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RULES AND PROCEDURES
OF THE COMMISSION OF INVESTIGATION INTO
IRISH BANK RESOLUTION CORPORATION
SEPTEMBER 2016
2
Contents
1. INTRODUCTION ............................................................................................................ 3
2. RECEIVING EVIDENCE ............................................................................................... 5
2.1. General ................................................................................................................................... 5
2.2. Directions or Orders for the discovery of documents ........................................................ 5
2.3. Oral or written evidence to the Commission ...................................................................... 7
2.4. Circulation of affidavits/disclosure of evidence .................................................................. 9
2.5. Claims of privilege/confidentiality ....................................................................................... 9
3. CONDUCT OF HEARINGS ......................................................................................... 11
3.1. General ................................................................................................................................. 11
3.2. Private Hearings .................................................................................................................. 11
3.3. Evidence under oath or affirmation .................................................................................. 12
3.4. Examination of witnesses.................................................................................................... 12
3.5. Recording of evidence ......................................................................................................... 13
3.6. Evidence by video link ........................................................................................................ 14
4. SUBMISSIONS ON EVIDENCE AND/OR LEGAL ISSUES ................................... 15
5. LEGAL REPRESENTATIVES .................................................................................... 16
6. COSTS AND EXPENSES .............................................................................................. 17
Appendices
1. Amended Terms of Reference
2. Affidavit Verifying Evidence
3. General Guidelines on Payment of Legal Costs and Other Expenses
4. Witness Notice prepared pursuant to section 13 of the 2004 Act
3
1. INTRODUCTION
1.1. The Commission of Investigation into matters of significant public concern in respect
of Irish Bank Resolution Corporation Limited (“IBRC”) was established by Order of
the Government dated 16 June 2015 under Statutory Instrument 253/2015 -
Commission of Investigation (Irish Bank Resolution Corporation) Order 2015 (the
“Commission”).
1.2. This Order also sets out the Terms of Reference for the Commission.
1.3. The Terms of Reference of the Commission were amended by Order of the
Government dated 27 July 2016 by Statutory Instrument 417/2106 - Commission of
Investigation (Irish Bank Resolution Corporation) (Amendment) Order 2016.
1.4. The Government appointed the Honourable Mr. Justice Brian Cregan of the High
Court to act as the Sole Member of the Commission.
1.5. The legislation governing the Commission is the Commissions of Investigation Act
2004 (the “2004 Act”) and also the Commission of Investigation (Irish Bank
Resolution Corporation) Act 2016 (the “2016 Act”).
1.6. The Commission is directed to investigate and make a report to the Taoiseach in
accordance with the provisions of the Acts on certain matters of significant public
concern as set out in the Commission’s Terms of Reference.
1.7. The Commission is independent in the performance of its functions (s.9 of the 2004
Act).
1.8. These Rules and Procedures are adopted by the Commission pursuant to section 15 of
the 2004 Act. These Rules and Procedures relate to:
receiving and recording of evidence by the Commission, and
receiving submissions.
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1.9. Under section 10(1) of the 2004 Act the Commission may, subject to the Act and the
Commission’s Rules and Procedures, conduct its investigation in the manner that it
considers appropriate in the circumstances of the case and having regard to its Terms
of Reference.
1.10. These Rules and Procedures are designed to ensure that witnesses before the
Commission: (i) know how the Commission intends to carry out its investigation; (ii)
know how information and evidence will be provided to the Commission; (iii) are
aware of the procedure for the holding of oral hearings; and (iv) can have confidence
that they will be treated in accordance with fair procedures.
1.11. These Rules and Procedures do not constitute an exhaustive statement of the powers
and duties of the Commission and are to be read in conjunction with the 2004 Act and
the 2016 Act.
1.12. The Commission will, at all times, respect the right to fair procedures of any person
who gives evidence to the Commission or who is affected by the conduct of its
investigation.
1.13. These Rules and Procedures may, at the discretion of the Commission, be amended or
departed from if the Commission is satisfied for good reason that it is appropriate to
do so. Any departure from these Rules and Procedures, whether inadvertent or
otherwise, will not invalidate any action or proceeding of the Commission.
1.14. Where any matter arises during the course of the investigation which is not addressed
by the 2004 Act, the 2016 Act or these Rules and Procedures, the Commission will
adopt such procedure as it considers appropriate in the circumstances in accordance
with fair procedures and natural and Constitutional justice.
1.15. These Rules and Procedures do not govern the circulation of drafts of the
Commission’s final or interim reports or the publication of the Commission’s final or
interim reports. These processes are governed by the provisions of the 2004 and 2016
Acts.
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2. RECEIVING EVIDENCE
2.1. General
2.1.1.1. The powers of the Commission relating to the obtaining of evidence are set out in
sections 10 to 20 the 2004 Act and section 2 of the 2016 Act.
2.1.1.2. The Commission will seek to identify throughout the course of its investigation those
persons who may be able to provide evidence relevant to its investigation.
2.1.1.3. The Commission will, to the greatest extent possible, consistent with its duties under
the 2004 Act and the 2016 Act, conduct its investigation by seeking and facilitating
the voluntary co-operation of any person from whom evidence may be required.
However, in the event that it is not possible or appropriate to obtain such voluntary
co-operation, the Commission will consider using any of its powers under the 2004
Act or the 2016 Act to direct the production of the required evidence where necessary
(s.10).
2.1.1.4. Section 13 provides that before a witness gives evidence to the Commission, the
Commission shall give that person a witness notice setting out the Commission’s
powers in relation to witnesses and indicating that, if voluntary co-operation is not
given or is withdrawn, the Commission will exercise such of those powers as it
considers necessary. The Commission will also give to any person before he or she
gives evidence to the Commission a copy of the guidelines concerning recovery of
legal costs prepared by the Minister for Public Expenditure and Reform. (These
documents are appended to these rules.)
2.2. Directions or Orders for the discovery of documents
2.2.1.1. The powers of the Commission relating to the issuing of directions or orders for
discovery are set out in section 16 of the 2004 Act and section 2 of the 2016 Act. The
gathering of documentary evidence on foot of directions or orders for discovery is the
first stage of the Commission’s investigative work.
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2.2.1.2. The Commission may make such orders as it considers necessary for the purpose of
its functions.
2.2.1.3. In relation to the making of such orders and determinations, and the giving of such
directions, the Commission has all such powers, rights and privileges as are vested in
a judge of the High Court (s.2(1) of the 2016 Act).
2.2.1.4. Pursuant to section 16(1) of the 2004 Act and/or section 2 of the 2016 Act, the
Commission has the power to issue directions or orders to compel any person to
disclose information or to produce and to furnish to the Commission any document
that is in the person's possession or power and is specified in the direction or order.
Such a person will be required to swear an affidavit in relation to the disclosure of
such information or the production of such documentation to the Commission.
2.2.1.5. The Commission may also issue a direction or order to any person to provide the
Commission with a list, verified by affidavit, disclosing all documents in the person's
possession or power relating to a matter under investigation.
2.2.1.6. All information and documentation identified by a person on foot of a direction or
order relevant to the Commission’s Terms of Reference must be furnished to the
Commission.
2.2.1.7. A witness who claims to be entitled under any rule of law or enactment to refuse to
disclose information or documentation shall notify the Commission in accordance
with the provisions of sections 14(8) and 21 of the 2004 Act and the Commission will
thereafter make a determination or determinations in accordance with the provisions
of section 21 of the 2004 Act and/or section 2 of the 2016 Act.
2.2.1.8. Section 31(1) of the 2004 Act imposes a specific statutory duty on any person who
has in his or her possession or power a document, or information in any form, relating
to any matter within the Commission’s Terms of Reference, to preserve that
documentation or information until the Commission has been dissolved or the
completion of a subsequent Tribunal. Any person who contravenes this subsection is
guilty of an offence.
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2.2.1.9. A “document” includes:
(a) any book, record or other written or printed material in any form,
including any information stored, maintained or preserved by means of
any mechanical or electronic device, whether or not stored, maintained or
preserved in a legible form, and
(b) any disc, tape, soundtrack or other device in which information, sounds or
signals are embodied so as to be capable (with or without the aid of some
other instrument) of being reproduced in legible or audible form. (s.2(3)
2016 Act)
2.2.1.10. If a person to whom a direction or order is issued fails, refuses or neglects to comply
with the direction, the Commission may apply to the High Court and the High Court
may (a) order the person to comply with the Direction, and (b) make any other order
the Court considers necessary and just to enable the direction or order to have full
effect (s.16(6)).
2.2.1.11. Once the Commission has received an affidavit of discovery and accompanying
documents from any party, the Commission will then review all such documents for
relevance. The Commission may admit such relevant documents into evidence.
Documents may be excluded if they are irrelevant to the investigation or if, for
example, they are duplicate copies of documents or for any other reason which, in the
view of the Commission, is appropriate.
2.3. Oral or written evidence to the Commission
2.3.1.1. Under Section 14(1) of the 2004 Act, the Commission may receive evidence given:
a) orally before the Commission,
b) by affidavit, or
c) as otherwise directed by the Commission or allowed by its rules and
procedures including by means of a live video link, a video recording, a
sound recording or any other mode of transmission.
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2.3.1.2.Evidence includes any expression, orally, in writing or otherwise, of an opinion, belief
or intention (s.2).
2.3.1.3.For the purpose of its investigation the Commission may request any person to set out
on affidavit an outline of the evidence which they wish to provide to the Commission.
Documents referred to should be exhibited thereto.
2.3.1.4.Any person who gives evidence otherwise than by attending in person before the
Commission shall provide the Commission with a sworn statement in a form
acceptable to it indicating that:
a) the evidence was given by him or her,
b) the evidence was given voluntarily, and
c) to the best of his or her knowledge, the content is true and accurate
(s.14(4)).
2.3.1.5.Any person who has provided evidence to the Commission may be requested to give
further or additional evidence to the Commission at a later date (s.14(5)).
2.3.1.6.Section 18 provides that any person who, while giving evidence to the Commission,
makes a statement material to the investigation knowing it to be false or who does not
believe to be true, is guilty of an offence. This applies whether or not the statement is
made under oath or affirmation.
2.3.1.7.Section 19 provides that evidence given to the Commission is not admissible in any
criminal or other proceedings except proceedings in relation to an offence under
Section 18.
2.3.1.8.Section 20 provides that a person who gives evidence to the Commission, or produces
or sends documents to the Commission on being directed to do so, has the same
immunities and privileges and is subject to the same liabilities as a witness in
proceedings in the High Court.
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2.4. Circulation of affidavits/disclosure of evidence
2.4.1.1.The Commission may decide that all or part of an affidavit and/or that all or part of
the documentation provided to the Commission should be furnished to such other
persons or witnesses as the Commission deems necessary, in accordance with section
12 of the 2004 Act. In such circumstances the Commission will circulate such
affidavits and/or relevant documentation to such persons or witnesses if the
Commission deems it necessary and appropriate.
2.4.1.2.Where a person may give evidence to the Commission, the Commission shall disclose
to that person the substance of any evidence in its possession that, in its opinion, the
person should be aware of, for the purposes of that person’s evidence to the
Commission (s.12).
2.4.1.3.The Commission shall give a person to whom it discloses the substance of another
person’s evidence an opportunity to make written or oral submissions on that
evidence if the witness so wishes in accordance with the Commission’s discretion
(s.12(3)).
2.4.1.4.The Commission is not required to disclose the source of any evidence given or
document produced to it by a witness while giving evidence in private, unless the
Commission considers that, in view of the purposes of the investigation or in the
interests of fair procedures, the source should be disclosed (s.12(2)).
2.5. Claims of privilege/confidentiality
2.5.1.1.A person who has been requested, directed or ordered to provide documents, evidence
or information to the Commission may request the Commission to consider a claim of
privilege or duty of confidentiality in relation to the contents of same in accordance
with the provisions of sections 14(8) and 21 of the 2004 Act.
2.5.1.2.The Commission will determine whether the claimed privilege or duty of
confidentiality applies under the procedures set out in section 21 of the 2004 Act and
section 2 of the 2016 Act.
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2.5.1.3.Under section 2(2) of the 2016 Act, notwithstanding section 21 of the 2004 Act, the
Commission may compel the disclosure of information and the production of
documentation that a person could not otherwise be compelled to disclose or produce,
where the Commission considers that its disclosure or production is necessary to
enable the Commission to perform its functions and, accordingly, the Commission
may admit in evidence that information or any such document.
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3. CONDUCT OF HEARINGS
3.1. General
3.1.1.1. The Commission may request or direct a person to give evidence before it (s.16). The
Commission will notify the witness of the broad areas where the Commission believes
the witness can offer relevant evidence and the Commission will give an indication of
the matters which the Commission wishes to cover during the hearing. The
Commission will also identify documents (or categories of documents) the
Commission may wish to refer to during the hearing.
3.1.1.2. If there are matters which a witness wishes to raise at the oral hearing or if there are
any additional documents which the witness wishes to bring to the Commission’s
attention, the witness may do so.
3.1.1.3. The witness will be advised of the date, time and location of the oral hearing and will
be given reasonable notice of same.
3.1.1.4. If no legal representative is present to advise a witness who attends before the
Commission to give evidence, the Commission shall advise the witness of his or her
legal rights and obligations while giving such evidence (s.13(2), s.14(2)).
3.2. Private Hearings
3.2.1.1. Hearings before the Commission will ordinarily be conducted in private (s.11 of the
2004 Act).
3.2.1.2. The Commission may, however, decide that all or part of the evidence of a witness
should be given in public. This may occur where either:
(a) the witness has requested that all or part of his or her evidence be heard in
public and the Commission grants that request, or
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(b) the Commission is satisfied that it is desirable in the interests of both the
investigation and fair procedures to hear all or part of the evidence of a
witness in public (s.11(1)).
3.2.1.3. When a witness gives evidence to the Commission in private, the Commission may
give directions as to the persons who may be present when the evidence is being heard
(s.11(2)).
3.2.1.4. The Commission may permit legal representatives of persons other than the witness to
be present if the Commission is satisfied that their presence would be in keeping with
the purposes of the investigation and would be in the interests of fair procedures
(s.11(2)).
3.2.1.5. Witnesses may be cross-examined by any person only if the Commission so directs
(s.11(2)).
3.2.1.6. The disclosure by any person of evidence given or the contents of documentation
produced to the Commission in private is not permitted (save in certain limited
circumstances set out in sections 11 and 12 of the 2004 Act).
3.2.1.7. It is an offence for any person to disclose or publish any evidence given or the
contents of any document produced by a witness giving evidence in private save in
the circumstances specified in section 11 of the 2004 Act (s.11(4)).
3.3. Evidence under oath or affirmation
3.3.1.1. A witness who attends before the Commission to give evidence will be required to
give their evidence on oath or affirmation.
3.4. Examination of witnesses
3.4.1.1. When a person is required to give evidence to the Commission, the order of
examination generally will be as follows:
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i. Counsel for the Commission will examine the witness first.
ii. A person whom the Commission has directed is appropriate to be present
while the evidence of a witness is heard (or their legal representative) may,
subject to the discretion of the Commission, cross-examine that witness.
iii. A person, when giving evidence to the Commission may have their legal
representatives present and such legal representatives may, subject to the
discretion of the Commission, examine their client at the conclusion of cross
examination.
iv. Counsel for the Commission may re-examine a witness.
v. The Chairman of the Commission may ask questions of a witness at any
time.
vi. Except with the permission of the Commission, no person other than the
Commission, or Counsel for the Commission, may speak to a witness about
his or her evidence while the witness is giving any part of his or her
evidence.
3.4.1.2. A person who has given evidence to the Commission may be recalled at a later date to
give further evidence where the Commission considers this necessary.
3.5. Recording of evidence
3.5.1.1. A transcript of the evidence given to the Commission will be recorded by a
stenographer engaged by the Commission for that purpose. The proceedings of the
Commission may also be recorded in such other manner as the Commission may
deem appropriate.
3.5.1.2. A person who gives oral evidence before the Commission will be provided with a
copy of the transcript of their evidence.
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3.5.1.3. A transcript, or part thereof, of the evidence of a witness will be provided to any
person who is affected by the evidence given. Any person to whom the substance of
such oral evidence is disclosed will be given an opportunity to comment in evidence
or by written or oral submissions on the evidence, in such manner as the Commission
shall decide in accordance with its discretion.
3.6. Evidence by video link
3.6.1.1. In exceptional circumstances, the Commission will consider an application to it for a
witness to give evidence by means of a live video link.
3.6.1.2. A witness who gives evidence by means of a live video link must provide the
Commission with a sworn statement in a form acceptable to it, within a period
specified by the Commission, acknowledging that the evidence was given by him or
her, the evidence was given voluntarily, and to the best of his or her knowledge, the
content is true and accurate (s.14(4)).
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4. SUBMISSIONS ON EVIDENCE AND/OR LEGAL ISSUES
4.1.1.1. The Commission may, at its discretion, request submissions from any person who
may have information relevant to its investigation or who may be affected by an order
or direction or determination of the Commission.
4.1.1.2. Such submissions should be communicated in writing to the Commission, in such
form as may be decided by it, within a time which it will specify. The time frame for
such submissions may be extended by the Commission where appropriate.
4.1.1.3. The Commission may, at its discretion and where it considers it appropriate to do so
in accordance with fair procedures, circulate such submissions to other affected
parties and invite their submissions in return.
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5. LEGAL REPRESENTATIVES
5.1. There is no requirement that a witness retain a legal representative.
5.2. It is a matter for each person to decide on whether he or she wishes to appoint a legal
representative. The fact that a witness has retained a legal representative does not
relieve that person of his or her personal duties to the Commission.
5.3. A witness may be accompanied by his or her legal representative while giving
evidence.
5.4. Section 13(2) of the 2004 Act provides that if no legal representative is present to
advise a witness, then the Commission shall advise the witness of his or her legal
rights and obligations while giving evidence on oath or affidavit.
5.5. Legal representatives of persons other than the witness may be present only if the
Commission (i) is satisfied that their presence would be in keeping with the purposes
of the investigation and would be in the interests of fair procedures, and (ii) directs
that they be allowed to be present (s.11(2)(b)). Such a legal representative may cross-
examine the witness only if the Commission is satisfied that such cross-examination is
necessary in the interests of fair procedures. Such cross-examination shall be limited
to matters the Commission considers relevant to the investigation.
5.6. If a person wishes to appoint a legal representative, then the payment of that person’s
legal expenses is governed by sections 23 and 24 of the 2004 Act.
5.7. A person who retains a legal representative for the purposes of dealing with the
Commission does not, save as provided by sections 23 and 24 of the Act, thereby
acquire any right to the legal costs of that representative.
5.8. The General Guidelines concerning the payment of legal costs are attached to these
Rules and Procedures.
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6. COSTS AND EXPENSES
6.1. The 2004 Act makes a distinction between a witness’s expenses of attending and his
legal costs. A person who attends before the Commission, whether voluntarily or
otherwise, as a witness is entitled to be paid his or her expenses of so attending. The
amount of such expenses is determined by guidelines prepared by the Minister for
Public Expenditure and Reform.
6.2. The Minister for Public Expenditure and Reform has prepared guidelines concerning
payment by the Taoiseach (as specified Minister) of legal costs necessarily incurred
by witnesses in connection with this investigation. Section 23(4) of the 2004 Act
requires the Commission to supply a copy of these Guidelines to every witness before
he or she gives evidence to the Commission. (A copy of these Guidelines is appended
to these Rules and Procedures.)
6.3. Legal costs are necessarily incurred by a witness if:
(a) the good name or conduct of a witness is called into question by any
evidence received by the Commission, or
(b) other personal or property rights of the witness are at risk of being
jeopardised as a result of any evidence received by the Commission
(s.23(2)).
6.4. Section 24 of the 2004 Act provides that a witness may request that the Commission
direct that all or part of the legal costs necessarily incurred by the witness in
connection with its investigation be paid by the specified Minister. In considering
such a request, the Commission will have regard to all relevant factors, including the
specific criteria set out in section 24(3) of the Act, before making any decision in that
regard.
6.5. Requests to the Commission for the payment of legal costs incurred by a witness must
be made in writing to the Commission and should include:
(a) The name and contact details of the witness making the request;
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(b) The factual basis upon which it is claimed that legal costs were
necessarily incurred;
(c) The factual basis upon which it is claimed that the level and amount of
costs for which payment is sought are reasonable;
(d) A bill of costs, and
(e) The amount of Value Added Tax on those legal costs.
6.6. A witness who has incurred heavy expenses (other than legal costs) arising from his
or her involvement with the Commission, may request the Commission to direct that
all or part of those expenses by paid by the Taoiseach. In considering such a request,
the Commission will have regard to all relevant factors, including the specific criteria
set out in section 24(5) of the Act, before making any decision in that regard.
6.7. Requests to the Commission for the payment of heavy expenses incurred by a witness
must be made in writing to the Commission and should include:
(a) The name and contact details of the witness making the request;
(b) The factual basis upon which the expenses are claimed, including all
original vouchers and receipts in respect of such expenses;
(c) The total amount of the expenses claimed, and
(d) The amount of Value Added Tax, if any, on those expenses.
6.8. The Commission can only consider any requests for payment of legal costs and/or
expenses at the conclusion of the investigation having regard to the factors set out in
section 24(3) of the 2004 Act.
Signed: ______________________________
The Hon. Mr. Justice Brian Cregan
Sole Member
September 2016
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Appendix 1 - Amended Terms of Reference
The Commission of Investigation is charged with investigating a number of matters of
significant public concern as set out in its Terms of Reference:
1. The Commission shall investigate all transactions, activities and management
decisions (‘transactions’), other than those relating solely to the acquisition of assets
by the National Asset Management Agency, which occurred between 21 January 2009
(being the date of the nationalisation of IBRC) and 7 February 2013 (being the date of
the appointment of the Special Liquidators to IBRC) (the “Relevant Period”); and
which either:
(a) resulted in a capital loss to IBRC of at least €10,000,000 during the
Relevant Period, whether in consequence of a single transaction or of a
series of transactions relating to the same borrower or entities controlled
by the same borrower (“Relevant Write-Offs”); or
(b) are specifically identified by the Commission as giving rise or likely to
give rise to potential public concern, in respect of the ultimate returns to
the taxpayer.
1A. In this regard, in the first module of its work, the Commission shall investigate
the transaction in relation to Siteserv PLC which has been identified as a matter of
significant public concern in Dáil Éireann.
1B. The Commission shall also, in the first module of its work, review and report on
the principles and policies within IBRC in respect of the setting of interest rates
generally during the relevant period.
2. The purposes for which each such transaction referred to above are to be
investigated are the following (and accordingly the Commission’s terms of reference
extend to investigating):
20
(a) the processes, procedures and controls which were operated by IBRC in
relation to those transactions to ascertain whether the appropriate internal
IBRC governance procedures and controls were adhered to in respect of
the transactions under review and whether the said procedures and controls
were fit for purpose,
(b) whether there is prima facie evidence of material deficiencies in the
performance of their functions by those acting on behalf of IBRC,
including the IBRC board, directors, management, the staff of the wealth
management unit and agents, in respect of any transactions identified
above,
(c) whether it can be concluded from the information available within the
IBRC and relevant evidence and witness testimony as appropriate that the
transactions were not commercially sound in respect of the manner in
which they were conducted, the decisions made and the outcomes
achieved,
(d) whether, in respect of any transaction under investigation, any unusual
share trading occurred which would give rise to an inference that inside
information was improperly provided to or used by any persons, and in the
event that such an inference does arise whether any such information was
actually improperly provided or used,
(e) in relation to each transaction under investigation, whether the Minister for
Finance or his Department was kept informed where appropriate in respect
of the transactions concerned, and whether he, or officials on his behalf,
took appropriate steps in respect of the information provided to them.
3. The report to be made by the Commission in relation to the foregoing
investigations shall:
21
(a) set out the scope and findings of the investigations in fulfilment of the
purposes set out in 2. above;
(b) respect obligations of confidentiality and commercial sensitivity where
those are not incompatible with the public interest; and
(c) set out such recommendations as the Commission sees fit.
4. The Commission shall report on any other matters of concern arising from its
investigation of the above matters and make any further recommendations as the
Commission sees fit.
5. The Commission shall exercise discretion in relation to the scope and intensity of
the investigation as it considers necessary and appropriate, having regard to the
general objectives of the investigation.
6. In these terms of reference:
(a) “IBRC” means Irish Bank Resolution Corporation Limited;
(b) where a contractual obligation was agreed during the Relevant Period but
not executed until after the Relevant Period then the contract and any
resulting loss shall be regarded as having been made during the Relevant
Period;
(c) references to IBRC shall be construed as including references to Irish
Nationwide Building Society and any subsidiary of Irish Nationwide
Building Society from the date of the merger between Anglo Irish Bank
and Irish Nationwide Building Society to 7th
February 2013; and as
including references to Anglo Irish Bank, any subsidiary of Anglo Irish
Bank and any subsidiary of IBRC for the Relevant Period.;
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(d) for the avoidance of doubt, references to transactions, activities and
management decisions shall be construed as including references to
amendments made to the terms and conditions of loans.
GIVEN under the Official Seal of the Government
27 July 2016.
ENDA KENNY,
Taoiseach.
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Appendix 2 – Draft Affidavit Verifying Evidence
AFFIDAVIT VERIFYING EVIDENCE
I ____________________ [FULL NAME], of __________________[ADDRESS],
__________________[DESCRIPTION/OCCUPATION], aged 18 years and upwards,
MAKE OATH and say as follows:
1. I am [NAME], of ___________ [ADDRESS] and am _________ [DESCRIPTION].
2. I make this affidavit from facts within my own knowledge and from data,
documentation and information within my possession, power or procurement, save
where otherwise appears, and whereso otherwise appearing I believe the same to be
true.
3. I have read the Terms of Reference of the Commission of Investigation into matters of
significant public concern in respect of Irish Bank Resolution Corporation Limited
(the “Commission”) provided for in Statutory Instrument 253/2015 - Commission of
Investigation (Irish Bank Resolution Corporation) Order 2015 and amended by
Statutory Instrument 417/2106 - Commission of Investigation (Irish Bank Resolution
Corporation) (Amendment) Order 2016.
4. I have read the Rules and Procedures document published by the Commission and I
am aware of, and understand, the requirements of sections 10, 14, 16, 17, 28 and 31 of
the Commissions of Investigation Act 2004 and the Commission of Investigation
(Irish Bank Resolution Corporation) Act 2016.
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5. I have read the ____________ [Request/Direction/Order] made by the Commission
on __________ [date] directed to _____________ [name].
6. I am a person who has given evidence to the Commission otherwise than by attending
before the Commission [or, if appropriate, by means of video link] pursuant to section
14(4) of the Commissions of Investigation Act 2004.
7. I refer to a text copy of my evidence given on the ____ day of _____ 2016 at
____________ [address] upon which marked with the letter “A” I have signed my
name prior to the swearing of the affidavit.
8. I have read the text copy of my evidence given on the _____ day of _____ 2016 at
____________ [address] and I confirm that:
(a) this evidence was given by me, _______ [name], on the ____ day of
_______ 2016 at ________ [address];
(b) this evidence was given voluntarily; and
(c) that to the best of my knowledge this evidence is true and accurate.
SWORN this ____ day of
___________ 2016 at
_________________ [address] by
___________________ [name]
before me a Commissioner for
Oaths/Practising Solicitor and I
know the Deponent.
25
Appendix 3 – General Guidelines on Payment of Legal Costs and Other Expenses
General Guidelines on Payment of Legal Costs and Other Expenses to Persons who
become involved with the Commission of Investigation
Purpose of General Guidelines
1. These General Guidelines have been agreed by an Taoiseach, as the specified Minister,
following consultation with the Commission and with the consent of the Minister for
Public Expenditure and Reform, as required by the Commissions of Investigation Act
2004 (the Act).
2. These guidelines should be read in conjunction with that Act1.
3. The Commission operated in accordance with these guidelines on costs but is independent
in the performance of its functions as set out in the Act.
What expenses (other than legal costs) can a person expect to recover?
4. A person who attends as a witness before the Commission is entitled to payment of the
expenses incurred by reason of that attendance2.
5. The expenses to be covered are travel and transport costs, accommodation, meals and any
other expenses that are necessarily incurred as a direct result of attendance before the
Commission.
1 In the event of any dispute, the terms of the Act shall prevail
2 Section 16 (3)
26
Expenses related to loss of earnings will not be paid unless the person concerned can
show to the satisfaction of the Commission that s/he has suffered undue hardship by
reason of his/her attendance.
Expenses will not be paid to any serving public servant whose expenses have been met by
his/her employer.
Payment in respect of accommodation and meals will be made on the basis of vouched
expenses, subject to the following upper limits:
A maximum of €108.99 in respect of an overnight stay;
A maximum of €33.61 in respect of a period of 10 hours or more;
A maximum of €13.71 in respect of a period of 5 hours or more.
Where possible, public transport (bus or rail) should be used. Taxis should only be used
where another reasonable alternative does not exist. In the event that use of a private car
is necessary, expenses will be met at the rate of € 0.38 per mile / €0.24 per kilometre.
6. A person may also request the Commission of Investigation to pay ‘heavy expenses’3
(other than legal costs) incurred because of:
The nature, volume or location of the documents produced by the witness;
The location outside the State from which the witness travelled to attend before the
Commission;
Any other factor not within the control of the witness.
It is a matter for the Commission to decide what constitutes ‘heavy expenses’ on a case
by case basis. The Commission may, on being satisfied that they were necessary in the
circumstances, direct that such amount of those expenses as it considers reasonable be
paid to the witness.
What legal costs can a person expect to recover?
7. A witness may request recovery of legal costs necessarily incurred4.
8. Legal costs shall not be paid except where
3 Section 24 (5)
4 Sections 23 and 24
27
a) The good name or conduct of the witness are called into question by any evidence
received by the Commission, or
b) Other personal or property rights of the witness are at risk of being jeopardised as a
result of any evidence received by the Commission.
‘Legal Costs’ means fees, disbursements, charges and expenses included in a bill of
costs in respect of a barrister or solicitor.
9. Discovery costs may be included as legal costs for a party who has been granted legal
representation before the Commission, in which case payment of costs of discovery will
be decided in the context of payment of overall legal costs.
10. The amount of legal costs to be paid by an Taoiseach, as the specified Minister, shall be
assessed by the Commission in the light of the relevant provisions of the Act5.
These Guidelines do not place any restriction on the number or type of legal
representatives that may be engaged by a party who has been granted legal
representation by the Commission.
The Commission may, in its discretion, limit the amount of legal costs recoverable in
respect of such representation (including the number of those representatives).
These Guidelines specify a maximum daily rate for Senior Counsel, Junior Counsel
and Solicitor in respect of their appearance before the Commission (see paragraph 12
below).
11. The Commission is to be satisfied that any legal costs to be paid were necessarily
incurred and that the level and amount of these costs are reasonable.
12. The amounts payable in respect of appearance by a legal representative before the
Commission are:
Senior Counsel €788.27 per diem (excluding VAT)
Junior Counsel €394.14 per diem (excluding VAT)
Solicitor €624.00 per diem (excluding VAT)
13. The amounts payable in respect of the following affidavits that may be furnished to the
Commission are:
5 Sections 23 and 24
28
An affidavit of documents A maximum of €780.00, subject to the exemption set
out below
An affidavit verifying evidence A maximum of €390.00 per affidavit (to cover payment
to all legal representatives )
An affidavit A maximum of €390.00 per affidavit (to cover payment
to all legal representatives)
These maximum limits may only be exceeded in respect of an affidavit of documents that
requires discovery costs in excess of that limit and where, in the Commission’s view:
The volume of documents discovered is substantial;
The documents disclosed were relevant;
The legal normalities in relation to the swearing of the affidavit of documents was
properly and promptly complied with; and
These costs were necessarily incurred.
14. To the extent possible, legal representation shall be granted on a joint basis to parties with
similar interests, and in any event, the costs incurred by such parties shall be assessed by
reference to the potential reduction in legal costs that could have been secured through
such joint representation irrespective of whether such joint representation occurred, with
the distribution of allowable costs to be determined by the Commission by reference to
the criteria in the Act6.
15. These Guidelines are definitive as to all legal costs or expenses (including heavy
expenses) that may be recoverable by a person who seeks to recover such costs or
expenses from the Commission. No payment shall be made in respect of brief fees,
instruction fees or any other legal costs or expenses, other than those legal costs and
expenses expressly specified in these Guidelines.
6 Sections 23 and 24
29
Appendix 4 – Section 13 Witness Notice
WITNESS NOTICE – FURNISHED PURSUANT TO SECTION 13 OF THE
COMMISSIONS OF INVESTIGATION ACT 2004
Introduction
The Commission of Investigation into certain matters relative to the Irish Bank Resolution
Corporation Limited (“IBRC”) (the “Commission”) was established pursuant to section 3 of
the Commissions of Investigation Act 2004 (the “2004 Act”) by order of the Government
dated 16 June 2015.
Additional provisions in relation to the Commission were made by the Commission of
Investigation (Irish Bank Resolution Corporation) Act 2016 (the “2016 Act”) and the
Commission of Investigation (Irish Bank Resolution Corporation) (Amendment) Order 2016
(S.I. No. 417 of 2016).
Before a person gives evidence to the Commission, section 13 of the 2004 Act requires that
the Commission provide that person with a written statement setting out certain powers of the
Commission and indicating the circumstances in which the Commission may decide to
exercise those powers.
This is an important document. The Commission invites you to read it carefully before you
give evidence to the Commission.
Powers relating to witnesses and documents
Section 16(1) of the 2004 Act provides that, for the purposes of its investigation, the
Commission may do all or any of the following:
Direct in writing any person to attend before the Commission on a date and at a place
and time specified in the direction and there to give evidence and to produce any
document that is in the person's possession or power and is specified in the direction;
30
Direct a witness to answer questions that it believes to be relevant to a matter under
investigation;
Examine a witness on oath or affirmation or by use of a statutory declaration or
written interrogatories;
Examine or cross-examine any witness to the extent the Commission thinks proper in
order to elicit information relevant to a matter under investigation;
Direct a witness to produce to the Commission any document that is in his or her
possession or power and is specified in the direction;
Direct in writing any person to -
(i) provide the Commission with a list, verified by affidavit, disclosing all
documents in the person's possession or power relating to a matter under
investigation; and
(ii) specify in the affidavit any of the listed documents that the person objects to
producing to the Commission and the basis for the objection;
Please note that the rules of court relating to the discovery of documents in Court
proceedings apply with any necessary modifications in relation to the disclosure of
documents pursuant to a direction of this kind by the Commission;7
Direct in writing any person to send to the Commission any document that is in the
person's possession or power and is specified in the direction;
Direct a person who made a statement or answered a question while being
interviewed by a person appointed under section 8 of the 2004 Act to provide the
Commission with a sworn statement in a form acceptable to it confirming, (if such is
the case) -
(i) that the statement was made or the answer given by him or her voluntarily,
and
(ii) that to the best of his or her knowledge the content is true and accurate;
Where such a statement or answer to a question is confirmed in this manner, it is
considered to have been received as evidence by the Commission;8
7 Commissions of Investigation Act 2004, s. 16(4)
8 Ibid s.16(5)
31
Give any other directions that appear to the Commission to be reasonable;
Where a person does not comply with a direction given by the Commission under section
16(1) of the 2004 Act, the Sole Member of the Commission may apply to the High Court for:
(a) an order that the person comply with the direction, and
(b) any other order the Court considers necessary and just to enable the direction
to have full effect.9
Failure to comply with the direction(s) specified in such an order may be dealt with by the
Court as if it were a contempt of court.10
Any person who, without a reasonable excuse, fails to comply with a direction of the
Commission to attend before it for the purpose of giving evidence and/or producing
documents is guilty of an offence under section 16(8) of the 2004 Act.
A failure to comply with a direction to attend before the Commission may be punished either
as an offence or as a contempt of court.11
In addition to the aforementioned powers, section 2(1) of the 2016 Act provides that the
Commission may make such orders and determinations, and give such directions, as it
considers necessary for the purpose of its functions, and it shall have, in relation to the
making of such orders and determinations, and the giving of such directions, all such powers,
rights and privileges as are vested in the High Court or a judge of the High Court in respect of
the making of orders or determinations, or the giving of directions.
Power to direct certain persons to pay costs
Section 17 of the 2004 Act provides that where a person obstructs the Commission in the
carrying out of its investigation and the Commission thereby incurs costs which it would not
otherwise have incurred, the Commission may, in writing, direct that person to pay to the
Minister for Finance those costs, including legal costs as taxed by a Taxing Master of the
High Court and costs arising from any delay in completing the investigation.
Such obstruction may include failing, without reasonable excuse, to comply with one or more
of the following:
(i) A direction from the Commission under section 16 of the 2004 Act;
9 Ibid s.16(6)
10 Ibid s.16(7)
11 Ibid s.16(9)
32
(ii) A request for additional information in relation to evidence previously given by
that person to the Commission12
; or
(iii) A request to submit a document to the Commission for the purposed of
determining a claim of privilege or duty of confidentiality in relation to that
document.13
If the said obstruction adversely affects any other person who attends or gives evidence to the
Commission, the Commission may – on its own initiative or at the request of the person so
affected – direct that all or part of any costs (including legal costs) incurred by the affected
person as a result of the obstruction, be paid by the person responsible for that obstruction.14
A direction by the Commission ordering payment of either its own costs or the costs of a
witness in the circumstances outlined above does not take effect until it is confirmed by the
High Court on the application of the Sole Member.15
The Court may make an order
confirming the direction, with or without modification, or may refuse to make such an
order.16
Any sum payable pursuant to a direction which had been confirmed by the Court may be
recovered as a simple contract debt in any court of competent jurisdiction.17
A person may be directed to pay costs under section 17 of the 2004 Act even though the act
or omission that resulted in the direction is punishable as a contempt of court or as an offence
under the 2004 Act. The issuing of a direction under this section of the 2004 Act does not
prevent the person being punished for contempt or the bringing of proceedings in respect of
the offence.18
Powers of entry and inspection
Section 28 of the 2004 Act sets out a number of powers which can be exercised by
“authorised persons” at the direction of the Commission. In this context, an “authorised
person” is defined as:
(a) The Sole Member of the Commission; and
12
Ibid s.14(5) 13
Ibid s.17(1) 14
Ibid s.17(2) 15
Ibid s.17(3) 16
Ibid s.17(4) 17
Ibid s.17(5) 18
Ibid s.17(6)
33
(b) Any person appointed under section 8 of the 2004 Act to assist and advise the
Commission and who has been authorised in writing by the Commission to
exercise the powers set out in section 28.19
Authorised persons may only exercise those powers where the Commission considers it
reasonable and necessary for the purposes of its investigation, and so directs.20
Subject to those conditions, an authorised person may do any or all of the following:
Enter at any reasonable time any premises in which the authorised person has
reasonable grounds to believe there are any documents, or there is information in any
form, relating to any matter within the Commission’s terms of reference;
Inspect any documents, or information in any form, on the premises;
Secure for later inspection any documents, any information in any form and any
equipment in which those documents or that information may be held, if the
authorised person has reason to believe that the documents or information may be
relevant to the investigation;
Secure for later inspection the premises, or any part of the premises, but only if the
authorised person considers it necessary to do so in order to preserve for inspection
documents or information in any form that he or she has reason to believe may be
kept there and may relate to the investigation;
Take copies of or extracts from any documents or any electronic information system
on the premises, including in the case of information in a non-legible form, copies of
or extracts from such information in a permanent legible form;
Remove for later examination or copying any documents, or information in any form,
that the authorised person has reason to believe may relate to a matter under
investigation and retain them for the period that he or she considers reasonable;
Direct any person on the premises to produce to the authorised person any documents,
in any form, kept on the premises;
Direct any person on the premises having charge of, or otherwise concerned with the
operation of, data equipment or any associated apparatus or material to provide the
authorised person with all reasonable assistance in relation to the equipment,
apparatus or material;
19
Ibid s.26 20
Ibid s.27
34
Direct any person on the premises to give to the authorised person any information
that the authorised person may reasonably require with regard to a matter under
investigation.
An authorised person may not enter a private dwelling or the part of any premises that is used
as a private dwelling, except with the consent of the occupier, or under the authority of a
warrant issued under section 29 of the 2004 Act by a judge of the District Court.21
When exercising powers under this section, an authorised person may be accompanied by a
member of the Garda Síochána.22
The production of a document in compliance with a direction under section 28 of the 2004
Act does not prejudice a person’s lien on the document.23
Exercise of powers by the Commission
The Commission will in the first instance and to the extent permitted by the 2004 Act, seek
and facilitate the voluntary co-operation of all witnesses from whom evidence is required. 24
In the event that such voluntary co-operation is not forthcoming or is withdrawn, the
Commission will consider whether to use any of its powers under the 2004 Act and/or the
2016 Act to compel production of the required evidence.25
Legal representation before the Commission
There is no requirement that a witness retain a legal representative. The fact that a witness
has retained a legal representative does not relieve that person of his or her personal duties to
the Commission.
A witness may be accompanied by his or her legal representative while giving evidence. If
you have no legal representative present to advise you, the Commission will advise you of
your legal rights and obligations while giving evidence.
21
Ibid s.28(2) 22
Ibid s.28(3) 23
Ibid s.28(4) 24
Ibid s.10(2) 25
Ibid s.13(1)
