Category Archives: Banking inquiry

1/1/16: Developers Questioning Banking Inquiry Report

While we do not know what is in the Banking Inquiry report signed-off this week, concerns being expressed by the two developers, namely Michael O’Flynn and Johnny Ronan, that the report is likely to be a whitewash of Nama is a legitimate one.

The inquiry basically and obviously failed to provide platform for the voices critical (or robustly critical) of Nama, opting instead to put forward testimonies of some developers who have potential coincident / congruent interest in seeing Nama escaping serious criticism.

Thus, legitimate suspicion can be (though we should wait to confirm or decline it) that the Banking Inquiry report will indeed skip over Nama's core role in creating a dysfunctional (and currently strongly legally challenged) crisis resolution environment in Ireland. And another legitimate suspicion (based on past record of coverage of the Inquiry in the media) is that most of Irish media will be unlikely to robustly challenge the report on any conclusions regarding Nama.

That said, let's wait and see the report...

26/7/15: That Seagull Flock Model of Public Governance: The Banking Inquiry

Second, following the previous post on Nama, is the Banking Inquiry news:

The Banking Inquiry also has now adopted the Seagull Model for public transparency and governance: there are scandals and tantrums left, right and centre of the political spectrum. The gig is, of course, less of a maritime evocation as it is with Nama, and more of the landfill nature, but you get the picture.

Some chronology on the matters at hand:

  • Back in mid-July there were reports that a whistleblower - someone working for the Inquiry - came forward in April 2015 with the allegations that "relate to alleged preferential treatment which the whistleblower feels was given in the workings of the investigation team to the Central Bank and the Department of Finance. It is suggested the Central Bank insisted on a whole series of redactions in documents that it supplied. It is also being suggested that the Central Bank, at a critical point, was allowed a lengthy meeting with the lead investigator." Now, for those who do not know this, the Inquiry has two teams of 'advisers' - one that goes over submitted evidence and distills it to the members of the Inquiry - as far as we know, that team is composed of the Oireachtas employees - and another that prepares questions to be put forward by the members - which includes former banks and finance sector employees. Note: this is an important bit for the subsequent link on the matter from today.
  • Sunday Times a week ago also carried some details of the whistleblower allegations, specifically alleging that a number of undocumented meetings took place between the Central Bank, Nama and senior investigators on the banking inquiry. Other sources also include Department of Finance into the august list of entities allegedly granted unprecedented access to pre-brief the inquiry investigators. The same Sunday Times article also claims that: "It is understood allegations have also been made to Marc MacSharry, a Fianna Fail senator and inquiry member, that a second investigator quit the banking inquiry team on May 13 this year, citing concerns similar to those raised by the whistleblower."
  • Check the timeline: April 27 whistleblower allegations filed, May 13 another Inquiry official resigns on similar concerns, July 15 whistleblower allegations are leaked to press, July 23 inquiry into allegations set up. Things become swift, in Ireland, only after the media gets the news. Never before.

    • So on foot of the publicly leaked allegations, it was decided to do the most Irish of All Things and… hold and Inquiry into the Banking Inquiry.  As an aside, while the previous FF/GP/PDs governments can be collectively accused of having Leadership by Quangos fetish, the current one can be assigned a monicker of Leadership by Inquiries.
    • And, in a typical Irish fashion, the Inquiry into the Inquiry (shall we call it IiI here?) will have terms of reference that will include hunting down the wrongdoing of leaking the allegations to the media. As reported here: "The Oireachtas tonight released the terms of reference for Mr Allen’s investigation. He will investigate allegations that false information was given to Oireachtas Committee members, and preferential treatment was given to certain witnesses. The investigation will also look at alleged conflicts of interest that it is claimed were not appropriately handled by the inquiry’s investigation team. Mr Allen will also be required to examine the allegations in the context of the legislation underpinning the Bank Inquiry. The leaking of information to a journalist named by the whistleblower will also form part of the investigation." We can get a good sense of where the findings will go: a new battle between politicos and journos. There will be war… 
    • But, fear not: we already have one outcome of the whistle blowing scandal: the whistleblower has been punished. Per same report "The whistleblower’s pay has been suspended since last week after, it is claimed, they refused a transfer from a section within the Banking Inquiry." That should teach everyone a lesson: Ireland tolerates no whistle blowing. Never did and never will. Get over it, folks, and keep on pretending we have a modern society with all the trappings of transparency and ethics. This was confirmed in the Irish Times report here: "After the allegations were made, the whistleblower claims that their duties as an investigator were transferred on April 27th. A “false announcement of my resignation” was made during the week beginning June 1st, and their desk was cleared. Notification of their salary being suspended was received on July 15th."
    • Of course the irony is that back in March, the Inquiry heard from Dr Elaine Byrne that whistleblowers need not only be protected, but rewarded for their actions. Ah, yes… back to Ireland, thus...

    • Last week, the Irish Times carried some select excerpts from the whistleblower communication. These are worth reading: "The whistleblower claims that the terms of reference for a review of the allegations to be carried out for the Houses of the Oireachtas Service by Senior Counsel Senan Allen while including consideration of the claim that certain participants received favourable treatment do not detail or substantiate the allegations which include “off-the-record telephone calls and meetings” and “improper pressure on certain investigators to exclude certain relevant witnesses”.” It is also alleged that there was “significant ongoing and detailed leaking of information by a certain investigator” to a national newspaper. And the whistleblower claims that they were “routinely instructed to disregard redacted material” emanating from an unnamed institution, which “in my view could have proven to be extremely relevant to the proper processing of the investigation”. The “instructions were relayed to me by superiors and included instructions to inform the Joint Committee of Inquiry that participants had complied with matters related to compelled documentation, when in my view, participants were not compliant”. The “participants” are believed to be the Central Bank of Ireland and the Department of Finance." And further: "The whistleblower claims they were prevented from engaging in “basic investigative work and from exploring valid lines of inquiry”. “I am extremely concerned that the timeframe given to Senan Allen to conduct this investigation will ultimately lead, particularly in light of the limited terms of reference and in conjunction with the limited term period for a review, to a sub-standard and wholly inadequate review that will not broach the complexity of the allegations raised by me,” the whistleblower added. “Furthermore, the terms of reference are silent on the requirement to investigate the origin, publication and distribution of the false and defamatory statements made about me in an official report dated May 6th produced by the Houses of the Oireachtas service.”

    All of this brings us to the latest round of revelations from the Banking Inquiry published today in the Indo. Ah, the pearls include:

    • That "Morgan Kelly, Professor of Economics at University College Dublin, who notably predicted the property collapse, has turned down an invitation to appear before the inquiry." Frankly, why am I surprised? Why would anyone be surprised. Morgan is a serious scholar and has little time for the farcical performances. 
    • And then there is the controversy over political hissy fits triggered by the offer from David Drumm to testify on the matters of his recollection of the meetings with former Taoiseach Brian Cowen. Which I covered yesterday here.
    • For the last bit, the juiciest fare so far: "…the whistleblower has claimed this investigator, who was deciding what documents from the banks should be entered in evidence, secured a new job with the Bank of Ireland while working for the inquiry. The whistleblower was "shocked" when it was decided to allow the investigator work out his notice period with the same access to bank documents after he had accepted the Bank of Ireland job offer." 
    Oh dear… Where does one go from this? To 2016 headlines about some Inquiry staff getting cushy jobs in the state bodies with allegedly cushy relationships with the Inquiry?.. What is next for the Cosy Planet 'Ireland'?

    17/6/2015: Mr. John Flynn’s Letter to the Banking Inquiry

    Here is a letter by Mr. John Flynn informing the Banking Inquiry Chairman, Ciaran Lynch, T.D. about the issue of overcharging at the Anglo Irish Bank, subsequent extent of the problem in legacy-resolution institutions and detailing the substance of the developments in the U.S. court case relating to Anglo overcharging:

    Note: I was informed by Mr. Flynn that he received no substantive reply to his communications to the Banking Inquiry.

    Note: You can follow the topic of overcharging and other sharp practices and questionable strategies deployed in the post-banking crisis resolution process in Ireland here:

    1. Deputy Peter Mathews June 2015 speech on the issue of overcharging by Anglo, its legacy and issues relating to Nama was covered here:
    2. My summary view of the Anglo’s sharp practices toxic legacy:
    3. Mr. Declan Ganley’s Affidavit from 2013 concerning overcharging:
    4. Deputy Mick Wallace’s speech in June 2015 delivered in the Dail on the subject of Nama and Anglo legacy with my introduction of the concept of value destruction: 
    5. Mr. John Morrissey’s legal letter on overcharging: 
    6. Nama value destruction contextualised in a sample of 10 deals concluded by the agency:
    7. Mr. John Flynn’s letter to the members of the Dail covering Irish and U.S. evidence on overcharging: 

    17/6/15: Mr. John Flynn Letter to TDs on Anglo/IBRC/Nama Overcharging

    Here are the direct exerts from the correspondence sent by Mr. John Flynn to a number of TDs in relation to the Banking Inquiry on December 22, 2014. Italics in bold are mine (for emphasis). 

    “I am attaching various information …which results from BankCheck …report into overcharging at Anglo Irish Bank.  Following a three year (and ongoing) investigation, I am attaching its interim report of May 2014.  

    The overcharging identified continues to fall on borrowers to this day through Anglo Irish Bank legacy loans inherited by IBRC, NAMA and the various Private Equity funds that have acquired them, because both methods of overcharging that were discovered continue to rack up excess interest.”

    Note: this is aserious allegation that echoes other claims submitted on the subject. The reason is simple: investment funds acquired distressed and other loans priced based on current interest yield (at least in part). If the current yield incorporated overchraging, and this was not disclosed to the buyers of the assets, then the sale of these instruments can be of questionable validity and can be potentially contested by the buyers of these assets. Likewise, any parties that continue overcharging while holding the loans can also be subject to legal action and incur costs of such practice. Beyond continued overcharging, the legacy of this sharp practice by the Anglo is also contained in those cases where a new (legitimate) interest rate applies on past interest charges incurred under the TIBOR. The can of worms gets bigger and bigger with every day the situtation remains unresolved.

    “As admitted when questioned by us in the IBRC Chapter 15 Bankruptcy proceedings in the United States Bankruptcy Court for the District of Delaware, on October 8th 2013, the IBRC Special Liquidators stated that IBRC “did realise that it had an overcharging issue”. The IBRC purportedly set up a steering committee, chaired by Mr Mike Aynsley to deal with that issue. Reports were prepared and finalised by the end of 2010. The said reports were then forwarded to the board of IBRC, the Regulator and the Central Bank for their review and comment in order to, “make sure that everybody was comfortable in the work that was undertaken, and trying to get to the bottom of the cost of funds issue, which they (sic) contractual rate of interest that was being charged was different than the actual rate of interest being charged.” That report and the report of the Special Liquidator which examined the the IBRC report has never been published and their contents are unknown to the public.”

    So what we have here is the allegation that:
    1) IBRC knows and recognises the problem;
    2) IBRC – alongside others – have notified the problem to the authorities;
    3) No action has been taken by anyone; and
    4) No action has been taken identify other injured parties and to inform the public.
    Draw your own conclusions what these points, taken together, amount to.

    There is more when it comes to the overcharging allegations: “The attached BankCheck report mainly addresses the matter of manually altered systemic LIBOR/DIBOR/EURIBOR manipulation from 1990 to 2004 and not the 360/365 systematic computer generated overcharging from 2002 to date, whereby the bank overcharged its customers with an extra 5 days interest per annum - as held by Ms. Justice Finlay Geoghegan in her Judgment of October 2014 in Anglo Irish Bank v John Morrissey (Record No. 2011/1548). The reason for the limitation of the BankCheck investigation is that while the 360/365 "scam" could possibly be explained away as "a computer error”  the daily random manipulation of the LIBOR rate could not.  The Report is currently being updated, as further information has been made available to us since May 2014.”

    This raises the second point of overcharging – on top of the original. Not only Anglo imposed false charges on its customers, it also altered the base (the duration) over which the interest accrued. By switching from 360 days contracted arrangement to 365 days basis for calculation of interest charges, while retaining the rate, Anglo de facto, it has been found, charged an extra 5-days/per annum premium on the loans. Explaining this as a computer error is a bit generous, but even if we allow for such, there is a pesky issue of compensation for an error and culpability. After all, remember an actual computer systems error in the case of the Ulster Bank for which the bank was fined heavily and paid out compensation to its clients?

    Here is an interesting bit: per Mr. John Flynn, “I have not included back up data (including fallacious daily LIBOR term sheets published from within Anglo Irish Bank) with this initial email as it is voluminous, but it is available …. if you wish to pursue the matter further.”

    According to Mr. Flynn, neither the banking inquiry, nor anyone else contacted in the Dail, have requested the evidence. Worse, with exception of standardised replies from two TDs, there has been no engagement with the author of the statement and the holder of the evidence.

    Please note, the allegations contained in the quotes below are those of the author of the letter, and I am simply providing these clearly separate from my comments on these.

    You can follow the topic of overcharging and other sharp practices and questionable strategies deployed in the post-banking crisis resolution process in Ireland here:
    1) Deputy Peter Mathews June 2015 speech on the issue of overcharging by Anglo, its legacy and issues relating to Nama was covered here:
    2) My summary view of the Anglo’s sharp practices toxic legacy:
    3) Mr. Declan Ganley’s Affidavit from 2013 concerning overcharging:
    4) Deputy Mick Wallace’s speech in June 2015 delivered in the Dail on the subject of Nama and Anglo legacy with my introduction of the concept of value destruction: 
    5) John Morrissey’s legal letter on overcharging: 
    6) Nama value destruction contextualised in a sample of 10 deals concluded by the agency: