same will not be admissible in evidence at the inquiry into Mr. Fingleton’s suspected involvement in the alleged prescribed contraventions. Thus, I am satisfied that the reasonable, objective, fair-minded and informed person would not consider that Mr. Fingleton would not get a fair hearing from the inquiry members and that they would not consider that they might have prejudged his culpability, because those who appointed them had published the settlement with INBS, and the fact that the maximum sanction had been imposed. Given the aforementioned ruling by the members of the inquiry, which has the effect of placing the settlement and the imposition of the sanction on INBS at nought for the purposes of the inquiry against Mr. Fingleton, they would surely appreciate that he will be in a position to pursue all lines of defence which would have been open to him had INBS not acknowledged the commission of any prescribed contraventions, and the Central Bank published the fact of the settlement and the amount of the sanction imposed.
48. As to whether the High Court judge should have concluded that, because the members of the inquiry are agents of the Central Bank for the purposes of the inquiry and as such were privy to the settlement with INBS, the reasonable, objective and informed person would apprehend that Mr. Fingleton would not receive a fair hearing, I am satisfied that he was correct in rejecting such a conclusion. Whilst the members of the inquiry are indeed agents of the Central Bank for the purposes of performing and exercising the regulatory functions provided for in the 1942 Act (see s. 33BE(1) and (2)), that is what the statute provides for. In such circumstances, it is hard to see how Mr. Fingleton might apprehend bias on the part of the Central Bank and the members of the inquiry by reason only of the fact that it acted in accordance with the relevant statutory provisions. Further, the fact that the Central Bank elected not to appoint its own officers or employees to conduct the inquiry as it might have done under s. 33BE(1) and instead chose to appoint persons unconnected with the bank to conduct the inquiry would again surely militate against any apprehension of bias on the part of the reasonable, objective and informed observer.
49. I am also satisfied that the trial judge was correct when he concluded that the fact that the inquiry members would be aware of the admissions made by INBS and the sanction imposed could not reasonably lead to an apprehension of bias or the risk of an unfair hearing. It is common case that in criminal proceedings, one of a number of co-accused persons may plead guilty to a particular offence. This does not stop the trial of those who deny the charge. It is to be assumed that those who continue to assert their innocence will receive a fair trial, and that if necessary the trial judge will direct the jury to make sure that their defence is not prejudiced by any admission made by a co-accused.
50. In my view Mr. Fingleton is in a position much less vulnerable than that of an accused person in criminal proceedings who maintains their innocence and denies an offence was committed in the face of a guilty plea by a co-accused. He is not exposed to the risk that inexperienced jury members, who have no legal qualifications, might not easily understand that the Central Bank must prove that INBS committed the alleged prescribed contraventions before any finding as to his participation therein might be made. The evidence before the High Court was that at least two members of the inquiry have significant legal experience such that the reasonable, objective and informed observer could not, in my view, reasonably consider that Mr. Fingleton would not receive a fair hearing purely because they were appointed by the Central Bank and had knowledge of the settlement made by INBS and the sanction that was imposed. It should be noted in this regard that the uncontroverted evidence in the High Court was to the effect that the members of the inquiry were not involved in the settlement and that they had no dealing with INBS in relation thereto.
51. I also reject the submission made that the High Court judge ought to have concluded that the reasonable, objective, fair-minded and informed person would reasonably apprehend that Mr. Fingleton would not obtain an impartial hearing before the inquiry because the Central Bank did not invite him to make submissions prior to reaching its settlement with INBS and publishing the fact of that settlement and the sanctions imposed.
52. I cannot accept this submission for a number of reasons. First, Mr. Fingleton had no right, statutory or otherwise, to be heard or consulted by the Central Bank concerning admissions made by INBS. Second, Mr. Fingleton has not provided any evidence as to the nature of the submissions he would have made had he been afforded such a hearing. Third, he also conveniently sidestepped addressing how those submissions would affect the outcome of the inquiry into his participation in the alleged prescribed contraventions. Fourth, in the circumstances of this case the rights/principles identified in the judgment in Dellway are not applicable. There has been no finding made against Mr. Fingleton and none of the actions on the part of the Central Bank in reaching a settlement with INBS or publishing the same has had any effect on his rights or interests. Before any finding can be made against him it will need to be established that the alleged prescribed contraventions by INBS took place and that he participated in them.
53. Given that the Central Bank at all material times acted in accordance with its obligations under the statutory scheme and has not been shown to have acted in any way so as to prejudice Mr. Fingleton’s rights in terms of his defence to his suspected participation in certain prescribed contraventions allegedly committed by INBS, I cannot see how the High Court judge could have concluded that the reasonable, objective, fair-minded and informed observer would apprehend that the inquiry members would not afford him a fair and impartial hearing. Neither could the conduct on the part of the Central Bank in entering into the settlement with INBS be considered evidence of any prejudgment by the members of the inquiry of Mr. Fingleton’s participation in the prescribed contraventions allegedly committed by INBS.
54. In many respects, Mr. Fingleton’s submissions concerning the settlement and sanction imposed by the Central Bank on INBS would appear to have been an effort to pre-empt what might or might not occur in the course of the inquiry and to ask the Court to anticipate that the inquiry would not be conducted in a manner consistent with the principles of natural and constitutional justice. He failed in that regard in the High Court. I am satisfied that the High Court judge was correct as a matter of law to dismiss his claim for judicial review based upon the arguments he advanced concerning the settlement between the Central Bank and INBS and the sanction imposed. However, Mr. Fingleton, like all individuals who are the subject matter of an inquiry, will of course be entitled at any stage, should he consider that his right to a fair and unbiased hearing is under threat for any other reason, to take such action as he deems appropriate to ensure that he is provided with a hearing which has been conducted in an impartial manner and in accordance with procedures sufficient to vindicate his rights.
Delay
Submissions on behalf of the appellant
55. Mr. Shipsey S.C. submits that the trial judge erred in law and in fact in failing to declare that the inquiry was unlawful by reason of the delay on the part of the Central Bank in commencing the inquiry on the 9th July, 2015. He relies upon the fact that at that stage some of the matters under investigation had been left in abeyance for eleven years. In addition, counsel submits that the trial judge did not pay adequate regard to the fact that his client is seventy-eight years of age and has deteriorating eyesight as deposed to in his third affidavit of the 2nd November, 2015. He points to the fact that the trial judge ignored the evidence that Mr. Fingleton has been furnished with approximately 110,000 documents which he will be required to read and consider for the purposes of the inquiry, and submits that this would be unduly burdensome and would cause him significant prejudice if required to defend his suspected involvement in the commission by INBS of the prescribed contraventions.
56. Mr. Shipsey accepts that no medical evidence was proffered to the High Court concerning his client’s health. However, he seeks to rely upon the fact that the Central Bank did not seek to challenge Mr. Fingleton’s own evidence concerning his health, as it might have done by the service of a notice to cross examine.
Submissions on behalf of the Central Bank
57. Mr. Farrell S.C., in responding to the written submissions filed on Mr. Fingleton’s behalf, submits that the attempt made to rely upon a body of criminal jurisprudence, which predates 2006, to stop the inquiry on the grounds of delay is misplaced for two reasons. First, insofar as Mr. Fingleton contends for a constitutional right to a fair trial with reasonable expedition, all of the cases relied on have at their core the protections afforded to citizens arising from Articles 38 and 40 of the Constitution in the context of a criminal trial which do not apply on the facts of the present case. Second, he submits that even if the Court were to apply the available criminal jurisprudence to the facts of this case that the appellant’s complaint that the trial judge ought to have stopped the inquiry by reason of delay, it would be unstateable.
58. Counsel submits that decisions such as C.K. v. DPP [2007] IESC 5 make clear that an applicant seeking to rely upon delay to stop a criminal trial must engage with the facts. To allege prejudice simpliciter is not enough. They must be in a position to show that the facts are such that they are incapable of receiving a fair trial notwithstanding all of the safeguards that can be deployed in relation to the relevant trial process, and that the burden of showing that these safeguards are not enough falls upon an appellant.
59. Mr. Farrell submits that most of the case law dealing with delay in criminal trials concerns allegations of sexual abuse which are uncorroborated and are alleged to have occurred in private many years prior to the relevant prosecution. The prescribed contraventions under investigation by the inquiry do not fall into that category. This is not a case where by reason of the passage of time witnesses have disappeared and where there is no corroboration. If anything, the complaint is that there is a surfeit of corroborating materials i.e. thousands of pages of documents. The trial judge, he submits, was correct in relying upon the line of authority which includes the decision in Kennedy v. DPP [2012] IESC 34.
60. As to Mr. Fingleton’s reliance on his age, Mr. Farrell submits that age has never been considered sufficient on its own to establish prejudice even in the context of seriously delayed sex abuse cases.
Discussion and decision on delay
61. Because counsel for Mr. Fingleton indicated that, in addition to the submissions he made orally, he also wished to rely upon his written submissions, I believe it is of assistance to set out the grounds relied upon in the notice of appeal. The following is what is claimed on Mr. Fingleton’s behalf:-
“C: The learned trial judge erred in refusing the application for judicial review on the basis of the Central Bank’s delay.
17. The learned trial judge erred in considering that the Central Bank had not delayed and/or culpably delayed in circumstances where the Notice of Inquiry could have been served at a much earlier point, and/or in circumstances where it was delivered approximately 11 years after some of the matters in respect of which it seeks to inquire.
18. The learned trial judge erred in considering that the Applicant was not prejudiced by the said delay, including by reason of the learned trial judge attaching no weight, or insufficient weight to:
62. Commencing at para. 128 of his judgment, the High Court judge dealt with the first of these grounds. There he expressed himself satisfied that, having regard to the affidavit of Ms. Louise Gallagher on the 16th September, 2015, there had been no culpable delay on the part of the Central Bank in the service of the letter of the 9th July, 2015, which first notified Mr. Fingleton of the inquiry.
63. Having reviewed the three affidavits filed by Mr. Fingleton for the purposes of the High Court proceedings and his statement to ground his application for judicial review I am satisfied that the trial judge cannot be faulted for his conclusion in this regard.
64. It is not necessary here to repeat all of what is averred by Ms. Gallagher in her affidavit. It is suffice to state that she describes the severity and extent of the financial crisis and the burden that this imposed upon the Central Bank in 2009 and 2010. In particular, she explains how in 2010 the Central Bank commenced its investigations into INBS and the persons concerned in its management. She details the nature of the investigation and the multiple suspected breaches of the financial services law, and also provides details of the extensive work required to retrieve evidence material to that investigation.
65. Ms. Gallagher explains that the Central Bank had to assess the content of approximately 110,000 documents with a view to deciding, as required by the 1942 Act, whether there were reasonable grounds to suspect that INBS had committed a prescribed contravention(s), and whether certain persons concerned in its management had participated in the commission by INBS of a prescribed contravention(s). It was only following that investigation that the Central Bank could hold an inquiry under s. 33AO of the 1942 Act.
66. For my part I am fully satisfied that the trial judge’s finding that there had been no undue delay by the Central Bank, still less any delay that was blameworthy, is unchallengeable.
67. It is true to state, as per the appellant’s notice of appeal that the trial judge does not appear to have factored into his consideration, in dealing with the prejudice alleged to arise by reason of the delay, Mr. Fingleton’s age and the difficulties he has experienced in relation to his eyesight. What the trial judge concentrates upon in his judgment is the type of prejudice that might assist an accused person seeking to prohibit their trial on the grounds of delay. It is to be noted that in rejecting the submissions made on behalf of Mr. Fingleton he relied upon the decision in Kennedy, a case in which the applicant relied upon the death of nine potential witnesses who might have been in a position to corroborate his version of events surrounding charges of corruption involving payments allegedly made to certain members of local authorities as an inducement to vote in favour of land rezoning. The Court in that case was not satisfied that Mr. Kennedy was at a real risk of an unfair trial, and determined that the trial should go ahead given that the applicant could support his position by calling other evidence.
68. Insofar as it is contended that the trial judge would have reached or was obliged to reach an alternative view based upon the evidence concerning the health of Mr. Fingleton, it is necessary to review that evidence to see if the failure of the High Court judge to consider it renders the validity of his decision on the issue in doubt.
69. In his first affidavit dated the 7th September, 2015, the only burden identified by Mr. Fingleton arising from the establishment of the inquiry was stated to arise from the fact that he would have to “fight on two fronts” in circumstances where Irish Bank Resolution Corporation and INBS had commenced proceedings against him in the High Court (record number 2012/3280P). Whilst he refers to the fact that 110,000 documents underpin the inquiry he does not claim that he would have any difficulty reading these documents. It is noteworthy also that in his statement to ground his application for judicial review, while reference is made to inordinate and inexcusable delay, all that is stated concerning Mr. Fingleton’s personal circumstances is that he was then a man of seventy-seven years of age.
70. In his second affidavit of the 23rd September, 2015, under a heading “Irremediable prejudice” Mr. Fingleton’s stated concern was that the Central Bank had not undertaken to defray the costs that he would sustain in the course of the inquiry. As to his health, that consideration was confined to one sentence in para. 12 which includes the statement “[t]his is quite apart from the inherent burden and stress in being subjected to any inquiry in and of itself”, and immediately after which he refers to the fear of being exposed to adverse publicity.
71. It is not until para. 6 of his third affidavit of the 2nd November, 2015, that the appellant raises for the first time the issue of his eyesight. This is what he says:-
“By way of further illustration of the prejudice I have suffered I wish to refer to the recent deterioration in my eyesight, which has led to me irretrievably losing almost completely the sight in one of my eyes. I have very recently (Thursday, the 29 October 2015) undergone surgery in relation to my remaining good eye, which I am currently recovering from. As matters stand I am experiencing significant difficulties in reading any legal documentation.”
72. Having considered all of the aforementioned evidence in light of the grounds of appeal which rely upon Mr. Fingleton’s health, I would make the following observations:
(i) No medical evidence was put before the Court to explain the eye condition referred to in Mr Fingleton’s final affidavit, or how it might impact upon his ability to defend himself in the course of the inquiry.
(ii) No effort was made to relate the delay upon which Mr Fingleton seeks to rely and the timing of the deterioration in his eyesight.
(iii) There was no evidence from which the Court could have concluded that Mr. Fingleton would not be in a position to defend himself in the course of the inquiry by reason of his eyesight. To the contrary, he swore three affidavits while at the same time contending that his eyesight would inhibit his ability to defend himself before the inquiry. These affidavits were all sworn within a month of each other. Presumably Mr. Fingleton read these affidavits before he swore them. Certainly, he does not advise to the contrary. Further, to swear them, he would have to have considered the content of all of the other documentation relied upon by the Central Bank and to which he replied in his affidavits. It is noteworthy that even four days after his surgery of the 29th October, 2015, he was in a position to swear an affidavit concerning the legal submissions filed on his behalf relating to his resignation from INBS.
73. In addition to the aforementioned matters, I am also satisfied that it is somewhat artificial for Mr. Fingleton to seek to assert prejudice based upon the number of documents which underpin the inquiry and any ongoing difficulties he may have with his eyesight. The evidence to date would suggest that it is highly likely that Mr. Fingleton will be represented by solicitors and counsel at the inquiry. He and his lawyers are already in possession of the documents concerned. It would be unreasonable not to infer that these documents will all be read by his legal team, and that all or any documents as may be considered material to his interests will be brought to his attention for his consideration, regardless of whether or not he himself decides he is in a position to embark upon a consideration of such documents.
74. In the aforegoing circumstances there was simply no evidence concerning Mr. Fingleton’s eyesight to be weighed in the balance by the trial judge when he came to consider whether Mr. Fingleton had grounds to stop the inquiry based upon the Central Bank’s delay. A similar situation pertains in relation to the age of the appellant. No evidence was adduced to suggest that because of his age he would not be in a position to instruct his lawyers or to defend his position in the course of the inquiry.
75. In all of these circumstances I am fully satisfied that the trial judge’s conclusions in respect of delay must be upheld.
Conclusion
76. Accordingly I would reject the appeal upon the settlement and delay grounds. I agree that the entire appeal should be dismissed.
