Archive for November 24th, 2012

“A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told” US Supreme Court ruling in Clark v United States which held there to be at least one exception to the Attorney-Client privilege rules

We’re still waiting to hear if the Connecticut Superior Court is going to accede to NAMA’s request to classify its application against the Dunnes, Sean and Gayle, “The Dunner and The Dunnertrix” as a “complex litigation” – the Dunnes are objecting to the move which would see them subjected to a more intensive legal action in a case in which the Dunnes say there is no case to answer, and that NAMA is just on a fishing expedition and is undermining the reputation and business of Gayle in particular. The listing above shows the latest filings in the case and was obtained on 19th November 2012.

However, we learn from Shane Phelan at the Independent today that NAMA is “moving to subpoena” a former lawyer of the Dunnes to give evidence against them. The New York lawyer, Philip Teplen, previously apparently assisted the Dunnes with obtaining their US visas and setting up a US business – at one stage, 38 Bush Avenue in Connecticut was registered in Philip Teplen’s name and that property is one of several where NAMA is alleging shenanigans, with Gayle using Sean’s money, money which should rightly be going to pay down the €185m judgment that NAMA obtained against Sean earlier this year. The relationship between the Dunnes and Philip Teplen broke down in December 2010, when Gayle sued Philip over the return of USD 500,000. Searches this morning fail to show how this case concluded though it looks as if it was settled.

The Independent seems pretty sure that the lawyer will testify against the Dunnes, with the headline “lawyer in Dunne row will testify for NAMA” though the body of the report is less certain and more conditional when it states “if the subpoena is successfully served, Mr Teplen will be legally obliged to give evidence unless he can successfully argue that he cannot disclose information about a former client.”

And herein lies a problem for NAMA – in general communications between lawyers and clients in the US are privileged meaning they can’t be disclosed to judges or litigants. But there are exceptions, and in the case of crimes such as fraud, the privilege is lifted, though it would be for NAMA to prove the fraud, which if it can do, probably wins them the case anyway.  The Dunnes deny NAMA’s claims, and so far in Connecticut, it seems as if the judge has tended to side with the Dunnes, denying NAMA’s request for a freezing order last July and criticizing NAMA for portraying newspaper reports as evidence.

The latest move however, if confirmed, will underline NAMA’s commitment to this case where it has already deployed prominent out-of-state lawyers who are likely to be expensive, though not nearly as expensive as IBRC’s employment of Russian group Alfa  in pursuit of Quinn assets, though it should be stressed that in the case of the Dunnes, no case has been proven against them and they deny NAMA’s central allegations.

UPDATE: 10th December, 2012. THe Sunday Business Post yesterday reported that last week, the judge in the Connecticut Superior Court acceded to NAMA’s application to have its case against the Dunnes classified as “complex litigation” and the SBP claims this means the entire case will be heard by a single judge. We await to hear if the Dunnes’ application to dismiss the entire case which was made last week will be successful.


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Of the Week…

Pot and Kettle of the Week

“RTÉ is disappointed that key findings of the report were made public ahead of the completion of the BAI process and the publication of the report.” RTE responding to the leaking of an internal report on Tweetgate to the Sunday Business Post where Samantha McCaughren reported its contents on 18th November 2012

“Prime Time reveals the key recommendations of the unpublished report of the expert group on abortion” RTE promotion for Prime Time on 22nd November 2012 where it reported in detail the leaked contents of the expert group report commissioned by Minister for Health, James Reilly on implementing the X case, the report was delivered to Minister Reilly last week and was set to be published next week

Quote of the Week

“I welcome the fact that the G8 summit is coming to Northern Ireland. It is a reminder that Northern Ireland is in the UK and therefore in the G8, not part of an economic basket case with a credit rating of junk.” Jim Allister, leader of the Traditional Unionist Voice party in Northern Ireland, responding to news that the G8 summit on 17-18 June 2013, will be coming to county Fermanagh and will be centred on the Lough Erne hotel, now in receivership  at the behest of Bank of Scotland but developed by Jim Treacy, and now on the market with an asking price of €12m. The TUV’s Jim might want to acquaint himself with the €15bn  subvention donated by Westminster to Northern Ireland each year and he probably shouldn’t look too closely into the economy of G8 member, Italy.

“Many areas in Donegal have been plagued by burglary and vandalism, where criminals have no fear because they know they will not be caught. Some people living on their own are so afraid that, when they go to bed at night, they leave €50 on the kitchen table in case the house is burgled in the hope the burglar will take it and leave. That is no way to live.” Deputy Thomas Pringle speaking in the Dail on 20th November 2012

“The situation is that there will not be a decision on this before the next Council meeting and before the end of the year” An Taoiseach Enda Kenny speaking on Thursday in Brussels, referring to there being no decision on the ESM buying our banks

“I’m a hard grafter and, as some of them found out, they shouldn’t tangle with me too often” An Taoiseach Enda Kenny speaking in June 2012 announcing an Irish debt deal after EU summit talks

Love/Hate of the Week

Love the ratings,  631,000 viewers, a dream for Unilever and Procter and Gamble and a much needed boost from advertising to RTE coffers

Hate the derivative, lowest common denominator sex/drugs/violence shocks which has failed to find an audience outside Ireland, where the villain looks like Begbie from Trainspotting’s, gormless skin-headed Dublin cousin, Eejit McEejity, where there is no script to speak of, and where Lexus get a nice product non-placement. Ireland’s answer to “Mean Streets”? More like Ireland’s answer to “The Bill”.

Leak of the Week

This time last year, we had by now a good idea of the contents of the December 2011 budget, courtesy of the German Bundestag and a very busy kite-flying season. This year, there has been remarkable discipline in both Europe and in the two Coalition parties. And with just 11 days to go before Budget 2013 is announced on 5th December 2012 by ministers Noonan and Howlin, it’s unsettlingly quiet – perhaps too quiet. We do know that US Secretary of State Hillary Clinton is visiting us on 6th December 2012 and maybe she’ll be bringing a few thousand marines with her. But we did get two leaks this week, the first was of RTE’s own report into Tweetgate, about which on Sunday, a po-faced RTE said it was “disappointed”  and then with a complete absence of irony,  it was RTE which leaked the so-called expert report commissioned by the Government in April 2012 to examine how the Government should deal with the judgment from the Supreme Court in 1992 where it was held a woman had a right to an abortion if her life was at risk, including through a risk a suicide and this was further supported in referenda in 1992 and 2002.And in 2010 the European Court of Human Rights held that Ireland had failed to properly implement the constitutional right to an abortion in certain circumstances. The report was delivered to Minister Reilly last week and was to be published next week, but RTE leaked it first.

On what planet of the Week

We’ve recently passed the one-year anniversary of Tweetgate when an RTE presidential debate was overshadowed by the killing off of candidate Sean Gallagher’s bid after he was confronted with a tweet from a bogus source. RTE has always sought to downplay the episode and it is debatable whether Sean’s prospects were kaiboshed by the actual tweet which was bogus or the association with fund-raising for Fianna Fail which was a fact. But having had its wrist slapped by the quite strange Broadcasting Authority of Ireland (BAI) in April 2012, it seems that RTE decided to examine the matter itself and last Sunday, in the Sunday Business Post, Samantha McCaughren reported on a leak of the RTE report, and her reporting forced RTE to publish the report itself prematurely later on, last Sunday.

But what was seemingly overlooked in the mainstream media in the RTE report was the statement

“The review team concluded that it was editorially justified to have additional questions to probe the track record and positions of some candidates, including the apparent frontrunner Sean Gallagher. The number of questions  to  Sean Gallagher and Martin  McGuinness reflected public interest as expressed through the proportion of questions about them raised during the production team’s research.”

which on the face of it means that it is RTE which decides in a debate which candidates will face the toughest questioning.  So whilst Michael D Higgins escaped with being asked “what’s your favourite colour” and “are puppies cute” or something just as innocuous – actually Michael D was asked no direct questions by the audience –  Sean Gallagher was asked three direct questions and Martin McGuinness was asked two.

What is a fact, is that the prospects of Sean Gallagher were killed off in the one-hour debate and he went from being a near shoe-in as indicated by opinion polls on the Sunday which put him at 40%, 14% ahead of his nearest rival Michael D, but four days later Micheal D romped home with 40% and Sean was relegated to second place with 29%.

Good to know that RTE reserves unto itself how it will discriminate between various candidates in a debate, and select which candidate will be subjected to “additional” questioning which presumably translates to the toughest questioning.  Not only that, good to know that after a BAI investigation and an RTE investigation conducted by ahem, its Director of Television, Steve Carson together with the former UTV Head of News , Rob Morrison, who is “now embarking on a career in film making and media training” that the Director of TV at RTE believes it “editorially justified to have additional questions to probe the track record and positions of some candidates”

Any candidate submitting themselves to an RTE debate in future might do well to enquire beforehand, to establish if they have been selected for special treatment.

Omnishambles of the Week

The folks at Oxford Dictionaries now choose an annual word of the year to add to their tomes, and this year, it is the word “omnishambles” which originated in the hit BBC comedy “The Thick of It”. It will be defined as “a situation that has been comprehensively mismanaged, characterised by a string of blunders and miscalculations” We might have vulgarly referred to a “clusterf*ck” previously but now we have a nice Greek sounding substitute.

The tragedy of the death of a woman in a Galway hospital continues to dominate the news, and this week the widower has spoken to Gardai at length about the death and this angle may well turn out to be most prominent in this case. But Officialdom really showed us what an omnishambles is – an international inquiry team was set up with half the members picked from the very hospital where the death occurred, the chairman of the inquiry being on the record for having views on abortion that are rejected by a significant section of society, and then the widower rejecting any inquiry managed by the health service in which his wife had died, and then the Government creating a second inquiry managed by a different health service but which is still not public with testimony under oath with compellability. All the while, the country’s generally commendable record for its maternal healthcare is as nothing amid sporadic protests and an intervention by the Indian ambassador. And An Taoiseach Enda Kenny who is an amiable and personable man as well as a politician left all at sea, protesting he can only communicate with the family of the dead woman via a solicitor.  Omnishambles.

Deadbeat of the Week

Hopefully our own Professor Karl Whelan gets paid upfront for his contributions to Forbes.com, published by Forbes Media, the international publishing group in which Bono’s private equity group Elevation Partners has a 40% stake. According to reports from New York this week, Forbes hasn’t been paying its rent at its premises at 90 Fifth Avenue, New York and its landlord Aby Rosen’s RFR is getting antsy. Bono, who, for the assumed purpose of launching merchandise in the future, recently copyrighted his signature (above, left with an also-ran suggestion from here, right) is a managing director and co-founder of Elevation Partners whose investments include Facebook and Yelp and it also owns 40% of Forbes Media, publishers of Forbes magazine and Forbes.com website.

Table of the Week

The interest rate on Ireland’s sovereign bonds continues to decline and this week, the 8-yr bond was down at 4.25% which is where is was mid-2010 before the IMF arrived.  Economists would like to see it at around 3% for long term sustainability but even so, it is now considerably down from the highs of 14% in mid 2011. Also this week, the Secretary General at the Department of Finance, John Moran reminded a Dublin conference this week that there has been some considerable stabilization in the economy since 2008 with GDP, GNP, unemployment, property and banks all showing signs of stability.

Word of the Week

“Virement” – how many of you bean-counters out there have come across this term? Not many, I’ll bet but the mandarins at the Department of Public Expenditure and Reform know what it means, and this is how it was used in a sentence – “should an overspend arise, the relevant Department may seek to address it through virement of savings from one sub-head to another; however, to do so requires sanction from my Department.”

And this is how “virement” is defined – “an administrative transfer of funds from one part of a budget to another”

Minister for Public Expenditure and Reform Brendan Howlin was responding to questioning about the capital budget in 2012 and whether it was a deliberate plan to withhold spending on capital projects to  absorb overruns in current expenditure. No, no said Brendan during the week “information from Departments indicates that the bulk of their remaining capital budgets will be spent by year end. The spending pattern is in line with trends from previous years which show that the bulk of capital expenditure takes place in the last quarter of the year.” But then Brendan indicated a day or so later that there would be an emergency budget for an overspend in the health department, and although we haven’t yet got details on how the overspend will be addressed, the betting is that it will the capital budget that suffers. And the reason we should be concerned is that the capital budget is OUR money and spending in the economy is what we are partly depending on to create wealth and employment. Good to know that this money is likely to be diverted to non-generic medicines and impoverished consultants instead.

Quango of the Week

Yes, despite commitments to abolish and merge quangos, they’re sprouting up all over the place like mushrooms, except they’re not always called quangos. This week, we learned that the National Treasury Management Agency was creating a new “unit” called the Legal Costs Unit which is to examine and presumably negotiate claims by third parties for their expenses for appearing or contributing to the Mahon and Moriarty tribunals.  These third party costs could run in 100s of millions of euros and will presumably mostly be legal costs, so funding a specialized unit to deal with the claims might be money well spent.  However Quango of the Week is CEDRA, the Commission for the Economic Development of Rural Areas created by Minister for the Environment Phil Hogan who paradoxically claims its 15 members won’t cost anything but protests that “costs will be kept to an absolute minimum”. Here’s what Minister Hogan said about this quango this wek:

“I established the Commission for the Economic Development of Rural Areas (CEDRA) chaired by Mr Pat Spillane. The terms of reference for the Commission are set out below. Membership of the Commission is yet to be finalised however there will be approximately 15 members drawn from relevant organisations/stakeholders involved in or with an interest in Rural Development. They will not receive any remuneration for their participation in the Commission. The Commission has a defined remit and timeframe and its main output will be a report that aims to inform medium-term economic development of rural areas for the period to 2025. The report will be short and specific and will take a multi-sectoral approach.

The Commission will conduct an extensive research exercise that will examine in detail the current status of the rural economy. As part of its work it will conduct a comprehensive public consultation exercise and examine all relevant information available in order to reach its conclusions. The public consultation process will include a number of public meetings to be held across the country from January to April 2013. In addition, there will be a number of individual stakeholder meetings with civil society organisations. I expect that the full Commission will meet monthly until October 2013 when it is planned to complete its work and publish its report.

The work programme of the Commission will be undertaken within existing resources and costs will be kept to an absolute minimum , drawing upon shared services and facilities. The secretariat will be provided by the partnering institutions, m y Department, Teagasc and the Western Development Commission (WDC) , without a cost to the Commission. No additional consultancy work will be undertaken and no additional human resources will be required . It is hoped , however, to recruit suitable trainees from within the Job Bridge programme , and these internship opportunities are currently advertised on the Job Bridge website at http://www.jobbridge.ie

Terms of Reference

Having regard to the commitments on development contained in the Programme for Government, in particular,

– To encourage job creation and sustainable enterprise development

– To be recognised as a modern, fair, socially inclusive and equal society supported by a productive and prosperous economy

– To facilitate where possible export led growth, marking the 25th anniversary of the EU strategy for the development of rural areas, in “the Future of Rural Society” [COM (88) 501] as part of the Irish Presidency of the European Union 2013 and, given both the differential degree of economic development and the variable impacts of the economic downturn between urban and rural areas, the Commission will provide research information to support/guide the medium-term economic development of the Rural Areas for the period to 2025.

This research will:

– Examine the key actions needed to ensure that rural areas, to the maximum extent will, contribute to and benefit from economic recovery

– Examine the ways in which rural areas can contribute to and benefit from national economic development strategies

– Be cognisant of pressures on the public finances in drawing conclusions

– Inform prioritisation made by Government and other stakeholders in implementing future actions and take on board inputs from a public consultation to be undertaken by the Commission and analysis provided by a secretariat, comprised of Teagasc, the Department of Environment, Community and Local Government and the Western Development Commission.

While the definitions of rural areas are varied, the Commission will adopt a holistic view of rural as being outside the main metropolitan areas. It recognises of course the relational nature of economic and social development and the interconnections between rural and urban areas.  The research report will be short and specific and will take a multi-sectoral approach with specific focus on rural areas.  It is expected that the draft report will be presented to the Minister for the Environment, Community and Local Government in September 2013.”

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