High Court sets aside Central Bank prohibition notice due to lack of reasonable basis for fitness opinion.

[APPROVED]

[REDACTED]

THE HIGH COURT

[2026] IEHC 203

Record No. 2022 No. 83 MCA

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 45 OF THE

CENTRAL BANK REFORM ACT 2010

BETWEEN

CENTRAL BANK OF IRELAND

APPLICANT

AND

CD

RESPONDENT

JUDGMENT of Mr. Justice David Barniville, President of the High Court, delivered on the 31st day of March, 2026 [Redactions confirmed on the 17th day of April 2026] Index

1. Introduction…………………………………………………………………………4

2. Hearing otherwise than in public: Section 45 (3) of 2010 Act……………………4

3. Summary of Prohibition Notice…………………………………………………....6

4. Brief Overview of Parties’ Positions……………………………………………….7

5. Summary of Court’s Decision……………………………………………………...9

6. Factual Background……………………………………………………………….21

(a) The Parties…………………………………………………………….………..21

(i) The Central Bank……………………………………………………….21

(ii) The Respondent…………………………………………………………22

(b) Issues with EF absolute return bonds…………………………………….…..24

7. Relevant Statutory Provisions…………………………………………………….26

8. The investigation into Respondent’s fitness and probity under Part 3 of 2010 Act…………………………………………………………………………………..45

(a) The July 2019 notice……………………………………………………………45

(b) The Respondent’s response to the July 2019 notice………………………….48

(c) The September 2019 notice…………………………………………………….50

(d) The appointment of the Investigator………………………………………….53

(e) The evidentiary notices…………………………………………………………53

(f) The resignation of the Respondent……………………………………………..55

(g) The statement of grounds…………………………………………………...…..55

(h) The response to the statement of grounds……………………………………..57

(i) Correspondence between Arthur Cox and the Investigator…………………..59

(j) The conclusion of the information gathering stage of the investigation……...64

9. The s. 41 Report…………………………………………………………………….67

10. Respondent’s submissions on the s. 41 report…………………………………….74

11. The Decision-Making Process under Part 4 of the 2010 Act…………………….80

12. The Meeting with the Decision-Maker on 17 September 2021………………….83

13. The Regulation 13 Notice………………………………………………………….89

14. Respondent’s Submissions in response to the Regulation 13 Notice……………95

15. The Prohibition Notice……………………………………………………………..98

16. The Application for Confirmation: Evidence on the Application…………...….114

17. The applicable test for court confirmation under section 45 of the 2010 Act….122

18. The Issues…………………………………………………………………………..131

19. The ultra vires issue…………………………………………………………...........132

(a) Summary of the submissions of the parties…………………………………132

(i) The Central Bank…………………………………………….………..132

(ii) The Respondent………………………………………………………..135

(b) Decision on ultra vires issue………………………...………………......……137

20. Whether there was a reasonable basis for the opinion and process: sections 43 and

45 of 2010 Act: Fair Procedures Issues…………………..…...............…………….....147

(a) Summary of the submissions of the parties…………………….………....147

(i) The Central Bank……………………………………………………...147

(ii) The Respondent………………………………………………………..154

(b) Decision on reasonable basis of opinion: Fair Procedures Issues…..……160

21. Set aside/remittal…………………………………………………………………..181

22. Conclusions………………………………………………………………………...183

1. Introduction

1. This is my judgment on an application brought by the Central Bank of Ireland (the “Central Bank” or the “Applicant”) for an order pursuant to s. 45(1) of the Central Bank Reform Act 2010 (the “2010 Act”) confirming a Prohibition Notice which was issued by the Central Bank to the Respondent, CD, on 2 February 2022 pursuant to s. 43(1) of the 2010 Act (the “Prohibition Notice”). I provided the parties with my written decision on the application on 2 May 2025. This judgment sets out the detailed reasons for my decision.

2. The Prohibition Notice prevented the Respondent from performing certain significant functions in relation to all financial service providers regulated by the Central Bank since it was issued.

3. Section 45 of the 2010 Act requires the Central Bank to apply to the High Court for confirmation of the Prohibition Notice, and there are specific statutory provisions governing the court’s consideration and determination of such an application.

2. Hearing otherwise than in public: Section 45 (3) of 2010 Act

4. At the outset of the hearing of the Central Bank’s application to confirm the Prohibition Notice, the Respondent applied for the hearing to be heard otherwise than in public under s. 45(3) of the 2010 Act. That section provides that when hearing an application under s. 45(1) of the 2010 Act for confirmation of a prohibition notice, where the court is satisfied that “for reasons of confidentiality or commercial sensitivity” or in order to avoid the disclosure of certain specified information, the court may order that the hearing be conducted otherwise than in public. As a fallback decision, the Respondent sought to rely on the common law jurisdiction outlined by the Supreme Court in Gilchrist v Sunday Newspapers [2017] IESC 16, [2017] IR 284 for the proceedings to be heard otherwise than in public or, alternatively, for orders anonymising the Respondent and redacting any information which would tend to identify him. The Respondent relied on various matters including the fact that he had provided deeply personal information in the course of the proceedings in relation to his health and medical condition, his financial concerns and the impact of the investigation and the issuing of the Prohibition Notice on him and on his family. He further referred to the serious risk that the Central Bank’s application, if heard in public, would immeasurably damage his professional reputation, his good name and his ability to earn a livelihood and to provide for his family in the future. He contended that his rights and interests would be irremediably damaged if he were identified. The Central Bank neither consented nor objected to the Respondent’s application for the proceedings to be heard otherwise than in public although it did not accept that potential damage to reputation or livelihood were appropriate grounds for the granting of relief under s. 45(3). That position was adopted by the Central Bank because of the specific circumstances of these proceedings and, in particular, because of the fact that the Respondent was subject to the effects of the Prohibition Notice since February 2022 in circumstances where almost the entirety of the 12 month prohibition period had elapsed before the hearing of the application commenced (without the fault of any party).

5. Having considered the parties’ helpful written submissions on the point and their oral submissions at the commencement of the hearing, I was satisfied that this was an appropriate case for the court to make an order under s. 45(3) of the 2010 Act that the hearing be held otherwise than in public. I was satisfied that the approach adopted by the Central Bank in response to the application was significant and that it was open to me on the particular circumstances of the case to conclude that for reasons of confidentiality combined with the timing point identified by the Central Bank, the hearing should be held otherwise than in public. My

decision on that issue was based on the very particular circumstances of this case and should not necessarily be taken as a precedent which will be applied in other cases. Although the hearing was held otherwise than in public, an appropriately redacted version of this judgment will be made public.

3. Summary of Prohibition Notice

6. The Prohibition Notice was issued by the Central Bank in circumstances where, following an investigation carried out by an investigator (the “Investigator”) on behalf of the Deputy Governor (Prudential Regulation) of the Central Bank (the “Deputy Governor”) under Chapter 3 of Part 3 the 2010 Act, a decision maker appointed by the Central Bank under Chapter 4 of Part

3 of the Act (the “Decision-Maker”) concluded that, on three grounds, the Respondent should be prohibited from carrying out any “controlled functions” (being certain prescribed functions under the 2010 Act) with respect to any regulated financial service provider for the period of the notice.

7. In summary, the three grounds were as follows:

(i) Ground 1: The Respondent’s competence as a “Designated Person”. The Decision-Maker was satisfied that the Respondent had not competently discharged the role of “Designated Person for Investment Management” (a “controlled function”) in the investment fund management company in which he was employed, (EF Fund ManCo), and that he had not demonstrated the appropriate capability appropriate to that particular controlled function. She also concluded that the Respondent did not have the competence and skills appropriate to that function, notwithstanding his 30 years of experience. She was satisfied that, for various reasons, the Respondent had not discharged the specific responsibilities applicable to that function. The Decision-Maker, therefore, concluded that the Respondent did not have the competence and proficiency to carry out that function or any “controlled function”.

(ii) Ground 2: The Respondent’s conduct of concurrent responsibilities. The Decision-Maker concluded for various reasons that the Respondent allowed the conduct of concurrent responsibilities to prevent him from effectively carrying out his regulatory and fiduciary responsibilities to EF Fund ManCo and that this impaired his ability to discharge his duties as Chief Executive Officer, Executive Director and Designated Person within EF Fund ManCo.

(iii) Ground 3: The Respondent’s openness and transparency with the Central Bank. The Decision-Maker concluded that, for various reasons, the Respondent was not “candid and truthful” and was not “full, fair and accurate in all respects” in his dealings with the Central Bank.

8. The Decision-Maker concluded that, in respect of each of these grounds, the Respondent breached certain provisions of the “Fitness and Probity Standards” issued by the Central Bank in 2014 under s. 50 of the 2010 Act (the “Standards”).

4. Brief Overview of Parties’ Positions

9. The Respondent strenuously denies the allegations against him and disputes the conclusions and findings reached at the investigation stage and at the decision-making stage of the process in respect of each of the three grounds referred to above. He has challenged the entitlement of the Central Bank to conduct the investigation and to issue the Prohibition Notice on vires grounds and also on the grounds that his rights to natural and constitutional justice and basic fair procedures were breached at several stages of the investigation and the decision-making process. The Respondent contends that, notwithstanding the possibility of very serious findings and very serious consequences for him from the outset of the commencement of the investigation and throughout the investigation and decision-making process, and notwithstanding that his credibility and honesty were very much at issue, (a) he was never interviewed, (b) persons who were identified by him as being in a position to give relevant evidence were never interviewed, nor was their evidence taken by the Investigator, (c) he never had an oral hearing, (d) a belated meeting with the Decision-Maker towards the very end of the process was no more than a “box ticking” exercise which could not and did not remedy the earlier defects in the procedures applied to him.

10. The Central Bank maintains that the Court should confirm the Prohibition Notice under s. 45 of the 2010 Act based on its contention that there is a “reasonable basis” for the opinion of the Central Bank that the Respondent is not of such fitness and probity as is appropriate to perform any “controlled function”. The Central Bank contends that there is a reasonable basis for its opinion for the purposes of s. 45(6) of the 2010 Act in that the opinion and the “process that led to its formation” were not vitiated by: “(a) any significant and serious error or series of such errors,

(b) a mistake of law, or

(c) the evidence, taken as a whole, not supporting the finding.”

11. The Central Bank submits that in considering whether such a “reasonable basis” exists, the Court is required under s. 45(6) to take into account “the expertise and specialist knowledge possessed by the [Central] Bank” and, under s. 45(7), to have “particular regard” to certain matters, namely, “the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system” and “the need to protect users of financial services”. It contends, therefore, that should the Court conclude that there is a “reasonable basis” for the Central Bank’s opinion as set out in the Prohibition Notice, the Court should confirm that notice under s. 45.

12. In response, the Respondent first contends that the entire process, namely, the investigation and the decision to issue the Prohibition Notice was ultra vires the Central Bank since the Respondent resigned from all of his positions in EF Fund ManCo in February 2020, after the investigation commenced, and no longer holds any position involving any “controlled function”. He contends, following his resignation, that the Central Bank was not entitled to continue to conduct the investigation and to issue the Prohibition Notice. Without prejudice to that contention, the Respondent relies on the several alleged breaches of natural and constitutional justice and fair procedures summarised earlier as a basis for the Court to conclude that there is not a “reasonable basis” for the Central Bank’s opinion set out in the Prohibition Notice because of significant and serious errors and mistakes of law by the Central Bank and that the Court should refuse to confirm the notice.

13. The Central Bank rejects the contention that the investigation and decision to issue the Prohibition Notice was ultra vires its powers under the 2010 Act and that once the Respondent held a role involving a “controlled function” when the decision to commence the investigation was made, it was entitled to continue with the investigation and subsequent decision-making process notwithstanding the Respondent’s resignation from his “controlled function” roles in February 2020. It further disputes the contention that there was not a “reasonable basis” for the opinion that it was necessary to issue the Prohibition Notice to the Respondent. It denies the alleged breaches of natural and constitutional justice and fair procedures relied on by the Respondent and contends that the opinion (and process that led to its formation) were not vitiated by any significant error or mistake of law under s. 45(6) of the 2010 Act. It maintains, therefore, that the Court should confirm the Prohibition Notice under s. 45(5).

5. Summary of Court’s Decision

14. In summary, for the detailed reasons set out in this judgment, I have reached the following conclusions on the issues raised in this application.

15. On the first issue, I have concluded that, contrary to the position advanced by the Respondent, the conduct of the investigation and the decision to issue the Prohibition Notice were not ultra vires the powers of the Deputy Governor (in the case of the investigation) and the Central Bank (in the case of the decision to issue the Prohibition Notice) under Chapters 3 and 4 of Part 3 of the 2010 Act on the ground that the Respondent had resigned from his roles with EF Fund ManCo in February 2020 after the investigation had been commenced but before it was completed and before the decision to issue the Prohibition Notice was taken by the Decision- Maker on behalf of the Central Bank. Since the date of his resignation, the Respondent has not held the position of “Designated Person” within EF Fund ManCo or elsewhere and has not held any position involving the performance of any “controlled function” or “pre-approval controlled function”. Nonetheless, I am satisfied that the relevant opinion for the purposes of the commencement and conduct of the investigation was formed at a time when the Respondent did hold more than one relevant controlled function and, in my view, it was open to the Deputy Governor to commence and conduct the investigation into the fitness and probity of the Respondent to perform the relevant controlled functions. It also follows, having regard to the close interconnection between the investigation carried out and the s. 41 Report prepared by the Investigator on behalf of the Deputy Governor under Chapter 3 and the decision to issue a Prohibition Notice under Chapter 4 (which is clear (inter alia) from s. 43(3)(a) of the 2010 Act)), that the decision by the Decision-Maker on behalf of the Central Bank to give consideration and to decide to issue the Prohibition Notice in relation to the Respondent under s. 43 was not ultra vires on that ground. Therefore, I reject the Respondent’s submissions that the commencement and conduct of the investigation and the decision to issue the Prohibition Notice were ultra vires the powers of the Deputy Governor and the Central Bank under Chapters 3 and 4 of Part 3 of the 2010 Act on the ground that the Respondent had resigned from all positions involving the performance of a controlled function in February 2020.

16. However, on the second issue, I have reached the conclusion that I should not confirm the Prohibition Notice under s. 45 on the basis that I am not satisfied there is a “reasonable basis” for the Central Bank’s opinion that the Respondent is not of such fitness and probity as is appropriate to perform the relevant “controlled functions”. The reason why I am not so satisfied is because, in my view, the opinion (before and after formation and the process that led to its formation) was vitiated by a series of significant and serious errors. While the burden lay on the Central Bank under s. 45(6) of the 2010 Act to establish that the relevant opinion was not vitiated by such errors (or mistake) and while I am satisfied that the Central Bank has not discharged that burden in the particular circumstances of this case, I would have reached the same conclusion even if the burden under the section lay on the Respondent to establish the existence of such errors.

17. The principal reason for that conclusion is that, in my view, there were serious breaches of the principles of natural and constitutional justice and basic fairness of procedures as well as failures by the Central Bank (through the Investigator and the Decision-Maker) to exercise discretions provided for in the 2010 Act and the Central Bank Reform Act 2010 (Procedures governing the conduct of Investigators) Regulations 2012 (S.I. No. 56 of 2012) (the “2012 Regulations”) in compliance with those principles.

18. It is beyond question that the Investigator, in carrying out his role on behalf of the Deputy Governor under Chapter 3 of Part 3 of the 2010 Act and the Decision-Maker, carrying out her role on behalf of the Central Bank under Chapter 4 of Part 3 of that Act, were required to act fairly and in accordance with the requirements of natural and constitutional justice and basic fairness of procedures as well as being obliged to comply with the provisions of the 2010 Act and the 2012 Regulations. Insofar as those provisions provided for the existence of a discretion on the part of the Investigator and on the part of the Decision-Maker, in terms of the procedures to be afforded to the Respondent in the particular circumstances of the case, it was to be presumed that such discretions would be exercised and procedures adopted in a manner which complied with the constitutional guarantee of basic fairness of procedures (East Donegal Co-Operative Society Limited v Attorney General [1970] IR 317, per Walsh J at p. 341). It is also the position that on the basis of the case law that the precise content, nature and extent of the fair procedures required to be afforded to a person such as the Respondent will depend on the particular circumstances and context of the process or inquiry at issue, and that it is necessary to look at the entirety of the process and to consider that process as a whole in order to determine whether the procedures applied have been fair to the person affected (see, for example, Crayden Fishing Company v Sea Fisheries Protection Authority [2017] 3 I.R. 785 and Facebook Ireland Ltd v Data Protection Commission [2021] IEHC 336). The more serious the issues involved and the more serious the consequences for the person the subject of the relevant investigation and

decision-making process, the more extensive the procedures must be.

19. The allegations made against the Respondent in this case from the very outset were extremely serious, as was the potential outcome of the process for the Respondent. From the very start of the process when consideration was being given as to whether the Deputy Governor would commence an investigation into the fitness and probity of the Respondent, the relevant officer in the Central Bank informed the Respondent in a notice of intention to commence an investigation into the fitness and probity of the Respondent pursuant to s. 25 of the 2010 Act in July 2019, that it had concerns regarding his competence and capability to perform his controlled function roles and it had concerns that there were possible reasons to suspect his fitness and probity. In relation to his probity, the Central Bank expressed concern that the Respondent may have provided information to the Central Bank that he knew or ought to have known was false and/or misleading and that he may have misled representatives of the Central Bank at certain meetings in July and August 2018.

20. The notice commencing the investigation under s. 25 of the 2010 Act in September 2019 expressly recorded that an opinion had been formed on behalf of the Deputy Governor that there was reason to suspect the Respondent’s fitness and probity to perform the relevant controlled functions in respect of EF Fund ManCo and that, in the circumstances, an investigation into his fitness and probity was warranted. In that notice, it was recorded that there was prima facie evidence that the Respondent did not comply with his obligations to be open and cooperative with the Central Bank, to have an awareness of the relevant legal and regulatory environment and to manage conflicts of interest, that there was reason to suspect that the Respondent’s fitness and probity to perform controlled functions and that an investigation into his fitness and probity under s. 25 of the 2010 Act on a number of potential grounds was warranted.

21. It was clear, therefore, from the very outset that very serious allegations were being made against the Respondent – among the most serious allegations that could be made against a person in his position - and that the consequences for the Respondent if those allegations were upheld would be extremely serious in terms of his credibility and good name and potentially catastrophic for his ability to continue to work in his chosen field. I have concluded that, in the particular circumstances, the Respondent was entitled to the full range of rights identified in Re Haughey [1971] IR 217 and, in any event, far more extensive procedural protections than were allowed to him by the Central Bank and those involved at all stages of the investigation and decision-making process that led to the making of the Prohibition Notice.

22. Notwithstanding that the Respondent was repeatedly described by the Investigator as the “key witness” and the “primary witness” in the case, the Investigator never interviewed the Respondent at all and concluded the information gathering stage of the investigation on 27 November 2020 without any notice to the Respondent or his solicitors and without ensuring that an opportunity or further opportunity was given to the Respondent to be interviewed. I am also satisfied that the Investigator failed to have sufficient regard to the fact that the Respondent was medically compromised at the time and unfairly concluded the information gathering stage of the investigation without reverting to the Respondent’s solicitors to afford the Respondent an opportunity to be interviewed before concluding that stage of the process.

23. The Investigator also failed to interview any of the persons whose names were provided by the Respondent’s solicitors to the Investigator with the reasons why those persons should be interviewed. They were not interviewed prior to the conclusion of the information gathering stage of the investigation or at all. The Investigator, in my view, wrongly and unfairly adopted the position that it was a matter for the Respondent to provide “submissions” from those persons rather than interviewing them and providing their evidence to the Respondent as part of the investigation.

24. I am also satisfied that the Investigator adopted the wrong legal test and approach in determining whether some or all of those persons should be interviewed. He adopted the position that he did not require anything other than the Respondent’s “submissions” (sometimes confusing those submissions with “evidence”) and contemporaneous documentary evidence and that there were no gaps in the evidence which, in his view, made it unnecessary to obtain additional evidence from the persons identified by the Respondent. He rejected the need to obtain further evidence on the grounds of relevance and necessity. In doing so, I have concluded that he adopted the wrong legal test and approach under s. 32 of the 2010 Act and Regulation 3 of the 2012 Regulations and, wrongfully and in breach of the Respondent’s right to fair procedures, refused to interview and take evidence from any of those persons, in failing to focus sufficiently on the fact that the Respondent’s credibility, truthfulness and honesty were in issue and on the potentially enormously serious consequences for the Respondent in the event of adverse findings being made against him at the end of the process.

25. The Investigator also failed to provide any evidence in the form of statements of evidence or otherwise from those officials in the Central Bank who were alleged to have been misled and to whom it was alleged that the Respondent was not candid and truthful at the PRISM meeting on 24 July 2018 (although it has to be said that this was not a point advanced by the Respondent and would not, in itself, provide a basis for impugning the investigation but it is, in my view, a relevant cumulative factor for doing so together with the other breaches I have found).

26. The Investigator also acted wrongly and unfairly in failing to arrange for an oral hearing contrary to the Respondent’s right under s. 34 of the 2010 Act and Regulation 4 of the 2012 Regulations and as a matter of basic fairness of procedures in the circumstances. While the Respondent’s solicitors did not request an oral hearing before the information gathering stage of the investigation was concluded (without notice to the Respondent’s solicitors) on 27 November 2020, almost all of the other conditions necessitating an oral hearing which are set out in Regulation 4 were present in this case.

27. There were facts in dispute including, in particular, whether the Respondent misled the Central Bank and was not candid or truthful at the meeting on 24 July 2018 or otherwise. The Respondent should have been given the opportunity of contextualising and explaining the contemporaneous materials through an oral hearing at which he and some or all of the other persons identified by him could give evidence to the Investigator.

28. Furthermore and, in my view, critically, the credibility and truthfulness of the Respondent was also very much at issue. The potential effect of the investigation on the Respondent was also so serious that fairness required an oral hearing. To illustrate the seriousness of the allegations against the Respondent, it is highly significant that (a) the Investigator recommended (in the s.

41 Report) that the Respondent be prohibited from performing all controlled functions in order to prevent potential serious damage to the financial system in the State and to protect the stability of that system and to protect users of financial services, and (b) the Decision-Maker was of the opinion (as expressed in the Prohibition Notice) that a failure to issue a prohibition notice would undermine confidence in the financial services industry as a whole, would fail to protect users of those services and would amount to a failure to prevent serious damage to the financial system. It is hard to imagine more serious allegations. In those circumstances, an oral hearing was clearly required at the investigation stage. It is unfathomable that no such hearing was afforded to the Respondent in these circumstances.

29. In addition to being required in the particular circumstances of the case under s. 34 of the 2010 Act and Regulation 4 of the 2012 Regulations, an oral hearing was also required in light of the clear challenge to the credibility of the Respondent on the basis of the established case law. I cannot see how the Investigator could have been satisfied that it was not necessary to have an oral hearing bearing in mind (a) the very serious allegations being made against the Respondent (which involved a direct challenge to his credibility and truthfulness) and (b) the very serious consequences facing the Respondent in terms of his entitlement to work in his chosen field in the event of adverse conclusions being drawn by the Investigator and, subsequently, by the Decision- Maker.

30. I am satisfied that the fact that the Respondent’s solicitors did not request an oral hearing before the information gathering stage of the investigation was concluded in November 2020 was explicable on the basis that they were of the impression that the investigation was still at the information gathering stage and had not yet proceeded to the stage where an oral hearing was being contemplated. The Respondent’s solicitors had consistently requested in correspondence with the Investigator that fair procedures be afforded to the Respondent in the investigation. While the fact that an oral hearing was not requested prior to the completion of the information gathering stage in November 2020 is certainly a factor to be taken into consideration, I attach relatively limited weight to that factor in circumstances where the Investigator himself explained in the s. 41 Report that he had considered whether it was necessary to hold an oral hearing and had ruled that out on the basis that there were no gaps in the evidence or any conflict of evidence that would warrant an oral hearing in light of the submissions which had been made by the Respondent and the “comprehensive contemporaneous evidence” (from the transcripts and other material, including the submissions made by the Respondent).

31. I do not accept that the decision not to hold an oral hearing was a reasonable, appropriate or fair exercise of the discretion which the Investigator had under s. 34 of the 2010 Act and Regulation 4 of the 2012 Regulations, as a matter of fairness, in the particular circumstances of this case. The Respondent was entitled to an oral hearing under those provisions, and such a hearing was, in my view, mandated by the requirements of natural and constitutional justice and basic fairness of procedures to which the Respondent was entitled.

32. I am satisfied that these failures together amounted to a series of significant and serious errors in an integral part of the process which ultimately led to the decision by the Decision- Maker to issue the Prohibition Notice. The process was, in my view, on the particular facts of the case, irretrievably tainted by those errors by the time the Decision-Maker came to consider whether to issue a Prohibition Notice.

33. One of the matters which the Decision-Maker had to consider at that stage of the process (under Chapter 4 of Part 3 of the 2010 Act) in deciding whether to issue a Prohibition Notice was whether the Respondent had been afforded “such a hearing in relation to the proposed issue of the Prohibition Notice as [was] necessary to do justice in the circumstances” (s. 43(3)(b)). While I accept that the “hearing” referred to in that provision concerns the proposed issue of a Prohibition Notice rather than a hearing in the course of the investigation at the earlier stage of the process under Chapter 3 of Part 3, the fact that no hearing was conducted at the investigation stage was clearly relevant and inextricably bound up with the assessment which the Decision- Maker had to carry out at the decision-making stage. I have concluded that in the particular circumstances of this case, and having regard to the very serious allegations and to the very serious consequences for the Respondent involved, the Respondent was entitled to an oral hearing at the investigation stage. While s. 43(3)(b) does not on its terms expressly require that a hearing be conducted by the Decision-Maker and while the 2012 Regulations do not make provision for a hearing at that stage, I am of the view that it would have been open to the

Decision-Maker to have a hearing in order to meet the requirements of natural and constitutional justice and basic fairness of procedures on the basis that such a “hearing” was “necessary to do justice in the circumstances” (s. 43(3)(b)). However, that was not done here. Justice was unquestionably not done to the Respondent in the circumstances.

34. The “meeting” with the Decision-Maker to which the Respondent was invited on 17 September 2021, was neither an interview nor a hearing. The Respondent and his solicitor were afforded the opportunity to make a submission, but the Respondent was not invited to give evidence. The Respondent was not asked any questions and was not in any way challenged by the Decision-Maker on the short submission that he made (which lasted about 22 minutes). A review of the transcript of that meeting and what transpired afterwards has left me with the clear impression that the Decision-Maker, in inviting the Respondent to the meeting, was merely going through the motions or ticking a box in a belated and ultimately futile attempt to remedy the failure to afford an oral hearing to the Respondent at the investigation stage.

35. In my view, it was incomprehensible that no question was asked of the Respondent at the meeting and that he was not challenged in any way on the submission that he made during the course of the meeting, including in relation to the allegation that he was not candid and truthful in his dealings with the Central Bank.

36. Following the meeting on 17 September 2021, the Decision-Maker issued a notice under Regulation 13 of the 2012 Regulations indicating that she was minded to issue a Prohibition Notice in relation to the Respondent. In the notice, the Decision-Maker indicated that she had formed the initial opinion that the Respondent was not candid and truthful and fair and accurate in his dealings with the Central Bank. The Decision-Maker had not raised this or any other criticisms of the Respondent with him or probed or asked him any questions during the course of the meeting a few weeks previously. The Decision-Maker then went on to issue the Prohibition Notice having, in the interim period, received a further written submission from the Respondent’s solicitors.

37. As noted earlier, the Prohibition Notice was extremely critical of the Respondent in terms of his fitness and probity and made very damaging adverse findings in relation to his credibility, finding his “evidence” to be unconvincing and concluding that he was not candid and truthful in his dealings with the Central Bank. The Decision-Maker concluded that, with respect to each of the grounds of alleged breach of the Standards advanced against the Respondent, there were no conflicts of fact in the “contemporaneous evidence”, that no “additional witness evidence” was necessary and that she did not believe that the evidence of any other person could alter her opinion. That was not the correct test to apply. The Decision-Maker ought to have focused on the need to ensure that the Respondent’s right to fair procedures was complied with throughout the process, rather than taking the view that compliance with that right would not have altered her view. While I was not provided with any direct evidence from the Decision-Maker as part of the material forming part of the Central Bank’s application, I was left with the impression that the meeting to which the Decision-Maker invited the Respondent on 17 September 2021 was a belated attempt to rectify the absence of fair procedures at the investigation stage. To my mind, it was an entirely empty and ultimately futile exercise and did nothing to remedy the serious breaches of fair procedures at the investigation stage but rather compounded those prior breaches.

38. While the Decision-Maker could have ensured that a proper oral hearing was conducted, I acknowledge that the proper and preferable place for such a hearing was at the investigation stage. In any event, however, there was no “hearing” at the decision-making stage. That was so notwithstanding the very serious findings made in the Prohibition Notice and the enormously serious consequences for the Respondent in terms of his credibility, reputation, good name and livelihood. The Decision-Maker found that the Respondent was untruthful in his dealings with the Central Bank, and that he had misled the Central Bank. That finding (which could hardly have been more serious for the Respondent given his former controlled function roles and his decades working in the financial services sector) and the other very serious and damaging findings contained in the Prohibition Notice were reached without those matters ever having been put to the Respondent, other than in writing, and without the Respondent ever having been afforded a proper hearing where he could give evidence on oath and examine and cross-examine witnesses so that his credibility could be properly and fairly assessed as opposed to it being assessed on the basis of written submissions and the short and futile meeting which took place on 17 September 2021.

39. In my view, and in the particular circumstances of the case, the Decision-Maker could not reasonably have been of the opinion that the Respondent had been afforded such a hearing in relation to the proposed issue of the Prohibition Notice or otherwise “as was necessary to do justice in the circumstances” as required by s. 43(3)(b) of the 2010 Act. I am further satisfied that the Decision-Maker made a significant and serious error or series of such errors in failing to have proper regard to the fact that, from the very outset of the investigation, the Respondent’s credibility and honesty were very much in question and that the ultimate consequences of the process could have incredibly serious consequences for the Respondent in her consideration of the procedures that were afforded to the Respondent during the investigation stage of the process and during the subsequent decision-making stage. She ought to have concluded that, by reason of these factors, in particular, the Respondent’s right to natural and constitutional justice and basic fairness of procedures, as well as his rights under the 2010 Act and the 2012 Regulations, were not complied with. Instead, she focused wrongly, in my view, on whether there were any gaps in the evidence or conflicts of evidence and whether the interviewing of persons and the holding of an oral hearing would have altered her view.

40. In considering whether there is a reasonable basis for the Central Bank’s opinion as set out in the Prohibition Notice, the Court is required to take account of the “expertise and specialist knowledge” possessed by the Central Bank (and those performing the relevant functions on its behalf under Part 3 of the 2010 Act). However, I am not satisfied that any significant deference can or should be afforded to the Investigator and the Decision-Maker in terms of the procedures afforded to the Respondent during the various stages of the process for which they were responsible and in terms of whether the procedures afforded to the Respondent were consistent with the requirements of natural and constitutional justice and basic fairness of procedures. I am satisfied, on the basis of the case law, and from my consideration of the entire process, that no such deference should be afforded to those persons in terms of the procedures made available to the Respondent.

41. For these reasons, which I elaborate upon in greater detail in my judgment below, I am not satisfied that the opinion set out in the Prohibition Notice (and the process which led to its formation) was not vitiated by any significant and serious error or series of such errors. On the contrary, I am satisfied that the opinion (and the process that led to its formation) was vitiated by a series of significant and serious errors, being the many breaches of the Respondent’s right to natural and constitutional justice and basic fairness of procedures during the entirety of the process. In those circumstances, I have decided that I must refuse to make an order confirming the Prohibition Notice. On the contrary, I am satisfied that I should set aside the Prohibition Notice by reason of those errors.

42. Furthermore, I do not believe that it would be fair or appropriate, in the particular circumstances of the case, to remit the matter to the Central Bank for reconsideration, in circumstances where the Respondent has been subject to the Prohibition Notice since February 2022 and has suffered the consequences of that Prohibition Notice in terms of his ability to work in his chosen field for the entirety of that period. In my view, it would be extremely unfair and entirely inappropriate to remit the matter to the Central Bank in these very unique circumstances. I propose, therefore, to exercise my discretion in the very particular circumstances of this case to set aside the Prohibition Notice and not to remit the matter to the Central Bank.

6. Factual Background

(a) The Parties

(i) The Central Bank

43. The Central Bank is the body responsible under the 2010 Act for the statutory system for the regulation of persons performing certain important prescribed functions in relation to the provision of financial services by regulated financial service providers known as “controlled functions” and the subspecies of functions known as“pre-approval controlled functions” (ss. 20 and 22 of the 2010 Act and the Central Bank Reform Act 2010 (sections 20 and 22) Regulations 2011 (SI No. 437 of 2011) (the “2011 Regulations”). Such persons are subject to a fitness and probity regime, one of the core functions of which is to protect those dealing with persons exercising such functions and to ensure that such persons are competent, capable, honest, ethical, have integrity and are financially sound. The Central Bank exercises a gatekeeper type function in respect of persons exercising such functions. The relevant powers of the Central Bank in respect of persons exercising such functions are contained (inter alia) in Part 3 of the 2010 Act and in the 2012 Regulations.

(ii) The Respondent

44. The Respondent has a lifelong background in the Irish financial services industry. He worked for various life assurance companies before qualifying as an accountant and eventually joined a firm called EF Fund ManCo. EF Fund ManCo is an Irish investment funds management company and a regulated financial services provider. EF Fund ManCo is a wholly owned subsidiary of EF Group, which, in turn, is a wholly owned subsidiary of EF Holding, a company listed on the Swiss Stock Exchange. EF Fund ManCo is authorised by Central Bank as an Undertaking for the Collective Investment in Transferable Securities (UCITS) management company and as an Alternative Investment Fund Manager (AIFM), two types of regulated collective investment funds governed by European Union legislation and national implementing measures including the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011 (SI No. 352 of 2011), the Central Bank (Supervision and Enforcement) Act 2013 (section 48(1)) (Undertaking for Collective Investment in Transferable Securities) Regulations 2015 (SI No. 420 of 2015) and the European Union (Alternative Investment Fund Managers) Regulations 2013 (SI No. 257 of 2013).

45. The Respondent held a number of important positions and performed a number of important functions in EF Fund ManCo until his resignation on 18 February 2020 following the commencement of the Central Bank’s investigation which ultimately led to the Central Bank’s

decision to issue the Prohibition Notice in relation to the Respondent in February 2022. The Respondent held the position of Executive Director in EF Fund ManCo from 30 June 2000 until

18 February 2020. This was a “pre-approval controlled function” (with the designation PCF-1 under the relevant regulations). Under s. 23 of the 2010 Act a person cannot be appointed to perform a “pre-approval controlled function” unless the Central Bank has approved that appointment in writing. He held the position of Chief Executive Officer (CEO) from 1 July 2015 to 18 February 2020, which is also a “pre - approval controlled function” (PCF-8), and the position of EF Fund ManCo “Designated Person for Investment Management”, another “preapproval controlled function” (PCF-39) from 18 September 2017 to 18 February 2020. A “Designated Person” is a person who carries out certain key managerial functions in a fund management company, which have been specifically identified by the Central Bank. The Central Bank requires fund management companies to identify a person (the “Designated Person”) who is the person responsible for monitoring and overseeing the managerial functions assigned to him or her. The Designated Person is essentially the fund management company's line of management which lies between the company’s board of directors and those to whom the board delegates certain tasks. It is a position of significant responsibility in the management of the affairs of the fund management company. The Central Bank issued a guidance document in December 2016 – Fund Management Companies – Guidance (December 2016) – which included guidance on how designated persons should carry out their roles (Part IV paras. 1 – 45, pp 30 – 43).

(b) Issues with EF absolute return bonds

46. The Fund, an Irish company, is a UCITS fund which is authorised by the Central Bank in Ireland. At the relevant time, EF Fund ManCo managed UCITS sub-funds on behalf of the Fund. EF International ManCo is a funds investment manager which was authorised by the UK’s Financial Conduct Authority (“FCA”). Both EF Fund ManCo and EF International ManCo were ultimately owned by EF Holding and are companies within the the group of companies (the “Group”)

47. As of April 2018, EF Fund ManCo had delegated the investment management of 48 of the 54 funds which it managed on behalf of the Fund to EF International ManCo under a coinvestment management agreement. Included in these 48 funds were five sub-funds domiciled in Ireland which pursued what was termed as an Absolute Return Bond (“ARB”) strategy either directly or through what are known as “master-feeder” relationships (under the relevant regulations, a “feeder” sub-fund is one which invests at least 85% of its assets in units of another UCITS or a sub-fund of it known as the “master”. As of 27 June 2018, the five ARB sub-funds domiciled in Ireland (the “Irish ARB sub-funds”) had assets under management of approximately €2bn and were part of a larger portfolio of approximately €9.5bn worth of ARB funds managed by a man called GH, who was a portfolio manager then employed by EF International ManCo.

48. On 31 July 2018, EF Holding announced that GH had been suspended following an internal investigation due to what a EF press release at the time called “some of his risk management procedures and record keeping in certain instances”. The Central Bank was informed of GH’s suspension by EF Fund ManCo on 31 July 2018. Arising from GH’s suspension, the Board of the Fund resolved temporarily to suspend redemptions in four of the five Irish ARB sub-funds which were being managed by EF Fund ManCo and in respect of which the investment management functions had been delegated to EF International ManCo and GH. This had the effect that investors in those sub-funds were temporarily denied access to the funds.

49. It appears that the Central Bank subsequently discovered (from a whistle-blower’s report received by it from EF Fund ManCo in September 2018) that, on 16 March 2018, the FCA in the UK had received a disclosure from an internal whistle-blower at EF International ManCo which alleged irregularities in relation to GH’s investments in securities originated by IJ Investments. The Central Bank then engaged with EF Fund ManCo to establish the level of awareness at EF Fund ManCo of the events leading to the temporary suspension of redemptions in the relevant Irish ARB sub-funds on 1 August 2018.

50. GH was ultimately dismissed from EF/EF International ManCo for gross misconduct on

21 February 2019. EF International ManCo was fined £9.1m by the FCA in the UK in December 2021 for failing to manage conflicts of interest. GH was fined £230,037 for failing to manage conflicts of interest and for breaching EF’s gifts and entertainment policy. Exactly one year after the Central Bank was informed of GH’s suspension, the Central Bank issued to the Respondent a notice of intention to commence an investigation under s. 25 of the 2010 Act on 31 July 2019. The issuing of that notice set off a chain of lengthy correspondence and communications between the Respondent and his solicitors, Arthur Cox, and various officers of the Central Bank and a statutory process which ultimately led to the service of the Prohibition Notice on the Respondent in February 2022. The course of the correspondence and communications, and how that process was conducted by the Central Bank, is critical to many of the issues which I am required to determine in the Central Bank’s application for confirmation of the Prohibition Notice. However, before considering that correspondence and those communications and the process in detail, I should outline the relevant statutory provisions applicable to the Central Bank’s investigation and to its decision to issue the Prohibition Notice which it seeks to confirm in this application.

7. Relevant Statutory Provisions

51. The relevant statutory provisions are contained in Part 3 of the 2010 Act and in the 2012 Regulations which were made by the Central Bank pursuant to s. 53(2) of the 2010 Act. Part 3 contains the relevant provisions governing the investigation carried out in relation to the fitness and probity of the Respondent (Chapter 3) and the decision to issue the Prohibition Notice and the requirement for that notice to be confirmed by the Court (Chapter 4). Certain important miscellaneous provisions are contained in Chapter 5 of Part 3.

52. Investigations into the fitness and probity of certain persons are required to be carried out by the holder of the position which, at the time of the enactment of the 2010 Act, was known as the Head of Financial Regulation. The title of that position was changed by the Central Bank Commission to Deputy Governor (Prudential Regulation) (the “Deputy Governor”) in 2011 pursuant to s. 23 of the 2010 Act. Therefore, when the relevant provisions of the 2010 Act refer to the Head of Financial Regulation, they are now to be read as referring to the Deputy Governor and I will use that description when referring to the relevant statutory provisions.

53. Under section 52(2) of the 2010 Act (which is in Chapter 5), the Deputy Governor can appoint a person to perform a function of the Deputy Governor under Part 3 in certain circumstances. The Deputy Governor exercised that power in relation to the investigation into the fitness and probity of the Respondent in this case and appointed the Investigator to carry out the investigation in place of the Deputy Governor.

54. Either the Central Bank itself or the Governor, as the case may be, can issue a prohibition notice under Chapter 4 of Part 3 of the 2010 Act. Section 52(2A) permits the Central Bank to appoint another person to perform a function of the Bank under Part 3. The Central Bank exercised that power and appointed the Decision-Maker to take the relevant decision in relation to the issuing of the Prohibition Notice to the Respondent.

55. The power of the Deputy Governor to investigate the fitness and probity of certain persons is contained in s. 25 of the 2010 Act. The persons who may be subjected to such an investigation are outlined in s. 25(2). They include persons who perform a controlled function in relation to a regulated financial services provider, persons who such a provider proposes to appoint to carry out such a function and persons who the provider is considering to appoint to perform that function. Under section 25(1), in relation to any of those persons, the Deputy Governor (or his or her delegate) may conduct an investigation in accordance with Chapter 3 in relation to the fitness and probity of the person to perform the relevant controlled function where the Deputy Governor is of the opinion that: “(a) there is reason to suspect the person’s fitness and probity to perform the relevant controlled function; and

(b) in the circumstances an investigation is warranted into the person’s fitness and probity,…”

56. Section 25(3) provides that, without prejudice to the generality of s. 25(1), the Deputy Governor may form the opinion referred to in s. 25(1) if there is “reason to suspect” one of a number of specified matters which are set out in sub-paragraphs (a) – (h) of section 25(3). Those matters include where: “(a) the person does not have the experience, qualifications or skills necessary to perform properly and effectively the controlled function, the part of a controlled function or any controlled function, as the case may be,

(b) the person does not satisfy an applicable standard of fitness and probity in a code issued pursuant to section 50,

(c) the person has participated in serious misconduct in relation to the business of a regulated financial service provider,

(ca) the person, being a person who has been appointed to perform a pre-approval controlled function, has failed to make a disclosure to the Bank under section 38(2) of the Central Bank (Supervision and Enforcement) Act 2013 or has made such a disclosure knowing it to be false or misleading in a material respect,

(d) the person has directly or indirectly provided information to the Bank, the Governor or the [Deputy Governor] (whether pursuant to this Part or otherwise) that the person knew or ought to have known was false or misleading,…”

57. Section 25(3)(b) refers to the applicable standards of fitness and probity in a code issued pursuant to s. 50 of the 2010 Act. The Central Bank issued such a code in 2014 (Fitness and Probity Standards (Code issued under s. 50 of the Central Bank Reform Act 2010) (2014)) (the “Code”). The Code contains the relevant standards. The Central Bank also issued a Guidance on Fitness and Probity Standards in 2018. The Code specifies the standards of fitness and probity with which all persons performing controlled functions or pre-approval controlled functions must, at a minimum, comply. In order to comply with the Standards set out in the Code, the person to whom it applies is required to be: “(a) competent and capable;

(b) honest, ethical and to act with integrity; and

(c) financially sound.” (section 2.2 of the Code)

58. The Code further provides that any information provided by an individual pursuant to the Code to the Central Bank or to a regulated financial services provider “shall be candid and truthful and shall be full, fair and accurate in all respects and not misleading to the best of his or her knowledge” (section 2.3). The Code then sets out further detail in relation to the requirements to comply with the Standards. For example, s. 4.1 of the Code provides that a person must be able to demonstrate that his or her ability to perform the relevant function “is not adversely affected to a material degree” where (inter alia):

“(i) the person has been untruthful or provided false or misleading information to the Central Bank or been uncooperative in any dealings with the Central Bank;”

59. Chapter 3 of Part 3 of the 2010 Act also confers power on the Deputy Governor to suspend a person whose fitness and probity is or has been the subject of an investigation under s. 25. However, that power was not exercised in relation to the Respondent.

60. Chapter 3 contains provisions governing the taking of evidence and the procedures to be adopted for the purposes of an investigation into the fitness and probity of a person. Those provisions are supplemented by further provisions contained in the 2012 Regulations, which were made by the Central Bank under s. 53(2) of the 2010 Act.

61. The Central Bank also issued guidance in relation to such investigations in December 2011 – Guidance on Investigations under Part 3 of the Central Bank Reform Act 2010 (2011) (the “2011 Investigations Guidance”).

62. Section 32 confers a power on the Deputy Governor to serve a notice (called an “evidentiary notice”) on a person for the purposes of an investigation. The evidentiary notice may require the person to appear before the Deputy Governor “to give evidence about a matter”, “to provide information to [the Deputy Governor]” or “to produce a document for examination”. The Deputy Governor is empowered to serve such a notice if he or she is investigating the person’s fitness and probity under Chapter 3 or if the Deputy Governor believes on “reasonable grounds” that a person “may be able to give evidence or to produce a document relating to a matter concerning the fitness or probity of a person whose fitness and probity is being investigated under that Chapter”. In other words, the power can be exercised both in relation to the person who is the subject of the investigation and other persons who may be able to give relevant evidence. Section 32(3) provides for certain formal requirements in respect of evidentiary notices including the requirement that the relevant notice must “specify the matter to which the evidence relates, or specify or describe the document to be produced or the information to be provided, as the case requires,…”.

63. The provisions of s. 32 are supplemented by Regulation 3 of the 2012 Regulations. Regulation 3(1) provides for the provision by the Deputy Governor of a statement (called a “statement of grounds”) to the person who is the subject of an investigation into his or her fitness and probity. The Deputy Governor is required to furnish such a statement where he or she forms the view, on the basis of the information in his or her possession, that it is “possible that adverse conclusions may be drawn” against the person. The statement must set out the Deputy Governor’s concerns as to the fitness and probity of that person and must include certain material, including “where the Deputy Governor has conducted interview(s) with any person, an account of the information provided by that person at such interviews” (Regulation 3(2)(b)) and “any other documentary material relevant to the concerns of the Deputy Governor” (Regulation 3(2)(c)). These provisions clearly envisage a situation where the Deputy Governor or the person appointed to carry out the investigation on behalf of the Deputy Governor obtains “information” or “documentary material” from others which in turn must be provided to the person the subject of the investigation.

64. Regulations 3(3) – (6) contain further important provisions relating to the gathering of evidence at the investigation stage. Regulation 3(3) provides (inter alia) that the person the subject of the investigation can request the Deputy Governor to obtain evidence from other persons. Clearly, however, the Deputy Governor’s power (and, in some cases, obligation) to obtain evidence from other persons is not dependent upon a request coming from the person the subject of the investigation: see, s. 32 of the 2010 Act. However, under Regulation 3(3), the person the subject of the investigation can provide a list of persons to the Deputy Governor who the subject believes “would be able to give evidence that relates to the matters set out in the statement of grounds”. That list must contain certain further information or particulars which are set out in Regulation 3(4). The particulars which must be provided to the Deputy Governor include the name, address and contact details of the person together with “a description of the grounds upon which the subject or regulated financial service provider contends that the person would be able to give evidence that relates to a matter concerning the fitness and probity of the subject” (Regulation 3(4)(d)). Regulation 3(5) provides that where the subject furnishes such a list to the Deputy Governor, and the Deputy Governor decides to conduct one or more interviews with any such persons, the Deputy Governor is required to provide the subject “with an account of the information provided by such persons at those interviews”. However, Regulation 3(6) provides that nothing in the 2012 Regulations “shall be read as requiring the Deputy Governor in a particular case to conduct one or more interviews with any person contained in a list furnished to the Deputy Governor in accordance with paragraph (3)”. Of course, that does not mean that the Deputy Governor, or the person carrying out the investigation might not be required as a matter of fair procedures to conduct interviews with the subject or persons he or she may have identified under Regulation 3(3). When Regulation 3 refers in various subparagraphs to “interviews” with persons (such as in Regulations 3(2)(b), (5) and (6)), it is clearly referring to interviews for the purposes of obtaining “evidence” relating to matters concerning the fitness and probity of the subject of the investigation (the term “evidence” is used in s. 32(1)).

65. The significance of an evidentiary notice which the Deputy Governor is empowered to serve under s. 32(1) can be seen from the fact that failure to comply with such a notice is a criminal offence. Section 33 provides that a person who fails to comply with a requirement to appear before the Deputy Governor in compliance with an evidentiary notice commits an offence unless excused or released from attendance; s. 36(1) provides that a person commits an offence if the person fails to comply with a requirement to produce a document or to provide information to the Deputy Governor in compliance with an evidentiary notice, unless the person is excused or has a reasonable excuse under s. 36(2) to (4); and s. 37 provides that a person who appears before the Deputy Governor in compliance with an evidentiary notice commits an offence if that person refuses or fails to give evidence in compliance with the evidentiary notice or refuses or fails to answer a question put to the person by the Deputy Governor or in cross-examination, unless the person has a reasonable excuse under s. 37(2) – (4).

66. The Deputy Governor has the power under s. 34(1) to hear oral evidence where he “is satisfied that it is necessary to do so for the proper conduct of an investigation” (s. 34(1)). The Deputy Governor may permit a person giving oral evidence to be cross-examined (s. 34(2)). Section 34(3) provides that the Deputy Governor shall determine the procedures for the conduct of proceedings in an investigation subject to any regulations made by the Central Bank under s. 53(2). The 2012 Regulations which were made under that section contain the detailed provisions governing oral hearings and the procedure to be followed at such hearings in the course of an investigation. Before turning to those provisions, it should be noted that s. 35 provides that, generally, evidence given or documents produced to the Deputy Governor by a person who appears before him or her in compliance with an evidentiary notice is required to be given or produced in private. There is provision for matters to be dealt with in public in certain circumstances in sections 35(2) and (3). Section 38 provides that evidence given to the Deputy Governor in an investigation under chapter 3 and any report prepared following that investigation on the basis of such evidence is “absolutely privileged”.

67. Regulation 4 of the 2012 Regulations elaborates on the circumstances in which oral hearings may be convened by the Deputy Governor. It is appropriate to set out the provisions of that regulation in full: “4(1) The Deputy Governor may, at any time following the receipt of the statement of grounds by the subject or any regulated financial service provider concerned, hear oral evidence where he is satisfied that it is necessary to do so for the proper conduct of an investigation and he may convene an oral hearing for the purposes of hearing such evidence.

(2) Without prejudice to the generality of paragraph (1), the Deputy Governor may be satisfied as to the necessity for an oral hearing in the following circumstances:

(a) Where there is an issue of fact in dispute which cannot fairly be resolved without an oral hearing;

(b) where the credibility of the subject or a witness needs to be tested;

(c) where, having regard to the potential effect of the investigation on the subject, the Deputy Governor considers an oral hearing to be required in the interests of fairness;

(d) where allegations of a serious nature have been made against the subject;

(e) where the subject or a witness has requested that the Deputy Governor convene an oral hearing; or

(f) of the Deputy Governor’s own motion.

(3) Any request for an oral hearing by the subject, regulated financial service provider or holding company concerned, or witness shall be submitted in writing to the Deputy Governor and shall contain the particulars set out in paragraph (4).

(4) The particulars referred to in paragraph (3) are:

(a) a description of the grounds upon which the subject, regulated financial service provider or holding company concerned, or witness contends that an oral hearing is necessary for the proper conduct of an investigation;

and

(b) the name of any person which the subject, regulated financial service provider or holding company concerned, or witness wishes the Deputy Governor to require to appear at such an oral hearing.

(5) For the avoidance of doubt, nothing in these regulations shall be taken as imposing an obligation on the Deputy Governor to convene an oral hearing in any particular case.”

68. It will be seen from Regulation 4(2) that there are various different circumstances in which the Deputy Governor may be satisfied that an oral hearing is necessary. Those circumstances include where there is an issue of fact in dispute which cannot be fairly resolved without an oral hearing where the credibility of the subject or a witness needs to be tested, where fairness requires an oral hearing because of the potential effect of the investigation on the subject and where allegations of a serious nature have been made against the subject. It is clear also that it is not necessary for a request for an oral hearing to be made by the subject in order for the Deputy Governor to be satisfied that an oral hearing is necessary. A request from the subject is only one of a number of different circumstances which may satisfy the Deputy Governor as to the necessity for an oral hearing. Finally, in relation to Regulation 4, while Regulation 4(5) says that nothing in the Regulations imposes an obligation on the Deputy Governor to convene an oral hearing in any particular case, that does not mean that the Deputy Governor might not be required as a matter of fair procedures to exercise his or her discretion to convene an oral hearing is necessary in any particular case.

69. Regulation 6 provides for the conduct of proceedings at an oral hearing convened by the Deputy Governor. The purpose of the oral hearing is to obtain evidence (Regulation 6(1)). The subject of the investigation or witnesses can be questioned by the Deputy Governor and can be cross-examined. The subject can also be permitted to call evidence in defence and reply and to make oral submissions, where directed or invited by the Deputy Governor (Regulation 6(3)). Under Regulation 7, the subject is generally required to attend at an oral hearing in person and may be legally represented (although it appears the person must bear his or her own costs of such representation). Regulation 8 provides that the evidence of persons appearing at an oral hearing must be given on oath or by affirmation, recognising the solemnity and seriousness of the occasion. The oath or affirmation is administered by the Deputy Governor. There are also provisions for the taking of evidence by video link and for the evidence to be transcribed (Regulations 9 and 10).

70. The investigation under Chapter 3 of Part 3 of the 2010 Act culminates in the preparation of a report by or on behalf of the Deputy Governor for consideration by the Central Bank and the Governor. Section 41(1) provides that “after carrying out an investigation under this chapter, the [Deputy Governor] shall prepare a report for consideration by the Bank and the Governor.”

71. Regulation 11 of the 2012 Regulations provides that where the Deputy Governor makes any finding as part of a report under s. 41, including a finding in relation to any of the matters referred to at s. 25(3)(a) to (h) of the 2010 Act, any such finding may be made on the balance of probabilities. Regulation 12(1) provides that, subject to para. (2), after carrying out the “information gathering stage” of an investigation, the Deputy Governor shall “(a) provide written notice to the subject of the investigation and any regulated financial service provider concerned informing those persons of the conclusion of that stage of the investigation and (b) within six months of issuing the written notice…serve a copy of a report prepared in accordance with section 41(1) of the Act”. Provision is made in Regulation 12(2) for the Deputy Governor to seek additional material and for the six-month time period referred to in Regulation 12(1)(b) to be suspended to allow for the provision of such additional material and any submissions in relation to it and for the resumption of that period from the expiration of the period for submissions.

72. The Deputy Governor is required under s. 41(2) of the 2010 Act to serve a copy of the s.

41 report on the person the subject of the investigation and on any regulated financial service provider concerned. Those persons may make submissions in writing to the Deputy Governor in relation to any matter in the report (s. 41(4)). Those submissions must be made within seven days or within an extended period which the Deputy Governor considers reasonable in all the circumstances (s. 41(5)).

73. Paragraph 4.3 of the 2011 Investigations Guidance states that any submissions made in relation to the s. 41 report will be passed by the Deputy Governor to the Central Bank and to the Governor for their consideration. The Central Bank or the Governor, as the case may be, must consider those submissions before deciding to issue a Prohibition Notice (s. 43(3)(a)(i)(III)).

74. Paragraph 4.4 of the 2011 Investigations Guidance states that: “In the ordinary course, it is envisaged that the submissions made in relation to the s. 41 report will be of a legal nature only, as the subject and regulated entity will, in most cases, have had an opportunity to address issues of factual contention at the second stage of the investigation. Notwithstanding this, the subject and regulated entity will be at liberty to make such submissions as they consider relevant to the consideration of the report.” The reference to the “second stage of the investigation” in para. 4.4 is a reference to the second phase of the information gathering exercise in the investigation which is described in para. 3.4 of the document. This phase or stage arises where the outcome of the first stage indicates that it is possible that adverse conclusions may be drawn from the evidence obtained and commences with service of the statement of grounds together with copies of relevant materials including, where interviews have been conducted during the first stage, an account of the evidence given at those interviews. It also covers the conduct of interviews or oral hearings by the Deputy Governor, including where the subject of the investigation or the relevant regulated entity provides the Deputy Governor with details of persons who could give evidence relevant to the concerns expressed in the statement of grounds. Further details are provided in relation to the conduct of the oral hearing in para. 3.4 of the document.

75. The investigation into the fitness and probity of a person under Chapter 3, Part 3 of the 2010 Act concludes with the s. 41 report. Thereafter, the process moves to the decision-making stage where the decision to be made is whether or not the Central Bank or the Governor, as the case may be, decides to issue a prohibition notice in relation to a person. Chapter 4 of Part III of the 2010 Act applies to this stage. Section 43 is the section of the 2010 Act which empowers the Central Bank or the Governor to issue a prohibition notice. Before turning to the provisions of that section, reference must be made to Regulation 13 of the 2012 Regulations. Although the 2012 Regulations apply for the most part to the investigation stage of the process, Regulation 13 applies to the early part of the decision-making stage. Regulation 13 provides that where the Central Bank and the Governor receive a copy of the s. 41 report together with any submissions made in relation to that report, the Central Bank or the Governor, as the case may be, must inform the person whose fitness and probity is under investigation and the relevant regulated financial service provider of two things, namely:

(a) whether the Central Bank or the Governor is “minded to” issue a prohibition notice under s. 43 and,

(b) if so minded, the entitlement of the person and the relevant financial service provider to make submissions to the Central Bank or the Governor, as the case may be, within seven days (or such longer period as the Central Bank or the Governor considers reasonable in all the circumstances) in relation to the proposed issue of the Prohibition Notice.

(c) they must be informed of these things within three months of receipt of the s. 41 report. Where this has been done and where submissions have been made, Regulation 13(2) requires the Central Bank or the Governor to inform the person concerned and the relevant financial service provider of the decision as to whether to issue a prohibition notice within six months of receipt of the submissions.

76. Section 43 of the 2010 Act confers the power on the Central Bank or on the Governor, as the case may be, to issue a prohibition notice. The Prohibition Notice at issue in this case was purportedly issued by the Decision-Maker on behalf of the Central Bank rather than on behalf of the Governor. When referring to the statutory provisions relevant to the issuing of a prohibition notice and to its confirmation, I will, therefore, refer to the Central Bank only and not to the Governor.

77. Under s. 43(1), subject to s. 43(4), if the Central Bank “has reasonably formed the opinion that a person is not of such fitness and probity as is appropriate to perform a particular controlled function, a specified part of a controlled function or any controlled function…”, the Central Bank may issue a prohibition notice:

“… forbidding the person –

(a) to carry out the controlled function, the specified part of a controlled function or any controlled function, as the case requires, or

(b) to carry out the controlled function, the specified part of such a function or any controlled function, as the case requires, otherwise than in accordance with a specified condition or conditions, either for a specified period or indefinitely.”

78. Section 43(1) refers to s. 43(4). That sub section provides as follows: - “(4) When considering whether to issue a prohibition notice, the [Central] Bank…shall have particular regard to—

(a) the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and

(b) the need to protect users of financial services.”

79. Section 43(2) provides that, without prejudice to the generality of the provisions of s. 43(1), the Central Bank may form the opinion referred to in s. 43(1) if it is satisfied of certain matters. Those matters are then set out in paras (a) – (h). They are virtually identical to the grounds for the commencement of an investigation set out in s. 25(3). Therefore, the Central Bank may form the relevant opinion if, for example, it is satisfied that the person does not satisfy any of the Standards set out in the Code and where it is found that the person has directly or indirectly provided information to the Central Bank which the person knew or ought to have known was false or misleading.

80. Section 43(3) provides that the Central Bank shall not issue a prohibition notice in relation to a person unless certain conditions are satisfied. Those conditions are set out in sub paragraphs

(a) – (c). They are as follows:

“(a) either—

(i) all of the following requirements have been satisfied:

(I) the [Deputy Governor] has conducted an investigation into the person’s fitness and probity in accordance with this Chapter;

(II) section 41 has been complied with in relation to that investigation and the report of it;

(III) the [Central Bank] … has considered the report and any submissions made…to the [Deputy Governor] in relation to any matter in the report, or,

(ii) there are undisputed facts that in the reasonable opinion of the [Central] Bank…render an investigation unnecessary, and the person and any regulated financial service provider concerned have been afforded a reasonable opportunity to make a submission in relation to the matter,

(b) the person and the regulated financial service provider have been afforded such a hearing in relation to the proposed issue of the prohibition notice as is necessary to do justice in the circumstances, and

(c) the [Central] Bank … is satisfied that the issue of a prohibition notice is necessary in the circumstances.” It should be noted that the Central Bank did not rely on the matters set out in s. 43(3)(a)(ii) in this case. In other words, it did not maintain that there were undisputed facts which rendered an investigation unnecessary.

81. The remaining subsections of s. 43 provide for details in relation to the terms of a prohibition notice, the effects of such a notice and when it is to come into effect.

82. Under s. 43(7), a prohibition notice:

“(a) takes effect on first service on either the prohibited person or the regulated financial service provider concerned, and

(b) if an application is made to the Court under section 45 before the notice ceases to have effect, continues to have effect until that application is determined by the Court or withdrawn.”

83. Section 43(7) further provides that “subject to section 46, (which does not apply in the present case), a prohibition notice ceases to have effect at the end of 2 months (or any shorter period specified in the notice) beginning on the day after it is first served…if no application is made to the Court within that period.”

84. By virtue of s. 43(8), a person who is forbidden by a prohibition notice from carrying out a controlled function (referred to as a “prohibited person”) is not permitted to perform a controlled function if doing so would require that person to contravene a prohibition notice served on the person. Similarly, under s. 43(9) a regulated financial service provider may not permit a prohibited person to perform a controlled function if that would involve contravention of a prohibition notice served on the relevant provider.

85. The Central Bank may publish a prohibition notice if, in the opinion of the Governor, it is necessary to do so in order to achieve the purposes of Part 3 of the 2010 Act (s. 43(10)).

86. The Central Bank shall not continue a prohibition notice for longer than is necessary to achieve the purposes of Part 3 of the 2010 Act and shall not make any application to the Court under s. 45 in relation to a Prohibition Notice unless the Central Bank is satisfied that it is necessary that the notice continue for longer than two months to achieve those purposes (s. 43(12)).

87. That brings us to the crucial section of the 2010 Act for the purposes of the Central Bank’s application in this case: section 45. This is the section under which the Central Bank applies to the Court for an order confirming a prohibition notice. The Central Bank must apply for confirmation of a prohibition notice if it is to have effect beyond the two-month (or shorter period) referred to in s. 43(7). Under s. 45(2), the High Court is required (insofar as is practicable) to hear and determine an application under s. 45 within three months after the date on which the application was made. In this case, that was not possible, as the application was made at the end of March 2022, and various directions were made providing for the exchange of affidavits and submissions before the matter could be first listed for hearing at the end of 2022. Generally, given the complexity of the issues which tend to arise on an application such as this, it will not be practicable to hear and determine an application for confirmation of a Prohibition Notice within the three-month period referred to in s. 45(2).

88. I have already mentioned s. 45(3) which provides for the possibility, in certain circumstances, for a hearing of a confirmation application otherwise than in public and I made an order at the outset of the hearing that the hearing of this case should be held otherwise than in public in accordance with that section.

89. The approach which the Court is required to adopt on an application for confirmation of a prohibition notice is set out in s. 45(5). I set this subsection out in full below:

“(5) On an application under this section—

(a) if the Court is satisfied that there is a reasonable basis (as set out in subsection (6)) for the opinion of the [Central] Bank or the Governor, as the case may be, that the prohibited person concerned is not of such fitness and probity as is appropriate to perform the relevant controlled function or part of a controlled function, or any controlled function (as the case may be), the Court may make—

(i) an order confirming the relevant prohibition notice,

(ii) if the Court considers that it is necessary in the interests of justice, or for any other good reason, to vary the prohibition notice, an order varying or limiting it (including by imposing a condition or conditions on the prohibited person or a regulated financial institution concerned), and

(iii) any other additional or ancillary order it thinks fit,

and

(b) if the Court is not satisfied as provided for in paragraph (a), the Court may make—

(i) an order setting aside the notice,

(ii) an order remitting the matter to the [Central] Bank … for reconsideration in accordance with any directions by the Court (whether or not the Court also sets aside the notice), or

(iii) any other order it thinks fit.”

90. Central to the Court’s decision as to whether or not to confirm a prohibition notice is the issue as to whether the Court is satisfied that there is a “reasonable basis” for the opinion of the Central Bank as to the fitness and probity of the prohibited person concerned. Whether or not there is a “reasonable basis” for the Central Bank’s opinion is determined in accordance with s. 45(6).

91. Section 45(6) provides as follows:

“(6) For the purposes of subsection (5)(a), there is a reasonable basis for an opinion if, taking into account the expertise and specialist knowledge possessed by the [Central] Bank … the opinion (and the process that led to its formation) was not vitiated by—

(a) any significant and serious error or series of such errors,

(b) a mistake of law, or

(c) the evidence, taken as a whole, not supporting the finding.”

92. Ultimately, the determination of this confirmation application turns on the interpretation and application of sections 45(5) and (6) of the 2010 Act. In order to confirm the Prohibition Notice, the Court must be satisfied that there is a reasonable basis for the relevant opinion of the Central Bank and that issue must be determined by reference to the tests set out in section 45(6). Later in this judgment, I consider where the burden of proof lies in relation to the test in sections 45(5) and (6). I conclude that the burden of proof lies on the Central Bank to establish that (a) the opinion of the Central Bank and (b) the process that led to the formation of that opinion was not vitiated by any of the matters set out in subparagraphs (a) – (c) of section 45(6).

93. Section 45(7) is also important in terms of the approach the Court is required to take in determining an application to confirm a prohibition notice. It provides that when considering whether to make an order under s. 45(5), the Court must have “particular regard” to the following two matters:

“(a) the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and

(b) the need to protect users of financial services.”

The matters referred to in s. 45(7) serve to highlight the fact that enormously serious issues of systemic importance can arise in the making of a prohibition notice and in the required application to confirm such a notice.

94. Finally, s. 47 of the 2010 Act provides that the Central Bank may make use of information and evidence gathered by the Deputy Governor in the course of an investigation under Chapter 3, anything in any submissions made to the Deputy Governor pursuant to s. 41 and anything in any document or evidence placed before the Court in the course of proceedings under Chapter 3 or Chapter 4 of Part 3 for the purposes of any statutory function of the Central Bank including an inquiry pursuant to Part IIIC of the Central Bank Act 1942 (as amended) (the “1942 Act”) and the imposition of sanctions as a result of such an inquiry. This again serves to highlight the potentially enormous consequences which can flow from the investigation and decision-making stages of the fitness and probity regime provided for in Part 3 of the 2010 Act.

8. The investigation into Respondent’s fitness and probity under Part 3 of 2010 Act

95. I have set out at a very high level earlier in this judgment the circumstances which led to the commencement of an investigation by the Central Bank into the fitness and probity of the Respondent to perform the relevant or any controlled functions. I will now refer in more detail to some of the factors which led to the decision to carry out that investigation as I describe the extensive communications and correspondence between the relevant officials in the Central Bank and the Respondent and his solicitors, Arthur Cox. This material was all exhibited to the affidavit sworn on behalf of the Central Bank grounding its application for confirmation of the Prohibition Notice. I do not, however, intend to refer to all of the information and material contained in the correspondence and communications as it is very voluminous and would require a judgment of even greater length than this. I have, however, reviewed all of the material provided to me, and taken all of it into account in reaching my decision on the Central Bank’s application.

(a) The July 2019 notice

96. On 31 July 2019, Siobhán Homan, Head of Function of the Asset Management Supervision Division of the Central Bank wrote to the Respondent giving him notice that that Division intended to refer to the Deputy Governor (or his delegate) for consideration of the question as to whether to commence an investigation under s. 25(1) of the 2010 Act in relation to the Respondent’s fitness and probity to carry out a controlled function. The letter gave the Respondent fifteen working days to provide submissions to the Deputy Governor for consideration (in accordance with para. 2.4 of the 2011 Investigations Guidance).

The letter provided certain information to the Respondent in relation to the matters of which the Deputy Governor had to be satisfied under s. 25 in order to conduct an investigation and provided certain further information to the Respondent in relation to the process. The Respondent was invited to provide written submissions to the Deputy Governor by no later than close of business on 30 August 2019. The background information to be provided to the Deputy Governor was set out in Schedule A to the letter and the documents referred to were set out in Schedule B.

Schedule A referred to relevant background information, the regulatory environment, the factual background to the case, matters relevant to the Respondent’s knowledge of issues at EF International ManCo (including reference to his inclusion on an “informed persons” list on 27 June 2018 and his role as chair of a pricing committee at EF Fund ManCo which was established to oversee pricing issues in relation to EF funds). Schedule A then set out the statutory grounds for an investigation under s. 25 and noted that, based on the information then available to the Central Bank, the relevant grounds for forming an opinion that an investigation was warranted in relation to the Respondent included those grounds set out in s. 25(3)(b) (that the relevant person does not satisfy an applicable standard of fitness and probity in a code issued under s.

50) and s. 25(3)(d) (that the relevant person had directly or indirectly provided information to the Central Bank which the person knew or ought to have known was false or misleading). It was noted that those grounds were not exhaustive, that the relevant grounds for an investigation could change in the course of the proposed investigation and that its scope would not be restricted to the details set out in that appendix. Reference was specifically made to the Standards set out at paragraph 2.2 of the Code which require a person performing a controlled function to be “(a) competent and capable; (b) honest, ethical and to act with integrity; and (c) financially sound)”.

Reference was also made to para. 3.2 of the Standards set out in the Code which require a person performing a controlled function to be able to demonstrate that he or she has a “clear and comprehensive understanding of the regulatory and legal environment appropriate to the relevant function” (para. 3.2(e)) and that the person must be able to demonstrate that he or she “shall not allow the conduct of concurrent responsibilities to impair his or her ability to discharge the duties of the relevant function or allow personal conflicts of interest to arise in carrying out his or her pre-approvalcontrolled functions or controlled functions” (para. 3.2(f)).

97. Appendix A then set out possible reasons to suspect the Respondent’s fitness, noting that the Central Bank had concerns regarding the Respondent’s competence and capability to perform his pre-approval controlled function roles. It was said that the conduct referred to gave rise to concerns that the Respondent (a) was not competent and proficient to perform his controlled function roles, (b) did not have a sound knowledge of the specific responsibilities that were to be undertaken in those roles; (c) did not have a clear and comprehensive understanding of the regulatory and legal environment appropriate to those roles; and (d) allowed a conflict of interest to impair his ability to discharge his duties to EF Fund ManCo. The appendix then set out possible reasons to suspect the Respondent’s probity and noted that the Central Bank had concerns that the Respondent did not satisfy the standard required by para. 2.2(b) of the Code which required him to “act with integrity”. The appendix recorded that the Central Bank was concerned that the Respondent’s failure to take appropriate steps to report his knowledge of serious issues in EF International ManCo to the Board of EF Fund ManCo and to the Central Bank might demonstrate a lack of integrity in that he was reckless as to the potential consequences of not reporting the issues to the board of EF Fund ManCo and the Central Bank. It was further recorded that the Central Bank was concerned that the Respondent may have directly or indirectly provided information to it that he knew or ought to have known was false or misleading for the purposes of s. 25(3)(d) and that there was reason to suspect that the Respondent may have misled the supervisors in the Central Bank at meetings on 24 July 2018 and 27 August 2018. It was, therefore, recommended in light of the “apparent conduct” of the Respondent that (a) there was reason to suspect his fitness and probity to perform the relevant controlled functions which he was performing and (b) in the circumstances an investigation into his fitness and probity was warranted.

(b) The Respondent’s response to the July 2019 notice

98. The Respondent replied to that notice on 13 September 2019. That letter enclosed written submissions for the Deputy Governor to consider in deciding whether to commence an investigation under s. 25 of the 2010 Act. In his letter, the Respondent completely refuted the allegations as to his fitness and probity set out in the July notice and, in particular, the suggestion that he acted either with a lack of integrity or recklessly. He contended that there were no grounds on which to suspect his fitness and probity to perform any controlled function and that an investigation under s. 25 was not warranted and should not be commenced. The Respondent suggested that the notice reflected a mistaken understanding as to his role in the process which led to GH’s suspension and ultimate departure from EF International ManCo and that the Central Bank misunderstood his role in the review and his consequent obligations. He also contended that the Central Bank had drawn incorrect inferences and conclusions in a number of respects and that they should not form any basis for a decision to commence an investigation under s. 25. He welcomed the opportunity to “put the record straight” but observed that it was extremely disappointing that he had to do so in the context of the notice, given the extensive engagement which had already taken place between EF Fund ManCo and the Central Bank.

99. The Respondent set out, in a series of appendices, detailed responses to the specific points raised in the notice. In summary, however, he contended that at all times he acted in accordance with his legal and regulatory obligations and was mindful of EF Fund ManCo’s interests. He explained that he was aware of the fact that a separate work stream, supported by Irish solicitors, was considering EF Fund ManCo’s legal and regulatory disclosure obligations including its obligations to the Central Bank and to the board of EF Fund ManCo and that he properly and reasonably assumed that this included consideration of his disclosure obligations.

He pointed out that he was particularly focused from the outset on the need for the board of EF Fund ManCo to be updated when appropriate and that that was a recurring issue for discussion. He contended that the board was informed in accordance with legal advice received as soon as concrete information relating to the conclusion of the internal review was available. He explained (in appendix 2) that matters were very fluid throughout July 2018 and that it was unclear what the outcome of the internal review would be until the very end of the process, immediately before the relevant regulatory disclosures were made on 31 July 2018.

With respect to the meeting with the Central Bank on 24 July 2018, the Respondent asserted that it would have been inappropriate for him to have prematurely divulged speculative and uncertain information to the Central Bank at that meeting and that the relevant disclosure was made as soon as concrete information became available on the conclusion of the internal review. The Respondent was concerned that the Central Bank had misunderstood or misconstrued a number of points (and that was further explained in appendix 3 to the letter). He was concerned that the Central Bank was missing the point that most of the issues that were considered in relation to the working group which the Respondent sat on did not relate directly to EF Fund ManCo or to funds managed by EF Fund ManCo.

He contended that there was no proper or sufficient basis to commence an investigation under s.

25. He also requested that if he could provide any further information that would assist the Deputy Governor in deciding whether to commence an investigation under s. 25, he should be contacted and that he wanted the opportunity to clarify any points or deal with any further issues which the Deputy Governor considered relevant in making his decision.

100. Appendix 1 to the Respondent’s letter contained background information about the Respondent and his professional experience. Appendix 2 contained background information on the internal review into GH and the Respondent’s role in the process. Appendix 3 contained a commentary on the specific points raised in the notice in relation to his fitness and probity.

101. In those appendices, the Respondent elaborated on his response to the notice which was summarised in his letter. With respect to the suggestion that he had provided false or misleading information to the Central Bank on 24 July 2018 or otherwise, he maintained that had he reported the limited and incomplete information which he had to the Central Bank at that meeting, he would have been providing the Central Bank with “an entirely speculative, misleading or incomplete statement” and that he would have been speculating as to the possible outcome of the internal review. Ultimately, on the basis of legal advice from EF Fund ManCo’s legal advisors, the information which was required to be reported to the Central Bank was the fact of GH’s suspension and that was reported to the Central Bank and to the board of EF Fund ManCo immediately. He rejected all allegations that he had misled the Central Bank.

(c) The September 2019 notice

102. On 26 September 2019, John Lynch, a delegate of the Deputy Governor, sent a notice of commencement of an investigation under s. 25 of the 2010 Act to the Respondent notifying him that Mr Lynch had formed an opinion pursuant to s. 25(1) that:

(a) there was reason to suspect the Respondent’s fitness and probity to perform controlled functions, in particular, the controlled functions of CEO (PCF 8), Executive Director (PCF 1) and Designated Person in relation to Investment Management (PCF 39), in respect of EF Fund ManCo; and

(b) in the circumstances, an investigation into the Respondent’s fitness and probity was warranted.

103. In that notice, Mr Lynch stated that the papers had been referred to him to determine whether an investigation should be commenced in relation to the Respondent’s fitness and probity and that he had reviewed the papers including the notice of intention to commence investigation dated 31 July 2019 and the appendices to that notice which set out certain allegations in relation to the Respondent. He had also reviewed the further correspondence between the Central Bank and the Respondent following that notice.

104. Having referred to the opinion which he had formed pursuant to s. 25(1), Mr Lynch recorded that his task was not to draw definitive conclusions from the evidence, but to decide, on the basis of the papers before him and on the balance of probabilities, whether there was reason to suspect the Respondent’s fitness and/or probity and, if there was reason to do so, whether in the circumstances an investigation was warranted. He then went on to explain why he had formed the relevant opinion.

105. Mr Lynch referred to the EF International ManCo whistleblower who made a disclosure to the FCA in the UK raising concerns in relation to the investments made by GH in IJ Investments. He noted that on 27 June 2018, the Respondent was told of his inclusion on an “informed persons” list by the General Counsel of EF USA who were engaged in contingency planning arising from the investigation into GH. He stated that at an engagement meeting with Central Bank Supervisors on 24 July 2018, the Respondent was asked if there were any issues that he wished to raise and responded that there were no such issues. Mr Lynch then recorded that, on

31 July 2018, EF Fund ManCo notified the Central Bank that GH had been suspended and on the same date EF International ManCo notified the board of EF Fund ManCo of that suspension and GH’s suspension was announced to the media. It was noted that the Respondent chaired the Pricing Committee of EF Fund ManCo which discussed investments made in IJ Investments on a number of occasions between January and May 2018. Mr Lynch further noted that, at a meeting with Central Bank Supervisors on 27 August 2018, the Respondent confirmed that with regard to IJ Investments, no issues were highlighted in EF Fund ManCo’s due diligence over the past year.

106. Mr Lynch then stated that, in addition to the Respondent’s responsibilities as a Designated Person, he was subject to the fitness and probity standards which placed certain obligations on him (which were set out). Mr Lynch noted that, in his response of 13 September 2019, the Respondent did not appear to dispute any of the foregoing matters and provided a detailed narrative of his role in the internal review of GH and a commentary on the specific allegations set out in the notice of 31 July 2019. It was recorded that the Respondent asserted that at all times he acted in accordance with his legal and regulatory obligations and that he was particularly focused from the outset on the need for the board of EF Fund ManCo to be updated when appropriate. Mr Lynch recorded that the Respondent acknowledged that he did not disclose information relevant to the internal review at the meeting with the Central Bank on 24 July 2018 and that the Respondent maintained that it would have been inappropriate to do so as the information would have been speculative and uncertain at that time. He noted that the Respondent asserted that he would have relied on legal advice in deciding when to make disclosures. Mr Lynch stated that the Respondent’s response was “not supported by any documentary evidence”.

107. Mr Lynch stated in the notice that the Respondent was under a number of different obligations including an obligation to be “open and cooperative with the Regulator, to have an awareness of the legal and regulatory environment, and to manage conflicts of interest”. Mr Lynch stated that there was “prima facie evidence that he did not meet those obligations” and that that evidence was “not undermined by the assertions made by [the Respondent] in his response, which [were] unsupported by evidence”.

108. Mr Lynch then stated that the Respondent may not have had a clear understanding of the obligations which he was subject to as a person exercising pre-approval controlled functions. He stated that it was not sufficient to defer to others even if they were offering legal advice. He said that it was also of note that the Respondent met the Regulator, with whom he was obliged to be open and cooperative, and did not disclose any information about the internal review when given a clear opportunity to do so. A week later, a disclosure was made to the Central Bank, to the board of EF Fund ManCo and to the media. Mr Lynch noted that if the Respondent was not aware of his obligations under the fitness and probity regime or misunderstood those obligations, there was reason to suspect his fitness. If he had misled or attempted to mislead the Central Bank, there was reason to suspect his probity. In those circumstances, he stated that there was reason to suspect the fitness and probity of the Respondent to perform controlled functions and that there were a number of potential grounds for an investigation. They included what the Respondent knew when he met the Central Bank on 24 July 2018 and what the Respondent understood his regulatory obligations to be, including the obligations to manage conflicts of interest and to be open and cooperative with the Central Bank. Mr Lynch was of the view that an investigation into the Respondent’s fitness and probity was warranted and that he was therefore commencing an investigation under s. 25. He noted that the appointed investigator would write to the Respondent in early course.

(d) The appointment of the Investigator

109. Eoghan O’Regan, Lead Investigator in the Enforcement Investigations Division of the Central Bank (the “EID”) was appointed the delegate of the Deputy Governor to carry out the investigation. I shall refer to Mr O’Regan as the “Investigator”.

(e) The evidentiary notices

110. On 16 January 2020, the Investigator served an evidentiary notice on the Respondent pursuant to s. 32 of the 2010 Act making reference to the Respondent’s response of 13 September 2019 to the notice of 31 July 2019 in which reference was made to legal advice. The Investigator requested the Respondent to provide copies of any legal advice he requested or received between

1 June 2018 and 31 July 2018 from Dillon Eustace or from any other legal advisors with regard to certain matters including:

(a) the Respondent’s PCF roles at EF Fund ManCo;

(b) the Respondent’s disclosure obligations with regard to Regulation 103(2)(e) of the Central Bank (Supervision and Enforcement) Act 2013 (s. 48(1)) (Undertaking for Collective Investment in Transferable Securities) Regulations 2015 (S.I. no. 420 of 2015) (the “2015 Regulations”); and

(c) the Respondent’s involvement generally with the confidential working group which he joined on 27 June 2018. The Respondent was also asked to provide certain further information in that evidentiary notice including, if he had not directly received any written legal advice, a concise account of when, how and by whom he was advised that disclosure was not required under Regulation 103(2)(e) of the 2015 Regulations until GH was suspended and that his own regulatory obligations were being considered by Dillon Eustace. The notice stated that this information and the documents requested were required as part of the investigation into the Respondent’s fitness and probity. This was one of a number of evidentiary notices served by the Investigator in the course of the investigation.

111. The Respondent replied through his solicitors, Arthur Cox, on 29 January 2020. In their letter of that date, Arthur Cox attached the Respondent’s response to the evidentiary notice. In the cover letter, Arthur Cox noted that the Respondent was relying on certain documents which they understood were provided to the Central Bank by Matheson in December 2019 in response to an evidentiary notice issued to Matheson’s client, EF Fund ManCo. It was further noted that the Respondent’s response contained three further examples of legal advice obtained from Dillon Eustace, EF Fund ManCo’s lawyers “via engagement by EF Holding’s lawyers Skadden, Arps, Slate, Meagher & Flom LLP” which were relevant to the Respondent’s response to the evidentiary notice. The response contained an appendix which set out a chronology of the Respondent’s knowledge of and involvement with the confidential working group as it related to the obtaining of legal advice in relation to disclosure obligations. The Respondent summarised his position on that issue in order to assist the investigation. He provided details of the other persons involved in the working group, and stated that he had been told by them that there was a separate work stream in which they were engaging with lawyers across relevant jurisdictions to deal with issues that required notifications to be made to regulators in those jurisdictions and that that process was being coordinated at an international level by Skadden Arps, the US firm mentioned in the letter. In Ireland, Dillon Eustace were retained. The Respondent explained that although he was not directly involved in obtaining or receiving the legal advice, he was aware of the import of that advice from calls he had participated in and from various documents which were circulated, all of which envisaged the necessary notifications taking place once the outcome of the issues with GH was known.

(f) The resignation of the Respondent

112. The Respondent resigned from all of his roles with EF Fund ManCo on 20 February 2020. Since that date, he ceased to hold any role, whether in EF Fund ManCo or with any other regulated financial service provider, involving any controlled function.

(g) The statement of grounds

113. The next relevant development in the investigation was the service by the Investigator on

26 May 2020 of the statement of grounds pursuant to Regulation 3 of the 2012 Regulations. In his cover letter dated 26 May 2020, the Investigator stated that he had formed the opinion that it was possible that adverse conclusions might be drawn against the Respondent and, on that basis, he was serving the statement of grounds setting out his concerns as to the Respondent’s fitness and probity. The Investigator then referred to Regulation 3(3) of the 2012 Regulations and requested Arthur Cox to provide details of persons who the Respondent believed would be in a position to give evidence relating to the matters set out in the statement of grounds, including the name, address, contact details and description of the grounds on which such persons would be able to give that evidence. The Investigator also requested Arthur Cox to provide an indication as to whether the Respondent wished to participate in an interview with them. They were also asked to include in their response any submissions they wished to make in response to the statement of grounds.

114. In the statement of grounds, having set out background information in relation to EF Fund ManCo and the delegation of its investment management function to EF International ManCo, including in relation to the Irish ARB sub-funds, reference was made to the Respondent’s controlled functions within EF Fund ManCo, EF Fund ManCo’s pricing committee, the suspension of GH by EF International ManCo on 31 July 2018, the temporary suspension of redemptions in four of the five Irish ARB sub-funds and the Respondent’s membership of the confidential working group within the The Group, of which the Respondent became a member on 27 June 2018. Reference was made also to the Respondent’s meeting with the Central Bank on 24 July 2018, at which it was alleged he did not inform the Central Bank of the issues being dealt with by the confidential working group and the potential for impact on funds domiciled in Ireland.

115. The statement of grounds then referred to Regulation 103(2)(e) of the 2015 Regulations which imposed an obligation on a funds management company such as EF Fund ManCo to notify the Central Bank in writing immediately that the management company becomes aware of: “(e) any situation or event that impacts, or potentially impacts, to a significant extent on the relevant UCITS or on the management company.” It was alleged that on 27 June 2018 the Respondent was aware of a situation that potentially impacted to a significant extent on the relevant UCITS or the management company, EF Fund ManCo, and reference was made to certain exchanges between persons within EF (KL and MN) and the Respondent and communications between the Respondent and EF Fund ManCo’s Head of Compliance, OP. The statement then referred to the Respondent’s response of 13 September 2019 to the notice of intention to commence the investigation and his response to the evidentiary notice in January 2020. The Respondent had made the point that the notification obligation in Regulation 103(2)(e) was triggered by the suspension of GH on 31 July 2018 and not before that.

116. The statement of grounds then set out three grounds on which the Investigator formed the view that it was possible that adverse conclusions might be drawn against the Respondent. They were that:

(1) the Respondent had failed to competently discharge his role as Designated Person.

(2) the Respondent allowed the conduct of concurrent responsibilities to impair his ability to discharge his duties as CEO, Executive Director and Designated Person of EF Fund ManCo and;

(3) the Respondent failed to be open and transparent with the Central Bank.

117. The statement of grounds then set out in respect of each of those three grounds the basis on which it was stated that it was possible that adverse conclusions might be reached in relation to the Respondent. With respect to the third ground, it was stated that it was possible that adverse conclusions might be drawn that, at the meeting with the Central Bank on 24 July 2018, the Respondent was not “candid and truthful, and was not full, fair and accurate in his account of issues facing EF Fund ManCo or its relationship with The Group”. The statement of grounds enclosed a schedule of documents relevant to the allegations, grounds and matters of concern referred to in it.

(h) The response to the statement of grounds

118. Arthur Cox replied to the statement of grounds on behalf of the Respondent on 3 July 2020. In their cover letter, Arthur Cox confirmed that the Respondent did not propose to identify any individuals for the purposes of the investigation and did not wish to participate in an interview with the Investigator as they had concluded that the Central Bank was not entitled to proceed further with the investigation and had so advised the Respondent. They contended that the investigation was ultra vires the powers of the Central Bank under s. 25 of the 2010 Act in circumstances where the Respondent no longer performed a controlled function as he had resigned from all his roles with EF Fund ManCo in February 2020. In those circumstances, the Central Bank was requested to confirm that it would proceed no further with the investigation. It was also maintained that there was no basis for the possible adverse conclusions referred to in the statement of grounds and, without prejudice to their point that the investigation was ultra vires, Arthur Cox set out in an appendix to their letter the Respondent’s response to the statement of grounds in which it was contended that no adverse conclusions should be drawn against the Respondent.

119. The appendix contained a very detailed response by the Respondent to the statement of grounds. The response addressed the alleged issues concerning the Respondent’s competence as a Designated Person, and the various matters addressed in the statement of grounds including his membership of the pricing committee, the confidential working group and his interactions with persons within EF and EF Fund ManCo, including KL and MN. The Respondent rejected the contention that he had allowed himself to be overruled by those persons without any apparent challenge and referred to his understanding that the confidential working group intended to notify the relevant boards without delay and, on several occasions, arrangements were made to contact the boards, but those efforts were deferred as certain further key information was awaited. Certain other persons within the The Group were also identified by the Respondent as being relevant to the investigation. The Respondent addressed issues concerning notification to the EF Fund ManCo board and rejected the allegations that he had conflicts of interest and that he was not open and transparent with the Central Bank. With particular reference to Regulation 103(2)(e) of the 2015 Regulations, the Respondent maintained that he was not in a position to notify the Central Bank of the ongoing investigation or the underlying issues in relation to GH until the relevant facts became apparent to him, the investigation concluded or a decision was made by EF in relation to GH’s role. The Respondent sought to rely on material published by the Central Bank including its “Fitness and Probity – Frequently Asked Questions 2018” in support of his position. The Respondent addressed in detail and rejected the allegations that he was not candid and truthful and was not full, fair and accurate in his account of issues concerning EF Fund ManCo or its relationship with the The Group at the meeting with the Central Bank on 24 July 2018. It was contended by the Respondent that that allegation was inaccurate and “deeply prejudicial” and that it disregarded relevant facts and was wrong in suggesting that the Respondent should have informed the Central Bank immediately of the issues in relation to GH without having known the underlying facts.

(i) Correspondence between Arthur Cox and the Investigator

120. In a letter dated 16 July 2020, the Investigator maintained that the Central Bank was entitled to proceed with its investigation into the Respondent under s. 25, having commenced the investigation on 26 September 2019. He also extended the date by which the Respondent was requested to indicate if he wished to participate in an interview or if he wished to identify any person who would be able to give evidence in the investigation to 7 August 2020. The Investigator’s position was disputed by Arthur Cox in a letter dated 21 July 2020. In that letter, Arthur Cox requested the Central Bank to confirm the precise legal basis on which it believed that it was entitled to proceed with the investigation. Alternatively, they asked the Central Bank to confirm in writing that it would proceed no further with the investigation. The Investigator replied on 31 July 2020 relying on the provisions of Part 3 and, in particular, s. 25 of the 2010 Act as the legal basis to continue with the investigation notwithstanding that the Respondent had resigned from his controlled function roles. The Investigator further extended the deadline for the Respondent to indicate if he wished to participate in an interview or to identify any person who would be able to give evidence in the investigation to 14 August 2020.

121. In a call with Arthur Cox on 20 August 2020, the Investigator requested an interview with the Respondent. Arthur Cox responded indicating that the Respondent was willing to be interviewed as part of the investigation. However, in a letter dated 27 August 2020, Arthur Cox made the point that the process had caused the Respondent considerable stress, that he had recently been diagnosed with a medical condition, the treatment for which could impact his immune system and increase his vulnerability to other infections (it will be recalled that this letter was sent at the height of the COVID-19 pandemic) and that, while he wished to fully cooperate and make himself available for an interview, it was not at that time clear what impact the Respondent’s condition would have on his ability to facilitate the Central Bank in its investigation or to partake in future interviews. Arthur Cox indicated that once the position became clearer, they would ensure that the Central Bank was updated. That did not happen.

122. Earlier in the same letter, while rejecting the Central Bank’s interpretation as to its power to continue the investigation and reserving the Respondent’s position in relation to that, Arthur Cox maintained that, if the Central Bank intended to proceed, it was imperative that the investigation be conducted in accordance with “basic principles of fair procedures and natural justice” and in accordance with the Respondent’s constitutional rights. They also maintained that it was essential that the Central Bank take every effort to “interrogate the relevant facts including, but not limited to, conducting meetings or interviews with all relevant individuals”. They went on to identify a number of individuals who actively participated and engaged in the events which were the subject of the investigation and who would have evidence relevant to the investigation and to the allegations made against the Respondent in the statement of grounds. In particular, they identified individuals who attended meetings and calls of the confidential working group and who would be in a position to give evidence in relation to the Respondent’s role in that group, the information available to the group and the veracity of his submissions to the Central Bank. Those persons included KL and MN as well as three other named individuals. KL was also described as a person who could give evidence in relation to the nature and purpose of the discussions at internal EF meetings which discussed GH’s investments in IJ Investments and the Respondent’s role at those meetings. They also identified QR as being a person who had evidence relevant to the investigation, as being a person who was aware of the events and interactions between the FCA and EF between 27 and 30 July 2018. They further identified the Company Secretary of EF Fund ManCo and the three members of the Central Bank’s Supervision Division who met with the Respondent on 24 July 2018 and who it was said could give evidence in relation to the contents of the discussion at that meeting. Arthur Cox maintained that the taking of evidence from the individuals identified was “critical to the [Central Bank’s] investigation and to any proper assessment of the facts” and that their evidence was “essential to a fair and proper investigation”.

123. There followed an exchange of correspondence between the Investigator and Arthur Cox in which the Investigator resisted the request that the persons identified be interviewed and their evidence taken as part of the investigation and in which Arthur Cox provided further details demonstrating, in the Respondent’s view, the essential requirement that evidence be taken from those persons.

124. In his letter of 15 September 2020, the Investigator sought to establish the relevance and necessity for the taking of evidence from the persons identified by Arthur Cox to the case made in the statement of grounds. He asserted that the three grounds set out in the statement of grounds were based on “contemporaneous documents and telephone transcripts, as well as [the Respondent’s] own submissions”. He requested Arthur Cox to explain in respect of each of the witnesses identified what evidence they had that was “not captured in the contemporaneous documents”. The Investigator then went through the various persons identified and sought a further explanation as to why their evidence was necessary in light of the contemporaneous documentation. The Investigator indicated that he had no difficulty if the Respondent wished to ask the persons identified to make “submissions” in support of the Respondent’s submissions to the Central Bank concerning the facts set out in the statement of grounds. The Investigator also noted in that letter the position in relation to the Respondent’s medical condition and requested a response by 1 October 2020.

125. Arthur Cox responded by letter dated 30 September 2020 (again without prejudice to the Respondent’s vires argument). They maintained that they had already provided sufficient information in relation to the evidence which the Respondent required to be taken from the persons he had identified. However, Arthur Cox did provide significant further information in relation to those persons in their letter. They maintained that those persons were witnesses of fact and that their views, recollections and perspectives were likely to be “materially supplemental to the primary documentary evidence”.

Arthur Cox noted that the persons were present at the events referred to in the statement of grounds and could verify, clarify or contradict the assertions made in the statement. It was said that they should also be able to provide information, explanations and evidence that was unavailable elsewhere. Insofar as the Investigator requested the Respondent to identify any gap in the evidence relevant to the statement of grounds, Arthur Cox challenged that approach and contended that the Central Bank’s interpretation of the contemporaneous information was not sufficient and that the Respondent had a different view of that contemporaneous information on issues relevant to the statement of grounds.

It was pointed out that the persons identified could give first-hand knowledge of the facts which supported the submissions made by the Respondent. Arthur Cox contended that the taking of evidence from the persons identified was critical to the Central Bank’s investigation and to any proper assessment of the facts and of the submissions made by the Respondent and that it was essential, therefore, for a fair and proper investigation, that their evidence was taken. It was said that that was particularly important where the Respondent believed that the contemporaneous information was not fully understood by the Central Bank.

Arthur Cox then went through each of the persons named as being in a position to give relevant evidence and explained by reference to those persons the relevance to the investigation of their evidence. They pointed out that the allegations against the Respondent were “extremely serious” and that, where the Respondent’s case was that the Central Bank was making “fundamental errors” in its interpretation of the contemporaneous documents, further witness evidence was necessary and, in that regard, one of the named witnesses, in particular, KL, was best placed to provide that evidence.

Arthur Cox made the concluding point that it was critically important that the investigation was not predetermined and that the Central Bank make every effort “to interrogate the relevant facts including, but not limited to, conducting meetings or interviews with all relevant individuals”.

126. The Investigator did not accept the case made by Arthur Cox that the relevant persons should be interviewed and their evidence taken. He set out his reasoning in a letter dated 19 October 2020. In that letter, the Investigator referred on a number of occasions to the Respondent being the “key witness” in the investigation and that his “submissions” were “crucial” to the investigation. He also described the Respondent as being the “primary witness”. The Investigator reiterated that he had no difficulty if the Respondent wished to ask the persons identified to make “submissions” in support of the Respondent’s submissions. However, he was not satisfied that a proper explanation had been given as to how those persons could provide “additional evidence” and requested a further explanation as to how their evidence was necessary. The Investigator professed himself to be unclear as to the specific evidence which the Respondent proposed that the witnesses identified could give and noted, for example, that the Respondent himself had provided “evidence” as to his role in the confidential working group and that he was “best placed” to give that evidence. While maintaining that he was open to obtaining “further information” from the persons identified, he requested Arthur Cox to provide “specific details of the gaps in evidence” or the additional evidence which they could give. At a number of points in the letter, the Investigator made the point that he was open to receiving further “submissions” from the Respondent or from any witness on his behalf in relation to a number of the points which the Respondent wished to make. A fair reading of the letter would suggest that the Investigator was somewhat confused between the submissions which he said the Respondent could make or could obtain from the persons identified and evidence from the Respondent and from those other persons (s. 32 and s. 34 of the 2010 Act and Regulation 3 and 4 of the 2012 Regulations make clear that there is a difference between submissions and evidence). The Investigator requested a response to his letter before 2 November 2020.

127. Arthur Cox replied on 30 October 2020. They made the point that the proper conduct of the investigation, including ensuring that all of the relevant evidence was gathered and considered, was the responsibility of the Central Bank. They maintained that they had provided details of the persons who the Respondent believed could provide evidence relevant to the matters raised in the statement of grounds and they explained the basis on which it was believed that the evidence of those persons was critical to the investigation and necessary to ensure that the relevant facts were investigated. They also repeated the point that it was essential that the investigation be conducted in compliance with basic fairness of procedures and natural justice and in accordance with the Respondent’s constitutional rights. They again reiterated the Respondent’s strong belief that the persons identified were in a position to provide relevant and necessary evidence in relation to the matters alleged in the statement of grounds.

(j) The conclusion of the information gathering stage of the investigation

128. Without any further communication to the Respondent or his solicitors, the Investigator wrote to Arthur Cox on 27 November 2020 pursuant to Regulation 12(1) of the 2012 Regulations (and para. 4.1 of the 2011 Investigations Guidance) informing them that the “information gathering stage” of the investigation had concluded. By that stage, the Investigator had received submissions and correspondence from the Respondent and his solicitors and had obtained documents and information on foot of evidentiary notices. However, the Investigator had not carried out any interviews, whether of the Respondent himself or of any of the numerous persons identified by the Respondent as being in a position to give evidence relevant to the allegations contained in the statement of grounds. The Investigator did not contact Arthur Cox prior to sending the letter of 27 November 2020 to enquire whether the Respondent was by that stage in a position to be interviewed. Nor had the Investigator convened any oral hearing (notwithstanding the power to do so under s. 34 of the 2010 Act and Regulations 4 to 10 of the 2012 Regulations).

129. In his letter of 27 November 2020, the Investigator informed Arthur Cox that he was aiming to provide his final report pursuant to s. 41 of the 2010 Act early in the New Year and that he would at that stage invite submissions from the Respondent on the report. The Investigator then reiterated the reasons why he did not find it necessary to interview and take evidence from the various persons identified by the Respondent. He repeated the point that the Respondent was the “key witness” in the case and that he had provided “detailed evidence in his own submissions” in response to the allegations contained in the statement of grounds.

He maintained that the Respondent had not explained what evidence was “missing or unsubstantiated” in the Respondent’s “evidence” or why anything further was required by way of “additional evidence” or “corroboration” from any of those persons mentioned by the Respondent. The Investigator pointed out that as the delegate of the Deputy Governor, it was his decision under Regulation 3(6) of the 2012 Regulations as to whether or not to interview persons and that having reviewed the submissions and evidence provided by the Respondent, as the “key witness”, together with “substantial contemporary documentary evidence”, he believed that it was “not necessary to gather any additional evidence”.

He then sought to explain his reasons for that decision. In giving his reasons, he reiterated the point previously made that the Respondent had not identified “gaps in the evidence or additional evidence” relevant to the allegations contained in the statement of grounds. He explained his role as being to “gather evidence” and noted that while he might make findings on the balance of probabilities in the s. 41 report, any decision (as to whether to issue a prohibition notice) would be taken by a decision-maker who would take into consideration “inter alia [his] report, the evidence and [the Respondent’s] submissions”.

The Investigator contended that the Respondent had been afforded an opportunity to provide his own understanding of the relevant facts and to provide his interpretation of those facts, and that he had done so. The Investigator stated that he had also been afforded the opportunity of providing “submissions” from the persons he had identified under Regulation 3(3) to give their understanding and interpretation of those facts, but he had not done so. The Investigator then stated that: “As the facts themselves do not appear to be in dispute, I cannot justify gathering additional evidence on the grounds of relevance and necessity.” That was a point made repeatedly in the letter of 27 November 2020 in relation to the various persons who the Respondent wished the Investigator to interview and from whom the Respondent wanted the Investigator to take evidence.

The Investigator’s position, therefore, was that he was concluding the information gathering stage of the investigation, that the Respondent as the “key witness” had made submissions and that he had not pointed to any factual dispute or gaps in evidence which made it necessary to interview and take evidence from the various persons identified by the Respondent and that, in any event, the Respondent could have provided “submissions” from those persons but did not do so.

130. The Investigator did not appear to consider it relevant when refusing to interview any of the persons identified by the Respondent or when closing the information gathering stage of the investigation without contacting Arthur Cox to enquire as to the fitness, on medical grounds, of the Respondent himself to be interviewed, that the credibility, honesty and truthfulness of the Respondent was very much at issue and that the consequences for the Respondent of adverse findings and conclusions being made against him would be extremely serious and potentially devastating for him professionally and personally. My impression is that the Investigator seemed to have been diverted by his concentration on whether there were gaps in the evidence and on the Respondent being the “key” or “primary” witness to the exclusion of all of the relevant matters.

9. The s. 41 Report

131. The Investigator provided his report under s. 41 of the 2010 Act on 24 March 2021 (the “s.

41. report”). Having set out relevant background information in relation to EF Fund ManCo, the delegation of its investment management function to EF International ManCo in relation to the five Irish ARB sub-funds, the suspension of GH and the temporary suspension of redemptions from those sub-funds, the Investigator then provided some further detail in relation to the investigation. He referred to the Respondent’s request for a number of persons to be interviewed and explained his reasons for refusing that request, pointing out that he was not required to conduct interviews with any person and that the conducting of interviews or oral hearings was at his “sole discretion”, as the delegate of the Deputy Governor (para. 33). The Investigator stated that he had considered whether it was necessary to hold an oral hearing for the “proper conduct of [the] investigation” pursuant to Regulation 4(1) of the 2012 Regulations. However, he concluded that “due to [the Respondent’s] detailed factual submissions and the comprehensive contemporaneous evidence…there is no gap in evidence or conflict of evidence that warrants any such additional evidence gathering including an oral hearing” (para. 34). The Investigator did not appear expressly to consider whether any of the other circumstances referred to in Regulation 4(2) were present, such as may have required an oral hearing to be convened (including where the credibility of the subject of the investigation or a witness needed to be tested, where because of the potential effect of the investigation on the subject, an oral hearing may have been required in the interests of fairness or where allegations of a serious nature were made against the subject).

132. The Investigator set out the context of the three grounds on which it was alleged that adverse conclusions could be drawn against the Respondent in section C of the s. 41 report. He considered that context by reference to the Respondent, his role of the Designated Person in EF Fund ManCo, the pricing committee and EF’s investments inIJ Investments, a call on 22 March 2018 in relation to GH and IJ Investments, the suspension of GH, the establishment of the confidential working group in late June 2018 and the notification requirement in respect of a situation that potentially impacted to a significant extent on the five Irish ARB sub-funds. The Investigator then set out (in section D) the fitness and probity standards contained in the Code. He noted that any findings made in the report were on the balance of probabilities pursuant to Regulation 11. He then turned to consider each of the three grounds.

133. In section E, the Investigator considered ground 1, namely, the Respondent’s competence as a Designated person. The Investigator considered the allegations against the Respondent and the Respondent’s submissions in relation to those allegations in ground 1 before setting out his conclusions and findings with respect to that ground (paras. 109 to 111). He referred to the Central Bank’s Guidance on Fund Management Companies (December 2016) (the “2016 Guidance”) which referred to the role of the Designated Person in a fund management company as being it’s “line of management that lies between the board of directors and delegates” and as the person who monitors and oversees compliance by the company with its regulatory obligations (pp. 30 – 31 of the 2016 Guidance). The Investigator also referred to the commentary in the 2016 Guidance that Designated Persons should approach information received from delegates “with healthy scepticism”, that they should not necessarily accept such information “at face value” and should “interrogate information received”, and that they should “constructively challenge employees and delegates and should follow up on issues raised to ensure that they are concluded satisfactorily” (pp. 41-42 of the 2016 Guidance). The Investigator concluded in relation to this ground and submitted that the Respondent (at paras. 109-111, pp. 31-33):

(a) had failed to be effective as a Designated Person and one of EF Fund ManCo’s line of management between EF Fund ManCo and its delegate, EF International ManCo;

(b) had not monitored and overseen compliance of EF Fund ManCo with its regulatory obligation and, in particular, its reporting obligation under Regulation 103(2)(e) of the 2015 Regulations;

(c) accepted the authority of the Group representatives without challenge, did not approach information received with “healthy scepticism” and did not “interrogate information received”;

(d) did not comply with EF Fund ManCo’s own Business Plan dated 1 April 2018 which provided that the relevant designated person had to ensure that all “material issues” relating to the performance of each delegate were reported to the board. Specifically, he found that the Respondent did not alert the board of EF Fund ManCo in late June and July 2018 to the possibility of redemptions which would potentially impact to a significant extent on the five Irish ARB sub-funds or the fact that GH, who was delegated the responsibility for managing those funds, had been restricted for months from dealing inIJ Investments’s securities which were included in the portfolios of those five sub-funds. The Investigator submitted that the Respondent “fell short of the standards expected of him as PCF 39, Designated Person for investment management, at EF Fund ManCo”.

134. The Investigator then dealt in section F of the s. 41 report with ground 2, which concerned the Respondent’s conduct of concurrent responsibilities. Again, he set out the allegations contained in the statement of grounds and the Respondent’s submissions in relation to those allegations with respect to the confidential working group, GH’s possible retirement and the allegation of an alleged conflict of interest. The Investigator set out his conclusions and findings with respect to ground 2 (at paras. 125 – 128, pp. 39-40). He referred to para. 3.2(f) of the Standards which require that a person performing a PCF role must not allow the conduct of concurrent responsibilities to impair his or her ability to discharge the duties of the relevant function or allow personal conflicts of interest to arise.

He then referred to the same extract from the Central Bank’s 2016 Guidance, as in the case of ground 1. He concluded that the evidence suggested that in June and July 2018, aspects of the investment management of the five Irish ARB sub-funds, which was the ultimate responsibility of EF Fund ManCo and its board, were being conducted by the “ad hoc and unregulated confidential working group” of which the Respondent was a member. He found that the Respondent’s participation in that group prevented him from effectively carrying out his duties as Designated Person for Investment Management at EF Fund ManCo, which included EF Fund ManCo’s requirement that each designated person would ensure that all material issues relating to the performance of each delegate were reported to the board.

He found that the Respondent’s participation in the group prevented him from managing his concurrent responsibilities as Designated Person for Investment Management, as well as CEO and Executive Director of EF Fund ManCo. The Investigator referred to a letter dated 7 December 2018 from EF Fund ManCo to EF International ManCo which the Respondent had signed, and which stated that restrictions imposed by the confidential working group created a “significant conflict of interest” for the participants (including the Respondent) in performing their “regulatory and fiduciary duties”.

While noting that the Respondent stated that he did not agree with the contents of the letter, the Investigator submitted that its contents did accurately reflect the position that the Respondent had put himself in by his participation in the confidential working group in late June and July 2018.

135. The Investigator then dealt in section G of the s. 41 report with ground 3, which concerned the Respondent’s openness and transparency with the Central Bank. He first repeated the relevant allegations contained in the statement of grounds and then considered the Respondent’s submissions in relation to those allegations. In doing so, he considered the submissions made by the Respondent to the effect that he was not in a position to notify the Central Bank of the ongoing investigation or of the underlying issues, that the Central Bank’s position was “entirely predicated on hindsight”, that there was an absence of guidance from the Central Bank on Regulation 103(2)(e), that it was premature for the Respondent to divulge speculative and uncertain information to the Central Bank on 24 July 2018, that the Respondent was not required to inform the Central Bank of eighteen calls which he had with MN and that the Respondent was not required, in the circumstances, to inform the Central Bank of liquidity issues.

136. The Investigator did not accept the Respondent’s submissions on these issues and set out his conclusions and findings with respect to ground 3 at paras. 135 – 138, pp. 50-51 of the report. He referred to para. 2.3 of the Standards which require that any information provided by a person pursuant to the Code to the Central Bank must be “candid and truthful” and “full, fair and accurate in all respects and not misleading to the best of his or her knowledge”. The Investigator noted that ground 3 concerned the Respondent’s “candour” with the Central Bank. He concluded that the Respondent had an opportunity to discuss his membership of the confidential working group and its activities with the Central Bank’s Supervisors at the meeting on 24 July 2018. He suggested that if the Respondent was unsure as to whether his knowledge regarding the potential for significant redemptions from the five Irish ARB sub-funds or possible suspension of redemption from those sub-funds or of the fact of GH’s investigation by the FCA was of interest to the Central Bank or was too speculative, he could have asked the Supervisors for guidance at that meeting. The Investigator concluded that there was no evidence that the Respondent sought any guidance on his disclosure obligations to either the board of EF Fund ManCo or to the Central Bank, and noted that there was no evidence that the Respondent discussed his meeting with the Central Bank on 24 July 2018 with anyone in the confidential working group either before or after the meeting. The Investigator concluded that, given the Respondent’s role in the confidential working group from 27 June 2018 onwards and his knowledge of the potential for significant redemptions from the five Irish ARB sub-funds managed by EF Fund ManCo, the Respondent had a considerable amount of information that he could have shared with the Central Bank at the meeting on 24 July 2018. He noted that, just over a week later, on 1 August 2018, the Central Bank learned that redemptions in four of the five sub-funds had been suspended. He concluded that the information provided by the Respondent to the Central Bank was not “candid and truthful”, nor was it “full, fair and accurate in all respects”. He also stated that it could not be concluded that the information provided by the Respondent was “not misleading to the best of his knowledge”.

137. The Investigator set out his overall conclusions and recommendations in section H of the s. 41 report (at paras. 139 – 152, pp. 52-54). He noted that the possibility that adverse conclusions could be drawn against the Respondent did not arise from his non-disclosure of the details of the investigation into GH but rather the Respondent’s competence as a Designated Person, his management of his concurrent responsibilities and his candour with the Central Bank. He then summarised his findings with respect to each of the three grounds and submitted “in light of the evidence presented in [the] report” that the Respondent had fallen short of the relevant Standards (being paras. 2.2, 2.3, 3.2(c), (d), (e), (f) and 4.1(i)). He then referred to a decision in another case by a delegate of the Central Bank to prohibit another person and referred to some observations made in that decision which the Investigator found instructive. He reiterated his

conclusion and submission to the Central Bank that the information provided by the Respondent to the Central Bank at the meeting on 24 July 2018 was not “candid and truthful”, and was not “full, frank and accurate in all respects”. He did not believe that it could be concluded that the information provided by the Respondent was “not misleading to the best of his knowledge” (para. 151). In other words, the Investigator concluded that the information provided by the Respondent to the Central Bank Supervisors at the meeting on 24 July 2018 was misleading, to the best of the Respondent’s knowledge.

138. The Investigator provided his recommendation at para. 152 of the s. 41 report (p. 54) as follows: “Having regard to the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system, and the need to protect users of financial services, I recommend that [the Respondent] be prohibited from performing all controlled functions and that the length of prohibition reflect the seriousness of the fitness and probity issues as described in this report. I believe that such a prohibition would demonstrate to those occupying controlled functions including pre-approval controlled functions the need for competence to perform the relevant functions, the need to manage concurrent responsibilities and the need to provide full and truthful information to the Central Bank.”

139. There can be no doubt but that the Investigator considered the issues to be very serious in that he specifically referred to the need to prevent potential “serious damage to the financial system in the State” and the need to ensure the “continued stability of that system” and “to protect users of financial services” (taking these phrases from s. 43(4)(a) and (b) of the 2010 Act). There can be no doubt, therefore, about the enormously significant and serious issues which the Investigator felt the Respondent was facing which, in his view, had potentially systemic implications for the stability of the financial system in the State and for the protection of users of financial services. Despite all of that, the Investigator chose to complete his s. 41 report without interviewing the Respondent or any of the persons identified by the Respondent as being in a position to give relevant evidence and without considering it necessary to convene an oral hearing (notwithstanding the various factors and circumstances mentioned in Regulation 4(2) of the 2012 Regulations). As I noted earlier, the Investigator did state at para. 34 (p. 9) of the report that he had considered whether it was necessary to hold an oral hearing but decided not to do so on the basis that there was no “gap in evidence” or any conflict of evidence. He does not appear to have addressed any of the other factors or circumstances mentioned in Regulation 4(2), including those referred to in paras. (b), (c), and (d).

10. Respondent’s submissions on the s. 41 report

140. Under s. 41(4) of the 2010 Act, the Respondent was permitted to make a submission in relation to the s. 41 report. A detailed submission was made on his behalf by Arthur Cox on 28 May 2021. In summary, the Respondent did not believe that there were any grounds on which to suspect his fitness and probity to perform any controlled function and that the investigation under s. 25 of the 2010 Act was not warranted and should not have occurred. It was also maintained on his behalf that the Central Bank was not entitled to pursue the investigation which he contended suffered from “serious and irredeemable deficiencies throughout”. They requested the Central Bank to reconsider its pursuit of the investigation of the Respondent. Arthur Cox attached two appendices to their letter of 28 May 2021. Appendix 1 contained their submissions on the legality of the investigation. The first part of that appendix contained submissions to the effect that the investigation was ultra vires the powers of the Central Bank under the 2010 Act. The second part of that appendix set out the Respondent’s submissions on the alleged unfairness of the procedures adopted in the course of the investigation. Arthur Cox set out a number of serious concerns about the manner in which the Central Bank conducted the investigation and reached the conclusions in the s. 41 report. It was contended that the Respondent was not afforded fair procedures, and that his concerns in that respect were expressed to the Central Bank at every stage of the investigation. It was contended that the procedures adopted in the investigation were not fair or adequate to protect the Respondent’s entitlement to challenge the very serious allegations made against him which formed the basis of the conclusions and recommendations in the s. 41 report. Arthur Cox expressed concerns in relation to the fairness of the procedures adopted at two stages of the investigation, the commencement of the investigation and the gathering of evidence for, and the formulation of, the conclusions and recommendations in the s. 41 report.

141. With respect to the commencement of the investigation, Arthur Cox criticised the Central Bank’s rejection of the submissions made by the Respondent on 13 September 2019 in response to the Central Bank’s notice of intention to commence the investigation. In particular, they contended that the Central Bank’s description of the Respondent’s submissions as being mere “assertions” which were not supported by any documentary evidence and were unsupported by evidence was unfair, and that his submission was rejected in an unfair process.

142. With respect to the conduct of the investigation itself, Arthur Cox advanced detailed submissions alleging that the manner in which the investigation was conducted was unfair. They noted that the statement of grounds contained allegations of a very serious nature concerning the Respondent’s probity and integrity and that the investigation concluded that the Respondent lacked candour in his dealings with the Central Bank. They pointed to the very serious reputational damage to which the conclusions in the s. 41 report inevitably gave rise, as well as the legal consequences that might flow from the report. Among those consequences was the potential issuing of a prohibition notice (as in fact subsequently happened in this case). On that basis, it was submitted that the Respondent was entitled to extensive fair procedures, notwithstanding the discretion ostensibly conferred on the Investigator, as delegate of the Deputy Governor, under Chapter 3 of Part 3 of the 2010 Act and the 2012 Regulations.

143. Arthur Cox maintained that, in light of the particular facts at issue in the investigation (including the events and communications addressed in appendix 2 to their letter), the serious impact a negative decision would have on the Respondent and the grave concerns which they had raised in relation to the conduct of the investigation by the Central Bank up to that point, it remained the Respondent’s position that witness statements should have been taken by the Investigator from the persons identified by him in July 2020. It was contended that the Investigator’s decision to proceed with the investigation without conducting interviews prevented him from conducting a fair and thorough investigation.

It was maintained on behalf of the Respondent that the persons identified were in a position to give direct evidence, that that evidence was materially relevant to the investigation and that the evidence of those persons was critical to any proper assessment of the facts and essential to a fair and proper investigation. Arthur Cox referred to the correspondence exchanged with the Investigator between August and October 2020 in which this point was previously made to the Investigator and was not accepted by him. On the contrary, the Investigator wrote on 27 November 2020 informing them that the information gathering stage of the investigation had concluded.

The persons identified by the Respondent were not interviewed. Nor was the Respondent. Arthur Cox submitted that the Investigator appeared to be of the view that the contemporaneous information and the Central Bank’s interpretation of documentary evidence was sufficient to proceed with the investigation against the Respondent (and to draw adverse conclusions against him). Despite their requests, the Investigator did not seek to test his interpretation of the evidence or gather further relevant evidence, through witness interviews, thereby depriving the Respondent of the opportunity to test the evidence.

They maintained that the taking of evidence from the persons identified was critical to the investigation and to any proper assessment of the facts and of the submissions made by the Respondent. That was particularly important where the Respondent believed that the contemporaneous information had not been fully explored by the Investigator in the absence of witness evidence. While the decision to interview relevant persons and the responsibility to ensure the proper and fair conduct of the investigation was a matter for the Central Bank, Arthur Cox contended that the Investigator was bound by the basic principles of fair procedures and natural justice and had to act in accordance with the Respondent’s constitutional rights, but failed to do so.

144. Arthur Cox also took particular issue with the fact that the Investigator decided not to interview the Respondent in relation to the allegations. The s. 41 report appeared to imply that the Respondent had refused to take part in an interview. That was not accepted. Arthur Cox maintained that it was made clear to the Investigator that the Respondent was very willing to be interviewed as part of the investigation and that, notwithstanding his health concerns, he wished to cooperate fully with the investigation and to make himself available for interview. However, the Investigator concluded the information gathering stage without interviewing the Respondent.

145. It was further submitted that those deficiencies in the procedures adopted in the investigation were not capable of being remedied at that stage and that the invitation to make submissions in response to the s. 41 report did not afford the Respondent an adequate opportunity to challenge the evidence relied on in the report in any meaningful way, where the Respondent was deprived of the evidence of relevant witnesses. Reference was made to para. 4.4 of the 2011 Investigations Guidance (referred to above) where it was envisaged that submissions made in relation to the s. 41 report would be of a “legal nature only” as the subject of the investigation would “in most cases” have had the opportunity of addressing the relevant factual issues at an earlier stage of the investigation. Arthur Cox submitted, therefore, that submissions made in response to the s. 41 report could not meaningfully protect the Respondent’s rights in circumstances where the Investigator failed adequately to investigate and interrogate the evidence and instead relied on his own interpretation of the documents provided to him (principally those provided by Matheson in December 2019 in response to an evidentiary notice addressed to EF Fund ManCo).

146. With respect to the decision by the Investigator not to convene an oral hearing, Arthur Cox observed that the Central Bank was proposing to make findings in relation to contested factual issues without hearing relevant evidence. They submitted that an oral hearing was essential if the Central Bank intended to proceed as proposed by the Investigator. In responding to the Investigator’s conclusion (in the s. 41 report) that as a result of the detailed factual submissions made by the Respondent and the comprehensive contemporaneous evidence, there was no “gap” in the evidence or conflict of evidence such that any additional evidence including an oral hearing was not necessary, Arthur Cox submitted that that statement ignored the many issues raised on behalf of the Respondent in relation to “clear and incontrovertible evidence gaps in the Central Bank’s investigation”. They submitted that the failure to conduct an oral hearing in the circumstances represented a further violation of the Respondent’s right to fair procedures.

147. In summary, therefore, in terms of the procedures adopted during the course of the investigation, Arthur Cox relied on the failure to take evidence from the persons identified by the Respondent, the failure to afford the Respondent an opportunity to test that evidence and the failure to interview the Respondent himself, as well as the failure to conduct an oral hearing as together amounting to a violation of the Respondent’s right to fair procedures in the investigation.

148. Appendix 2 to the Arthur Cox letter of 28 May 2021 contained the detailed submissions by the Respondent in response to the matters addressed in the s. 41 report. That part of the submission was made without prejudice to the earlier submissions in relation to the vires of the Central Bank to conduct the investigation and the procedures which were followed in the course of the investigation. I do not propose to recite in detail the response of the Respondent set out in appendix 2 to that letter, save to note that there was a very detailed rebuttal by the Respondent of the adverse conclusions drawn in the s. 41 report.

The Respondent addressed the alleged obligation that he had to notify the board of EF Fund ManCo and the Central Bank of various matters relating to the investigation into GH and the potential impact on the Irish ARB sub-funds prior to 31 July 2018. The Respondent addressed his role on the confidential working group and the concerns expressed in relation to IJ Investments, and the call on 22 March 2018. He also addressed the relevance of legal advice and outlined the relevance of that advice in detail. The Respondent addressed his role as Designated Person in EF Fund ManCo and rejected the allegations in ground 1 of the s. 41 report in relation to his competence as such a Designated Person.

He addressed each of the instances referred to in the s. 41 report which were advanced by the Investigator as the basis for questioning his competence to perform that role. The Respondent also addressed and rejected the other two grounds relied on in the s. 41 report. He specifically rejected the contention that he was not candid and truthful and that he did not provide information which was full, fair and accurate in all respects to the Central Bank and that the information he provided was misleading. It was acknowledged that the Respondent did not discuss the confidential working group at the PRISM meeting with the Central Bank on 24 July 2018 and submitted that he did not believe that that was contrary to his regulatory obligations.

Further, he contended that it was not open to the Central Bank to infer that the Respondent was dishonest in his dealings with the Central Bank. He set out in more detail in appendix 2 the basis for that submission. He maintained that it was not reasonable to have expected him to have raised his upcoming meeting with the Central Bank with the confidential working group on 27 June 2018 since, at that stage, there were a range of different uncertainties (referred to at para. 9.7 of appendix 2). It was not clear, therefore, on what basis the Respondent’s forthcoming meeting with the Central Bank on 24 July 2018 should have been raised with the confidential working group.

By the date of the meeting with the Central Bank, a decision had not yet been made in relation to GH’s position. The internal EF International ManCo investigation was still ongoing. A draft report in that investigation was only issued the day after the meeting with the Central Bank. Prior to that meeting, the Respondent maintained that he had been informed by MN and understood that the most likely outcome of the investigation was that GH would be asked to retire at the end of the year. It was submitted, therefore, that if the Respondent had informed the Central Bank of his understanding of the position as of 24 July 2018, his account would have been potentially incomplete, inaccurate and misleading contrary to para. 2.3 and false or misleading contrary to para. 4.1(i) of the Standards.

The Respondent also vigorously disputed the contention that he was dishonest in his discussions with the Central Bank at the meeting. He maintained that his response to the questions was factually correct and honest. He further maintained that, given the seriousness of the allegations and the obvious impact they would have on the Respondent’s good name and reputation, it was of concern that the Central Bank had not provided further evidence against the Respondent and that it did not consider it appropriate to meet with him to interrogate those allegations.

11. The Decision-Making Process under Part 4 of the 2010 Act

149. The Investigator sent the s. 41 report and the submissions made on behalf of the Respondent in response to that report to the Central Bank on 23 July 2021 pursuant to s. 41(1) of the 2010 Act. The Investigator sought a decision from the Central Bank as to whether or not the Respondent was of such fitness and probity as was appropriate to perform the relevant controlled functions pursuant to s. 43 of the 2010 Act. The Investigator requested that, if a

decision was made that the Respondent was not of the requisite fitness and probity, a prohibition notice should be issued in accordance with that section.

150. A representative of the Regulatory Decisions Unit (the “RDU”) of the Central Bank wrote to Arthur Cox on 20 August 2021 informing them that the s. 41 report had been received and that Ms. Annemarie Britz, Head of the Financial Control Division, had been appointed by the Central Bank pursuant to s. 52(1) to perform the functions of the Central Bank under Chapter 4 of Part 3 of the 2010 Act. Ms. Britz was the Decision Maker who ultimately decided to issue the Prohibition Notice on behalf of the Central Bank. The letter stated that consideration of the s. 41 report would be undertaken in compliance with Chapter 4 of Part 3 and, in particular, s. 43 of the 2010 Act and in accordance with the 2012 Regulations and, in particular, Regulation 13 of those Regulations. The letter noted that the Decision-Maker had received and was “considering the section 41 report” as well as the Respondent’s submissions and the correspondence sent on his behalf following that report. It was noted that the Decision Maker had noted what Arthur Cox said in their letter of 25 June 2021 and in the submissions made in response to the s. 41 report concerning the Respondent’s “willingness to attend an interview before a final decision is taken by the Central Bank.” The letter contained an invitation by the Decision-Maker to the Respondent to “meet with her to address any aspects of the evidence or factual matters set out in the [s. 41 report] which he wishes to address”. It was proposed that the meeting be held remotely on 17 September 2021 and that the Respondent could be accompanied by his legal representatives.

151. Arthur Cox replied to the letter on 25 August 2021 reiterating the Respondent’s concerns at the manner in which the “now-concluded investigation process was conducted”. They noted that it was not clear how it was proposed that a meeting with the Decision-Maker could form part of the investigation process or what its relevance to the process could be. However, notwithstanding that, they stated that the Respondent was willing to attend the proposed meeting on 17 September 2021 and that he would be accompanied by a representative from Arthur Cox. The letter noted that the Respondent’s attendance at the meeting was strictly without prejudice to the submissions he had already made in relation to the vires of the Deputy Governor/Central Bank to carry out the investigation and that the allegations as to his fitness and probity were not borne out by the facts. It was made clear that the Respondent was reserving his rights in that respect.

152. The RDU replied on 31 August 2021. They stated that the Respondent would have the opportunity “to address any aspects of the evidence or factual matters set out in the [s. 41] report at that meeting, if he wishes to do so”. The letter reiterated that the investigation process under Chapter 3 of Part 3 had concluded and that the Decision-Maker had been appointed to perform the functions of the Central Bank under Chapter 4 of Part 3. Those functions included consideration of the s. 41 report under s. 43(3)(a)(i)(III), and that it was in that context that the

Decision-Maker had invited the Respondent to attend the remote meeting on 17 September 2021.

153. There was further correspondence between the RDU and Arthur Cox prior to the meeting. Arthur Cox took issue with the invitation issued by the Decision-Maker to representatives of the Enforcement Investigation Division (including the Investigator) to attend the meeting and reiterated the very serious concerns which the Respondent had in relation to the manner in which the investigation had been conducted. The RDU replied on 9 September 2021. In that letter, it was noted that the representatives of the EID were being invited to the meeting to answer any queries the Decision-Maker might have and that it was not envisaged that they would have any “active role” at the meeting. The purpose of the meeting on 17 September 2021 was described in the letter as being to allow the Respondent to address any issues arising from the s. 41 report “or any other matters that he believes are relevant to the decision of the Decision-Maker under Chapter 4 …”. It was pointed out that the meeting would not be concerned with the investigation process or the manner in which it had been conducted. It was stated that that process was a separate process under Chapter 3 of Part 3 and had been concluded and that the Decision-Maker had no role in relation to it. The letter provided a list of those who would be attending the meeting.

154. Arthur Cox replied on 13 September 2021 reiterating their concerns in relation to the attendance of the Investigator and representatives from the EID and again requested that the meeting would proceed without their attendance. In the event that they were to attend, it was stated that the Respondent would be reserving his position.

155. The RDU replied on 14 September 2021 confirming that the Decision-Maker was satisfied that it was appropriate that representatives from the EID would attend the meeting but that it was not envisaged that they would take an active part in the meeting, save for answering any questions which the Decision-Maker might have about the s. 41 report. In the event that they were asked questions and provided answers, the Respondent would be given a reasonable opportunity at the meeting to make any observations in relation to those answers. It was repeated that the meeting was part of the Chapter 4 process and would not be concerned with the “completed investigation or the manner in which it was conducted”.

12. The Meeting with the Decision-Maker on 17 September 2021

156. The Respondent attended the remote meeting with the Decision-Maker on 17 September 2021. He was accompanied by a solicitor from Arthur Cox. Apart from the Decision-Maker, three other representatives from the RDU attended, as did the Investigator and another person from the EID. At the outset of the meeting, Emma Dalton of the RDU set out the context of what she referred to variously as the “meeting” and the “hearing”. She referred to the investigation conducted by the Investigator, to the preparation of the s. 41 report and to the submissions made by the Respondent in response to that report. She noted that the investigation had been completed, and that the Decision-Maker had then been appointed by the Central Bank to perform its functions under Chapter 4 of Part 3 of the 2010 Act. She explained that the role of the Decision- Maker was to decide whether there were grounds for her to reasonably form the opinion that the Respondent was not of such fitness and probity as was appropriate to perform the relevant controlled functions and, if so, whether she was minded to issue a prohibition notice. Ms Dalton referred to the matters that the Decision-Maker was required to consider and referred to sections 43(3) and (4) of the 2010 Act. She then referred to the notification requirements under Regulation 13(1) of the 2012 Regulations in the event that the Decision-Maker was minded to issue a prohibition notice. Ms. Dalton stated that the Decision-Maker “has not reached any views yet, any conclusions or findings, whether provisional, preliminary or otherwise, on the matters she has been appointed to consider.”

157. Ms. Dalton stated that the purpose of the meeting was:

“To allow [the Respondent] to address any issues arising from the [s. 41] report, or any other matters that he believes are relevant to the decision of the Decision-Maker under Chapter 4, and any relevant issues and matters will be given due consideration in the context of the ongoing Chapter 4 process.”

158. It was emphasised that the “meeting” with the Decision-Maker did not form part of the investigation and that it was a “’separate process’ which [was] being conducted by the Decision- Maker, a person with no previous knowledge of, or information regarding the subject matter of the [s. 41] report.” It was stated that representatives from the EID were present at the meeting “solely to address any factual questions” that might arise from the s. 41 report.

159. The Decision-Maker then spoke and made a number of points. She said that she was taking the matter “very seriously”, that she was independent and objective and that she had not had any involvement in the investigation before her appointment as Decision-Maker. She stated that she had not reached any views or formed any conclusions on the matter she had been appointed to consider. She said that she was “looking at this with fresh eyes” and that she would carefully consider the “submissions or observations” made by and on behalf of the Respondent at the meeting. She then said: “I may have some questions for you, but if I don’t have any questions, please do not read anything into that.” She then invited the Respondent to make submissions and indicated that he could clarify or add to those submissions if he wished.

160. The Respondent’s solicitor, Mr Smith, then spoke. He said that he would not rehearse what was in the written submissions and correspondence. He pointed out that the allegations made against the Respondent were “of the utmost seriousness” and related “not just to his competence, but go to issues which are fundamental to his character: issues of honesty and integrity, as they allege, in particular, that [the Respondent] was neither candid nor truthful with the Central Bank.”

161. If a decision was made as recommended in the s. 41 report, Mr Smith said that it would have a: “hugely detrimental impact on [the Respondent] and would go far beyond the professional world; they would irreversibly damage [the Respondent’s] reputation and standing in the wider community”.

162. Mr. Smith said that the Respondent would outline his belief that the allegations and submissions in the s. 41 report were simply wrong, not based merely on differing interpretations of the facts, as had been suggested, but due to “clearly incomplete factual evidence and a fundamental misunderstanding of the events which occurred”. He submitted that given the seriousness of the investigation and of the allegations which had a very detrimental impact on the Respondent’s life, it was critical that the investigation be carried out fairly, completely and properly and that it gathered and interrogated all potentially relevant evidence, including through witness interviews. That was particularly so where the Investigator reached conclusions on matters which were highly subjective, such as in relation to the Respondent’s “apparent intent”. It was submitted that the investigation fell far short of complying with those basic requirements; relevant evidence was not gathered, not a single witness interview was conducted, either with the Respondent, as the subject of the investigation, or with any of the other “key people” who were centrally involved in the events the subject of the investigation and who were specifically identified by the Respondent to the Investigator. While the Respondent welcomed the opportunity to meet with the Decision-Maker, there were concerns about the meeting, how it fitted into the overall process and with regard to the appropriateness of the attendance by the Investigator and his team at the meeting.

163. Mr. Smith observed that as the investigation and evidence gathering process had concluded, the Respondent would not be going through the facts in a granular way but would be addressing “some fundamental points relating to the investigation and to the facts.” Mr. Smith concluded by querying how the Decision-Maker could, in all the circumstances, reasonably conclude that the Respondent was guilty of the very serious allegations made against him in the s. 41 report.

164. The Respondent himself then commenced his submission, which lasted 22 minutes. He started by giving some personal background and then spoke about his professional background. He then referred to the impact of the investigation on him professionally and personally, stating that he was left without a job and a source of income with an outstanding mortgage to pay. He explained that he could not apply for any roles in his professional area while he was the subject of the investigation. The investigation took a toll on his health with tests in July 2020 revealing a medical condition for which he was required to be prescribed medication with serious side effects. He also referred to the stress of the investigation for him and for his wife and family.

165. The Respondent then addressed some of the factual matters relevant to the investigation. He explained that he was very aware of his regulatory obligations and, as a member of the board of EF Fund ManCo, would receive summaries of regulatory updates from Dillon Eustace. He was aware of the need to notify the Central Bank if he became aware of any issue that could impact to a significant extent on the funds invested with EF Fund ManCo. He rejected the intention that he did not communicate issues concerning GH in time to the EF Fund ManCo board or to the Central Bank or that he was untruthful with the Central Bank at the meeting on

24 July 2018. He maintained that those allegations proceeded on the premise that an issue had arisen prior to the date of actual notification of the issues which was not correct. He explained why that was so. The confidential working group had no involvement in the investigation carried out into GH by an independent law firm. It was unclear until 31 July 2018 how that investigation might conclude and whether its conclusion would give rise to an issue which required notification to the Central Bank. He and other members of the working group were fully aware that if an issue was raised, the Central Bank and other regulators would have to be notified without delay. He maintained that the position generally and in particular in relation to possible redemptions was not clear until the end of July 2018. The board of EF Fund ManCo and the Central Bank were notified immediately when the outcome of the investigation was reached.

166. The Respondent then addressed the question of legal advice. He was aware that legal advice was being taken in relation to regulatory and reporting obligations and that that legal advice (from an Irish law firm) was that any notifications would have to be made after the outcome of the investigation into GH was known and if GH was to be suspended. He maintained that he did not need his own personal legal advice and that that would not have been usual or necessary, particularly where independent legal advice was already being provided, of which he was aware. He noted that Dillon Eustace had a very longstanding relationship with EF and a deep understanding of its business. The firm did not consider that EF Fund ManCo or the Respondent, as Designated Person, had any reporting obligation prior to the outcome of the investigation into GH. The Respondent maintained that the focus at all times was on protecting client funds and ensuring that they were not detrimentally impacted upon and that that was the ultimate outcome.

167. The Respondent explained that there were fundamental flaws in the Central Bank process from the start and he pointed out that he was never interviewed by the Central Bank’s supervision team or its investigations team. Nor were any of the persons he identified interviewed by the Central Bank. He noted that the s. 41 report presented him as a “liar” which was “an inaccurate representation of the truth”. The report gave the impression that he was unwilling to participate in an interview when that was not the case. He pointed to the medical issues which he was experiencing prior to the conclusion of the information gathering stage of the investigation and noted that the Investigator did not make contact with Arthur Cox to check on his condition or to suggest any alternative to a face to face meeting and without notice informed Arthur Cox that the evidence gathering phase of the investigation had concluded.

168. The Respondent pointed to several factual errors throughout the report, including those contained in the minutes of the PRISM meeting with the Central Bank on 24 July 2018, the claim that GH had been restricted in dealing in IJ Investments securities for an extended period from Autumn 2017 to March 2018 and the claim that in June and July 2018 the investment management of the five Irish ARB sub-funds had been conducted at least partially by an ad-hoc confidential working group. He pointed out that had any of the persons he identified been interviewed, the inaccuracies referred to could have been easily clarified. He also referred to the relevant matters contained in the s. 41 report and material that displayed a complete lack of understanding of certain standard risk and compliance tools used in the industry. He also referred to aspects of the s. 41 report which were incomplete and omitted relevant information and to other aspects which the Investigator had misunderstood (including circumstances relevant to the preparation of draft notification letters). He referred to relevant material being completely ignored (including aspects of a transcript of a call on 4 July 2018 which contained an important statement by KL which the Respondent said should have been considered and mentioned in the report, but was ignored. He then set out what he described as a “simplified timeline of the events as they unfolded” to assist the Decision-Maker’s understanding of the relevant sequence of events. He mentioned in that context a number of the persons who he felt ought to have been interviewed by the Investigator. He then addressed each of the three grounds of complaint in relation to his fitness and probity and pointed out where he maintained the findings in respect of those grounds in the s. 41 report were wrong, again mentioning a number of the persons who he had asked the Central Bank to interview. He rejected the allegations that he lacked competence to act as Designated Person, that he had failed properly to discharge his concurrent responsibilities and that he was not candid and truthful with the Central Bank. He maintained that his honest and reasonable actions had been “completely mischaracterised” and that the Investigator had “jumped to the most extreme and negative conclusions”.

169. In conclusion, he pointed out that the Investigator had misinterpreted the facts, partly due to the fact that he did not have all of the relevant facts. He referred to the terrible experience which he had had both professionally and personally with an investigation which was unfair and completely unwarranted. He expressed the hope that the Decision-Maker would “do the right thing and put an end to this process swiftly and fairly”.

170. Having heard those submissions by Mr. Smith and by the Respondent, the Decision-Maker said that she had no questions to ask and then brought the meeting to an end.

171. While the Decision-Maker had said at the outset of the meeting that she might have some questions for the Respondent but that if she did not, he was not to read anything into it, it is surprising to say the least that a person who was apparently approaching the case with “fresh eyes” would not find it necessary or appropriate to ask some questions of the Respondent. I address in more detail later in this judgment the consequences of this meeting on the 17 September 2021 for the Respondent’s fair procedures arguments.

13. The Regulation 13 Notice

172. Following the meeting on 17 September 2021, the Decision-Maker sent a notice under Regulation 13(1) of the 2012 Regulations dated 22 October 2021 to the Respondent informing him that she was “minded” to issue a prohibition notice prohibiting him from performing any controlled function in relation to a regulated financial service provider for one year under s. 43 of the 2010 Act (the “Regulation 13 notice”).

173. Having set out the overall background, the background to the investigation, the relevant provisions of s. 43(3) and the relevant Standards contained in the Code (as well as the 2018 Guidance on those standards), the Decision-Maker addressed some preliminary considerations.

The first concerned the Respondent’s contention that the investigation was ultra vires the Central Bank under the 2010 Act as a result of the fact that the Respondent had resigned from his roles in EF Fund ManCo in February 2020. The Decision-Maker rejected that contention and was satisfied that nothing in Part 3 of the 2010 Act required that the subject of an investigation had to continue to perform a controlled function throughout an investigation up to the point of its

conclusion or throughout the process subsequent to its conclusion.

174. She then considered the alleged unfairness in (a) the commencement of the investigation and (b) the conduct of the investigation. The Decision-Maker rejected both allegations.

175. With respect to the Respondent’s contention that other witnesses ought to have been interviewed, and their evidence obtained, the Decision-Maker stated (at para. 4.5): “Having considered the investigation report and the submissions and having met with [the Respondent] and having heard from him in person in relation to the grounds, I am satisfied that it was not necessary to hear from the other witnesses identified by [the Respondent] and that the hearing [the Respondent] has been given was sufficient to do justice on the basis of all of the facts and evidence gathered…”

176. The Decision-Maker then addressed the contention that an oral hearing ought to have been conducted during the investigation stage. She stated (at para. 4.6) that in light of the submissions that such an oral hearing ought to have taken place, she decided to offer the Respondent an opportunity to meet with her on 17 September 2021. She stated that she had carefully considered all of the matters raised by the Respondent and his solicitor at that meeting. It appears (from paras. 4.5 and 4.6) that the Decision-Maker was satisfied that it was not necessary for the Central Bank to obtain evidence from any of the persons identified by the Respondent or to conduct an oral hearing on the basis that the “hearing” the Respondent was given (during the investigation and at the meeting on 17 September 2021) was sufficient and nothing more was necessary to do justice.

177. The Decision-Maker confirmed that she was satisfied that the statutory requirements contained in s. 43(3)(a)(i)(I) to (III) were complied with. She then stated (in s. 6) that having carefully considered “all aspects of [the] matter”, she had formed the “initial opinion” that the Respondent was not of such fitness and probity as was appropriate to carry out any controlled function in accordance with s. 43(1) of the 2010 Act for the reasons she set out in the Regulation

13 notice in respect of each of the three grounds.

178. With respect to ground 1, the Decision-Maker focused on the call on 22 March 2018, the email received by the Respondent on 27 June 2018 (erroneously referred to in para. 6.10 as 2008) from ST (the Group In-House Counsel) and on the subsequent failure by the Respondent to report matters to the Board of EF Fund ManCo. She referred to some of the Respondent’s submissions on that issue but was of the “initial view” that they did not adequately address the issue. She accepted that the Respondent raised the issue about informing the board but observed, on the basis of the Respondent’s own “evidence”, that when he was told that there was not enough information at the time, he simply accepted that without further challenge. She noted that it would reasonably be expected that a “senior executive with extensive experience would be able to challenge constructively the views of others, make his views heard and ensure that the board was properly informed thereby fulfilling his regulatory obligation without delay”. She said that “instead, [the Respondent] went on leave knowing that there was a significant issue that the board had not been made aware of”. (para. 6.14).

179. The Decision-Maker then addressed (with respect to ground 1) the Respondent’s submission that the Central Bank did not conduct sufficient interviews with persons he had identified as having relevant information. She expressed her “initial view” on the basis of all of the information available including the “evidence” given to her by the Respondent in his submissions and at the meeting on 17 September 2021, “that further information or evidence could not have altered [her] reasoning as set out above”. She stated that that was because “having heard from [the Respondent] and accepting his evidence”, she continued to be of the view that in respect of the three areas relevant to ground 1, the Respondent did not perform his role as Designated Person to the expected standard. Referring to the relevant Standards, she noted that she had formed the “initial opinion” that the Respondent had not competently discharged the role of Designated Person and had not demonstrated the capability appropriate to that relevant controlled function or any controlled function.

180. The Decision-Maker then considered ground 2. She was of the “initial view” that by joining the confidential working group on 27 June 2018, the Respondent created a significant conflict of interest with regard to his regulatory and fiduciary responsibilities to EF Fund ManCo. She noted that the “key issue” was that the confidential working group was not subject to regulatory scrutiny in Ireland and that it was not the role of that group to decide whether or not a meeting of the board was required. It was her “initial view” that the Respondent should not have agreed to join that group. She was also of the “initial view” that during the calls of 28 June and 9 July 2018, the Respondent allowed himself to be overruled or dissuaded from informing the Board of EF Fund ManCo of the relevant issues. She referred to some of the submissions made by the Respondent on that issue and expressed the further “initial view” that, notwithstanding those submissions, the Respondent prioritised the requirements of the confidential working group over his responsibilities in his various controlled function roles.

181. With regard to the Respondent’s complaint that the Central Bank had not carried out interviews with the persons identified by him relevant to this ground, the Decision-Maker expressed her “initial view” that having considered all of the information available to her including the “evidence” given to her by the Respondent in his submissions and at the meeting on 17 September 2021, that “further information or evidence could not have altered [her] reasoning as set out above” with respect to this ground. She explained that that was because, having “heard from [the Respondent]”, she was of the initial view and opinion that he did allow the conduct of concurrent responsibilities to impair his ability to discharge his various controlled function roles and stated that that was her “initial opinion”.

182. The Decision-Maker then addressed and provided her “initial opinion” in relation to ground 3. She was of the “initial view” that in failing to disclose the risk of significant redemptions from the five Irish ARB sub-funds at the PRISM meeting with the Central Bank Supervisors on 24 July 2018, the Respondent did not fulfil his obligations as a person performing controlled functions. She was “not minded” to agree with the Respondent’s submissions on that issue and believed that the matter was sufficiently serious as to warrant the Respondent’s disclosure of the information he had notwithstanding the ongoing investigation into GH. She was also of the “initial view” that the Respondent, in seeking to rely on legal advice received, attempted to evade his responsibilities as a person performing a controlled function. With respect to the Respondent’s contention that the Central Bank ought to have interviewed the persons identified by him as having relevant information, the Decision-Maker again stated that it was her “initial view” having considered all the information available to her, including the “evidence” given to her by the Respondent in his submissions and at the meeting on 17 September 2021, that further information or evidence “could not have altered [her] reasoning” with respect to ground

3. That was because, having “heard from [the Respondent]” she was of the view that he did not fulfil his obligation to be “open and transparent” with the Central Bank, and she did not believe that the evidence of any other person could alter that position. On that basis, therefore, she formed the “initial opinion” that the Respondent was not “candid and truthful and was not full, fair and accurate in all respects in his dealings with the Central Bank”. She further stated that “given his extensive experience and an impeccable record, it [was] very hard for [her] to understand how [the Respondent] could think that he was indeed candid and truthful with the Central Bank at the meeting on 24 July 2018”. As a result, she was of the “initial view” that the Respondent breached the Standards and, in particular, the requirement in para. 2.3 of the Standards.

183. The Decision-Maker then considered the necessity for a prohibition notice to be issued in respect of the Respondent (s. 7 of the Regulation 13 notice). She set out her “initial opinion” that it was necessary to issue such a notice and confirmed that in coming to that “initial view”, she had regard to the requirements in s. 43(4) of the 2010 Act and that she had given “particular consideration to the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of the system and to the need to protect users of financial services” (para. 7.1). Her “initial view” was that a Prohibition Notice was “clearly warranted” in the circumstances of the case and that the Respondent’s behaviour “fell well short of what would reasonably be expected of a person of his seniority and experience”. She provided further reasons to support that initial view (at para. 7.3).

184. She considered that the Respondent had not demonstrated an appreciation of the gravity of the matters under investigation. While she took into account that neither the investors nor EF Fund ManCo had suffered any financial harm or loss, the investors were deprived temporarily of access to their funds. The Decision-Maker’s “initial view” was that a prohibition notice was necessary to protect users of financial services, to prevent “potential serious damage to the State’s financial system and to ensure the continued stability of the system” and that the Respondent’s failure to notify the Central Bank of the “serious potential problem” faced by EF Fund ManCo could have “negatively impacted the Central Bank’s role in ensuring the stability of the financial system” (para. 7.5). She was further “minded to find” that a failure to demonstrate a consequence for the Respondent’s behaviour would “undermine confidence in the financial services industry as a whole, would amount to a failure to protect users of financial services and would constitute a failure to prevent serious damage to the financial system…” (para. 7.6). In so stating, the Decision-Maker was clearly stressing how exceptionally serious she regarded the Respondent’s conduct to support her initial view and opinion that a prohibition notice should be issued in relation to the Respondent.

185. The Decision-Maker then considered a number of other relevant factors including the alleged lack of regret shown by the Respondent, his reliance on legal advice without question or query, his previous unblemished 30-year record in the financial services industry and his personal circumstances. In that regard, she accepted the Respondent’s submission that he had not been able to seek alternative employment due to the ongoing investigation and that it had had an adverse effect on the physical and mental health of the Respondent and his wife. She accepted that it was clear that the investigation had a significant effect on his personal life.

186. The Decision-Maker then considered s. 43(12)(a) of the 2010 Act and set out her “initial view” that the Prohibition Notice should apply to all controlled functions in every regulated financial service provider for one year and she referred to the various factors which she took into account in that regard. While noting that the breaches of the Standards in the case were “serious”, she took into account and noted the impact of the investigation both professionally and personally on the Respondent in concluding that the appropriate prohibition period should be one year rather than a two-year period which she had initially considered. The Respondent was requested to provide any submissions in response to the Regulation 13 notice and the proposed Prohibition Notice by 4 January 2022.

14. Respondent’s Submissions in response to the Regulation 13 Notice

187. The Respondent provided his submissions in response to the notice on 23 December 2021. In those submissions, the Respondent first addressed the lawfulness of the investigation including his contention that the investigation was ultra vires the powers of the Central Bank under the 2010 Act and that there was unfairness in both the commencement and conduct of the investigation. He then addressed each of the three grounds referred to in the Regulation 13 Notice.

188. On the ultra vires point, he referred to the previous submissions made to the effect that the Central Bank was not entitled to proceed with the investigation as the Respondent was no longer performing a controlled function.

189. The Respondent then addressed his contention that the commencement and conduct of the investigation was unfair in a number of different respects. He referred to the submissions previously made on these issues and made the point that the Regulation 13 notice had not engaged with the points made in those submissions. He made the point that, notwithstanding that the Investigator requested him to identify relevant witnesses, and he did, the Central Bank refused to obtain evidence from those witnesses which could have challenged the subjective view adopted by the Investigator/Central Bank of the relevant circumstances and its approach to the interpretation of the key documents relied on by the Central Bank. He also made the point that the s. 41 report made allegations against the Respondent which were not previously set out in the statement of grounds. He stressed that while the 2010 Act conferred a discretion on the Deputy Governor/Investigator to conduct interviews, that was a discretion which had to be exercised in accordance with fair procedures and he contended that the discretion had not been so exercised in this case. He criticised the test applied by the Investigator in refusing to gather additional evidence (which appeared to be the test of relevance and necessity). He made the point that the approach taken by the Central Bank was based on its interpretation of contemporaneous documents and that the Respondent did not accept that that interpretation and the conclusions drawn from it were correct. He contended that the interpretation of events was key to the investigation and that the contemporaneous material was not and could not have been understood by the Central Bank without the important witnesses he had identified. He contended that he was deprived of any meaningful opportunity to challenge the Central Bank’s interpretation of that material. Insofar as it was suggested by the Investigator that he could provide submissions from those persons, he contended that that ignored the fact that the Central Bank had significant powers under the 2010 Act to obtain such evidence whereas he had no such powers and, therefore, no meaningful opportunity of gathering evidence to meet the case against him.

190. The Respondent also criticised the failure to conduct an oral hearing in circumstances where there was a conflict of fact arising from differing interpretations of the documentary material. He required an oral hearing to vindicate his right to fair procedures including a meaningful opportunity of challenging the Central Bank’s interpretation of the documentation. He criticised the assertion in the s. 41 report that there was no “gap” in the evidence. He submitted that the failure to conduct an oral hearing during the investigation compounded the unfairness of the process as a whole. He also criticised the failure by the Investigator to interview the Respondent prior to concluding the information gathering stage of the process and finalising the s. 41 report. He criticised the manner in which the meeting with the Decision-Maker on 17 September 2021 was conducted and drew attention to the fact that the Decision-Maker made the point on several occasions that she had no role in addressing any unfairness in the procedure leading up to the s. 41 report and that that issue would not be addressed at the meeting. There was, therefore, no opportunity for an independent party to ensure that the procedures were fair or even to consider submissions on that issue. He contended that it was remarkable that the

Decision-Maker did not address a single question to him at the meeting. He criticised the approach taken by the Decision-Maker in her conclusion that any further information or evidence from other persons could not have altered her initial views. He pointed out that the Decision- Maker had never put that to him or alerted him to the fact that she was in effect adopting the views expressed in the s. 41 report. The Respondent queried how the Decision-Maker could definitively state that no other evidence from persons directly involved in the matters under investigation could have altered her reasoning without explaining why that was so. In relation to those areas where the Decision-Maker did not accept the Respondent’s submissions or evidence, it was submitted that the Decision-Maker ought to have put those matters to him at the meeting and that the absence of any questions from the Decision-Maker gave the impression that the interview with the Respondent was “nothing more than a perfunctory box ticking exercise” (para.

58 of the Respondent’s submissions).

191. With particular reference to ground 3 concerning the alleged lack of openness and transparency on the part of the Respondent with the Central Bank, the Respondent submitted that the Decision-Maker rejected his submission without putting any question to him or alerting him to the fact that she apparently disbelieved him (in concluding, on an initial basis, that the Respondent was not open and transparent with the Central Bank and that the evidence of any other person could not alter that position). The Decision-Maker had not even put that allegation to the Respondent at the meeting. The Respondent queried the point of the meeting at all, in circumstances where the Decision-Maker did not put any question to the Respondent when she had the opportunity to do so.

192. Without prejudice to those submissions in relation to the procedures, the Respondent then dealt with the substance of what the Decision-Maker said in respect of each of the three grounds in the Regulation 13 notice. In doing so, he repeatedly pointed to the failure by the Investigator to gather evidence from the persons he had identified and criticised the Decision-Maker for not putting matters to him at the meeting on 17 September 2021 before she completed the Regulation

13 notice. He also criticised the Decision-Maker for introducing a new allegation in that Notice (at para. 6.33) which had not previously been made.

15. The Prohibition Notice

193. The Decision-Maker decided to issue the Prohibition Notice in relation to the Respondent on 2 February 2022. On that date, she informed the Respondent of her decision and that the Prohibition Notice prohibiting him from performing any controlled function in relation to every financial service provider for a period of one year under s. 43 of the 2010 Act. The Prohibition Notice took a similar format to the Regulation 13 notice, save that in that notice the Decision- Maker set out her “initial view” or opinion and recorded that she was “minded to” issue a Prohibition Notice.

194. The Decision-Maker commenced by setting out again the background to the matter, primarily by reference to the s. 41 Report (s. 1 of the Prohibition Notice). She explained why she decided to meet the Respondent on 17 September 2021. She did so, she said, having regard to the matters set out in the Arthur Cox letter of 25 June 2021 and in the Respondent’s submissions dated 28 May 2021. She invited the Respondent to meet with her “to address any aspects of the evidence or factual matters set out in the Investigation Report which he wished to address” before a final decision was taken by the Central Bank (para. 1.7). She noted that she had had the opportunity of “meeting” the Respondent and “hearing further submissions from him and [his] solicitors” on 17 September 2021 (Para. 1.11). She stressed that “no decision or final view” was made or formed by her prior to the issue of the Prohibition Notice (para. 1.13).

195. The Decision-Maker then set out in further detail the background to the investigation in s.

2. This was in very similar terms to the equivalent section in the Regulation 13 notice. In s. 3, she considered certain “key statutory requirements”, again in very similar terms to the equivalent section in the Regulation 13 notice. Reference was made, in particular, to ss. 43(1), (2), (3), (4) and (12) of the 2010 Act, to paras. 2.2, 2.3, 3.2(c), (d), (e), (f) and 4.1(i) of the Standards and to the 2018 Guidance.

196. The Decision-Maker then addressed again in s. 4 the preliminary considerations which she had previously addressed in the Regulation 13 notice.

197. She first dealt with the Respondent’s contention that the investigation was ultra vires the powers of the Central Bank under the 2010 Act (paras. 4.2 – 4.3). She rejected the contention that the investigation was ultra vires on the grounds that the Respondent had resigned from EF Fund ManCo in February 2020 and was no longer performing any controlled functions. She further rejected the contention that the decision-making process was “based entirely on the investigation”, pointing out that she had to be satisfied under s. 43(3)(c) that the issue of a prohibition notice was necessary in the circumstances.

198. The Decision-Maker then addressed the allegations in relation to the unfairness in the commencement of the investigation (paras. 4.4 – 4.5). Her treatment of that issue was similar to that contained in the equivalent paragraphs of the Regulation 13 notice, save that she specifically addressed a further submission made on behalf of the Respondent in his submissions of 23 December 2021. She confirmed that the treatment of the submissions made by the Respondent in the investigation was not a ground relied on by her in issuing the Prohibition Notice. She concluded that the Respondent had had “all appropriate and necessary opportunities to make submissions and be heard so as to do justice in the circumstances” in advance of the issuing of the Prohibition Notice (para. 4.5).

199. The Decision-Maker then addressed the alleged unfairness in the conduct of the investigation (at paras. 4.6 – 4.9). She did so in very similar terms to the manner in which those submissions were addressed in the equivalent provisions of the Regulation 13 notice. She rejected the contention that witness statements ought to have been taken from other persons or that they should have been asked to attend interviews and that the failure to do so meant that the investigation was not fair and thorough. She considered that submission in the context of her consideration under s. 43(3)(b) as to whether the Respondent had “been afforded such a hearing in relation to the proposed issue of the prohibition notice as [was] necessary to do justice in the circumstances.” She concluded that having considered the s. 41 Report and the submissions and having met with the Respondent and having heard from him in person, it was not necessary to hear from the other witnesses identified by the Respondent and that the “hearing” the Respondent was given was “sufficient to do justice on the basis of all of the facts and evidence gathered” (para. 4.7).

200. The Decision-Maker then considered the Respondent’s submission that the Central Bank did not make any request to interview the Respondent until after the s. 41 report was finalised. She rejected that submission and referred to the correspondence exchanged between May and August 2020. She was satisfied that the Investigator did afford an opportunity to the Respondent to attend for interview prior to the completion of the s. 41 report. However, I observe here that the Investigator did not go back to the Respondent or his solicitors by way of follow-up to enquire whether the Respondent was in a position to attend an interview, prior to concluding the information gathering stage of the investigation on 27 November 2020. I can find no explanation for that failure anywhere in the evidence before me.

201. The Decision-Maker then considered a submission which was advanced by the Respondent to the effect that the Decision-Maker appeared to be of the view that the Respondent could have gathered “submissions” from the witnesses he had identified. She clarified that that was not a view stated by her. Rather, the Investigator had informed the Respondent’s solicitors that he had no difficulty if the Respondent wished to ask the persons identified by him to make “submissions” in support of the Respondent’s submissions. The Decision-Maker did not address the substance of that point but stated that the investigation process under Chapter 3 of Part 3 of the 2010 Act had concluded by that stage and that her role was to perform the functions of the Central Bank under Chapter 4 of Part 3 (para. 4.9).

202. The Decision-Maker then considered the Respondent’s submissions in relation to the need for an oral hearing (paras. 4.10 – 4.13). She stated that, in light of the Respondent’s submissions that an oral hearing ought to have been conducted during the investigation stage, she decided to offer the Respondent an opportunity to meet with him on 17 September 2021 and that she considered all of the matters raised by the Respondent and his solicitor at that meeting. The

Decision-Maker appeared, therefore, to regard her meeting with the Respondent on 17 September 2021 as equivalent to or some form of substitute for an oral hearing at the investigation stage of the process.

203. The Decision-Maker then addressed the Respondent’s complaint that she did not ask him any questions during the meeting in relation to matters that she subsequently relied on in forming her initial views which were set out in the Regulation 13 notice. She pointed out that she made clear in her opening remarks at the meeting on 17 September 2021 that if she did not ask him any questions, he was not to “read anything into that”. The Decision-Maker expressed herself to be satisfied that there was nothing unfair about the fact that she did not question the Respondent during the meeting, that he was fully aware of the issues and the evidence set out in the s. 41 report on which he had previously made submissions, that he was provided with a “further opportunity” to address all of those matters at the meeting and that she had fully considered them in reaching her decision (para. 4.13).

204. In section 5, the Decision-Maker set out her opinion under s. 43(3)(a). She confirmed that she was satisfied as to each of the matters set out in s. 43(3)(a)(i)(I) to (III) (at para. 5.1). At para. 5.2, she expressed her view that s. 43(3)(b) had been satisfied as she considered that the Respondent had been afforded “such a hearing in relation to the proposed issue of [the] Prohibition Notice as [was] necessary to do justice in the circumstances”.

205. The Decision-Maker then set out her reasons for deciding to issue the Prohibition Notice in section 6. As she did in the Regulation 13 notice, she considered each of the three grounds separately.

206. The Decision-Maker addressed ground 1 (the Respondent’s competence as a Designated Person) in paras. 6.2 to 6.19. She referred to the various controlled function roles held by the Respondent in EF Fund ManCo until February 2020 and made the point that the Respondent was responsible for ensuring that he had the necessary competence and skills to carry out those roles in accordance with the Standards. She then addressed the issues arising under this ground by reference to the same overall headings as she adopted in the Regulation 13 notice, namely, the call in which the Respondent participated on 22 March 2018, the email which he received from ST on 27 June 2018 (and I note that the same typographical error was contained in the Prohibition Notice as in the Regulation 13 notice in respect of that email) and the subsequent failure by the Respondent to report matters to the board of EF Fund ManCo.

207. With respect to the call on 22 March 2018, she expressed concern that the Respondent did not question the arrangement under which GH was subject to restrictions in dealing in IJ Investments securities. She was satisfied that the Respondent did not enquire sufficiently or at all about the matter which was “clearly serious”. She noted that the Respondent did not inform the board of EF Fund ManCo of those restrictions. While noting that the investors in the relevant fund did not ultimately suffer any losses, she believed it was significant that they were temporarily denied access to their funds. She concluded that this was a “serious matter which required a much greater level of supervision” on the part of the Respondent and that the fact that restrictions were in place was something which ought to have been interrogated by the Respondent. She was of the view that the Respondent fell short of the requirement in the Standards to be competent and capable in his role as Designated Person for Investment Management at EF Fund ManCo by accepting the information without question and without fully interrogating it. She concluded that he fell short of the requirement in the Standards to be competent and capable in failing to elicit further information in relation to the restrictions and in subsequently failing to report IJ Investments’s liquidity issues to the board.

208. The Decision-Maker then considered the email of 27 June 2018 and the Respondent’s agreement to the restrictions contained in that email without any query or challenge. She was satisfied that it was incumbent on the Respondent to challenge the imposition of confidentiality requested in that email, but that he did not do so. In addressing a submission made by Arthur Cox on behalf of the Respondent, that the Respondent’s interpretation of the request to keep matters confidential did not extend to matters which he would be required by law to disclose, the

Decision-Maker stated that it was “hard to understand how [the Respondent] held this interpretation” (para. 6.11). She then stated that if the Respondent believed that the requirement did not extend to such matters, she would have expected that to have been stated in his reply, but he did not do so. The inescapable implication from the terminology used here by the Decision- Maker – “hard to understand” and “if” the Respondent believed what he said – is that the

Decision-Maker did not accept the truth of what was asserted on behalf of the Respondent. The

Decision-Maker was satisfied that in failing to challenge the request for confidentiality or to seek further information, the Respondent fell short of the Central Bank’s expected standard of competence for a person holding the role of Designated Person.

209. The Decision-Maker then concluded that the Respondent’s failure to query or challenge information he was provided with, in particular, the views of KL and MN during the calls on 28 June 2018 and 9 July 2018, that the confidential information should not be disclosed and his failure to challenge those requests not to report the issues to the board at the time constituted a failure by him to demonstrate the competence and skills appropriate to his role (para. 6.12). She then addressed the Respondent’s explanation at the meeting on 17 September 2021 as to why the Board was not notified at the time and found that his response did not adequately address the issue. She was satisfied that the restrictions on GH’s entitlement to deal in IJ Investments Securities was a significant matter with potentially serious implications for investors and that given the worst-case scenario referred to by KL on 27 June 2018, the Respondent ought to have ensured that the board was formally notified without delay.

210. With respect to the complaint that persons who the Respondent identified were not interviewed, the Decision-Maker stated that given the information she had and the submissions made to her, further information or evidence “would not have altered [her] reasoning” and that that was because “having heard from [the Respondent]”, she was satisfied that he had “not identified a gap in evidence or conflict of evidence such as would require hearing from additional witnesses” (para. 6.15). The Decision-Maker stated that in reaching her decision in respect of this ground, she had particular regard to contemporaneous evidence, and she agreed with the Investigator that it was the interpretation of that evidence rather than the evidence itself that the Respondent appeared to dispute. The Decision-Maker was satisfied that there were no conflicts of fact in respect of the contemporaneous evidence on which she relied in reaching her conclusions and, therefore, it was not necessary to obtain evidence from additional witnesses (para. 6.17).

211. She summarised her conclusions in respect of this ground at para. 6.19 and concluded that for the reasons summarised in that paragraph, the Respondent had not competently discharged the role of Designated Person for Investment Management within EF Fund ManCo and had not demonstrated the capability appropriate to the relevant controlled function roles he held. She concluded that he did not properly inform himself in relation to the restrictions imposed on GH. Nor did he report that matter to the board of EF Fund ManCo when he became aware of it in March 2018. She was satisfied that the matters were serious and that the Respondent ought to have challenged, questioned and interrogated what he had been told rather than simply accepted it. She concluded that the Respondent’s acceptance of the opinions of KL and MN in the calls of

28 June and 9 July 2018 that the information he was informed of was confidential and could not be divulged notwithstanding the regulatory obligations together with the subsequent delay in reporting matters to the board, demonstrated that the Respondent did not have the competence and proficiency to carry out any controlled function.

212. The Decision-Maker dealt with ground 2 (the Respondent’s conduct of concurrent responsibilities) at paras. 6.20 to 6.31. She adopted a similar approach to the approach taken in respect of this ground in the Regulation 13 notice. She was satisfied that by joining the confidential working group on 27 June 2018, the Respondent was prevented from effectively carrying out his regulatory and fiduciary responsibilities to EF Fund ManCo. She rejected the Respondent’s submissions to the contrary and concluded that they did not address the “key issue” that the confidential working group was not subject to regulatory scrutiny in Ireland and yet was making decisions in respect of Irish-regulated funds. She was satisfied that the Respondent should not have agreed to join that group as doing so conflicted with his regulatory responsibilities to the firm. She was also “seriously concerned” that the Respondent did not ensure that the EF Fund ManCo board was informed of the issues discussed with KL and MN on

27 June 2018. She concluded that the Respondent allowed himself to be overruled or dissuaded from informing the board of those issues. She was satisfied that the Respondent did not ensure that the board was formally notified of the issues in a timely manner.

213. She noted but rejected the Respondent’s submissions in relation to this ground. In particular, she rejected his submission that notification to the board would, in advance of the

decision in relation to GH on 30 July 2018, have been speculative. With respect to the letter from EF Fund ManCo to EF International ManCo dated 7 December 2018, of which the Respondent was one of the signatories, but which he said did not reflect his opinion, the Decision-Maker concluded that the Respondent had prioritised the requirements of the confidential working group over his responsibilities in his various controlled function roles. She found that he “willingly signed a document that he did not agree with and that, according to him, contained inaccurate information.”

214. Similar to her views in relation to ground 1, the Decision-Maker concluded that given all the information available to her including the submissions on behalf of the Respondent, further information or evidence would “not have altered [her] reasoning” in respect of this ground. That was because, having heard from the Respondent, she was satisfied that he had not identified a gap in evidence or a conflict of evidence which would have required hearing from additional witnesses. She again agreed with the Investigator that the Respondent appeared to be disputing the interpretation of the evidence rather than the evidence itself and that, as a consequence, there were no conflicts of fact in relation to the contemporaneous evidence she was relying on and that additional witness evidence was therefore not necessary. She concluded, therefore, that the Respondent allowed the conduct of concurrent responsibilities to impair his ability to discharge his duties as the holder of the various controlled functions involved.

215. The Decision-Maker then dealt with ground 3 (the Respondent’s openness and transparency with the Central Bank) at paras. 6.32 to 6.41. She again adopted a very similar approach to her consideration of this ground as she did in the Regulation 13 notice. She noted that the Respondent did not disclose the risk of significant redemptions in the five Irish ARB sub-funds or the existence of the confidential working group at the PRISM meeting with the Central Bank Supervisors on 24 July 2018. She rejected the submission that it would have been unreasonable and unworkable if those matters had to be disclosed at that meeting. She observed that the queries raised by the Central Bank representatives at the meeting were sufficiently broad as to provide the Respondent with the opportunity of bringing those types of issues to the attention of the Central Bank in accordance with his obligation to provide “truthful, candid and accurate information” as a person performing pre-approval-controlled functions. She was of the view, having considered the s. 41 report and the written and oral submissions of the Respondent, that in failing to disclose the risk of significant redemptions from the five sub-funds at issue, the Respondent did not fulfil his obligation as a person performing controlled functions.

216. The Decision-Maker referred to para. 2.3 of the Standards and commented that that provision was necessary to enable the Central Bank “to fulfil its critical gate keeping function as part of its role in protecting both consumers and the financial system” (para. 6.34). She observed that a person performing controlled functions always had to understand and comply with the “unambiguous requirement to provide truthful, candid and accurate information to the Central Bank” (para. 6.34). She rejected the submission made by the Respondent that the provision of such information would not have been appropriate on the basis that it would have been incomplete, inaccurate and misleading. She was satisfied that the information was sufficiently serious to warrant his disclosure of it, notwithstanding that there was an ongoing internal investigation into GH. She did not accept that the disclosure of the existence of the confidential working group or the possibility of significant redemptions from the sub-funds at issue would have been contrary to the Standards. On the contrary, she concluded that the Respondent was obliged under the Standards to disclose that information to the Central Bank.

217. The Decision-Maker considered that the Respondent’s instruction on 4 July 2018 (referred to in the Prohibition Notice as 5 July 2018) to prepare a draft notification to the Central Bank in the event of a suspension of the sub-funds at issue demonstrated that he was aware of the seriousness of the situation. She concluded that the fact that the Respondent had draft reports to the Central Bank prepared since early July 2018 “strongly suggest[ed]” to her that the Respondent understood that the matter should be reported to the Central Bank but nonetheless delayed doing so. She found the Respondent’s evidence that the draft letter was merely part of contingency planning “unconvincing” and that in any event the Respondent could have sought guidance from the Central Bank at the meeting (para. 6.37). I again observe that the language used here by the Decision-Maker (“strongly suggests” and her finding that the Respondent was “unconvincing”) gives the clear impression that the Decision-Maker did not believe the Respondent and was rejecting his version of events, thereby making it clear that the Respondent’s credibility was very much at issue in the process leading to the decision.

218. The Decision-Maker then turned to consider the reliance by the Respondent in his written submissions and that the meeting on 17 September 2021 on legal advice to justify his failure to notify those matters to the Central Bank. She found that reliance to be “concerning”. She noted that under para. 3.2(e) of the Standards, the holder of a controlled function role had to have a “clear and comprehensive understanding of the regulatory and legal environment” appropriate to the particular function. The Respondent, as such a person, was personally responsible for ensuring that that requirement was met and could not rely on others to discharge his responsibilities. She accepted that he was entitled to “ask for support and opinions, including legal advice” and could have regard to legal advice given to EF but could not rely on such advice to excuse his failure to comply with his regulatory obligations. She criticised the Respondent for not questioning or querying the advice by EF’s legal advisors and was satisfied that his reliance on legal advice did not excuse his failure to notify the Central Bank of these matters. I would observe here that the Decision-Maker set the bar very high indeed by, in effect, requiring a person such as the Respondent to challenge legal advice received, to which the Decision-Maker accepted he was entitled to have regard.

219. The Decision-Maker again rejected the Respondent’s criticisms that the Central Bank did not interview the persons identified by him. She found that further information or evidence could not have altered her reasoning on this ground either. She explained again that that was because, having heard from the Respondent, she was satisfied that he had not identified any “gap” in the evidence or any conflict of interest such as would require hearing from other witnesses. In finding that the Respondent was not open and transparent with the Central Bank, she had particular regard to contemporaneous evidence including the minutes of the meeting on 24 July 2018 and the draft notification prepared by the Respondent in early July 2018. She agreed with the Investigator that it was the interpretation of that evidence rather than the evidence itself that the Respondent was disputing, and noted that the minutes to which she was referring were the minutes prepared by EF Fund ManCo rather than by the Central Bank. She concluded that there were no conflicts of fact in respect of the contemporaneous evidence on which she was relying and did not believe that any additional witness evidence was necessary.

220. The Decision-Maker concluded for those reasons that the Respondent was not “candid and truthful and was not full, fair and accurate in all respects in his dealings with the Central Bank”.

She then stated that given his “extensive experience” and his “impeccable prior record”, it was “very hard for [her] to understand how [the Respondent] could genuinely believe that he was indeed candid and truthful with the Central Bank at the meeting on 24 July 2018” (para. 6.14). Again, the terminology and language used by the Decision-Maker makes it clear that she was disbelieving of the Respondent and was impugning his credibility in finding against the Respondent under this ground.

221. The Decision-Maker then considered (in section 7, at paras. 7.1 to 7.6) why a Prohibition Notice was necessary in this case. She confirmed that she had regard to the requirements of s. 43(4) of the 2010 Act, and that she had given “particular consideration to the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of the system and to the need to protect users of financial services” (para. 7.1). While these were all matters to which the Decision-Maker was obliged to have particular regard under s. 43(4), they highlight how exceptionally serious the Decision-Maker regarded the Respondent’s conduct and the need to prohibit him from performing controlled functions in order to prevent potential serious damage to the State’s financial system and to ensure that the continued stability of that system as well as the need to protect users of financial services. The systemic significance and importance of these considerations demonstrates the very high stakes involved and the exceptionally serious consequences for the Respondent in the event of a Prohibition Notice being served on him.

222. The Decision-Maker stressed (in para. 7.2) the core function of the fitness and probity regime operated by the Central Bank as being to ensure that persons in senior positions in regulated entities were “competent and capable, honest, ethical and of integrity” and that the Central Bank is permitted to control access to the financial system and to minimise the risk of detriment which might arise. She stated that that was “critical both to the protection of users of financial services and to ensuring public trust and confidence in the financial system” (again stressing the systemic importance of the issues involved on the one hand and the enormously significant potential consequences for the Respondent on the other).

223. The Decision-Maker was satisfied that a Prohibition Notice was “clearly warranted” in this case (para. 7.3). She concluded that the Respondent’s behaviour “fell well short of what would reasonably be expected of a person of his seniority and experience” and that he failed to demonstrate the expected competence of a Designated Person, failed adequately to manage his concurrent responsibilities and was not fully open and transparent in his dealings with the Central Bank. She felt that it was important to demonstrate to the Respondent that the Central Bank viewed those matters “very seriously”. She further felt that it was necessary to issue the Prohibition Notice to deter the Respondent from any similar behaviour in the future and also to demonstrate to the financial services industry as a whole and to others, including the general public, the importance the Central Bank places on compliance with the Standards. She was also of the view that a failure to demonstrate that there would be consequences for behaviour that breached the Standards would undermine public trust and confidence in the financial services industry as a whole and “as such could lead to serious damage to the financial system” (para. 7.3).

224. The Decision-Maker did not believe that the Respondent demonstrated an appreciation of the gravity of the matters which were the subject of the investigation. While noting that none of the investors suffered any financial harm and that EF Fund ManCo did not suffer any financial loss, nonetheless she considered it important that investors were deprived temporarily of access to their assets in respect of the funds which had a significant value. She found, therefore, that “this was a very serious matter, the importance of which should not be minimised” (para. 7.4).

225. In stressing her view as to the enormous importance of the issues, the Decision-Maker set out her view that a Prohibition Notice was necessary to protect users of financial services by demonstrating the Central Bank’s position that the protection and proper management of investment funds are of the “utmost importance” and that the Respondent’s failures were “unacceptable and must not be repeated” (para. 7.5). In further stressing the utmost seriousness of the conduct for which the Respondent was being condemned (and for which he was at risk of being condemned from the outset of the commencement of the investigation), the Decision- Maker stated that in her view his failure to notify the Central Bank of the “serious potential problem faced by [EF Fund ManCo] could have negatively impacted the Central Bank’s role in ensuring the stability of the financial system” (para. 7.5). She concluded her analysis of the necessity for the Prohibition Notice by expressing her finding that a failure to demonstrate a consequence for the Respondent’s behaviour would “undermine confidence in the financial services industry as a whole, would amount to a failure to protect users of financial services, and would constitute a failure to prevent serious damage to the financial system by not upholding the standards expected of holders of [controlled functions] by the Central Bank” (para. 7.6).

226. I observe that this section of the Prohibition Notice states with absolute clarity the enormously systemic importance with which the Decision-Maker viewed the alleged conduct on the part of the Respondent. This clearly has implications for the fair procedures arguments advanced by the Respondent.

227. The Decision-Maker then considered (in section 8, paras. 8.1 to 8.5) other relevant factors that she considered. These were the same factors she outlined in the Regulation 13 notice with one additional factor. She considered first the absence of regret expressed by the Respondent (para. 8.1). While accepting that he was fully entitled to defend himself and to seek to justify his actions, she felt that she was obliged to take into account the Respondent’s attitude to those matters and noted that neither in his written submissions nor at the meeting of 17 September 2021 did he indicate that he realised or regretted that he had fallen short of the Standards (para. 8.1). She then addressed the relevance of his reliance on legal advice (para. 8.2). While acknowledging that the Respondent was entitled to seek legal advice, the Decision-Maker found that he was obliged to apply his own judgement in respect of his regulatory obligations and that he had not questioned or queried the legal advice received which she found to be “a particularly significant failing by a person of his seniority and experience”. The Decision-Maker did not raise either of these issues with the Respondent at the meeting on 17 September 2021.

228. The Decision-Maker then addressed the Respondent’s prior record (an“unblemished record” with no previous issue in relation to his fitness and probity) and his personal circumstances (acknowledging that the investigation had had a “significant impact” on his personal life (and also clearly on his professional life since the Decision-Maker acknowledged that he had been unable to seek alternative employment due to the investigation).

229. The new matter considered by the Decision-Maker in this section of the Prohibition Notice was the (then) recent decision of the FCA in the UK in relation to GH. The Respondent had made the point in his submissions of 23 December 2021 that GH had not been prohibited by the FCA from pursuing his career. The Decision-Maker found that she was obliged to consider the Respondent’s case on its own merits and in the context of the Irish financial services regulatory environment and that, as a consequence, the FCA’s treatment of GH was not relevant to her

decision.

230. The Decision-Maker then considered s. 43(12)(a) of the 2010 Act (in section 9, at paras.

9.1 to 9.11). Under that section, the Central Bank (or Governor) is precluded from continuing a Prohibition Notice for longer than is necessary to achieve the purposes for which it was made. The Decision-Maker concluded that, in all the circumstances and “in balancing the need to protect users of financial services and serious damage to the financial system” with the Respondent’s rights, he should be prohibited from performing all controlled functions for a period of one year. She had particular regard to the fact that the Respondent was not fully candid with the Central Bank. In respect of the period of the Prohibition Notice, she considered his unblemished record and the impact on him personally and professionally. She also considered the seriousness of the findings made in her decision which she felt should have consequences for the Respondent. She was initially inclined to impose a prohibition period of two years but was satisfied that one year was appropriate. She felt that that balanced, on the one hand, the need to demonstrate the seriousness of the behaviour and, on the other hand, the impact on the Respondent, personally and professionally (para. 9.8). As noted at para. 9.11, the Prohibition Notice took effect from the date of service on 2 February 2022.

231. Before turning to the confirmation application, I must observe that while the Prohibition Notice is an extremely detailed document, which has no doubt been very carefully prepared by the Decision-Maker, no where in the Prohibition Notice does she appear to recognise or acknowledge that very serious findings and conclusions have been made against the Respondent, including as to his candour, truthfulness and honesty, with inevitably devastating consequences for him personally and professionally, without him ever being given the opportunity of addressing those issues in an interview with the Investigator, or on oath at a hearing and without him having had the opportunity of hearing the evidence relied on by the Central Bank through witnesses which he could cross-examine, including those who he identifies he had communicated to the Investigator during the investigation. As I conclude later, all of that was hugely relevant to the Decision Maker’s task under s. 43(3) and, particularly, under s. 43(3)(b).

16. The Application for Confirmation: Evidence on the Application

232. The Central Bank wrote to the Respondent on 2 February 2022 referring to the Prohibition Notice which had just been issued and requested whether the Respondent was prepared to agree under s. 47 of the 2010 Act to comply with the Prohibition Notice. Arthur Cox replied on 1 March 2022 stating that for the reasons previously stated and in light of the concerns addressed in the Respondent’s submissions to the Central Bank, the Respondent did not agree with and was not prepared to accept the Prohibition Notice. In those circumstances, it was necessary for the Central Bank to bring an application for an order pursuant to s. 45(1) of the 2010 Act confirming the Prohibition Notice.

233. The Central Bank brought its application for confirmation of the Prohibition Notice on 28 March 2022. That application was grounded on an affidavit sworn by Francesca Harte, Head of Division, Enforcement Investigations in the Central Bank. In her affidavit, Ms. Harte outlined the fitness and probity regime set out in the 2010 Act overseen by the Central Bank and referred to its powers in the regulation and enforcement of that regime. She provided details of the investigation and decision-making process in relation to the fitness and probity of the Respondent. She exhibited all of the relevant documents referable to both stages of the process (the investigation stage and the decision-making stage). She summarised the three grounds of the Prohibition Notice and the reasons why the Decision-Maker considered it necessary to issue the notice. She also explained why the Decision-Maker considered that the Prohibition Notice should apply for a period of one year. She noted that in the absence of an agreement to the Prohibition Notice by the Respondent, s. 45 of the 2010 Act required the Central Bank to bring the application for confirmation. She further noted that pursuant to s. 43(7), the one-year period of prohibition set out in the Prohibition Notice commenced on 2 February 2022 and continued to have effect until the confirmation application was determined or withdrawn.

234. The Respondent swore a very extensive affidavit in response to the application and in reply to Ms. Harte’s affidavit. In his affidavit, the Respondent set out his belief that the procedures applied throughout the investigation preceding the Prohibition Notice were unfair and that the Prohibition Notice was ultra vires the powers of the Central Bank under the 2010 Act. Further, he explained that he did not accept the contents of the Prohibition Notice and the findings made against him in respect of his fitness and probity. He believed those findings were incorrect and that they were based on an incomplete and inaccurate understanding of the facts by the Central Bank which, he believed, was at least partly brought about by the manner in which the Central Bank chose to conduct the investigation, including its failure to obtain all relevant information. He further explained that given the seriousness of the findings made by the Decision-Maker against him, including that he was not competent, candid or truthful, he was very concerned that the Prohibition Notice, if published, would immeasurably damage his professional reputation which he had spent his entire career building as well as his own and his family’s good name and his ability to earn a livelihood and to provide for his family in the future. The Respondent then set out by way of general background his professional background and career (which I have outlined earlier in this judgment). Having held various pre-approval controlled functions (PCFs) in EF Fund ManCo from 2015, he explained that he resigned from all his roles on 18 February 2020 as a result of the Central Bank’s investigation and that he had not held any PCF role or any other permanent job since that date. He also explained that in 30 years working in the financial services industry, he had an unblemished record and had never been the subject of any complaints or issues in relation to his fitness and probity (as is clear from the Decision-Maker’s findings in the Prohibition Notice, and there is no dispute about that).

235. The Respondent then outlined the issue which arose and which led to the investigation. He provided considerable detail from his perspective. I have, where necessary, referred to some of the factual matters which were the subject of the investigation in earlier parts of this judgment, and it is unnecessary to rehearse that detail here. The Respondent referred to the circumstances which led to the commencement of the investigation in July 2019 and to the issues which he had in relation to the investigation and the subsequent decision-making process.

He outlined the facts relevant to his complaint, including that the Investigator refused to interview the persons who were involved in the events underlying the investigation and who he felt could give evidence relevant to the investigation and to the allegations made against the Respondent in the statement of grounds. He pointed out that he had indicated on a number of occasions how and why the interpretation given by the Central Bank of contemporaneous documents was incorrect or misguided and why the factual picture presented by them was incomplete.

He explained that the witnesses identified were important witnesses of fact whose views, recollections and perspectives were likely to be materially supplementary to the primary documentary evidence. They were persons who were present at and directly involved in the events referred to in the statement of claim and could, the Respondent maintained, verify, clarify or contradict the assertions and inferences made in the statement of grounds and provide information, explanations and evidence that was unavailable elsewhere. However, the Investigator refused to interview those persons and, on 27 November 2020, wrote to the Respondent’s solicitors stating that the information gathering stage of the investigation had concluded.

The Respondent explained why the refusal to interview those persons identified by him was wrong and led to the Investigator/the Central Bank having an incomplete and mistaken understanding of the facts and of depriving him of any meaningful opportunity to challenge the Central Bank’s position and its interpretation of the contemporaneous documents and events. The Respondent also explained the basis for his complaint that the failure by the Central Bank (including the Investigator and the Decision- Maker) to hold an oral hearing was contrary to his right to fair procedures, including his right to a meaningful opportunity to challenge the interpretation of the documentation relied on by the Central Bank.

He also stated that he had at all times been willing to participate in an interview with the Central Bank but that the Investigator finalised the s. 41 report and furnished it to the Central Bank without interviewing him.

236. The Respondent stated that while he was invited to a meeting with the Decision-Maker in September 2021, that was not an interview and the Central Bank made clear that the investigation and evidence gathering process under Chapter 3 of Part 3 of the 2010 Act had concluded by that stage. The meeting was not part of that process. He explained that he attended the meeting in circumstances where it was the only opportunity for him to meet with and engage with any queries or concerns the Decision-Maker might have. The Respondent was critical of the manner in which the meeting was conducted, describing it as being “very odd”. He expected that the

Decision-Maker would explore some of the points of difference between himself and the Central Bank or ask questions which she might have, as it was stated in correspondence on behalf of the

Decision-Maker before the meeting that she had not reached any views or conclusions (for example, in the letter from the RDU of 9 September 2021). The Respondent understood that the meeting would be his opportunity to engage with the Decision-Maker and that she would engage with him so that he could clarify and provide any explanations for the matters which she was considering. However, once he had finished his initial remarks, the Decision-Maker concluded the meeting and did not address a single question to him.

237. By way of example of the matters the Respondent felt would be explored further with him at the meeting was the fact that legal advice was received from Dillon Eustace that no notification was required to the Board or the Central Bank until a decision was taken (in relation to GH) and, only then, if the decision would give rise to significant redemptions on the relevant funds. As noted earlier, the Respondent addressed this issue during his presentation at the meeting on 17 September 2021. However, he observed that it appeared from the Prohibition Notice that the

Decision-Maker did not accept his evidence or took the view that that was not a matter which could have addressed the allegations and submissions set out in the s. 41 report. However, the

Decision-Maker did not raise that issue at the meeting and did not put any questions to him during the meeting. Similarly, in relation to ground 3 (openness and transparency with the Central Bank), the Respondent observed that the Decision-Maker clearly did not accept his evidence but appears to have done so without putting any questions to him or alerting him to the fact that she disbelieved him.

238. The Respondent then separately addressed each of the three grounds on which findings were made against him in the Prohibition Notice and summarised his response to each of those grounds, in each case, rejecting the findings in the Prohibition Notice. He referred back to the various submissions he had made in the course of the investigation and the remarks he made at the meeting on 17 September 2021.

239. The Respondent then addressed the impact of the investigation and the issuing of the Prohibition Notice on him professionally and personally. He contended that the investigation was unbalanced and that its outcome appeared to have been predetermined from a very early stage. He also contended that the Prohibition Notice was disproportionate and did not properly reflect his role, or the actions taken by him, to ensure that shareholders in the relevant funds were properly protected. He also pointed to the inconsistency in the way in which the FCA in the UK treated GH (he was not prohibited from proceeding with his career) and the way in which the Central Bank was treating him (by issuing the Prohibition Notice). He contended that he acted entirely appropriately in immediately notifying the Central Bank once a decision was taken to suspend GH. He referred to the length of time with which the process continued (from July 2019 until the issuing of the Prohibition Notice in February 2022) and to the stress that it caused him. The allegations made against him (and the findings contained in the Prohibition Notice) including those impugning his honesty, integrity and ethical judgment and the findings that he was not candid or truthful with the Central Bank were particularly serious for him. This was especially so in circumstances where he believed that those findings were grounded on misunderstandings and incorrect interpretations and where he had not been afforded fair procedures. He contended that the publication of the Prohibition Notice would be particularly damaging to him and would severely impact on his personal and professional reputation and on his career as well as having a significant financial impact upon him and his family. The investigation and the entire process had serious effects on his health, and he referred to the diagnosis of hyperthyroidism made in July 2020 which, he was advised, increased his risk of infection which was a significant issue during the COVID-19 pandemic, and put him in a high risk category. Fortunately, he was given the “all clear” in December 2020. He said that he required therapeutic counselling over the course of the investigation, as did his wife.

240. A lengthy replying affidavit was sworn on behalf of the Central Bank by Ms. Harte. She maintained that much of what was contained in the Respondent’s affidavit was a repetition of matters previously contained in the submissions made by and on behalf of the Respondent in the course of the investigation and were dealt with in the s. 41 report and in the Prohibition Notice. She maintained that those submissions had, therefore, already been considered by the Central Bank in the course of the investigation and in the s. 41 report and by the Decision-Maker in the preparation and finalisation of the Prohibition Notice. The Central Bank’s position was that, having considered the Respondent’s affidavit, there was a reasonable basis for the opinion that the Respondent was not of such fitness and probity as was appropriate to perform the relevant functions and that the Prohibition Notice should be confirmed by the Court.

241. In her detailed response, Ms. Harte contended that the approach taken by the Respondent in his affidavit incompletely and inaccurately reflected the matters which were investigated and dealt with in the Prohibition Notice. She explained that there were three broad grounds for the issue of the Notice and not merely the Respondent’s alleged failure to inform the Central Bank of issues which came to light during the course of the investigation into GH. Ms. Harte then addressed the Respondent’s complaint that the Investigator did not interview the persons identified by the Respondent as being in a position to give relevant evidence. She maintained that the Respondent’s submissions centred on complaints about how the Central Bank had interpreted certain documents whereas the Central Bank was relying on the matters set out by the Respondent in his submissions and on the content of the documents available, about which there was no conflict of fact. She referred to the view of the Decision-Maker that further evidence would not alter any of the grounds on which findings were made against the Respondent (as stated by the Decision-Maker in the Prohibition Notice). Ms. Harte asserted that the Respondent had not pointed to anything contained in a document which he said was material to the decision and in respect of which one of the identified proposed witnesses would have given evidence if the document was inaccurate or untrue. She referred to the correspondence exchanged between the Investigator and Arthur Cox in relation to the request to interview witnesses and asserted that the submissions made on behalf of the Respondent were considered in the s. 41 report and again in the Prohibition Notice. She further pointed to the fact that the Investigator had given the Respondent the opportunity to procure submissions from the persons he wished to be interviewed and had not provided submissions from any of those persons. Ms. Harte reiterated a point made many times by the Decision-Maker in the Prohibition Notice that the Respondent had not raised any factual conflict or gap in the evidence but rather a dispute on interpretation and that further evidence would not alter the findings in relation to the grounds and reasons set out in the Prohibition Notice.

242. Ms. Harte then addressed the allegations made by the Respondent in relation to the failure to conduct an oral hearing. She noted that the Respondent had not explained the specific conflict or conflicts of fact which she claimed existed and, in any event, the Respondent had been given numerous opportunities to make submissions to the Investigator and to the Decision-Maker as well as attending the meeting on 17 September 2021. Ms. Harte rejected the Respondent’s complaints that he was not interviewed by the Investigator and referred to the correspondence on that issue, pointing to the fact that the Respondent’s solicitors did not address the question of his availability for an interview between September and November 2020, when the information gathering stage of the process concluded.

243. Ms. Harte then addressed each of the three grounds on which adverse findings were made against the Respondent in the Prohibition Notice and rejected the Respondent’s complaints, relying on the specific findings made in the Prohibition Notice, which took into account the submissions previously made by the Respondent. The Respondent’s complaints were all rejected.

244. With respect to the Respondent’s complaints in relation to the personal and professional impact on him of the Prohibition Notice, the manner in which other persons involved were dealt with by the FCA and the proportionality of the Prohibition Notice, Ms. Harte maintained that those issues had all been fully considered and weighed up by the Decision-Maker in the Prohibition Notice itself.

245. For completeness, a further affidavit was sworn on behalf of the Central Bank by Sarah Carpendale during the course of the hearing in December 2022 which provided information from publicly available sources relating to previous Prohibition Notices issued by the Central Bank under s. 43 of the 2010 Act. In addition to the Prohibition Notice the subject of these proceedings, there had, at that stage, been eleven other prohibition notices issued by the Central Bank. Information in relation to nine of those previous notices was published on the Central Bank’s website (of the remaining two, one was the subject of a pending confirmation application, and the other had been confirmed by agreement). Of the prohibition notices where information was published on the Central Bank website, six involved prohibitions from carrying out controlled functions for an indefinite period, two involved prohibitions lasting for two years and one involved a prohibition lasting for ten years.

17. The applicable test for court confirmation under section 45 of 2010 Act

246. The Central Bank’s application is for confirmation of the Prohibition Notice under s. 45 of the 2010 Act. I set out earlier in this judgment (in s. 7) the relevant statutory provisions including those contained in Chapter 4 of Part 3 of the 2010 Act which contains the provisions governing the issuing of a prohibition notice (s. 43) and the making of an application to the High Court for an order confirming such a notice (s. 45). It will be recalled that under s. 43, the Central Bank or the Governor (in this case the Central Bank) must have reasonably formed the opinion that a person is not of such fitness and probity as is appropriate to perform a particular controlled function, a specified part of a controlled function or any controlled function, before the Central Bank may issue a prohibition notice (s. 43(1)). The statutory scheme then envisages the Central Bank applying to the High Court for an order confirming the prohibition notice (s. 45(1)). Under s. 45(5)(a), if the court is satisfied that there is a “reasonable basis” (as set out in s. 45(6)) for the opinion of the Central Bank that the person the subject of the prohibition notice is not of such fitness and probity as is appropriate to perform the relevant controlled functions or part of a controlled function or any controlled function (as the case may be), the court may make (i) an order confirming the relevant prohibition notice, (ii) an order varying or limiting the prohibition notice, if it considers that it is necessary to do so in the interests of justice or for any other good reason, and (iii) any other additional or ancillary order as the court thinks fit. Under s. 45(5)(b), if the court is not satisfied that there is a “reasonable basis” for the relevant opinion of the Central Bank, the court may make (i) an order setting aside the Prohibition Notice, (iii) an order remitting the matter to the Central Bank (or the Governor) for reconsideration in accordance with any directions given by the court, or (iii) any other order the court thinks fit.

247. Section 45(6) sets out for the court the circumstances in which there is a “reasonable basis” for the relevant opinion of the Central Bank under s. 45(5). It provides that there is such a reasonable basis if “taking into account the expertise and specialist knowledge possessed by the [Central Bank]…, the opinion (and the process that led to its formation) was not vitiated by” any of three specified vitiating factors. To recap, those vitiating factors are (a) “any significant and serious error or a series of such errors”, (b) “a mistake of law”, or (c) “the evidence, taken as a whole, not supporting a finding”. In determining whether the opinion and the process that led to its formation was not vitiated by any of the specified factors, the court must take into account the expertise and specialist knowledge possessed by the Central Bank. The Court is also required when considering whether to make an order confirming a prohibition notice under s. 45(5) to have “particular regard” to two further matters which are set out in s. 45(7), namely: (a)“the need to prevent potential serious damage to the financial system in the State and ensure the continued stability of that system”, and (b) “the need to protect users of financial services”.

248. The application which must be made to the court is for confirmation of the relevant prohibition notice. It is not a statutory appeal. Unlike many of the statutory provisions applicable to regulated professionals, a person who is the subject of a prohibition notice does not have a right of appeal to the High Court. The only option for a person who wishes to contest the issuing of a prohibition notice is to seek judicial review of the decision to issue the prohibition notice or to object to confirmation of that notice. The Respondent has taken the latter course. The Central Bank did not object to that course and did not contend that the Respondent ought to have sought judicial review of the Prohibition Notice. The Respondent, who is the subject of the Prohibition Notice, is in a different position to a person who a regulated financial service provider wishes to appoint to perform a pre-approval-controlled function under s. 23 of the 2010 Act. In a case of such a person, the Central Bank must approve in writing the appointment of that person to perform the function. Under s. 23(5), the Central Bank may refuse to approve the appointment of that person where it is of the opinion that the person is not of such fitness and probity as is appropriate to perform the relevant function or where the Central Bank is unable to decide, on the basis of the information available to it, whether the person is of such fitness and probity (s. 23(5)). That decision can be appealed to the Irish Financial Services Appeals Tribunal (the “Appeals Tribunal”) under Part VII A of the 1942 Act (s. 23(7) of the 2010 Act). The Appeals Tribunal (currently chaired by a recently retired Supreme Court judge, Mr. Justice John MacMenamin) gave a decision on an appeal under s. 23(7) in AB v the Central Bank of Ireland (Appeal No. 029/2022) dated 31 January 2024. However, that decision was given after the hearing of this case and, while I have read the decision, I have not been influenced by it in reaching the decision I have reached in this case. I merely point to it as an example of the apparent discrepancy in the 2010 Act between the procedural rights (including the right to appeal) of a person in the position of the Respondent and a person in the position of the appellant in that case.

249. Section 45 of the 2010 Act has not up to now been the subject of detailed judicial consideration in the context of a contested confirmation application. The precise nature and contours of the test contained in sections 45(5) and (6) is a matter of statutory interpretation, as was pointed out by McKechnie J in his judgment in the Supreme Court in Fitzgibbon v Law Society of Ireland [2015] 1 IR 516 at paras. 73 to 75, (pp. 542 – 543). I also accept the submission advanced on behalf of the Respondent (with which the Central Bank did not disagree) that, as explained by McKechnie J, in addition to the terminology used in the relevant statutory provisions, it is also necessary for the court to: “consider matters such as the nature of the body in question, the knowledge and expertise within it – by reference to its purpose – the subject matter of its remit, the type of

decision(s) involved, and the impact and consequences thereof for the addressee(s); the proceedings and the type of process involved in, and giving rise to, the decision under appeal must also be considered. These are but some of the factors which will informed the provision’s ultimate meaning.” (per McKechnie J. at para. 75) (p. 543))

250. In interpreting sections 45(5) and (6) in order to determine the nature and contours of the test for the confirmation of a Prohibition Notice, I have also applied the principles of statutory construction discussed in detail by the Supreme Court (Murray J.) in Heather Hill Management Company CLG v An Bord Pleanála [2024] 2 IR 222 which were helpfully summarised by Murray J in his judgment in the Supreme Court in A, B, and C v Minister for Foreign Affairs [2023] IESC 10, [2023] 1 ILRM 335. In A, B, and C, Murray J. confirmed that the cases (including Heather Hill):

“have put beyond doubt that language, context and purpose are potentially in play in every exercise in statutory interpretation, none ever operating to the complete exclusion of the other.” (para. 73). He confirmed that the “starting point” in construing a statutory provision is the language used in that provision and that the “plain and ordinary meaning” of the language used is the “predominant factor in identifying the effect of the provision” (also para. 73). However, he stressed that other factors or, such as the other words in the relevant section and in other provisions in the Statute, as well as the legal context in which the Statute was enacted, and the objective of the Statute, are all potentially relevant to “elucidating, expanding, contracting or contextualising the apparent meaning” of the words used in the section or sections at issue. I have applied these principles in construing sections 45(5) and (6) in order to determine the nature and contours of the test for the confirmation of a Prohibition Notice.

251. The High Court is conferred with jurisdiction to confirm decisions of professional regulatory or disciplinary bodies in many different contexts. Some of these statutory provisions are more detailed than others and limit the extent of the court’s role in examining the decision at issue. By way of example, in the case of medical practitioners (s. 76(3) of the Medical Practitioners Act 2007 (as amended), nurses and midwives (s. 74(3) of the Nurses and Midwives Act (as amended) and teachers (s. 44(5) of the Teaching Council Act 2001 (as amended)), on an application to confirm a decision of the relevant professional regulatory or disciplinary body, the court is required to confirm the decision unless it sees “good reason to the contrary”. That statutory test has been the subject of judicial consideration. The phrase, as used in s. 76(3) of the 2007 Act, was considered by Kelly P. Medical Council v M.A.G.A [2016] IEHC 779, and again in Medical Council v Lohan – Mannion [2017] IEHC 401. In the latter case, Kelly P noted that the court could only refuse to confirm the relevant decision of the Medical Council where it could identify “good reason” not to do so and that, in order to determine that there was such “good reason”, the court would have to be satisfied of “a procedural impropriety, a lapse from the norms of constitutional and natural justice or a decision on the part of the Medical Council which is one which no reasonable Council could come to” (per Kelly P. in Lohan – Mannion at para. 49). That approach was followed by Faherty J. in the High Court in relation to the test in s. 44(5) of the Teaching Council Act 2001 in Teaching Council of Ireland v S.R. [2018] IEHC 582 and has also been applied in the case of nurses (see, for example, recently in Nursing and Midwifery Board of Ireland v Burke [2025] IEHC 557).

252. Other statutes which require confirmation of a decision by the High Court in the professional disciplinary area are in somewhat different terms and do not include the “good reason” formulation: see, for example, s. 52(3) of the Pharmacy Act 2007 (as amended) which simply provides that the High Court “may but need not confirm the Council’s decision” and s. 80(5) of the Veterinary Practice Act 2005 (as amended) which provides that the High Court may, on an application for confirmation, make an order confirming or setting aside the relevant

decision, remitting it to the Veterinary Council for reconsideration or any other order that it considers appropriate (see the discussion in Veterinary Council v Brennan [2020] IEHC 655). In each of these cases, the courts have interpreted the relevant statutory provision to determine the precise nature of the test which is required to be applied on the application for confirmation of the decision at issue.

253. In Central Bank of Ireland v Lynch [2022] IEHC 319, Irvine P considered the nature of the test applicable to the confirmation of an adverse assessment (including the imposition of sanctions) made as against the respondent that the Respondent had committed prescribed contraventions under the Market Abuse (Directive 2003/6/EC) Regulations 2005) (the “2005 Regulations”). The assessors had made their findings after a substantive hearing lasting four days. The assessors determined that certain sanctions should be imposed on the respondent. The respondent had the right to appeal the assessor’s adverse assessment or the sanctions (unlike the Respondent in the present case), but did not do so. It was then a matter for the Central Bank to apply to the court for an order confirming the adverse assessment (including the sanctions) under Regulation 44 of the 2005 Regulations. Regulation 44(2) provided that the court was required to determine the confirmation application by making (a) an order confirming, varying or setting aside the adverse assessment, whether in whole or in part, or (b) an order remitting the case to be decided again by the Central Bank in accordance with the directions of the court. The 2005 Regulations did not provide any further guidance as to the role or jurisdiction of the court on hearing such a confirmation application. Irvine P held that, on such an application, the court had an obligation “to satisfy itself that there was adherence to the prescribed procedures and also adherence to the requirements of natural and constitutional justice in the manner in which the Respondent was found to have committed the suspected contraventions and in the manner in which the sanction was decided upon” (para. 20). She further held that the court also had to satisfy itself that the sanction was one “which might reasonably be considered proportionate in light of the contraventions that led to the imposition of that sanction” (para. 21). However, she stated that the court’s jurisdiction was “probably quite limited in [that] regard and unless it considers that no other reasonable decision-maker could have imposed the sanction concerned, it should confirm it…” (para. 21).

254. It should be noted that in all these cases, (with one exception), the confirmation application to the High Court is made after there has been an oral hearing by the relevant professional body (such as the fitness to practise committees of the Medical Council, the Nurses and Midwifery Board of Ireland and the Dental Council). That was also the case in Lynch. In all those cases, the relevant person or professional has a right of appeal (whether to the High Court or to another statutory body). The present case is an exception as the Respondent did not have an oral hearing and did not have a statutory right of appeal.

255. It should be noted that the Central Bank Acts contain other provisions in which decisions must be confirmed by the High Court. These include s. 33AWA(2) of the 1942 Act (as inserted by s. 54 of the Central Bank (Individual Accountability Framework) Act 2023) which contains the test to be applied by the High Court where the Central Bank seeks an order confirming the imposition of a sanction imposed by consent under s. 33AR(2)(a) or (4)(a). Section 33AWA(2) provides that on such an application, the High Court “shall confirm the imposition of the sanction unless it is satisfied that the sanction imposed is manifestly disproportionate”. The terminology used in that section (which was inserted with effect from 19 April 2023) is very different to that contained in sections 45(5) and (6) of the 2010 Act.

256. I agree with the Respondent in this case that it is necessary to be cautious when considering cases which consider different statutory provisions in seeking to ascertain the true meaning and effect of the statutory provisions at issue in this case. I also agree with what John Freeman stated in “The Central Bank Acts: Annotated and Consolidated” (2019) that: “…While some of the language and procedures under [the 2010 Act] is superficially similar to those under some of the Acts dealing with professional disciplinary procedures, the differences must be borne in mind. Decisions of the courts in relation to, for example, the supervisory jurisdiction of the High Court to confirm sanctions of the Medical Council may not be neatly applicable in circumstances where there is no right of appeal from a decision of the [Central] Bank under Part 3 [of the 2010 Act]. It may be that, in the absence of any right of appeal, the legitimate rights of the subject of a Prohibition Notice require more than that the High Court be satisfied that there is a reasonable basis for the opinion of the [Central] Bank or the Governor which gives rise to that notice” (page 911).

257. There is no doubt that, under sections 45(5) and (6), the legitimate rights of the person, such as the Respondent, who is the subject of a prohibition notice, does require more than merely that the court be satisfied that there is a reasonable basis for the opinion of the Central Bank. Those provisions are more detailed and require the court to be satisfied that there is a “reasonable basis” for the relevant opinion, but they also provide that there is such a “reasonable basis” for the opinion where the opinion (and the process that led to it) was not vitiated by any of the three factors referred to in s. 45(6).

258. I agree with the Respondent that it is clear from reading the two subsections together and in the context of the other subsections in s. 45 and the other provisions in Part 3 of the 2010 Act, that the burden of demonstrating that the relevant opinion and the process was not vitiated by any of those factors is on the Central Bank. That interpretation of sections 45(5) and (6) is also supported and justified by the fact that a person who is the subject of a prohibition notice does not have a right of appeal. Therefore, recognising that the court must take into account the expertise and specialist knowledge possessed by the Central Bank, in order for the court to be satisfied under s. 45(5) that there is a reasonable basis for the opinion of the Central Bank under s. 43(1), the Central Bank must demonstrate that the opinion (and the process) was not vitiated by (a) “a significant and serious error or series of such errors”, (b) “a mistake of law” or (c) “the evidence, taken as a whole, not supporting the finding.” In my view, that is what those provisions, properly construed, require. However, even if I am wrong in holding that the burden lies on the Central Bank, and if that burden lies on the Respondent to demonstrate that the relevant opinion (and the process) was vitiated by any of those factors, I would still be satisfied that the Prohibition Notice should not be confirmed in this case.

259. The formulation contained in s. 45(6)(a) (“any significant and serious error or series of such errors”), is taken from Orange Limited v Director of Telecoms (No. 2) [2000] 4 IR 159 (per Keane CJ at pp. 184 – 185) and was subsequently adopted in the context of appeals from decisions of the then Financial Services Ombudsman in Ulster Bank Investment Funds Ltd. v Financial Services Ombudsman [2006] IEHC 323. It was accepted by the Central Bank that if the court was satisfied that there was a serious breach of the rules of natural and constitutional justice or of the provisions of the 2010 Act or the 2012 Regulations, that would fall within s. 45(6)(a) as amounting to a “significant and serious error or series of such errors”. Cases such as O’Neill v Financial Services Ombudsman [2014] IEHC 282 (per Hogan J at para. 32) and Hyde v Financial Services Ombudsman [2011] IEHC 422 (per Cross J at paras. 8.1 and 8.8) make clear that a serious breach of the rules of natural and constitutional justice (in those cases by failing to hold an oral hearing) would amount to a significant and serious error or errors sufficient to vitiate the decisions at issue in those cases. The issue as to whether it was ultra vires the powers of the Central Bank to proceed with the inquiry in circumstances where the Respondent resigned from all of his positions involving controlled functions is an issue that could be considered under either s. 45(6)(a) or (b). It is, in truth, however, a threshold issue which must be considered before all of the other issues.

260. While it was initially accepted on behalf of the Central Bank that if breaches of the principles of natural and constitutional justice were established in this case, that would amount to “a mistake of law” under s. 45(6)(b), it was subsequently clarified in counsel’s reply that such breaches would fall under para. (a) and not under para. (b). It was submitted on behalf of the Respondent that he was not in a position to make a case under para. (c) or s. 45(6) in circumstances where the Central Bank had not put all of the evidence considered in the course of the investigation and at the decision-making stage before the court. Ultimately, the Respondent did not press reliance on para. (c). Having regard to my conclusions on the ground which was relied on, it is unnecessary for me to consider whether or not the Central Bank’s opinion was vitiated by reason of the factor referred to in s. 45(6)(c).

18. The Issues

261. The principal issues which arise for consideration in this judgment are:

(1) whether the continuation and conclusion of the investigation under Chapter 3 of Part 3 of the 2010 Act into the Respondent’s fitness and probity to perform certain or any controlled functions and the issuing of the Prohibition Notice under Chapter 4 of Part 3 of the 2010 Act were ultra vires the powers of the Central Bank under the 2010 Act in circumstances where the Respondent resigned from all of his positions involving the performance of controlled functions in February 2020 after the investigation had commenced but before it was completed;

(2) whether or not there was a reasonable basis for the opinion of the Central Bank that the Respondent was not of such fitness and probity as was appropriate to perform the relevant controlled or any controlled functions and, in particular, whether or not that opinion and/or the process that led to its formation was vitiated by any significant and serious error or series of such errors under s. 45(6) of the 2010 Act; and

(3) whether, if that opinion and/or the process that led to its formation was vitiated by any such significant and serious error or series of such errors, the court should set aside the Prohibition Notice by reason of those errors and whether the matter should be remitted to the Central Bank for reconsideration.

262. I will deal separately with each of those issues (and the various sub-issues which arise) in the following sections of this judgment.

19. The ultra vires issue

(a) Summary of the submissions of the parties

(i) The Central Bank

263. In summary, the Central Bank submitted that, as a matter of correct statutory interpretation, it had the power to commence, conduct and conclude the investigation into the Respondent’s fitness and probity to perform the relevant or any controlled functions and to complete the

decision-making process which ultimately led to the issuing of the Prohibition Notice under chapters 3 and 4 of Part 3 the 2010 Act, respectively, once the Respondent was performing the relevant controlled function (or was being proposed or considered for appointment to a role involving the performance of such a function) at the time the Deputy Governor or his or her delegate formed the relevant opinion referred to in s. 25(1) of the 2010 Act. It submitted that there was no statutory requirement that the person the subject of an investigation under Chapter

3 would have to continue performing the relevant controlled function or functions throughout the course of the investigation or the subsequent decision-making process. Nor, it submitted, was there any provision in the 2010 Act, properly construed, which would require the investigation to come to an end when the person the subject of the investigation resigned from his controlled function role. It submitted that the investigation and the subsequent decision-making process can continue after the person’s resignation. It further submitted that that interpretation is supported by other subsections of s. 25, including s. 25(2)(a), which provides that the subsection applies to a person if that person “performs” a controlled function in relation to a regulated financial service provider when the relevant opinion is formed. The time at which the person has to perform that function is at the time the opinion referred to in s. 25(1) is formed, the Central Bank submitted. It submitted that there is nothing in any of the other subsections of s. 25 that detracts from that interpretation or in any of the other sections in Chapter 3 or in Chapter 4 of Part 3 of the 2010 Act. In particular, it contended, there is nothing in s. 41 which requires that the report prepared by the Deputy Governor or his or her delegate for consideration by the Central Bank after the completion of the investigation must relate to a person who is still performing the relevant or any controlled function. It also submitted that the interpretation for which it contended is consistent with, for example, s. 43 which deals with the formation by the Central Bank of the opinion as to whether a Prohibition Notice should be issued. The opinion in s. 43(1) is that a person “is” not of such fitness and probity as is appropriate to perform the relevant or any controlled function. The Central Bank submitted that there is nothing in s. 43(1) or in s. 43(3) which requires that the person the subject of the investigation and the potential Prohibition Notice must still be in a role which involves the performance of the relevant or any controlled function. It submitted that there is nothing in the 2010 Act which requires that an investigation commenced at the time a person was performing controlled functions must come to an end when the person resigns from his roles involving the performance of those functions.

264. The Central Bank submitted that it would be absurd and contrary to common sense if an investigation had to be brought to an end where the person resigned or retired from the relevant roles. It noted that investigations under Chapter 3 could be very lengthy (as in the present case) and that persons the subject of investigations might, in certain circumstances, feel it appropriate to step aside from their roles while the investigation was ongoing. It would be absurd and contrary to common sense, it submitted, if the investigation had to come to an end if that happened. The Central Bank relied on the judgment of Noonan J in the High Court in Fingleton v The Central Bank of Ireland [2016] IEHC 1 in support of its submissions on the ultra vires issue. In response to the Respondent’s reliance on the provisions of what was the General Scheme of the Central Bank (Individual Accountability Framework) Bill 2021 (the “Scheme”) and, subsequently, s. 14 of the Central Bank (Individual Accountability Framework) Bill 2022 (the “2022 Bill”) (which was subsequently enacted as the Central Bank (Individual Accountability Framework) Act 2023 (the “2023 Act”)), the Central Bank disputed the relevance of the Scheme and of the 2022 Bill, and contended that it was not open to the court to consider either when interpreting s. 25 of the 2010 Act and that, in any event, neither the Scheme nor the 2022 Bill (nor, ultimately the 2023 Act) was of any assistance as none of these applied to the position of the Respondent who was a person performing a controlled function at the time the conduct of the investigation commenced in September 2019.

265. The Central Bank submitted, therefore, that there was no issue in relation to its vires to conduct the investigation and to complete the process notwithstanding that the Respondent had resigned from his controlled function roles in February 2020.

(ii) The Respondent

266. The Respondent maintained that the continued conduct of the investigation in circumstances where he had resigned from his controlled function roles in February 2020 was ultra vires the powers of the Central Bank under the 2010 Act. He submitted that the primary purpose of the statutory scheme in Part 3 of the 2010 Act is to ensure that controlled functions are not carried out by persons who do not comply with the fitness and probity standards contained in the Code. He submitted that the statutory language used in s. 25 and elsewhere supports his position that the person must be performing or being proposed or considered for appointment to a controlled function while the investigation is being conducted.

He sought to distinguish Fingleton on the basis that, unlike the statutory provision at issue in that case (s. 33AO(2) of the 1942 Act), s. 25(1) of the 2010 Act is not “time neutral” and is intended to cover a situation where the person the subject of the investigation is currently performing or is being proposed or considered for appointment to a role involving a controlled function. He submitted that Fingleton arose in a different context to the fitness and probity regime. That regime is aimed at precluding the performance of controlled functions by persons falling below the Standards and is a qualitatively different regime to that which was at issue in Fingleton.

He submitted that Part 3 of the 2010 Act is intended primarily to address the criteria set out in s. 43(2) and is directed to immediate concerns of serious damage to the financial system, threat to financial stability and of the need to ensure the protection of users of financial services. He noted that s. 25(1) refers to the conduct rather than the commencement of an investigation and stressed the reference in s. 25(1)(a) to the requirement that the Deputy Governor or his or her delegate must have the opinion that there is reason to suspect the person’s fitness and probity “to perform” the relevant function which, he submitted, is present or future looking rather than being directed to something which happened in the past.

He relied on the terms of s. 25(2)(a) (which uses the word “performs” in the present tense) and s. 25(3)(b) and (c) which refers to the future potential appointment of a person (where it is proposed to appoint or where the appointment of a person to a controlled function is being considered). He submitted that his interpretation is supported by s. 25(3) and, in particular, subparagraph (a) and (b) which refers to the person who is proposed to be the subject of an investigation in the present rather than past tense.

267. The Respondent submitted that s. 25 should be construed as a penal statute and should therefore, be construed strictly to give it the meaning for which he contended.

268. While being conscious of the constraints in the case law in looking at amending legislation for the purpose of interpreting the original legislation and noting that (at the time of the hearing) the 2023 Act had not been passed and was only a Bill, nonetheless the Respondent submitted that it was of some relevance (although in fairness this point was not strongly pressed at the hearing).

269. The Respondent also relied on the provisions of s. 43 in support of his interpretation of s. 25, relying on the fact that the relevant opinion at issue in s. 43 is a different one, at a different point in time and formed by a different person to that in s. 25.

270. The Respondent further disputed the Central Bank’s contention that it would be absurd or contrary to common sense if a person could resign from a controlled function role, avoid an investigation and, perhaps, subsequently seek to take up a new controlled function role. He submitted that there was no absurdity and that it would be open to the Central Bank to utilise the administrative sanctions procedure regime and, if appropriate, commence an inquiry under Part IIIC of the 1942 Act (as in Fingleton). In relation to such a person, he pointed to the provisions of s. 47 of the 2010 Act, which allow the use of information and evidence gathered in the course of an investigation under Chapter 3 and anything in any submission made to the Deputy Governor, or his or her delegate under s. 41 of the 2010 Act for the purpose of any statutory function of the Central Bank, including an inquiry under Part IIIC of the 1942 Act and the imposition of sanctions as a result of such an inquiry. He made the point that the procedural protections available to a person the subject of such an inquiry were far greater than those available under Part 3 of the 2010 Act. He submitted, therefore, that since there were options available in the case of a person who resigned or retired from their relevant controlled function role, it could not be said that the interpretation for which he was contending was absurd or contrary to common sense.

(b) Decision on ultra vires issue

271. I am satisfied that, contrary to the position advanced by the Respondent, the commencement and conduct of the investigation and the decision to issue the Prohibition Notice were not ultra vires the powers of the Deputy Governor (in the case of the investigation) and the Central Bank (in the case of the decision to issue the Prohibition Notice) under Chapters 3 and 4 of Part 3 of the 2010 Act on the ground that the Respondent had resigned from his controlled function roles with EF Fund ManCo in February 2020, after the investigation had been commenced but before it was completed and before the decision was made to issue the Prohibition Notice.

272. I have decided this issue primarily as a matter of statutory interpretation by applying the principles of statutory interpretation summarised by Murray J in the Supreme Court in A, B and

C. I have referred to those principles earlier.

273. At the time Mr Lynch, the delegate of the Director General, sent the notice of the commencement of the investigation under s. 25 of the 2010 Act to the Respondent on 20 September 2019, the Respondent had a number of controlled function roles in EF Fund ManCo, including that of Chief Executive Officer/CEO (PCF-8), Executive Director (PCF-1) and Designated Person in relation to Investment Management (PCF-39). He was, at that time, a person who was performing relevant controlled functions in relation to a regulated financial service provider (EF Fund ManCo). I agree with the Central Bank that the relevant point in time in determining whether the Central Bank, through the Deputy Governor or his or her delegate, has the power to conduct an investigation into the fitness and probity of a person with respect to the performance of relevant controlled functions is the time at which the opinion referred to in s. 25(1) is formed. I should make clear that I am considering the terms of s. 25 before it was amended by s. 14 of the 2023 Act with effect from 19 April 2023 as the 2023 Act does not apply to this case. In any event, the amendment to s. 25(1) effected by s. 14 of the 2023 Act was directed to a person who had been performing a controlled function within the period of six years immediately preceding the commencement of the investigation referred to in s. 25(1). It was not directed to a situation where the person was performing a controlled function or the relevant controlled function at the time the investigation commenced but who ceased (whether by resignation, retirement or otherwise) to perform such a function during the currency of the investigation.

274. In my view, s. 25(1), properly construed in its own terms and by reference to the other subsections in s. 25 and by reference to other sections in Chapter 3 and Chapter 4 of Part 3 of the 2010 Act, means that once a person is performing a controlled function at the time the opinion of the Director General is formed, the investigation can be conducted. It should be noted that s. 25(1) says that the Director General may “conduct” an investigation. The use of the word “conduct” makes it clear that it is not merely dealing with the commencement of the investigation (although the term clearly does encompass that, since an investigation cannot be conducted if it is not commenced) but the carrying out of or conducting of that investigation. There is nothing in s. 25 to suggest that the Oireachtas intended that the investigation may not continue to be conducted or must cease when the person the subject of the investigation resigns or retires or otherwise ceases to perform the relevant or any controlled function.

275. The point in time which is the focus of s. 25 and the conduct of the investigation is the date of the formation of the opinion in s. 25(1) that there is reason to suspect the person’s fitness and probity to perform the relevant controlled function and that an investigation is warranted into that person’s fitness and probity. That is the case in relation to a person who is actually performing a controlled function at that point in time (s. 25(2)(a) says that the subsection applies to a person “if the person performs a controlled function in relation to a regulated financial service provider”, using the present tense). That is also the relevant point in time in relation to a person who it is proposed by a regulated financial services provider to appoint to a controlled function role (s. 25(2)(b)) or who is being considered by such a provider for appointment to such a role (s. 25(2)(c)).

276. Section 25(3) also supports the interpretation for which the Central Bank contends in its response to the ultra vires issue. That subsection provides that without prejudice to the generality of s. 25(1), the Deputy Governor may form the opinion referred to in s. 25(1) if there is reason to suspect various matters including, at para. (a), that the person in question “does not have” the experience or qualifications or skills necessary to properly and effectively perform the controlled function or part of a controlled function or any controlled function. It is again, clear, in my view, that the relevant point in time at which to determine the vires of the Central Bank or, in particular, the Deputy Governor to conduct the investigation is at the time of the formation of the opinion. Section 25(3)(a) applies to a person who is performing the relevant controlled function at the time of the formation of the opinion. Section 25(3)(b) also applies to a person who is performing such a function and where the opinion is that the person does not satisfy the Standards set out in the Code. These two subparagraphs are designed to deal with the present situation at the time of the formation of the opinion. However, matters set out in s. 25(3)(c) to (h) refer to events that have occurred in the past and which lead to the formation of the relevant opinion by the Deputy Governor.

277. None of the provisions of s. 25, and indeed none of the provisions elsewhere in Chapter 3 of Part 3 of the 2010 Act, state that if an investigation has been commenced and is being conducted and if the person who is the subject of the investigation ceases to perform any controlled function, the Deputy Governor or his or her delegate ceases to have the power to conduct the investigation and must bring it to an end. That would be a surprising consequence of the resignation, retirement or cessation of a controlled function role by a person the subject of an investigation. One could well envisage a situation where a person the subject of an investigation might feel it appropriate to step aside from their controlled function role while the investigation was ongoing (but where the person has not been suspended under s. 26 of the 2010 Act) or where the person may have reached retirement age under their contract or may have resigned, perhaps to take up another position. If the Oireachtas had intended that in such circumstances the investigation would have to come to an end, one would have expected it to have expressly provided for that situation or at least to have done so in words which make it clear that that was its intention. In my view, the Oireachtas did not do so in this case in Part 3 of the 2010 Act.

278. The interpretation for which the Central Bank contended is consistent with other provisions in Chapter 3 of Part 3 of the 2010 Act, including s. 41. That section, which it will be recalled deals with the report prepared by the Deputy Governor or his or her delegate after the investigation has been carried out, does not say that the report cannot be prepared or furnished to the Central Bank or the Governor for consideration where the person the subject of the investigation has ceased to perform the relevant or any controlled function role. It refers in s. 41(2)(a) to “the person whose fitness and probity was the subject of the relevant investigation” and does not expressly or, in my view, impliedly require that that person must still be performing a controlled function role. The person whose fitness and probity was the subject of the relevant investigation is, of course, the person who was the subject of the opinion formed by the Deputy Governor under s. 25.

279. The Central Bank’s interpretation is also consistent with the provisions of Chapter 4 of Part

3 of the 2010 Act. Section 43 deals with a different opinion, the opinion of the Central Bank or of the Governor as the case may be, that a person “is” not of the fitness and probity as is appropriate to perform a particular controlled function, a part of a controlled function or any controlled function. That opinion must be formed before a prohibition notice can be issued. However, in order for that opinion to be formed and a decision made to issue a prohibition notice, the requirements in s. 43(3)(a) must be satisfied. They include the requirement that the Deputy Governor has conducted an investigation and that the requirements of s. 41 have been complied with in relation to the investigation and the report. The opinion under s. 43 and the decision made to issue a prohibition notice cannot be made unless the investigation has been carried out and a report provided under s. 41. There is no express or, in my view, implied requirement in s. 43 that at the time the Central Bank or the Governor forms the opinion referred to in that section that a person the subject of the opinion and potential prohibition notice must still be carrying out any controlled function. Again, if the Oireachtas had intended that to be the case, it would surely have so expressly provided. Instead, it tied the formation of the opinion and the decision to issue a prohibition notice to, amongst other things, the investigation and the report under s. 41. There is, therefore, a clear and close interconnection between the investigation and the s. 41 report prepared by or on behalf of the Deputy Governor under Chapter 3 and the opinion of the Central Bank or the Governor and the decision to issue a prohibition notice under Chapter 4.

280. Further support for the interpretation for which the Central Bank contended is in s. 43(1)(a) where it refers to “any controlled function”. The Prohibition Notice can therefore apply to any controlled function and is not confined to the controlled function which the person was performing at the time of the formation of the opinion which led to the decision under s. 25 to conduct an investigation into the fitness and probity of that person. The use of that term “any controlled function” in s. 43(2)(a) is also supportive of the Central Bank’s position. Similar terminology is used in s. 25(3)(a).

281. I do not believe that s. 47, on which the Respondent placed some reliance, is of any assistance or relevance here. While s. 47 does provide that the Central Bank may use information and evidence gathered in the course of an investigation under Chapter 3 and anything in any submission made to the Deputy Governor under s. 41 for the purposes of any statutory function of the Central Bank, including an inquiry under Part IIIC of the 1942 Act and the imposition of sanctions as a result of such an inquiry, if the Respondent were correct that the continued conduct of the investigation was ultra vires the Central Bank when he resigned from his controlled function roles in February 2020, then there must surely be a question mark as to whether the Central Bank could lawfully use any information gathered in the course of the investigation or any submission made in respect of a report prepared by the Deputy Governor under s. 41 following that investigation. I do not have to decide that issue in this case but there must surely be a question mark over the status of material generated in the course of an investigation which is ultra vires. Accordingly, I do not believe that s. 47 has any relevance to the ultra vires issue which I have to decide.

282. Nor, in my view, does the 2022 Bill, which was enacted subsequently as the 2023 Act, have any relevance or provide any support for the Respondent’s position. I say that for a number of reasons. First, it was only a Bill when the Central Bank issued the Prohibition Notice and sought its confirmation by the court. Second, even if that Bill had been enacted (in the form of the 2023 Act), by the time of the confirmation hearing it would nonetheless not have been open to the court to have resort to the legislation for the purposes of construing the provisions of s. 25(1) as originally enacted: see Carney v Balkan Tours Limited [1997] 1 IR 153 and Clinton v An Bord Pleanála [2006] IESC 58, both of which were applied by Noonan J in the High Court in Fingleton.

Noonan J concluded that he was not entitled to have any regard to the provisions of the amending legislation as an aid to the construction of the original legislation under which the inquiry at issue in that case took place. That reasoning also applies here. Third, even if it were open to the court to look at the amending legislation, it would not, in any event, apply to the situation which arises in this case. The relevant amendment is in s. 25(2)(aa) of the 2010 Act which was inserted by s. 14(a)(ii) of the 2023 Act. The amendment provided that the Deputy Governor could form the relevant opinion in under s. 25 in relation to a person for the purpose of conducting an investigation into that person’s fitness and probity where the person “has performed a controlled function in relation to a regulated financial service provider or holding company within the period of 6 years immediately preceding the commencement of the investigation referred to in subsection (1)”.

That subsection would not apply to a person in the position of the Respondent whose position fell within s. 25(2)(a) as he was at the time of the formation of the opinion that an investigation should be conducted, a person who was performing controlled functions. The amendment introduced in s. 25(2)(aa) appears to have been intended to cover a situation where a person did perform a controlled function within six years prior to the commencement of the investigation but was not performing any such function at the time of the formation of the opinion in s. 25(1).

Accordingly, neither the 2022 Bill nor the 2023 Act and the amendment introduced to s. 25(2) by it has any relevance to this case or to the ultra vires issue raised by the Respondent.

283. While recognising the need to be cautious when considering judgments which consider different statutory provisions, the judgment of Noonan J in the High Court in Fingleton, however, is of some relevance and assistance to the ultra vires issue in this case. The statutory provision under consideration in Fingleton was s. 33AO(2) of the 1942 Act. That is the section under which the Central Bank, if it suspects on reasonable grounds that a “person concerned” in the management of a regulated financial service provider “is participating or has participated” in the commission of a prescribed contravention by the financial services provider, may hold an inquiry to determine whether or not the person “is participating or has participated” in the contravention.

That section and the administrative sanctions procedure under which it falls are quite different to s. 25 of the 2020 Act and the fitness and probity regime which it concerns. I prefer to base my conclusion on the ultra vires issue on what I consider to be the proper statutory interpretation of s. 25 and of the other provisions in Chapter 3 and Chapter 4 of Part 3 of the 2010 Act to which I have referred above. However, the approach taken by Noonan J to the interpretation of s. 33AO(2) is instructive. I have already referred to and agreed with the approach he took in relation to the purported reliance of subsequent amending legislation in construing the original statutory provision.

Noonan J also decided to approach the interpretation of s. 33AO(2) as if it were a penal statute imposing a penal sanction (at paras. 96 to 105 of his judgment). However, in doing so, he concluded that none of the canons or rules applicable to the construction of a penal statute availed the applicant in Fingleton in the absence of “ambiguity, uncertainty or obscurity” in the words of s. 33AO(2). He found that the meaning of the words used was clear and did not depend on adding in anything to the section which was not there. He held that the expression “person concerned in the management” of the relevant provider was in itself “time neutral” and was given context and meaning by the words that follow it in the subsection.

He held that it was “clear beyond doubt” that the time at which the person had to be “concerned” in the management of the provider was the time at which the provider committed the prescribed contravention in which it was alleged the person concerned participated. Any other construction, he stated, “offends common sense and gives rise to absurd results”. They include a situation where, on the interpretation urged on behalf of the applicant in that case, a person would be entitled at any time during the currency of an inquiry “to oust its jurisdiction by the simple expedient of resigning or retiring” (para. 105).

He held that that would be absurd as it would mean that the Central Bank might embark on an investigation, following the relevant procedural steps, without ever knowing whether it might be deprived of jurisdiction “at any moment at the will of the person being investigated” (para. 105). The approach adopted to the interpretation of s. 33AO(2) by Noonan J and the interpretation he gave to that term was upheld by the Court of Appeal (for the reasons given in the judgment of Finlay Geoghegan J on that issue: [2018] IECA 105).

284. The Respondent submitted at the hearing that s. 25 of the 2010 Act should be construed as if it were part of a penal statute. Unlike in Fingleton, it was not conceded on behalf of the Central Bank that the section should be construed as if it were part of a penal statute. While I do not believe that the 2010 Act is in truth a penal statute, notwithstanding the extraordinarily serious consequences for a person (such as the Respondent) who is the subject of an investigation and a prohibition notice following such an investigation, I have nonetheless taken the approach adopted by Noonan J in Fingleton. I have treated the section as if it were contained in a penal statute. However, I do not believe that the principles of strict construction of penal statutes and the other principles applicable to the construction of a penal statute which were discussed by Noonan J (at paras. 96 to 106 of his judgment) and by Finlay Geoghegan J (at paras. 24 and 25 of her judgment in the Court of Appeal) can avail the Respondent. I have reached that conclusion as I do not believe that there is any ambiguity or uncertainty or obscurity in the words used in s. 25. The meaning of the words used is clear. The relevant point in time at which the person who is to be the subject of an investigation under Chapter 3 of Part 3 of the 2010 Act must be performing the relevant controlled function is at the time the Deputy Governor forms the view that such an investigation should be conducted. I have explained earlier why I have reached that view. Like Noonan J, I am also of the view that any other construction, such as the construction for which the Respondent argued in this case, would offend common sense and would give rise to absurd results, similar to those identified by Noonan J. One such absurd result would be if a person the subject of an investigation could simply by resigning, retiring or stepping aside from their controlled role, bring the investigation to an end.

285. I am not persuaded by the submission on behalf of the Respondent that the Central Bank might have other options in that situation such as by invoking the administrative sanctions procedure regime under Part IIIC of the 1942 Act. As pointed out on behalf of the Central Bank, that procedure insofar as an individual is concerned is directed to the participation of a person in the commission of a prescribed contravention by a financial services provider rather than being aimed directly at the person concerned. I have also referred earlier to serious question marks as to whether material generated in an investigation which, on the Respondent’s case, would be ultra vires the Central Bank and unlawful once the person the subject of the investigation resigned or retired or otherwise ceased to perform a controlled function, could lawfully be used by the Central Bank in the performance of other functions including its functions under the administrative sanctions procedure. In any event, the administrative sanctions procedure is an entirely separate procedure and its potential availability can have no bearing on the proper interpretation of s. 25 of the Act.

286. In conclusion, therefore, I reject the Respondent’s contention that the conduct of the investigation and the decision to issue the Prohibition Notice were ultra vires the powers of the Deputy Governor and the Central Bank under Chapters 3 and 4 of Part 3 of the 2010 Act, respectively, on the ground that the Respondent had resigned from all his controlled function roles in February 2020, after the investigation had commenced but before it had concluded. I am satisfied that this issue raised by the Respondent does not give rise to a factor which would vitiate the opinion of the Central Bank (and the process that led to its formation) that a prohibition notice should be issued in relation to the Respondent for the purposes of sections 45(5) and (6) of the 2010 Act.

20. Whether there was a reasonable basis for the opinion and process: sections 43 and 45 of 2010 Act: Fair Procedures Issues

(a) Summary of the submissions of the parties

(i) The Central Bank

287. The position of the Central Bank was that the Investigator (to whom the Deputy Governor had delegated his functions under Chapter 3, Part 3 of the 2010 Act) and the Decision-Maker (to whom the Central Bank had delegated its functions under Chapter 4) at all times acted in compliance with the provisions of the 2010 Act and the 2012 Regulations and in accordance with the rules of natural and constitutional justice and fairness of procedures as they applied to the investigation under Chapter 3 and to the decision-making process which led to the decision to issue the Prohibition Notice under Chapter 4 of Part 3 of the 2010 Act. It submitted, therefore, that the court should conclude that the opinion of the Decision-Maker to issue the Prohibition Notice (and the process that led to the formation of that opinion) was not vitiated by either (a) a “significant and serious error or series of such errors” or (b) “a mistake of law”. The argument focused more on (a) than on (b), in circumstances where, correctly in my view, it was accepted on behalf of the Central Bank that if there was a serious breach of the Respondent’s right to natural and constitutional justice and basic fairness of procedures during the process leading to the decision to issue the Prohibition Notice, that would amount to a “significant and serious error or series of such errors”, depending on the nature and extent of the breaches. I propose, therefore, to focus on the issue as to whether there was any “significant and serious error or series of such errors”. The Central Bank contended that there was not.

288. It submitted, relying on various cases including Dellway Investments Limited v NAMA [2011] 4 IR 1 that the extent of the fair procedures required in respect of an investigation and

decision-making process depends on the circumstances and on the subject matter of the investigation and decision. It submitted that reasonable fairness in all of the circumstances is what is required. It further cited my judgment in Facebook Ireland Limited v Data Protection Commissioner [2021] IEHC 336 (para. 268) in support of that proposition. It made the point that unlike judicial review proceedings or statutory appeals, in the case of a confirmation application under s. 45 of the 2010 Act and, in particular, in considering whether there is a “reasonable basis” for the opinion that a person is not of such fitness and probity as is appropriate to perform a particular controlled function or part of a controlled function or any controlled function and to issue a prohibition notice under s. 45(1), the court is statutorily obliged under s. 45(6) to afford statutory deference to the Central Bank by taking into account the “expertise and the specialist knowledge” possessed by the Bank. In response to the Respondent’s reliance on the “full panoply of procedural justice” (the phrase used by Hardiman J in O’Ceallaigh v An Bord Altranais [2000]

4 IR 54 at p. 124 with reference to the rights afforded in Scariff v Taylor [1996] 1 IR 241) and his reliance on the rights set out in Re Haughey [1971] 2 IR 217 (at p. 263), the Central Bank submitted the following. It maintained that (a) the Respondent had been furnished with all of the evidence which reflected on his good name, (b) he had no entitlement to cross-examine as there were no accusers or persons making allegations against him which he required to test on factual grounds, (c) since there was no accuser against the Respondent, he had no entitlement to be permitted to give rebutting evidence and (d) the Respondent had the opportunity to make written submissions throughout the process, put in five sets of written submissions and attended at the meeting with the Decision-Maker on 17 September 2021 when both he and his solicitor addressed her. The Central Bank submitted that the Respondent was not entitled to greater procedural protections than those that were afforded to him, having regard to the nature of the process and the extent to which he was permitted to participate in it from before the commencement of the investigation until the decision was made to issue the Prohibition Notice.

289. The Central Bank rejected the contention that there was any unfairness or breach of the principles of natural justice in the decision to commence the investigation and in the conduct of the investigation itself. With respect to the decision by the Investigator not to interview witnesses who were identified by the Respondent as persons who could give relevant evidence, it was submitted that the Investigator was entitled to take the decision which he did under s. 32(1) of the 2010 Acts and under Regulation 3(6) of the 2012 Regulations. It submitted that the Investigator had carefully considered the reasons advanced on behalf of the Respondent as to why those persons should be interviewed and was entitled to reach the decision that it was not necessary or a proportionate use of the Central Bank’s powers to interview them.

It maintained that the Respondent had not identified any specific conflict of fact or gap in the evidence and that the issues raised by the Respondent in relation to the matters set out in the notices and statement of grounds were directed to the interpretation of contemporaneous evidence and did not give rise to any conflict of fact. It pointed out that the Respondent was given the opportunity of procuring submissions from the persons he had identified but failed to do so. While the Investigator did not interview the persons identified, their direct words (as contained in correspondence and in transcripts of telephone calls) were considered by the Investigator in the investigation and in the formulation of the s. 41 report.

It was noted that there were approximately 670 pages of transcripts reviewed as part of the investigation. The Central Bank submitted that the Investigator was entitled to take the view that it would not have been an appropriate or proportionate use of the compulsory interview powers under the 2010 Act with the potential for criminal sanctions, to exercise those powers in relation to the persons identified by the Respondent. The Central Bank also pointed to the opinion of the Decision-Maker that interviews of those persons would not have altered her reasoning or decision in relation to any of the grounds addressed in the s. 41 report or in the Prohibition Notice.

She concluded that the Respondent had not identified any gaps or conflicts of evidence as would require hearing any additional witnesses and it was noted that she relied on contemporary documentary evidence including transcripts of calls and emails. It was pointed out that the Respondent did not dispute the accuracy of the contemporaneous material but rather the interpretation placed on them by the Investigator and by the Decision- Maker in the s. 41 report and in the Prohibition Notice, respectively. That line of argument applied in respect of each of the three grounds on which findings were made against the Respondent in the Prohibition Notice.

It was submitted, therefore, that it was not a breach of any of the provisions of the 2010 Act or of the 2012 Regulations or of the principles of natural and constitutional justice for the Investigator not to interview the persons identified by the Respondent as being in a position to give relevant evidence.

290. With respect to the decision by the Investigator not to interview the Respondent during the course of the investigation, it was submitted by the Central Bank that the Investigator was entitled to adopt the approach which he did and that he was not required, under the 2010 Act or under the 2012 Regulations or under the rules of natural and constitutional justice, to interview the Respondent. The Investigator invited the Respondent to attend for interview on three occasions (26 May 2020, 16 July 2020 and 31 July 2020). It was submitted that the Respondent either declined or did not confirm his availability to attend for interview and that the Respondent’s solicitors did not confirm the Respondent’s availability to attend an interview between the date of their letter of 27 August 2020 and 27 November 2020, when the Investigator wrote confirming that the information gathering stage of the investigation had concluded. It was submitted that the Investigator could not be criticised for not interviewing the Respondent in those circumstances. Reliance was also placed on the fact that after the s. 41 report was furnished to the Central Bank and before the Decision-Maker decided to issue the Prohibition Notice, the Decision-Maker agreed to meet with the Respondent on 17 September 2021. While initially describing that event as an “interview” (which it was clearly not), counsel for the Central Bank then subsequently referred to it in her submissions as a meeting. It was not suggested that the meeting was a substitute for an interview of the Respondent by the Investigator during the investigation. Nor could it be. The main point made by the Central Bank was that the Respondent had been invited to attend an interview and did not do so and that he and Arthur Cox made several submissions to the Investigator (and subsequently to the Decision-Maker) setting out his position as well as attending the meeting on 17 September 2021.

291. With respect to the contention that the Investigator ought to have convened an oral hearing, the Central Bank submitted that an oral hearing was not required to be held by the Investigator during the course of the investigation under the 2010 Act or the 2012 Regulations and that an oral hearing was not required in order to comply with the Respondent’s right to fair procedures. It was submitted that the Investigator had a broad discretion under s. 34 of the 2010 Act and under Regulation 4 of the 2012 Regulations as to whether to convene an oral hearing. It was submitted that the Investigator was reasonably entitled to conclude that an oral hearing was not necessary either under those statutory provisions or under the rules of natural and constitutional justice. It was again stressed that there was no factual dispute at issue and that the Respondent’s position in the course of the investigation (and subsequently during the decision-making stage of the process) rested on a claim that the Central Bank had not correctly interpreted the contemporaneous material and that there was no factual dispute at issue. It was further submitted that the Respondent’s credibility was not at issue in a sense that required an oral hearing. His credibility in dealing with the Investigator or with the Decision-Maker was not, it was submitted, in question (although it was acknowledged on behalf of counsel for the Central Bank that there was a finding in the Prohibition Notice that the Respondent was not credible and not truthful in his dealings with the Central Bank in respect of the events under investigation which were the subject of the Prohibition Notice). Counsel for the Central Bank maintained that there was no present concern that the Respondent was not being truthful with the Central Bank (although, as I have observed earlier and, as I will explain further below, the Decision-Maker did in fact make findings as to the Respondent’s credibility and truthfulness in his dealings with the Investigator and with the Decision-Maker). The Central Bank also relied on the fact that no request was made on behalf of the Respondent for an oral hearing before the information gathering stage of the investigation was concluded and before the s. 41 report issued.

292. In its submissions on the oral hearing issue, the Respondent made the point that the entitlement to an oral hearing will depend on many circumstances and the fact that a hearing may be required does not necessarily require an oral hearing to be held, relying on the dicta of Hardiman J in Dellway (at p. 361) and on other cases such as John Paul Construction Limited v Tipperary Cooperative Creamery Limited [2022] IEHC 3. The Central Bank also relied on judgments such as Hyde and O’Neill and O’Donoghue v Financial Services Ombudsman [2014] IEHC 620 in support of its submission that while an oral hearing will generally be required where there is a material conflict of evidence on a matter of fact which could only be resolved by an oral hearing, there was no such material conflict of fact in this case. The Central Bank also relied on cases such as J&E Davy v Financial Services Ombudsman [2008] IEHC 256, [2008] 2 ILRM

507 (High Court) and [2010] IESC 30, [2010] 3 IR 324 to the same end. As I mentioned earlier, in response to the Respondent’s submissions at the hearing, the Central Bank’s position was that an oral hearing was not required under the principles in Re Haughey.

293. In summary, the bottom line from the Central Bank’s point of view was that there was no factual dispute and no issue as to the Respondent’s credibility in his dealings with the Investigator or the Decision-Maker which required an oral hearing. There was a dispute as to the interpretation of contemporaneous material and as to the Central Bank’s understanding of that material and of the events that occurred.

294. It was submitted that the process as a whole was fair to the Respondent (relying on the dicta of O’Donnell J in Crayden Fishing Company Limited v Sea Fisheries Protection Authority [2017] IESC 74, [2017] 3 IR 785, at paras. 33 and 34, pp. 805 – 806. The Central Bank submitted that the procedures afforded to the Respondent in the course of the investigation and at the subsequent decision-making stage as a whole were fair to the Respondent. He was permitted to make several sets of submissions, he was invited to an interview by the Investigator, he was given the opportunity of outlining how the evidence of persons identified by him were relevant to the matters the subject of the investigation, he was offered the opportunity to procure submissions from those persons identified by him, he had a meeting with the Decision-Maker on 17 September 2021 and was afforded an opportunity to make further submissions prior to the issuing of the Prohibition Notice.

295. Finally, reliance was placed on behalf of the Central Bank on the important role of the

Decision-Maker under s. 43(3)(b) of the 2010 Act. She was required to be satisfied and expressed herself in the Prohibition Notice as being satisfied that the Respondent had been “afforded such a hearing in relation to the proposed issue of the Prohibition Notice as [was] necessary to do justice in the circumstances…”. It was submitted that the scheme of the legislation does not envisage that the Decision-Maker would conduct the “hearing” referred to in that provision although it was accepted that that section is not a mere “empty formula”. It was also submitted that the Respondent could have adduced further evidence in the course of the confirmation application under s. 45(4) but did not do so.

296. Finally, it was submitted on behalf of the Central Bank that the Prohibition Notice was proportionate in terms of its scope of application and the period for which it was intended to last, for the reasons outlined by the Decision-Maker in the Notice itself. Significant weight, it was submitted, should be attached to the views of the Decision-Maker that there was a need to protect users of financial services and on her opinion that the actions of the Respondent could have affected the stability of the financial system of the State and could have undermined confidence in the financial system as a whole. The court was also asked to attach significant weight to the relevant factors identified by the Decision-Maker in the Prohibition Notice, including the alleged lack of regret on behalf of the Respondent and the fact that the Decision-Maker found that the Respondent was not “fully candid” with the Central Bank.

(ii) The Respondent

297. The Respondent agreed with the Central Bank that the requirements of fair procedures would depend on the particular circumstances of the case, relying on International Fishing Vessels Limited v Minister for Marine (No. 2) [1991] 2 IR 93 (per McCarthy J at p. 102), Keady v Commissioner of An Garda Síochána [1992] 2 IR 197 (per O’Flaherty J at p. 213) and Mooney v An Post [1988] 4 IR 288 (per Barrington J at p. 298). The Respondent also agreed that it was necessary to consider the process as a whole (relying, in particular, on the dicta of O’Donnell J. in Crayden). It was submitted that at each stage of the process commencing with the decision to commence an investigation and culminating in the decision to issue a Prohibition Notice, the Central Bank failed to take adequate steps to vindicate the Respondent’s right to fair procedures. It was submitted that the Respondent was entitled to more than a “desktop” exercise and a belated invitation to a meeting with the Decision-Maker.

298. With respect to the commencement of the investigation, it was submitted that the Central Bank acted unfairly. The notice of intention to commence the investigation in July 2019 invited the Respondent to provide written submissions, which he did. However, the notice to commence the investigation in September (less than two weeks after the Respondent’s submissions were received) criticised the Respondent’s response stating that it was not supported by documentary evidence (when that was not what he was asked for in the July notice).

299. The Central Bank warned the Respondent in the notice of intention to commence the investigation in July 2019 how serious the matter was for him (and I have set out previously some of the material contained in that notice). The Respondent submitted that, in light of the serious nature of the allegations and the possible reasons to suspect the Respondent’s probity set out in that notice, the Respondent was entitled to a hearing, to give evidence, to have matters put to him, including the Central Bank’s interpretation of relevant contemporaneous documents and inferences which the Central Bank would seek to draw from those documents and, if the Respondent’s credibility was in issue, it was necessary for the relevant matters to be put to the Respondent and to allow him to answer the Central Bank’s concerns on oath and that the people he identified should be interviewed by the Investigator and give evidence at an oral hearing.

300. The Respondent submitted that the investigation itself, once commenced, was procedurally flawed in several respects in light of the Central Bank’s failure to ensure that these procedures were made available to him. He submitted that because of the serious potential implications for him (including findings as to his honesty, truthfulness and credibility) he was entitled to the “full panoply” of procedural rights (per Hardiman J. in O’Ceallaigh). The Respondent submitted that there were many flaws in the investigation including the failure to interview the persons he identified as being in a position of being in a position to give relevant evidence, the failure to interview the Respondent himself, the failure to hold an oral hearing and the belated holding of a meeting by the Decision-Maker which, he contended, was entirely unsatisfactory.

301. With respect to his complaint that the Investigator did not interview the persons he had identified as being in a position to give relevant evidence, it was submitted that as the Investigator requested, the Respondent, through Arthur Cox, provided a list of those persons together with an explanation as to why the Respondent believed they would be in a position to give evidence relevant to the investigation and to the particular matters which the Central Bank was considering as potentially affecting his probity. The Respondent submitted that in providing that information, he complied with the provisions of s. 32 of the 2010 Act and Regulations 3(3) and 3(4) of the 2012 Regulations.

It was pointed out, for example, that the persons identified would be in a position to give evidence that would materially supplement the contemporaneous documentation and that they had first hand knowledge of the matters the Central Bank was considering in the investigation. It was particularly important, the Respondent submitted, that these people be interviewed in light of the concern that the Respondent might not have been truthful, honest and candid in his dealings with the Central Bank. The Respondent submitted that the reasons given by the Investigator for refusing to interview the persons identified were unacceptable.

By describing the Respondent as the “key” or “primary” witness and by stating that it was a matter for the Respondent to obtain submissions from the persons he identified if he wished, the Investigator was acting in breach of the Respondent’s right to fair procedures in the investigation. It was unfair to put the onus on the Respondent to obtain relevant evidence where the obligation to ensure the process was fair was on the Central Bank and, at this stage of the process, the Investigator. The Respondent submitted that in focusing on whether or not there existed “gaps” in the evidence as the test for determining whether the persons identified by the Respondent should be interviewed, the Investigator applied the incorrect test.

The Respondent submitted that in failing to interview those persons, he was not given the opportunity of meaningfully challenging the views and concerns of the Central Bank in the investigation. He submitted that the factual background was particularly important. In that respect, the evidence of the persons he identified was necessary not only to provide the relevant context and an explanation for the views of the Respondent and others involved in the relevant events, but also to ensure that the Central Bank properly understood the facts and to ensure that the s. 41 report which would ultimately emerge from the investigation process was complete and accurate.

302. The Respondent submitted that the failure to interview him meant that he was deprived of any meaningful opportunity to challenge the views taken by the Investigator in the s. 41 report and by the Decision-Maker in her decision to issue the Prohibition Notice. It was submitted that Arthur Cox made it clear that the Respondent was willing to be interviewed (without prejudice to his contention that the investigation was ultra vires) in the call of 20 August 2020 and in the letter of 27 August 2020. The Respondent submitted that the Central Bank failed to take into account the Respondent’s illness at the time. The Respondent made the point that despite the fact that he was described as the “key” and “primary” witness, the Investigator closed the information gathering stage of the investigation in late November 2020 without any warning to the Respondent that he was intending to do so. In light of the Central Bank’s obligation to ensure that the procedures provided to the Respondent were fair, the Investigator ought to have contacted the Respondent’s solicitors before concluding the information gathering stage of the investigation at that time.

303. The Respondent submitted that he was entitled as a matter of fair procedures to an oral hearing in light of the allegations that were made and the concerns raised by the Central Bank about his probity. He submitted that the Investigator ought to have concluded that an oral hearing was necessary under s. 34 of the 2010 Act and Regulation 4 of the 2012 Regulations. It was submitted that the Investigator was wrong to conclude that there was no gap in the evidence or conflict of evidence and that he failed to take into account the nuanced nature of the underlying facts and of the contemporary material and relied solely on the Central Bank’s interpretation of the documents. Apart from contending that there was a gap in the evidence, it was submitted that the Investigator failed to take into account the other circumstances referred to in Regulation 4(2) for when an oral hearing might be held (including where issues of credibility arose, where there was a serious potential effect of the investigation on the subject of the investigation and where allegations of a serious nature were being made). It was acknowledged that Regulation 4(5) provides that nothing in the 2012 Regulations was to be taken as imposing an obligation on the Investigator to convene an oral hearing. However, it was submitted that the Investigator was required to exercise his discretion fairly and in accordance with the Respondent’s right to fair procedures and, had he done so, he would have convened an oral hearing. It was acknowledged that the Respondent did not request an oral hearing until after the s. 41 report. The explanation given for that by counsel at the hearing was that the Respondent and his solicitors understood that the investigation was still at the information gathering stage. They did not believe that they were at the point at which an oral hearing was being considered.

304. The Respondent relied on a number of cases which he submitted established that where facts were in issue or where the credibility of a person was in question, an oral hearing should be held. It was contended that the procedural protections in Re Haughey ought to have been afforded to him. Reliance was also placed on Galvin v Chief Appeals Officer [1997] 3 IR 240, Davy, O’Brien v Financial Services Ombudsman [2014] IEHC 111 and O’Donoghue. It was submitted that not only was an oral hearing necessary in relation to the establishment of the facts but that, very significantly, the Respondent’s truthfulness, honesty and candour and his credibility were all in issue. The Respondent pointed to the findings in the s. 41 Report on the three grounds touching on his fitness and probity about which the Central Bank had concerns and, particularly, ground 3 relating to his truthfulness and candour. The Respondent also pointed to a number of the findings and comments in the Prohibition Notice which strongly suggested that the Decision- Maker did not believe the Respondent. The Respondent submitted that all of the factors identified by McKechnie J. in Fitzgibbon (at para 75) (quoted earlier) were present in this case (including the serious impact and consequences of the investigation and ultimate decision for the Respondent). It was suggested that the presence of these factors supported the Respondent’s entitlement to greater procedural protection than was afforded to him by the Central Bank. The procedures afforded to the Respondent by the Investigator and by the Decision-Maker were contrasted with those which would have been available to him had the Central Bank proceeded under Part IIIC of the 1942 Act under the administrative sanctions procedure where he would have been entitled to a hearing and to an appeal before the Appeals Tribunal.

305. The Respondent submitted that, notwithstanding the statutory deference afforded to the Central Bank under s. 45(6), the Central Bank and its Investigator and Decision-Maker in this case were not entitled to any particular deference from the court in terms of the procedures afforded to the Respondent and whether they complied with the rules of natural and constitutional justice, including with respect to the decision not to hold an oral hearing.

306. The Respondent submitted further that the Decision-Maker could not reasonably been satisfied for the purposes of s. 43(3)(b) of the 2010 Act that the Respondent had been “afforded such a hearing in relation to the proposed issue of the Prohibition Notice as [was] necessary to do justice in the circumstances.”

307. The Respondent was extremely critical of the meeting arranged by the Decision-Maker on

17 September 2021. He submitted that it was not an interview and took place after the information gathering stage of the investigation was closed and after the s. 41 report was furnished to the Respondent and to the Central Bank. He was critical of the fact that the Decision-Maker asked no questions of him at the meeting. He was critical of the fact that the Decision-Maker did not alert him to areas where she had concerns and where she ultimately rejected his evidence and did not, therefore, give him any or any meaningful opportunity to respond to her concerns. She did not ask the Respondent about matters on which she had formed or was considering forming views which were negative of the Respondent and where she was considering rejecting his evidence. The Decision-Maker did not ask for clarification of any issue and did not put to him any areas in which his credibility was in issue and allow to attempt to assuage her concerns. He submitted it was particularly difficult to fathom how the Decision-Maker did not feel it appropriate to ask him questions relevant to his credibility. The Respondent submitted that the convening of the meeting by the Decision-Maker was another unfair element in the procedures afforded to him and was no more than a “box ticking” exercise.

308. The Respondent disputed the proportionality of the Prohibition Notice having regard to the very serious impacts on and consequences for him professionally and personally and for his family. He contended that the fact that the ultimate outcome was so serious for him (including the making of a finding that he was not open and transparent and not fully candid with the Central Bank and misled the officials of the meeting on 24 July 2018) meant that the Central Bank should have been particularly conscious of the need to ensure that the procedures applied to the investigation and decision-making process applied with the Respondent’s entitlement to fair procedures at all stages.

(b) Decision on reasonable basis of opinion: Fair Procedures Issues

309. Having carefully considered the very comprehensive and skilful submissions made on behalf of the Central Bank and on behalf of the Respondent on these issues, I have reached the

conclusion that I should not confirm the Prohibition Notice under s. 45(5) of the 2010 Act. My reason for not confirming the Prohibition Notice is that I am not satisfied there is a “reasonable basis” for the Central Bank’s opinion that the Respondent is not of such fitness and probity as is appropriate to perform the relevant “controlled functions”. The reason why I am not so satisfied is because, in my view, the opinion (and the process that led to its formation) was vitiated in accordance with s. 45(6) by a series of significant and serious errors and, arguably, also by a mistake of law (although it is unnecessary to express a concluded view on the latter point). As I have concluded earlier (and as was accepted by the Central Bank), a serious breach of the rules of natural and constitutional justice and basic fairness of procedures or of the provisions of the 2010 Act or the 2012 Regulations could amount to a “significant and serious error or series of such errors”. I am satisfied that there were such serious breaches in this case which amounted to significant and serious errors or a series of such errors. Cases such as O’Neill (Hogan J) and Hyde (Cross J) established a serious breach of the rules of natural and constitutional justice would amount to a significant and serious error or errors sufficient to vitiate a decision taken in breach of those rules. The Central Bank did not disagree with that proposition, although it did not accept that there were such breaches.

310. I accept the submission advanced on behalf of the Respondent that the burden lay on the Central Bank under s. 45(6) of the 2010 Act to establish that the relevant opinion was not vitiated by such errors (or mistake). I am satisfied that the Central Bank has not discharged that burden in the very particular circumstances of this case. However, I would have reached the same

conclusion even if the burden under the section lay on the Respondent to establish the existence of such errors. It is necessary to make the point that this case is very fact dependent, and turned on the serious allegations that were made against the Respondent, the issues of credibility that arose in relation to the Respondent and the very serious potential outcome for the Respondent which were highlighted by the Central Bank from the very start of the process.

311. The principal reason for my conclusion is that, in my view, there were serious breaches of the principles of natural and constitutional justice and basic fairness of procedures as well as breaches of the 2010 Act and the 2012 Regulations by the Investigator during the investigation stage of the process under Chapter 3 and serious breaches of those principles and of the 2010 Act by the Decision-Maker during the decision-making stage under Chapter 4 of Part 3 of the 2010 Act.

312. It is beyond question that the Investigator, in carrying out his role on behalf of the Deputy Governor under Chapter 3 of Part 3 of the 2010 Act and the Decision-Maker, in carrying out her role on behalf of the Central Bank under Chapter 4 of Part 3, were required to act fairly and in accordance with the requirements of natural and constitutional justice and basic fairness of procedures as well as being obliged to comply with the provisions of the 2010 Act and the 2012 Regulations.

313. I accept that the precise nature and extent of the fair procedures required to be provided by a body carrying out an investigation and by a body making a decision following that investigation will depend on the particular circumstances of the case: see, for example, International Fishing Vessels (No. 2) (per McCarthy J. at 102), Keady (per O’Flaherty J. at 213) and Mooney (per Barrington J. at 298) and Facebook Ireland (at paras. 264 to 268 of my judgment in that case).

314. It is also clear that the seriousness of the matter being considered and of the consequences for the person the subject of a particular investigation and decision-making process is relevant to the nature and extent of the procedures which will be required to ensure fairness to that person: see the dicta of Finnegan J in the Supreme Court in Davy, at paras. 99-100, pp. 360-361. The more serious the allegations and the matters being considered, and the consequences for the subject, the greater and more extensive the procedures will have to be in order to comply with the subject’s right to natural and constitutional justice and basic fairness of procedures.

315. I also accept that in considering an allegation of a breach or breaches of fair procedures in the operation of a statutory process, it is necessary to look carefully at what is involved in that process. That point was well put by McKechnie J in his judgment in the Supreme Court in Fitzgibbon where (in a passage relied on by both the Central Bank and by the Respondent), he said that the court must look at the statutory language involved and: “… one must also consider matters such as the nature of the body in question, the knowledge and expertise within it – by reference to its purpose – the subject matter of its remit, the type of decision(s) involved, and the impact and consequences thereof for the addressee(s); the proceedings and the type of process involved in, and giving rise to, the

decision under appeal must also be considered.” (at para. 75, p. 543) McKechnie J further observed that the extent of the participation by the party affected by the

decision in the process leading up to the decision was of “considerable significance”. The appellant in that case had had a full right of participation in and was heavily engaged in the statutory process that gave rise to the adverse decision against her.

316. Many of the factors identified by McKechnie J are relevant in this case, including, of course, the impact and consequences of the process and the decision arising from it (the Prohibition Notice) and also the knowledge and expertise of those operating the process, such as the Investigator and the Decision-Maker. There is a statutory requirement of deference in respect of those persons in s. 45(6) of the 2010 Act which makes express reference to the “expertise and specialist knowledge” possessed by the Central Bank which the court must take into account in considering whether or not to confirm a prohibition notice. There is also the requirement in s. 45(7) for the court to have “particular regard” to the matters set out in paras. (a) and (b) of that subsection, being the need to prevent potential serious damage to the financial system in the State and to ensure the continued stability of that system and the need to protect users of financial services. However, although s. 45(6) refers to the relevant opinion that a prohibition notice should be issued and to the “process” that led to the formation of that opinion, that provision does not, in my view, require that there should be deference afforded to the persons conducting the investigation or making the decision to issue a prohibition notice in respect of the measures taken to afford procedural fairness to the person the subject of the investigation and ultimate decision. The issue as to whether the procedures were compliant with the subject’s right to fair procedures is a matter for which no particular deference should be afforded. Rather it is a matter for the court as is well-established in cases such as Hyde (per Cross J. at para. 817), O’Neill (per Hogan J. at para. 33), Governey v Financial Services Ombudsman [2015] 2 IR 616 (per Clarke J. at paras 44 and 46) and Facebook Ireland (at para. 268 of my judgment). Rather the statutory deference is directed to those areas in which the Central Bank and its officials have expertise and specialist knowledge, such as in relation to the financial system in the State and financial services.

317. It is also necessary when considering an allegation that fair procedures have not been provided to the person who is the subject of a decision to look at the “entirety of the process” and to consider “the overall fairness of a process” (per O’Donnell J. in Crayden at paras. 33 and 34, p. 806), rather than focusing on isolated parts of the process.

318. The 2010 Act and the 2012 Regulations do confer a discretion on the Deputy Governor and his or her delegate (in this case, the Investigator) in relation to the gathering of evidence in the course of an investigation (s. 32 of the 2010 Act and Regulation 3 of the 2012 Regulations) and in relation to the holding of an oral hearing (s. 34 and Regulation 4). However, and by reason of the presumption of constitutionality in respect of the 2010 Act, it is to be assumed that “proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted” in a manner which conforms to the constitutional guarantee of basic fairness of procedures: East Donegal per Walsh J at 341.

319. Hogan J applied that principle to the 1942 Act in O’Neill, describing that Act as a “classic example” of where, by reason of the presumption of constitutionality, that assumption must be made (see, in particular, para. 21 of his judgment). The same principle must apply to the 2010 Act and in turn to the 2012 Regulations made by the Central Bank under that Act.

320. It is also the case, as noted by Irvine P in Lynch that on an application to confirm a decision of the Central Bank (in that case, a decision made under the 2005 Regulations), the court has an obligation “to satisfy itself that there was adherence to the prescribed procedures and also adherence to the requirements of natural and constitutional justice …” in the manner in which the process was conducted and in which findings were made against the respondent in that case (para. 20 of her judgment).

321. In Zalewski v Adjudication Officer [2022] 1 IR 421, the Supreme Court held that where quasi-judicial bodies were exercising limited functions and powers of a judicial nature, they must be independent, impartial and dispassionate and must apply the law and the principles of fair procedures to a high standard (per O’Donnell J at para. 139, p. 106).

322. Insofar as sections 32 and 34 of the 2010 Act and Regulations 3 and 4 of the 2012 Regulations provided for the existence of a discretion on the part of the Investigator in terms of the procedures to be afforded to the Respondent in the particular circumstances of the case, it was to be presumed that such discretion would be exercised and procedures adopted in a manner which complied with the constitutional guarantee of basic fairness of procedures. The court does not consider the application of fair procedures and whether such procedures were afforded in a particular case by a quasi-judicial or other body by reference to the standard of rationality or reasonableness: see, for example, Facebook Ireland at para. 268 and the cases cited there. The court’s assessment as to the fairness of procedures adopted as part of a statutory process does not depend on an assessment of the rationality of the decision-maker’s decision as to those procedures. While it is the case that sections 45(5) and 45(6) refer to the issue as to whether there was a “reasonable basis” for the opinion of the Central Bank that a prohibition notice should be issued, the reasonableness of that opinion is dependent upon the opinion (and the process which led to its formation) not being vitiated by (inter alia) a significant and serious error or series of errors under s. 45(6). Section 45(6) does not import a rationality or reasonableness assessment in terms of the decision of the Central Bank or the Deputy Governor or their delegates as to the procedures to be applied in relation to an investigation and decision made under Part 3 of the 2010 Act.

323. The allegations made against the Respondent in this case from the very outset were extremely serious, as was the potential outcome of the process for the Respondent. From the very start of the process when consideration was being given as to whether the Deputy Governor would commence an investigation into the fitness and probity of the Respondent under s. 25 of the 2010 Act, the relevant officer in the Central Bank (Ms. Homan) informed the Respondent in a notice of intention to commence an investigation into the fitness and probity of the Respondent pursuant to s. 25 of the 2010 Act in July 2019, that it had concerns regarding his competence and capability to perform his controlled function roles and concerns that there were possible reasons to suspect his fitness and probity. In relation to his probity, the Central Bank expressed concern at that time at the very outset of the process and even before an investigation was commenced that the Respondent may have provided information to the Central Bank that he knew or ought to have known was false and/or misleading and that he may have misled representatives of the Central Bank at certain meetings in July and August 2018.

324. The notice commencing the investigation under s. 25 of the 2010 Act issued by Mr. Lynch on behalf of the Deputy Governor in September 2019 expressly recorded that an opinion had been formed on behalf of the Deputy Governor that there was reason to suspect the Respondent’s fitness and probity to perform the relevant controlled functions in respect of EF Fund ManCo and that, in the circumstances, an investigation into his fitness and probity was warranted. In that notice, it was recorded that there was prima facie evidence that the Respondent did not comply with his obligations to be open and cooperative with the Central Bank, to have an awareness of the relevant legal and regulatory environment and to manage conflicts of interest, that there was reason to suspect the Respondent’s fitness and probity to perform controlled functions and that an investigation into his fitness and probity under s. 25 of the 2010 Act on a number of potential grounds was warranted. The notice made clear, at the very commencement of the investigation, that there was at least a possibility that the Respondent would be found to have misled or to have attempted to mislead the Central Bank.

325. I should say that I do not accept the Respondent’s submission that the Central Bank acted in breach of the Respondent’s right to fair procedures in commencing the investigation whether by reason of the terminology used in the notice issued to the Respondent on 31 July 2019 or in the criticism made against the Respondent in the Notice commencing the investigation on 26 September 2019, where the Respondent was criticised for providing submissions and not documentary evidence to support those submissions. If that was the Respondent’s only complaint in relation to the process, his resistance to the confirmation of the Prohibition Notice would fail but, of course, it was far from his only complaint. By far the more substantial issues arise in relation to the conduct of the investigation and the subsequent decision-making process that led to the issuing of the Prohibition Notice.

326. It was clear from the very outset of the investigation that very serious allegations were being made against, and concerns expressed in relation, to the Respondent – among the most serious allegations, it must be said, that could be made against a person in his position – and that the consequences for the Respondent if those allegations were upheld would be extremely serious in terms of his credibility and good name and potentially catastrophic for his ability to continue to work in the financial services area. The seriousness of the matter in terms of the possible findings and conclusions that could be made in relation to the Respondent was evident from the start and continued right through the process starting with the notice issued on 31 July 2019. For example, in the statement of grounds which was sent to the Respondent in May 2020, one of the conclusions which it was said might be drawn was that at the meeting the Respondent had with the Central Bank Supervisors in July 2018, the Respondent was not “candid and truthful” and was not “full, fair and accurate” in his account of the issues facing EF Fund ManCo. I have concluded that, in the very particular circumstances of this case, where the Respondent’s credibility, honesty and truthfulness was in issue from the start of the process, the Respondent was entitled to the full range of rights identified in Re Haughey and, in any event, far more extensive procedural protections than were afforded to him by the Central Bank and those involved at all stages of the investigation and decision-making process that led to the making of the Prohibition Notice.

327. Notwithstanding that the Respondent was repeatedly described by the Investigator (in his letters of 19 October 2020 and 27 November 2020) as the “key witness” and the “primary witness” in the case, the Investigator never interviewed the Respondent at all and concluded the information gathering stage of the investigation on 27 November 2020 without any notice to the Respondent or his solicitors and without enquiring as to the Respondent’s medical fitness to be interviewed and without a further opportunity was given to the Respondent to be interviewed.

I am satisfied that the Investigator failed to have sufficient regard to the fact that the Respondent was medically compromised at the time (as pointed out in the Arthur Cox letter of 27 August 2020) and unfairly concluded the information gathering stage of the investigation without making further contact with the Respondent’s solicitors to afford the Respondent an opportunity to be interviewed before concluding that stage of the process. While it might fairly be said that it should have been incumbent on the Respondent and his solicitors to update the Investigator on the Respondent’s medical condition and on his availability to attend an interview with the Investigator, ultimately, the Investigator, as the delegate of the Deputy Governor, was required to ensure that the procedure which he was applying in the case of the Respondent complied with the Respondent’s right to fair procedures as well as his rights under the 2010 Act and the 2012 Regulations.

I accept that the Respondent and his solicitors were not aware that the Investigator was at the point where he was about to conclude the information gathering stage of the investigation in November 2020. That is clear from the nature and tenor of the correspondence which passed between Arthur Cox and the Investigator in the period between August and October 2020. I am satisfied that it was unfair of the Investigator not to alert the Respondent and his solicitors of that fact and to afford the Respondent an opportunity to confirm his availability for an interview one last time at least before concluding that stage of the investigation.

Once the Investigator concluded the information gathering stage of the investigation, the course was irretrievably set for the completion of the s. 41 report without the Respondent being interviewed (and without the Investigator having interviewed the other persons identified by the Respondent as being in a position to give relevant evidence and without an oral hearing). The die was, therefore, effectively cast in relation to the unfairness of the procedures and of any decision emerging from the process with effect from the Investigator’s decision to conclude the information gathering stage of the investigation at the end of November 2020 in those circumstances and with those deficiencies in the procedures adopted.

328. A further significant defect in the procedures afforded to the Respondent was that the Investigator also failed to interview any of the persons whose names were provided by the Respondent’s solicitors to the Investigator together with the reasons why those persons should be interviewed. They were not interviewed prior to the conclusion of the information gathering stage of the investigation or at all. The Investigator, in my view, wrongly and unfairly adopted the position that it was a matter for the Respondent to provide “submissions” from those persons rather than interviewing them and providing their evidence to the Respondent as part of the investigation. In adapting that position, the Investigator ignored the clear distinction between submissions and evidence (a distinction which is clearly recognised in Part 3 of the 2010 Act and in the 2012 Regulations). Sections 32 and 34 of the 2010 Act and Regulations 3, 4, 6, 9 and 10 refer specifically to “evidence”. Section 41 and Regulations 6 and 13 refer to “submissions”. They are not the same thing, notwithstanding that those terms were used almost interchangeably by the Investigator during the process. In my view, placing the onus on the Respondent to obtain submissions from the persons he had identified as being in a position to give relevant evidence was unfair in circumstances where it was the Investigator who had the responsibility of ensuring the fairness of procedures. The Respondent did not have available to him the statutory powers under the 2010 Act and under the 2012 Regulations which the Investigator had to secure either submissions or evidence from the persons identified by the Respondent. Having identified those persons and the evidence which the Respondent felt they would be in a position to give relating to the investigation into the Respondent’s fitness and probity, the Investigator ought not to have put the burden on the Respondent to obtain submissions from those persons. The Respondent was required under Regulation 3 of the 2012 Regulations to provide particulars in relation to the persons he identified as being in a position to give evidence relating to the matters set out in the statement of grounds and did so in compliance with that requirement in the correspondence from Arthur Cox between August and October 2020.

329. I am also satisfied that the Investigator adopted the wrong legal test in determining whether some or all of those persons should be interviewed. He adopted the position that he did not require anything other than the Respondent’s “submissions” (sometimes, as I have pointed out, confusing such submissions with “evidence”) and contemporaneous documentary evidence and that there were no gaps in the evidence which, in his view, made it unnecessary to obtain additional evidence from the persons identified by the Respondent. He rejected the need to obtain further evidence on the grounds of relevance and necessity. In doing so, I have concluded that he adopted the wrong legal test under s. 32 of the 2010 Act and Regulation 3 of the 2012 Regulations and wrongfully and in breach of the Respondent’s right to fair procedures refused to interview and take evidence from any of those persons. Under s. 32 of the 2010 Act, the Investigator (as the delegate of the Deputy Governor) was given a discretion to serve an evidentiary notice in relation to a person where he believed on “reasonable grounds” that the person might be able to give evidence relating to a matter concerning the fitness or probity of a person under investigation under Chapter 3 of Part 3 of the 2010 Act. That, therefore, is the test which the Investigator ought to have adopted, and he ought to have exercised his discretion fairly and in a manner which complied with the Respondent’s right to fair procedures by going further than he did in response to the Respondent’s request that the persons the Respondent identified should be interviewed. Regulation 3 also conferred a discretion on the Investigator as to whether to conduct interviews with the persons identified by the Respondent (Regulation 3(5)).

330. While Regulation 3(6) states that nothing in the Regulations is to be read as requiring the Investigator in a particular case to conduct one or more interviews with any person identified by the Respondent, it must again be presumed that that discretion was intended to be exercised in a way which best secured the Respondent’s entitlement to fair procedures. Instead of attempting to do that, the Investigator took the view that there were no gaps in the evidence and therefore it was not necessary to interview those persons. However, where a person such as the Respondent who is the subject of an investigation identifies persons who the subject says can give relevant evidence and where he or she gives an outline of why the evidence of those persons would be relevant, the person conducting the investigation should be very careful before refusing the request and runs the risk that the process will be unfair if the request is not properly considered. Rather than looking for reasons not to interview the persons identified by the Respondent and deciding that it was not necessary to interview them because there were no gaps in the evidence and that it was not relevant or necessary to the investigation that they be interviewed , the Investigator should have been proactively focusing on ensuring that the procedures for the Respondent were fair and should, in my view, in the very specific circumstances of this case, where the Respondent’s credibility, truthfulness and honesty were in issue, have concluded that at least some (if not necessarily all) of the witnesses identified by the Respondent be interviewed. I accept that the Investigator was being cautious when considering to the Respondent’s request by reason of the existence of statutory powers to compel the persons identified to attend interviews or provide documents, but that caution and reluctance was, in the very particular circumstances of this case, at the expense of a fair procedure for the Respondent.

331. I am also of the view that the Investigator wrongly failed to provide to the Respondent during the investigation any evidence in the form of statements of evidence or otherwise from those officials in the Central Bank who were alleged to have been misled and to whom it was alleged that the Respondent was not candid, truthful and honest at the PRISM meeting on 24 July 2018 (although it has to be said that this was not a point advanced by the Respondent and would not, in itself, provide a basis for impugning the investigation but it is, in my view, a relevant cumulative factor for doing so together with the other breaches of fair procedures I have found).

332. The Investigator also, in my view, acted unfairly in failing to arrange for an oral hearing contrary to the Respondent’s right and entitlement under s. 34 of the 2010 Act and Regulation 4 of the 2012 Regulations and as a matter of basic fairness of procedures in the circumstances. While it is true that the Respondent’s solicitors did not request an oral hearing before the information gathering stage of the investigation was concluded (without notice to the Respondent’s solicitors) on 27 November 2020, almost all of the other conditions pointing towards the need for an oral hearing to ensure fairness which are set out in Regulation 4 were present in this case. While s. 34 conferred a discretion on the Investigator to hold an oral hearing where satisfied that such was necessary for the proper conduct of the investigation, again that was a discretion which had to be exercised in accordance with the Respondent’s right to fair procedures. Further details in relation to the discretion and how it might be exercised in a particular case are set out in Regulation 4. Under Regulation 4, the Investigator had the discretion to hear oral evidence where he was satisfied that it was necessary for the proper conduct of the investigation. Specific circumstances in which the Investigator might have been satisfied as to the necessity for an oral hearing are set out in Regulation 4(2). They include where there is an issue of fact in dispute which could not fairly be resolved without an oral hearing, where the credibility of the subject of the investigation needs to be tested, where an oral hearing may be required in the interests of justice having regard to the potential effect of the investigation on the subject of the investigation, where allegations of a serious nature have been made against that subject and where the subject has requested that an oral hearing be convened. Almost all of these circumstances and factors existed in this case. While Regulation 4(5), provides that nothing in the 2012 Regulations is to be taken as imposing an obligation on the Investigator to convene an oral hearing in any particular case, obligation to do so may arise where an oral hearing is necessary to vindicate the right to fair procedures on the part of the subject of the investigation (as, in my view, was the case here).

333. There were facts in dispute, including, in particular, whether the Respondent misled the Central Bank and was not candid or untruthful at the meeting on 24 July 2018 or otherwise. The Respondent should also have been given the opportunity of contextualising and explaining the contemporaneous materials through an oral hearing at which he and some or all of the other persons identified by him could give evidence to the Investigator. Some of the areas and issues which the Respondent was relying on in support of his request for an oral hearing have been referred to earlier including, for example, the significance of the legal advice from Dillon Eustace in relation to the requirement to notify the Board of EF Fund ManCo and the Central Bank. The Respondent’s entitlement to an oral hearing, on the specific facts of the case, arose irrespective of the fact that many hundreds of pages of transcripts may have been reviewed as part of the investigation. That review could in no sense be seen as a substitute for an oral hearing.

334. I should make clear that I am not saying that an oral hearing must be convened in every investigation under Chapter 3 of Part 3 of the 2010 Act. That is certainly not the case. It may also be the case here that, were it not for the fact that the Respondent’s credibility, truthfulness and honesty were in issue from the outset and the consequences of adverse finding against him so serious, the other disputed facts in themselves and the need to contextualise and explain the contemporaneous evidence and materials might not have been sufficient to meet an oral hearing.

335. However, in my view, critically, and perhaps the most important reason why, on the facts of this case, an oral hearing ought to have been afforded to the Respondent, was because the credibility, truthfulness and honesty of the Respondent was very much at issue from the start of the investigation. Ultimately, the Decision-Maker did not accept the Respondent’s position in relation to a number of matters and found it to be “unconvincing” and used language in the Prohibition Notice which made clear that she did not believe what the Respondent was saying in his submissions and that she was rejecting his version of events (see, for example, the Decision- Maker’s findings at paras. 6.11, 6.37 and 6.41 of the Prohibition Notice, referred to earlier). I have referred in more detail to those parts of the Prohibition Notice earlier in my judgment. It was clear, therefore, that the Respondent’s credibility was very much at issue throughout the process which ultimately led to the decision to issue the Prohibition Notice. Although it was acknowledged on behalf of Central Bank at the hearing that there was a finding in the Prohibition Notice that the Respondent was not credible, honest and truthful in his dealings with the Central Bank in respect of the events under investigation which are the subject of the Prohibition Notice, it was argued on behalf of the Central Bank that an oral hearing was not necessary as the Respondent’s credibility in dealing with the Investigator and with the Decision-maker was not in question. I do not accept that submission having regard to the findings in fact made by the

Decision-Maker as to the Respondent’s credibility and his truthfulness in his dealings with the Central Bank, with the Investigator and with the Decision-Maker.

336. The potential effect of the investigation on the Respondent was also so serious that fairness required an oral hearing. To illustrate the seriousness of the allegations against the Respondent, it is highly significant that (a) the Investigator recommended (in the s.41 Report) that the Respondent be prohibited from performing all controlled functions in order to prevent potential serious damage to the financial system in the State to protect the stability of the financial system and to protect users of financial services, and (b) the Decision-Maker was of the opinion (as expressed in the Prohibition Notice) that a failure to issue a Prohibition Notice would undermine confidence in the financial services industry as a whole, would fail to protect users of those services and would amount to a failure to prevent serious damage to the financial system. It is hard to imagine more serious allegations and findings against a person working in the investment funds business or elsewhere in the financial services sector. In those circumstances, in my view, an oral hearing was clearly required at the investigation stage. It is unfathomable that no such hearing was afforded to him in these circumstances. It was not said on behalf of the Central Bank in the evidence it provided for the confirmation hearing that it would not have been possible to hold an oral hearing or that such would have been impractical or unworkable in the circumstances. There was, in my view, an excessive focus by the Investigator on the absence of gaps in the evidence or conflicts in evidence at the expense of giving appropriate consideration to the credibility issues raised and the enormously serious potential consequences for the Respondent if adverse findings were made against him at the end of the process.

337. In addition to being required in the particular circumstances of the case under s. 34 of the 2010 Act and Regulation 4 of the 2012 Regulations, an oral hearing was also required in light of the clear challenge to the credibility of the Respondent on the basis of the established case law, including cases such as Davy, (per Charleton J. at para. 38, p. 525); Hyde, (per Cross J. at para. 7.5), and O’Donoghue (per O’Malley J. at paras. 54 and 56). That is one of the factors which sets this case apart from the John Paul Construction case on which the Central Bank placed some reliance. The unsuccessful suggestion in that case that an oral hearing was required to be held by an adjudicator under the Construction Contracts Act 2013, is a world apart from the present case, where very serious issues of credibility and reputation were at stake.

338. While the Respondent did point to facts that were in dispute and to the need to contextualise and explain the contemporaneous material to ensure that it was properly understood by the Central Bank which required the persons identified to be interviewed and for an oral hearing to be convened, in my view, the most persuasive case made to demonstrate the necessity of an oral hearing was the fact that the Respondent’s credibility was so much at issue and where the consequences for him if adverse findings were made against him were so serious. I cannot see how the Investigator could have been satisfied that it was not necessary to have an oral hearing bearing in mind (a) the very serious allegations being made against the Respondent (which involved a direct challenge to his credibility and truthfulness) and (b) the very serious consequences facing the Respondent in terms of his ability to work not just in the investment funds business but also in the wider financial services sector in the event of adverse conclusions being drawn, and recommendations made by the Investigator and, subsequently, adverse findings being made by the Decision-Maker.

339. I am satisfied the fact that the Respondent’s solicitors did not request an oral hearing before the information gathering stage of the investigation was concluded at the end of November 2020 was explicable on the basis that they were of the impression that the investigation was still at the information gathering stage and had not yet proceeded to the stage where an oral hearing was being contemplated. The Respondent’s solicitors had consistently requested in correspondence with the Investigator that fair procedures be afforded to the Respondent in the investigation.

While, it may not always be the case that a party must request an oral hearing in order for there to be an obligation to hold such a hearing, the fact that an oral hearing was not requested prior to the completion of the information gathering stage in November 2020 is a factor to be taken into consideration (as it was by Hedigan J in Caffrey v Financial Services Ombudsman [2011] IEHC 285, at para. 6.4). However, I attach relatively limited weight to that factor in this case in circumstances where the Investigator himself explained in the s. 41 Report that he had considered whether it was necessary to hold an oral hearing and had ruled that out on the basis that there were no gaps in the evidence or any conflict of evidence that would warrant an oral hearing in light of the submissions which had been made by the Respondent and the “comprehensive contemporaneous evidence” (from the transcripts and other material, including the submissions made by the Respondent).

340. I do not accept that the decision not to hold an oral hearing was a reasonable, appropriate or fair exercise of the discretion which the Investigator had under s. 34 of the 2010 Act and Regulation 4 of the 2012 Regulations, as a matter of fairness, in the particular circumstances of this case. In my view, the Respondent was entitled to an oral hearing under those provisions and the Investigator ought to have exercised his discretion to provide for one since almost all of the relevant factors referred to in Regulation 4(2) were present in this case. Such a hearing was, in my view, mandated by the requirements of natural and constitutional justice and basic fairness of procedures to which the Respondent was entitled. The s. 41 report should not have been prepared without the Respondent being interviewed, without at least some if not all of the persons identified by the Respondent being interviewed and without an oral hearing.

341. I am satisfied that these failures together amounted to a series of significant and serious errors which occurred in an integral part of the process which ultimately led to the decision by the Decision-Maker to issue the Prohibition Notice. The process was, in my view, on the particular facts of the case, irretrievably tainted by those errors by the time the Decision-Maker came to consider whether to issue a Prohibition Notice.

342. One of the matters which the Decision-Maker had to consider at that stage of the process (under Chapter 4 of Part 3 of the 2010 Act) in deciding whether to issue a Prohibition Notice was whether the Respondent had been afforded “such a hearing in relation to the proposed issue of the Prohibition Notice as [was] necessary to do justice in the circumstances” (s. 43(3)(b)). While it may be the case that the “hearing” referred to in that provision concerns a hearing in relation to the proposed issue of a Prohibition Notice rather than a hearing in the course of the investigation at the earlier stage of the process under Chapter 3 of Part 3, and may not necessarily mean an oral hearing in all cases, the fact that no oral hearing was conducted at the investigation stage was clearly relevant and inextricably formed part of the assessment which the Decision- Maker had to carry out at the decision-making stage. I have concluded that, in the particular circumstances of this case, and having regard to the very serious allegations and to the very serious consequences involved for the Respondent, the Respondent was entitled to an oral hearing at the investigation stage.

343. While s. 43(3)(b) does not on its terms expressly require that a hearing be conducted by the Decision-Maker and while the 2012 Regulations do not make provision for an oral hearing at that stage, I am of the view that it would potentially have been open to the Decision-Maker to have had a hearing in order to meet the requirements of natural and constitutional justice and basic fairness of procedures on the basis that such a “hearing” was “necessary to do justice in the circumstances” before the Prohibition Notice could be issued. However, that was not done here. I am completely satisfied that justice was unquestionably not done to the Respondent in the particular circumstances of this case.

344. The “meeting” with the Decision-Maker to which the Respondent was invited on 17 September 2021, was neither an interview nor a hearing. The Respondent and his solicitor were afforded the opportunity to make a submission, but the Respondent was not invited to give evidence. The Respondent was not asked any questions and was not in any way challenged by the Decision-Maker on the short submission that he made (which lasted about 22 minutes). The

Decision-Maker did not raise any issue about which she had concerns and did not afford the Respondent the opportunity of addressing those concerns, including any concerns she had in relation to his credibility. The fact that the Decision-Maker stated at the outset of the meeting that she might not ask questions but that if she did not ask the Respondent any questions, he was not to read anything into that is irrelevant and certainly does not cure the problem created by the unsatisfactory nature of that meeting. A review of the transcript of the meeting and what transpired afterwards has left me with the clear impression that the Decision-Maker, in inviting the Respondent to the meeting, was merely going through the motions or ticking a box in a belated and ultimately futile attempt to remedy the failure to afford an oral hearing to the Respondent at the investigation stage.

345. It was incomprehensible, in my view, that no question was asked of the Respondent at the meeting and that he was not challenged in any way on the submission that he made during the course of the meeting, or in his previous submissions to the Investigator and in response to the s.

41 report, including in relation to the allegation that he was not candid and truthful in his dealings with the Central Bank. This was particularly so where it is clear that the Decision-Maker had concerns in relation to the Respondent including as to his credibility. Those concerns were clearly not assuaged by anything the Respondent said at the meeting or by any of the written submissions made by the Respondent, including those made before and after the meeting. Nor were they assuaged by the submissions made on behalf of the Respondent on 23 December 2021 in response to the Regulation 13 notice.

346. Following the meeting on 17 September 2021, the Decision-Maker issued the Regulation

13 notice indicating that she was minded to issue a prohibition notice in relation to the Respondent. In the Regulation 13 notice, the Decision-Maker indicated that she had formed the initial opinion that the Respondent was not candid and truthful and fair and accurate in his dealings with the Central Bank and that he had, in effect, misled or attempted to mislead the Central Bank Supervisors at the meeting on 24 July 2018. As just noted, the Decision-Maker had not raised this or any other criticisms of the Respondent with him or probed or asked him any questions during the course of the meeting a few weeks previously. The Respondent was not given the opportunity, therefore, of attempting to persuade the Decision-Maker that her concerns as to his credibility were not justified. The Decision-Maker went on to issue the Prohibition Notice having, in the interim period, received the further written submissions from the Respondent’s solicitors in December 2021.

347. The Prohibition Notice was extremely critical to the Respondent in terms of his fitness and probity and made very damaging adverse findings in relation to his credibility, finding his “evidence” to be unconvincing and concluding that he was not candid and truthful in his dealings with the Central Bank. The Decision-Maker concluded that, with respect to each of the grounds of alleged breach of the Standards advanced against the Respondent, there were no conflicts of fact in the “contemporaneous evidence”, that no “additional witness evidence” was necessary and that she did not believe that the evidence of any other person could alter her opinion. That was not the correct test to apply. The Respondent’s entitlement to fair procedures was not dependant on the Decision-Maker’s decision as to whether the provision of such fair procedures would have altered her opinion in relation to the Respondent and on the grounds on which his fitness and probity was impugned. The Decision-Maker ought to have focused on the need to ensure procedures were fair to the Respondent given that his credibility, honesty and truthfulness were under attack and given the enormously high stakes involved for the Respondent. It was a significant and serious error for her not to have done so.

348. While I was not provided with any direct evidence from the Decision-Maker as part of the material forming part of the Central Bank’s application, I was left with the impression that the meeting to which the Decision-Maker invited the Respondent on 17 September 2021 was a belated attempt to rectify the absence of fair procedures at the investigation stage. To my mind, it was an entirely empty and ultimately futile exercise and did nothing to remedy the serious breaches of fair procedures at the investigation stage but rather compounded those prior breaches.

349. While the Decision-Maker could have ensured that a proper oral hearing was conducted, I acknowledge that the proper and preferable place for such a hearing was at the investigation stage. In any event, however, there was no “hearing” at the decision-making stage. That was so notwithstanding the very serious findings made in the Prohibition Notice and the enormously serious consequences for the Respondent in terms of his credibility, reputation, good name and livelihood. The Decision-Maker found that the Respondent was untruthful in his dealings with and misled the Central Bank. That finding (which could hardly have been more serious for the Respondent given his former controlled function roles and his decades long employment in the financial services sector) and the other very serious and damaging findings contained in the Prohibition Notice were reached without those matters ever having been put to the Respondent, other than in writing, and without the Respondent ever having been afforded a proper hearing where he could give evidence on oath and examine and cross-examine witnesses so that his credibility could be properly and fairly assessed as opposed to it being assessed on the basis of written submissions and the short and futile meeting which took place on 17 September 2021. The issuing of the Prohibition Notice with the adverse findings against the Respondent was the latest in a series of serious breaches of the Respondent’s right to fair procedures throughout the entirety of the process. Having considered the overall process, I do not believe that it could be described as having been fair to the Respondent.

350. In my view, therefore, in the particular circumstances of the case, the Decision-Maker could not reasonably have been of the opinion that the Respondent had been afforded such a hearing in relation to the proposed issue of the Prohibition Notice or otherwise “as was necessary to do justice in the circumstances” as required by s. 43(3)(b) of the 2010 Act.

351. In considering whether there is a “reasonable basis” for the Central Bank’s opinion as set out in the Prohibition Notice, the Court is required to take account of the “expertise and specialist knowledge” possessed by the Central Bank (and those performing the relevant functions on its behalf under Part 3 of the 2010 Act). However, as I stated earlier, I am not satisfied that any significant deference can or should be afforded to the Investigator or to the Decision-Maker in relation to the procedures afforded to the Respondent during the various stages of the process for which they were responsible and on the question as to whether the procedures afforded to the Respondent were compliant with the requirements of natural and constitutional justice and basic fairness of procedures. I am satisfied, on the basis of the case law, and from my consideration of the entire process, that no such deference should be afforded to those persons in terms of the procedures made available to the Respondent. The statutory deference referred to in s. 45(6) in its reference to the “expertise and specialist knowledge” possessed by the Central Bank applies to matters such as their expertise and specialist knowledge of the financial system and financial services, such as investment funds, areas in which the Central Bank unquestionably have people with enormous expertise and specialist knowledge, but does not extend, in my view, to expertise or specialist knowledge in the provision of fair procedures consistent with the subject of an investigation’s entitlement to such procedures as a constitutional imperative. The determination of the appropriateness of the procedures afforded to a person such as the Respondent is ultimately a matter for the court.

352. Nor can the court’s obligation to have “particular regard” to the matters set out in s. 45(7) (the need to prevent potential serious damage to the State’s financial system, to ensure the continued stability of that system and the need to protect users of financial services) dilute the court’s obligation to ensure that the principles of natural and constitutional justice and basic fairness of procedures were complied with by the Central Bank during the investigation and

decision-making process. While the matters referred to in s. 45(7) are clearly of enormous importance, there is no reason why compliance with those principles would have adversely impacted upon any of those matters in this case.

353. I have concluded that there were a series of significant and serious errors in the process which led to the formation of the opinion by the Central Bank referred to in s. 43(1) of the 2010 Act that the Prohibition Notice should be issued in respect of the Respondent which vitiated that opinion (and the process that led to its formation).

21. Set aside/remittal

354. For the reasons set out above, I am not satisfied that the opinion set out in the Prohibition Notice (and the process which led to its formation) was not vitiated by any significant and serious error or series of such errors. On the contrary, I am satisfied that the opinion (and the process that led to its formation) was vitiated by a series of significant and serious errors, being the many breaches of the Respondent’s right to natural and constitutional justice and basic fairness of procedures during the entirety of the process. Therefore, I am not satisfied that there is a “reasonable basis” for the opinion of the Central Bank referred to in s. 45(5) of the 2010 Act, having regard to the provisions of s. 45(6) of the Act. In those circumstances, I have decided that I must refuse to make an order confirming the Prohibition Notice under s. 45(5)(a). I am satisfied that I should instead set aside the Prohibition Notice in accordance with s. 45(5)(b)(i), by reason of those errors.

355. Furthermore, I do not believe that it would be fair or appropriate, in the particular circumstances of the case, to remit the matter to the Central Bank under s. 45(5)(b)(ii) for reconsideration, in circumstances where the Respondent has been subject to the Prohibition Notice since February 2022 and has suffered the consequences of that Prohibition Notice in terms of his ability to work in his chosen field for the entirety of that period. In my view, it would be extremely unfair and entirely inappropriate to remit the matter to the Central Bank in these very unique circumstances. If I were to remit the matter to the Central Bank, there would be further lengthy procedures including an investigation requiring interviews of the Respondent and some or all of those persons identified by him and an oral hearing. It is now many years from the events the subject of the investigation which occurred in 2018. It would give rise to a serious injustice to the Respondent were he to be subjected to such a further investigation at this stage. I propose, therefore, to exercise my discretion in the very particular circumstances of this case to set aside the Prohibition Notice and not to remit the matter to the Central Bank.

22. Conclusions

356. In conclusion, therefore, I refuse the Central Bank’s application for an order for confirmation of the Prohibition Notice the subject of these proceedings under s. 45(5)(a) of the 2010 Act. Instead, I will make an order under s. 45(5)b)(i) setting aside the Prohibition Notice. I decline to remit the matter to the Central Bank for reconsideration under s. 45(5)(b)(ii).

357. As this judgment is being delivered electronically, I will afford the parties an opportunity to review the judgment and propose and agree any necessary redactions so that, notwithstanding that the hearing of the application was conducted otherwise than in public, the judgment, in suitably redacted form, can be published.

358. I will list the matter before me at 9:45am on Friday, 17 April 2026. On that date, I will make orders to give effect to the conclusions and findings I have made in this judgment.

359. Finally, I would like to thank the counsel and the solicitors acting for the Central Bank and for the Respondent for their excellent submissions and for the assistance I received in determining this difficult and complex application.

Appearances

For the Central Bank: Nessa Cahill SC and Shelley Horan SC, instructed by McCann Fitzgerald. For the Respondent: Kelley Smith SC and Dr. Ailbhe O’Neill SC, instructed by Arthur Cox.