Mr. Justice Gerard Hogan in a seminal High Court ruling upheld the right of citizens to bring private prosecutions against individual banking officials.
The ruling will allow hotelier Patrick Halpin to bring private prosecution agaisnt two officials of the Irish Banking Resolution Corporation Mr. Halpin alleges behaved dishonestly during discussions about a rescue plan for his business.
In the first case of its kind since the banking collapse, a summons has been issued to compel banking officials to attend a Distrct Court to answer allegations.
The decision to proceed further with the case will be a matter for the Director of Public Prosecution once the District Court hearing has taken place.
Mr. Justice Hogan in his written ruling noted that:
the underlying purpose of the private prosecution is still the same, namely, to draw to the public prosecutor's attention to the case with the implicit request that the prosecution be taken over.
While the ruling allows for private prosecution, there are risks involved, such as the substantial legal costs should the prosecution fail.
The ruling came after Mary Kelly and Declan Buckley, the former a current employee and the latter a former employee of the Irish Banking Resolution Corporation sought a judicial review to halt the private prosecution against them.
Mr. Halpin has run hotels in Dublin and in County Clare for the past twenty five years, these include the Aberdeen Lodge and Merrion Hall boutique hotels in Dublin, and Halpin's Townhouse in Kilkee, County Clare.
The Irish Banking Resolution Corporation appointed a receiver to two of the companies last year after Mr. Halpin got into financial difficutly in recent years over borrowings with the former Anglo Irish Bank.
Mr. Halpin claims he was invited to a meeting with Ms. Kelly and Mr. Buckley in February 2012 to discuss the sale of Merrion Hall in an attempt to pay down the debt. The meeting occurred prior to a receiver being appointed.
Mr. Halpin claims both himself and his accountant were left with the impression from the meeting that the matter would be considered further by Anglo Irish Bank, and that Anglo Irish would welcome proposals.
However, Mr. Halpin claims he later learned from a letter he subsequently received that the decision to appoint a receiver had already been made, and that both Ms. Kelly and Mr. Buckley were aware of this at the meeting, but deliberately concealed this knowledge from Mr. Halpin.
Subsequently, Mr. Halpin initiated a private prosecution against Ms. Kelly and Mr. Buckley in the District Court, alleging offences of dishonesty under the Criminal Justice (Theft and Fraud Offences) Act 2001, and succeeded in getting the District Court to issue a summons against both individuals. The argument put forward in the High Court to halt the private prosecutions was that private prosecutions had been effectively abolished by the Criminal Justice Act 1999.
It was also put to the High Court that there had to be a preliminary examination procedure for a private prosecution to take place.
Mr. Justice Hogan disagreed with the argument that private prosecutions had been effectively abolished because the 1999 Act abolished the traditional practice of holding a preliminary investigation in the District Court to determine if sufficient grounds existed for sending a person forward for trial to a higher court.
Mr. Justice Hogan placed a stay on the private prosecution until January to allow Ms. Kelly and Mr. Buckley to appeal to the Supreme Court.
