Settlement with Central Bank did not render subsequent inquiry into alleged financial breaches unfair

Irvine J: Banking law – judicial review – banking regulation – appeal of High Court refusal to quash a notice of inquiry served by the Central Bank of Ireland – investigation into the conduct of Irish Nationwide Building Society – appellant is the former Chief Executive Officer of Irish Nationwide Building Society – part IIIC of the Central Bank Act, 1942 – the settlement ground – the delay ground – s. 33AO(i) of the Central Bank Act 1942 – whether 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 – statutory provisions material to the appeal – acceptance of the acknowledgment on the part of INBS of the prescribed contraventions – was there an obligation to publish the terms of the settlement and sanction imposed – bias and prejudgment – trial judge’s conclusions in respect of delay must be upheld – appeal dismissed.

"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)."

Finlay Geoghegan J: Banking law – judicial review – banking regulation – appeal of High Court refusal to quash a notice of inquiry served by the Central Bank of Ireland – investigation into the conduct of Irish Nationwide Building Society – appellant is the former Chief Executive Officer of Irish Nationwide Building Society – part IIIC of the Central Bank Act, 1942 – the jurisdiction ground – Central Bank and Financial Services Authority of Ireland Act, 2004 – Administrative Sanctions Procedure – s.33AO(2) of the Act – s.5 of the interpretation Act, 2005 – trial judge did not err in principle in his approach to the interpretation of s.33AO(2) of the Act – appeal dismissed.

"Accordingly I have concluded that the trial judge did not err in principle in his approach to the interpretation of s.33AO(2) of the Act. He interpreted the section giving a literal construction to the words used in the context of the Act and in particular part IIIC thereof. As pointed out by the trial judge the phrase “a person concerned in the management of a regulated financial service provider” is time neutral. It is an adjectival phrase describing the requisite status of a person to come within the ambit of s.33AO(2) of the Act. Where it suspects on reasonable grounds that a person with that status “has participated in the commission of a prescribed contravention by the financial service provider” the respondent is given jurisdiction to hold an inquiry. The literal interpretation or plain and ordinary meaning of the words used is to describe the status of persons whom, having participated in the commission of alleged prescribed contraventions may be the subject of an inquiry. Quite clearly that description relates to the time at which it is alleged the prescribed contravention occurred."