No official reports are to hand and yet we now know a great deal of pertinent information about the Anglo Irish Bank scandal.
It is now possible to see the shape of appropriate litigation.
There is a possible obstacle however, in the form of the Minister for Finance. Under the terms of Section 9 of the Anglo Irish Bank Corporation Act 2009, where a right to issue proceedings springs from, effectively, the passing of the Act, that right cannot be exercised without the prior consent of the Minister for Finance.
The Anglo Irish Bank “shareholders” are all “former shareholders”; the shares of the Bank have been transferred to the Minister. Logically, no rights to issue proceedings by former shareholders against proposed Defendants can arise from the expropriation of the shares by the Minister for Finance, but it would be foolhardy to sue without first writing to the Minister and obtaining his consent to issue proceedings, seeking civil remedies.
He has publicly stated he has no wish to shelter anybody from the criminal and civil consequences of their actions or failures. He presumably will readily give his consent to the bringing of civil proceedings, therefore.
Any contemplated proceedings must be considered as being, inter alia, a derivative action. In other words, that Anglo Irish Bank is made a defendant. This is necessary where the breach of duty was to the company.
There is another reason to write to the Minister for Finance; it lies in the terms of Section 251 of the Companies Act 1990.
He should be asked to confirm that “…the reason, or the principal reason, for its not being wound up is the insufficiency of its assets”.
This would make it easier to demonstrate that proposition to a court, and the Minister is better positioned to state this fact than any former shareholder.
That’s why the letter should be written to him.