Part 1 – The rise, fall and sale of a boomtime business

This is a story about money. It is a story about how money is made and how money is retained. It is a story of how it can be pursued, desired, concealed.

It is a story that stretches from state-funded commissions to state-owned banks, and from politicians to tax exiles. It is a story that is contested, complex, and highly controversial, and of a particular time and a particular place in Irish life. 

It is the story of a building services company that grew through a series of boomtime acquisitions, only to be pushed into a sale by its bank when the tide turned, and its debts became unsustainable.

It is a story that a state funded commission of inquiry has spent six years and nine months unravelling in secret, interviewing countless witnesses and exhausting tens of millions of euro. 

And it is the story of the sale itself: the bidders, the meetings, the personalities, and the political controversy that shrouded it. 

It is the story of Siteserv.

*****

In July 2021, the IBRC Commission investigating the sale of building services group Siteserv to the businessman Denis O’Brien by the former Anglo Irish Bank issued a draft of its report to relevant parties. It was circulated over 2,000 days after the commission was established, and it ran to a hefty 1,280 pages.

The commission, led by Mr Justice Brian Cregan, gave the various interested parties until October 22, 2021 to provide submissions in relation to the content of the report. Some 12 submissions were received, and combined, they ran to 1,600 pages – longer than the draft report itself by some distance. Plus, as the Taoiseach Micheál Martin told the Dail in April, the submissions raised “a number of complex matters which the commission is currently in the process of carefully considering”.

A revised draft report has now been issued, prepared after taking into account the various submissions and issues. The report is of significant public importance, given the role of a state owned bank and the cost of the probe itself. The government has said the final cost is likely to significantly exceed the commission’s estimate and could top €30 million. In reality, it could be triple that when third party costs are included.

Was the mammoth probe, conducted in secret, worth it? And what did we learn about the sale of business at the height of Ireland’s economic crash?

Two friends

But it is also a story of two friends. Friends who would do anything for each other.  

Brian Harvey and Niall McFadden met in UCD in the 1980s. McFadden had dropped out of architecture, before completing a BComm in 1988. He then moved to London where he was briefly a business journalist before moving into the more lucrative world of investment banking with Morgan Stanley. 

Bright and ambitious, McFadden carved out a niche as a financial whizz over the next decade, working with Larry Goodman and then Tedcastle Oil. In 1997 he was a founding director of venture capital firm TVC, a role that provided him a broad exposure to a wide selection of businesses. He then became an advisor and financial guru to online education company Riverdeep, and, as an adviser and shareholder in Arnotts, as it transitioned into property and retail.  

In 2002 he set up Newcourt, a security and recruitment company which he listed on the stock market in 2006, before eventually exiting.

McFadden had a ravenous appetite for deals. It made him a multi-millionaire and brought him into all sorts of businesses: printing, publishing, classified adverts, recruitment, radio stations, property, golf clubs. In his 2010 memoir the developer Simon Kelly said McFadden, a business associate, could “smell money like a shark can smell blood”.

In 2004 McFadden had another idea. He wanted to consolidate and stitch together a number of smaller firms in construction, security fences, construction services and home entertainment installation services in order to make a large facilities business. It was called Siteserv. McFadden needed someone to run this business. Enter Brian Harvey. 

Harvey had studied economics and politics in UCD around the same time McFadden was a student at the Belfield college. After UCD, he entered public relations, working with Drury Communications for two years. 

He then moved into sales with an engineering firm called GKN before relocating to Miami with his South American wife. While there, he worked in sales with a contract logistics firm before moving back to Ireland in 2004 for family reasons. He was ready and available to run Siteserv. 

It was the final years of the Celtic Tiger, and Anglo Irish Bank was lending money at breakneck pace. McFadden had a good relationship with the bank, and it was willing to fund the Siteserv consolidation play, doling out money to help Siteserv snap up dozens of tiny businesses. In 2006, it floated on the stock market. 

In November 2006, not long after the IPO, Harvey boasted to The Sunday Times about plans to “aggressively” buy more businesses and “double” the size of Siteserv.

In the interview, Harvey described attending at a conference organised by the stockbroker Davy in the luxury Four Seasons hotel with European investors before flying to London the next day to meet even more from Britain. “I think they like the Irish story,” he remarked. 

In September 2007, Siteserv bought Sierra Communications for €52 million, a transaction that brought it into the area of installing cable television boxes and broadband in people’s homes. Siteserv’s shares jumped 13 per cent on the news, and Davy upgraded its 12-month target to €1.10 a share. 

The high was followed by a severe low, however. 

In reality, the business was a deeply troubled one. It had borrowed too much money to fund acquisitions. It was unsustainable. But its performance was masked by the residual strength of the Irish economy. When that strength began to wane, Siteserv was exposed. The value of its shares began to plummet, and investors bailed out. It was also reliant on the support of Anglo, freshly nationalised after buckling under the weight of its own debt mountain. The Irish story had soured. The Siteserv story had soured too.

It owed €150 million to Anglo Irish Bank, later renamed IBRC, a huge debt it was unable to repay.

A decimation of wealth

The collapse of the Celtic Tiger, and the destruction of wealth it triggered, impacted upon the fortunes of Niall McFadden and Brian Harvey.  The value of Harvey’s shares in Siteserv had been decimated. Plus, he owed €1.7 million to Anglo, money he had borrowed to invest in three ventures promoted by McFadden. 

Each one, he would later say, was a “disaster”. He was however still running a significant business, so it wasn’t all bad, but he was no longer very wealthy. 

McFadden’s position however was dreadful. Corporate entities he was involved in borrowed €500 million from Anglo between 2003 and 2008. He personally borrowed €7 million, and he had personally guaranteed €8 million more of corporate borrowings. 

On top of this, he personally guaranteed €66 million of corporate or co-ownership borrowings to various banks including Anglo. 

Veteran Anglo banker Michael O’Sullivan was in charge of lending to McFadden and his related entities. McFadden would later tell the IBRC Commission: “Now I borrowed too much and he [O’Sullivan] lent me too much, he was the drug dealer, and I was a drug user. It was quite, as my wife tells me, it wasn’t a great place to be.”

In December 2008, McFadden stopped servicing his debts to Anglo. Unsurprisingly, the bank was not pleased. O’Sullivan would later tell the IBRC Commission that McFadden told him: “My wife has money, and you’ll never see a penny of it.”

Anglo wanted to know more about McFadden’s financial affairs. For example, it knew McFadden was earning a €150,000 consultancy fee from Siteserv, and it wanted to know more about that. 

‘Rucking and mauling’

Niall McFadden’s friendship with Denis O’Brien doesn’t go back as far as it does with Brian Harvey. O’Brien is a UCD graduate also but he received his degree in 1977. He was not a contemporary. In 2007 McFadden bought a house from O’Brien on the Mount Juliet estate in Co Kilkenny. O’Brien lived in a larger house nearby, and the two became friends. By 2009, McFadden’s fortunes had shifted and from 2009 until 2013, O’Brien gave him informal advice about what to do in relation to his debts. He helped McFadden reach agreements with some of his banks, and he tried to do so with Anglo. “I went into bat for him basically,” O’Brien would later tell the IBRC Commission. He also helped him to try and reach a deal with Anglo. “I was in rucking and mauling for him,” O’Brien said. “I thought we had a deal but then it just disappeared. It was very frustrating.” 

McFadden said O’Brien had set up a meeting between him and O’Sullivan in his office. At this meeting, the Anglo banker said he was determined to bankrupt McFadden. “Denis just looked at the two of us and went. He didn’t quite say ‘I give up’. But that was probably the last time I ever spoke to Michael O’Sullivan and where I realised there was really no fixing it.”

The IBRC Commission found in its draft report that there was nothing untoward or improper in any of this. O’Brien was just trying to help a friend in a time of need. 

However, the dispute between Anglo and McFadden over his debts is important within the context of the financier’s involvement in future events related to Siteserv. 

In its draft report, the IBRC Commission said that from that as early as February 2010, McFadden was “anxious at all times to conceal” from Anglo that he might have any involvement with Siteserv. For example, in February 2010, Citibank contacted Anglo on behalf of an unnamed hedge fund about acquiring Siteserv’s debts. This fund was called Trafalgar, and McFadden had briefed the hedge fund on Siteserv. In an email to Trafalgar, McFadden stressed: “It is vital that I stay in the background on any dealings with Anglo.” Nothing came of this approach, but the IBRC Commission found in its draft report there was a “pattern of behaviour” by McFadden of concealing his interest in Siteserv. 

There was a similar theme in relation to payments from Siteserv. In late 2009 Anglo demanded that Siteserv terminate his €150,000 consultancy payment as it felt Siteserv could not afford it, and McFadden was providing no value.

The bank repeatedly sought confirmation from the chairman of Siteserv, the veteran accountant Hugh Cooney, that it was no longer paying McFadden.

It was only on November 22, 2010, that Siteserv, by now a deeply troubled company, terminated McFadden’s €150,000 a year. Harvey told the IBRC Commission the delay was because he “didn’t get around to it”.

Harvey defended his decision not to end this contract sooner, because he claimed the bank had a “personal vendetta” against McFadden. (There is no evidence to support this. The bank was simply trying to recover money for the taxpayer.)

In January 2011, Anglo again pressed Harvey to find out if the €150,000 payment to McFadden had been halted. Harvey told Anglo it had ended in July 2010 (not November 2010).

From that moment on Harvey never mentioned McFadden to Anglo again. The bank believed McFadden was now off the pitch. However McFadden continued to advise Harvey well into 2011 as the CEO of Siterserv as opposed to the company, and he continued to be paid by the company until November 21 2011, as he served a 12-month notice period the bank didn’t know about.

McFadden meanwhile denied at all times that he was doing anything wrong in terms of dealing with his debts. 

There is no suggestion that he was. But as a big non-performing borrower understandably Anglo wanted to know about his assets.

The chosen few

After the financial crash, Siteserv was in serious trouble, but it was not however a major priority for Anglo Irish Bank. After all, it had far bigger issues to deal with as it fought to reduce the losses facing the Irish taxpayer following its 2009 nationalisation. Siteserv was a significant employer, but its debts were unsustainable. Anglo could have appointed a receiver to Siteserv, a corporate seizure that would have given it total control. But this would have been a disaster as it would have threatened its ability to trade. The bank – rightly – decided to work with Siteserv on a consensual sale of the business that would maximise the bank’s return while protecting the business. The main reason it took this approach was to protect Siteserv’s hundreds of employees. 

On September 5, 2011, a sale sub-committee was set up by Siteserv to sell the business. The chair of this committee was Robert Dix, a partner with KPMG from 1998 until 2008, and the company’s senior independent director. 

In April 2011, Dix had been appointed by IBRC to the board of various Quinn Group companies as it sought to take control of Sean Quinn’s manufacturing empire through the appointment of a share receiver. He was very busy pursuing Ireland’s richest man and his family all over the world in Ireland, Ukraine, Russia, India and elsewhere. 

The other member of the Siteserv sale committee was Patrick Jordan, who had previously run a business that had been acquired by Siteserv before the crash. Anglo appointed Walter Hobbs to represent its interests.  Hobbs started his career in KPMG, but he had also worked in venture capital and banking, and was running a small consultancy firm called Virgo at the time of his appointment. There was no written agreement between the bank and Hobbs. 

On September 21, 2011, the Siteserv sale committee met along with its advisors KPMG and Davy. Eight potential bidders for Siteserv were invited to bid for the company. Siteserv didn’t advertise the fact it was for sale publicly due to fears that this could undermine the company. Three parties invited to bid subsequently pulled out, so two other parties were invited to replace them. 

There were other meetings that were not known about by Anglo at the time also.

On September 30, 2011, Des Carville of Davy forwarded the Siteserv bidder list to Tony Mulderry, a corporate finance advisor. Carville was friendly with Mulderry, and said he trusted him. Carville later introduced Mulderry to one of the bidders on the list called Sandton. Unknown to Carville, however, Mulderry forwarded the bidder list to Niall McFadden. 

Later Carville asked KPMG to send Mulderry a copy of the information memorandum prepared to sell Siteserv. Mulderry also sent this to McFadden, again unknown to Carville. Mulderry told the IBRC Commission he had only sent these documents to McFadden in order to get his opinion on the business. 

Mulderry was trying to convince David McCourt and a company called Gores to bid for Siteserv, so he wanted all the information he could get in order to get a job helping them. (McCourt, working with a different consortium, is best known for winning the €3 billion National Broadband Ireland contract but that didn’t happen until November 2019). 

On December 1, 2011, McFadden met with McCourt and Gores at Mulderry’s request. Afterwards this group decided to bid for Siteserv, and they were accepted to the list. 

However, unknown to either Davy, KPMG or Mulderry, McFadden decided to also send the information memorandum to Denis O’Brien to see if it piqued his interested.

The IBRC Commission would later state in its draft report that McFadden had “no authority” to send this information to O’Brien and this was an “unauthorised disclosure of confidential information by Mr McFadden to Mr O’Brien”. The IBRC Commission’s draft report found that O’Brien did not ask for this information to be sent to him and “no blame attaches to Mr O’Brien”. None of the sales sub-committee set up by Siteserv knew that McFadden had done this. 

However, it had the effect of attracting O’Brien’s interest. Siteserv was now on his radar.

The longlist

Siteserv was in play. After Denis O’Brien expressed an interest in the bidding for the company he was allowed into the race. O’Brien was a performing borrower of the bank, so it would have been hard for it to tell him no. He was also a significant employer. 

Eight bids were received for Siteserv on December 7, 2011, ranging from €35 million to €70 million. Each of the bids had different conditions so the task for Siteserv and its advisors was to work out which would deliver the highest price without undue execution risk. 

The bidders were:

• Lincolnshire, 
• TVC, 
• Sandton, 
• Rutland, 
• Denis O’Brien, 
• Anchorage, 
• Gores and 
• HIG. 

Sandton had the highest headline bid at €70 million. Anchorage came in at €60 million. O’Brien’s bid was between €42 million and €47 million. At a headline level he was not in the top four. 

On December 9, the Siteserv sale committee met the company’s advisors to consider the eight bids. Hobbs would later say this was the first time he learned of O’Brien’s potential involvement, and that he felt he was “the last person in the room to hear about it.” Hobbs had no issue with O’Brien bidding, but he was conscious there were “sensitivities” because of his profile – O’Brien ranked among the country’s richest men. 

That very day, another executive in IBRC, Tom Hunersen, told his colleagues Pat Walsh and Karl Cleere that he’d heard O’Brien was in the running for Siteserv in the market. Cleere, an executive in IBRC, then contacted Hobbs to find out if this was true, and Hobbs confirmed it was. After Mike Aynsley, the Australian-born CEO of Anglo, was informed about the O’Brien bid, he told his team to ensure there was “additional strength” around its governance, because of O’Brien’s high profile. He asked another senior IBRC banker, Richard Woodhouse, to step aside from any decision making, as he was conscious there could be a conflict of interest as he was also O’Brien’s relationship manager for his main business interests with the bank. An American called Tom Hunersen was put in charge instead. 

*****

During the Siteserv sale subcommittee meeting on December 9, 2011, some argued O’Brien should be excluded as his bid was too low, and that they should go forward with just the top four bids. Dix argued the top six bidders should go forward. Eventually, the committee agreed to go with the top six. It was not an unreasonable position. After all, more competition could deliver a higher price for Siteserv. There was a debate however about how serious O’Brien was with his bid. Harvey knew that McFadden was responsible for introducing O’Brien to the bidding race, but did not mention this at the sub-committee meeting. Robert Dix was the chair of the Siteserv sales committee, and the listed company’s senior independent director. Dix was at this stage planning to go on a “bootcamp” holiday the following month with both McFadden and O’Brien. He did not disclose this plan, despite also knowing it was very likely the sale process would still be ongoing at that time. 

The IBRC Commission said in its draft report that Harvey should have disclosed at this meeting that he knew McFadden had introduced O’Brien to the bidding, and Dix should have mentioned his holiday plans with O’Brien.

Meetings followed by meetings

As Christmas 2011 approached, it was time to move towards the second phase of the bidding process. KPMG prepared an Independent Business Review (IBR), which was sent to the six remaining bidders on December 22, 2011. Some information in relation to company margins and profitability was redacted from the IBR for confidentiality reasons. (O’Brien’s advisors Island Capital received an unredacted version of this report in February 2012, when it was granted exclusivity by Siteserv. No one else received it.) 

There was another issue too around a contract with Petroplus, a company which had run into difficulty, to which all six bidders were alerted. (This deal would become more significant later on.)

All six bidders had to sign a confidentiality agreement stating that they would not contact Siteserv without the approval of KPMG or Davy. Nonetheless Harvey would meet five of the six bidders without telling his advisors. 

Harvey said this was to get to know the potential bidders, and that no sensitive information was disclosed. Harvey’s meeting with Dermot Hayes and Liam McGrath of O’Brien’s Island Capital took place over three hours in their office on January 16, 2012. “The company’s advisors were not present and knew nothing about it,” the IBRC Commission found in its draft report.

Island Capital’s scheduled meeting with Siteserv was four days later on January 20. Harvey claimed that he was sent to this earlier January 16 meeting by Neil Collins of KPMG. Collins denied this, and his evidence was accepted. “The Commission is of the view that Mr Harvey’s evidence on this matter is misleading and untruthful,” the IBRC Commission concluded in its draft report.

The discussion that took place on January 16 did not differ from discussions with other bidders. However, there was one potential difference. Harvey gave Island Capital a summary document setting out Siteserv’s “key opportunities and a list of its main competitors”. The existence of this document was unknown to Siteserv’s advisors. 

Niall Devereux – Siteserv’s CFO who is described as a “truthful witness” by the IBRC Commission – said the topics in this document were discussed at other bidder meetings. Harvey said the document was only a reference note for himself, but he could not recall giving it to any other bidder. 

Hobbs would later say that he believed an advisor should have been present at this meeting with Island Capital. Island Capital then went ahead with its January 20, 2012, meeting with Siteserv in the presence of the company’s professional advisors. Harvey, Devereux, Hayes and McGrath did not mention to Siteserv’s advisors at this meeting that they had already met just four days earlier.

There were other meetings that were not known about by Anglo at the time also. TJ Malone was the managing director of Siteserv’s most important subsidiary, Sierra Communications. He had worked previously for O’Brien in his telecoms business in 1999-2000 and 2000-2001. Harvey told Malone in late November or early December that O’Brien was bidding for Siteserv. Malone said he met Dermot Hayes of Island Capital on December 9, 2011, and January 1, 2012. Malone said his conversations were very general, and he denied giving any “inside information”. Hayes told the IBRC Commission he had no recollection of meeting Malone, but he did not deny he met him. 

Other bidders had asked to meet the leaders of Siteserv’s subsidiaries, but they had been denied this opportunity by Siteserv’s advisors for reasons of confidentiality. In its draft report, the IBRC Commission said the January 16 2012 meeting between Harvey/Devereux and Island Capital “breached the sales process” and should not have taken place without the consent of Davy or KPMG as required by the process letter. It said the Malone meeting also “breached the sales process.” It said despite this breach, it did not find any evidence that Island Capital obtained information at these meetings that gave them an “unfair” advantage. It did state, however, that this was a further sign of a “pattern of undisclosed meetings and communications” between Harvey directly or via McFadden with Island Capital. 

*****

On Sunday January 15, 2012, I wrote a story for The Sunday Independent suggesting that Siteserv was up for sale. After news of the potential sale emerged, 12 new parties tried to make a bid for the company, but they were not allowed to enter the process by Siteserv or Anglo. The IBRC Commission said this was not unreasonable given the advanced stage of bidding. 

Deductions

Second round bids were due to be submitted by 5pm on Monday, January 30, 2012. Each bid had to be considered separately by Siteserv’s advisors, as each bid had conditions attached. In the run up second round bids, Davy’s Des Carville was in contact with Anchorage. Carville had a good relationship with Anchorage at the time; as early as April 2011 he had introduced Harvey and Devereux to them on a trip to London. In the run up second round bids Anchorage asked Carville what it should bid. Carville said he thought headline bids would be in the late 40s.

Vlad Bermant of Anchorage said the guidance he was given was even more specific – to bid between €46 million and €48 million. He also said he couldn’t recall all the specifics of his conversation with Carville. Internally within Anchorage, the discussion was around bidding over €50 million, but it believed there would be three rounds of bidding, so it didn’t want to disclose its hand fully. Dan O’Connor, an advisor to Anchorage, remembers discussing bid strategy with Bermant and being told: “There will be another round.” 

On January 30, 2012, Anchorage submitted its second round bid with a headline price of €48 million. It had various conditions attached to its bid.

Island Capital also submitted a bid that day of between €45 million and €48 million. It was conditional on no material adverse change in the business, and various issues being dealt with such as taxes, the Petroplus contract, being able to review certain contracts. 

Rutland, Lincolnshire, Sandton, and the Gores Group all also submitted bids. On January 31, KPMG and Davy produced a spreadsheet with their preliminary views. They discussed the bids with Hobbs. IBRC executive Karl Cleere told the IBRC Commission he had the impression at this time that three bidders would be brought forward to another round, and those likely to be advanced were O’Brien, Anchorage and Gores. Dix was briefed on a call by Davy and KPMG on the second round bids. The advisors decided to deduct €1.5 million from O’Brien’s bid in respect of certain issues. They reduced €2.6 million from Anchorage’s bid, about €1.1 million more than they did from O’Brien’s bid. The advisors said they arrived at this deduction from Anchorage’s bid after discussions with the firm. However, the IBRC Commission said it was “not clear” that Anchorage knew this, or that it agreed with this deduction at that time. Nonetheless, its bid was marked down.  

On February 6, 2012, the sale subcommittee of Siteserv met and decided it would tell IBRC it was moving ahead with O’Brien and Anchorage in a third round of bidding. On February 8, 2012 Siteserv and its advisors met the bank, renamed as the IBRC, and told it that the bidding was down to two players. The bank was told that O’Brien’s bid was highest by €2.1 million. This was because the advisors said it had had to make various deductions from the Anchorage bid. 

The advisors estimated for example that Anchorage would want a deduction of €1 million related to taxes, but O’Brien they said wanted zero deducted for taxes. The advisors determined this deduction from Anchorage’s offer, not by asking the fund, but by basing it on the calculations from another unrelated bidder. From the perspective of the bank and Siteserv advisors, not a lot turned on exactly who was highest between Anchorage and O’Brien. A third and final round would after all determine the winner, so they could thrash out the details then. 

*****

Part 2 – From a bootcamp in St Moritz to a management incentive plan

As all the bidders for Siteserv were preparing to submit their round two offers on Monday, January 30, 2012, something else was happening in Switzerland. Two days earlier, on a Saturday, Robert Dix, the chairman of the Siteserv sale sub-committee, travelled to St Moritz in Switzerland to meet up with Denis O’Brien and Paul Connolly, an old friend of O’Brien who he had nominated to the board of Ireland’s biggest media group INM to represent his interests. O’Brien was one of the bidders for the building services company, and they were going to be joined by Siteserv founder Niall McFadden.

It was not a business trip. Rather it was a meeting of friends. They were meeting to go skiing, gain fitness, and maybe even lose a little weight. McFadden, Dix and O’Brien had been on bootcamp’s previously in Crete in 2010 and 2011. McFadden and Dix had flown out to Crete both times commercially, then hitched a lift back on O’Brien’s private jet (nicknamed the Silver Chicken). 

For this trip to Switzerland, Dix and McFadden flew out commercially, staying in a hotel called In Lain. McFadden booked one-way flights for himself and Dix, expecting to fly back on O’Brien’s private jet. Dix said he had no such expectation, but that he hadn’t booked a flight home.  

O’Brien and Connolly arrived the following day, a Sunday. Dix knew that O’Brien was bidding for Siteserv and he knew second round bids were imminent. But everyone said the bootcamp trip had been planned earlier, so it was a coincidence that it occurred at a crucial time in the Siteserv bidding process. 

In an email to O’Brien on December 16 2011 via an email address called [email protected], McFadden referred to Siteserv and the bootcamp. He told O’Brien: “2. Siteserv – spoke to dermot [Hayes] – probably not much will happen in process before 9th January – apparently next bids due 29th jan – though we maybe need to speak to Brian before Xmas re follow up.”

The next line in his email was: “3. 28 jan Wildfitness – waiting on final suggestions from zoe and will revert next week, N.”

Wildfitness is the name of the high-end bootcamp that McFadden, O’Brien, Dix and Connolly were attending in Switzerland.

On the first day of Wildfitness, Monday, January 30, O’Brien, McFadden, Dix, and Connolly rose at 6.30am to do an early morning run, before going cross-country skiing.

Back in Dublin meanwhile, like all other bidders, Island Capital submitted its second-round bid.

The following day, Tuesday, McFadden met O’Brien over breakfast. One of the things he proposed was that he and Brian Harvey, his old college friend and the chief executive of Siteserv, should be allowed to acquire shares in the company O’Brien intended to acquire Siteserv through. McFadden called the deal he was looking for himself and Harvey a MIP, or management incentive plan. After breakfast, the four went back to cross-country skiing. O’Brien had a minor accident, breaking his heel, and went to hospital. Connolly went with his friend to the hospital, leaving the others to continue skiing.

At 5pm they returned to find O’Brien with his leg strapped up; it was obvious his bootcamp was over. The four men arranged to meet for dinner that night. But before that happened Dix dialled into a call with KPMG and Davy to receive an update on the second-round bids. Thirty minutes later he was done, and ready to go to dinner. An enjoyable night was had, during which nobody mentioned Siteserv, according to the men’s evidence to the commission. The next day O’Brien went home. Dix and McFadden stayed on for the rest of the week, and Dix booked flights home for himself and McFadden via Milan, getting home on Sunday, February 5. Dix paid his own hotel and bootcamp bill.

Back in Dublin, Dix chaired the sale sub-committee where second round bids were evaluated on Monday, February 6. On February 8, he met IBRC to discuss the second-round bids, and he then chaired another sale sub-committee on February 9. At these meetings Siteserv decided to grant exclusivity to O’Brien’s Island Capital bid. On February 10, he chaired another sale sub-committee confirming this exclusivity. At no point during these meetings did he disclose his bootcamp holiday with O’Brien and McFadden.

A veteran corporate financier who has worked on hundreds of deals over decades, Dix firmly denied there was anything seriously wrong with his attendance on the trip during his evidence to the commission. He said he had mentioned the trip to Hugh Cooney, the chairman of Siteserv. Cooney died in 2015, so he could not be interviewed. The Commission, in its draft report, said it found it not credible that Cooney knew of this trip, as it could find no record of him noting this to the company or its advisors. 

The management incentive plan

But what of McFadden? As early as December 5, 2011, Niall McFadden started to negotiate with Denis O’Brien and Dermot Hayes in Island Capital in order to secure a share for himself and his friend Brian Harvey. As the process began, both Harvey and Hayes signed a confidentiality agreement stating that neither side could speak to the other without the written consent of Siteserv. Later Hayes was told by KPMG that he could not contact Siteserv management or employees without the prior written approval of the company’s advisors KPMG and Davy.

This was ignored. It was also, it should be noted, ignored by other potential bidders for Siteserv at times.

When companies are making acquisitions, it is common to negotiate a management incentive plan (MIP) in order to keep talented staff from leaving the business after it is sold. Harvey was clearly management. McFadden said he considered himself “quasi management”. However, he had no management or executive role. Nonetheless from December 5, 2011, McFadden was negotiating a share in the new Siteserv as part of a MIP. The IBRC Commission said it was “satisfied” that no other bidder “apart from O’Brien” would have considered giving McFadden shares as part of a MIP.

It said McFadden’s “only real hope” of getting a shareholding in Siteserv post its sale was “if Mr O’Brien won the bid”, the commission said in its draft report.

The issue of the MIP, according to Siteserv’s advisors, was to be negotiated after Siteserv was sold. Neil Collins of KPMG told the IBRC Commission he believed the issue of negotiating a MIP was for management after the sale was finalised with whoever bought Siteserv. Hobbs said the issue of any MIP was not one for him to consider as the bank’s observer to the sale process. “It is not a factor in our negotiations. Go away. You deal with the management afterwards,” he said.

Dix agreed with Siteserv’s advisors. He said the MIP was deliberately not included in the sale process because he did not want his decision to be “influenced” by what management was being offered.

Brian Harvey had several conversations with various bidders apart from O’Brien’s team about what was in it for him during the bidding process. The IBRC Commission said, however, that none of these conversations were substantive. In contrast, his negotiations with O’Brien’s team – via McFadden – were significant and detailed. McFadden made no apology for this. “For two years I have explained to Brian how much we can make out of this if we get the right deal done,” he said.

McFadden was fond of complex deals so figuring out what was in it for himself and Harvey wasn’t easy. On January 14, 2012, Hayes sent an email to O’Brien indicating various complex structures being suggested by McFadden. Hayes suggests in this email an equity stake of 10-15 per cent for Siteserv management.

O’Brien wasn’t involved in the detail, but he was aware of it. “In the nicest possible way, this is real Niall, because everything is complicated,” O’Brien told the IBRC Commission. “And I suppose you know he was trying to look after Brian. Brian lost a lot of money on the old Siteserv.” 

There was back and forth between Hayes and McFadden as they tried to reach agreement in the run up to the bootcamp in Switzerland. There McFadden had time to speak directly to O’Brien. “You’re not always going to do this over email,” McFadden mused. “There is going to be a final chat face-to-face to settle it which is what sort of happened at bootcamp.”

During his first day at camp, O’Brien sent an email to Hayes at home in Dublin at 11.20 am.

“I am with Niall McFadden at bootcamp,” he said. “We are going to talk later today about a deal for Brian and the management. Can you give me your thoughts and let me know how far you got with them. Also can you brief Leslie about this investment as I think he may want to take a piece of it.”

Leslie is a reference to Leslie Buckley, O’Brien’s long-term associate who regularly co-invests with him in businesses such as Siteserv.

On Tuesday January 31, 2012, McFadden and O’Brien had breakfast together without Dix or Connolly. Neither man can remember the details, but the chat was about what stake Harvey and McFadden would get in the business. Dix then came down to join them, halting their conversation about what was in it for Harvey and McFadden.

Despite not finishing their conversation, McFadden said he was happy afterwards. “…We have the shape of a MIP that looks like a private equity one, and if Denis wins or is the preferred bidder we’re planning the right field and I have done my job.”

Clearly, he had.

The next day at 9.40 am McFadden sent O’Brien an email setting out the terms of the deal.

The main point was that management would get 15 per cent of Siteserv on a three year earn-in basis if O’Brien’s bid was successful. The “management”, it would later emerge, consisted of just two people: Brian Harvey and Niall McFadden.

McFadden also pressed for a “superbonus” for his old college friend, but this was rejected by O’Brien as too much.

But did Harvey even know his pal was talking about him to O’Brien in Switzerland? Harvey said in evidence he didn’t know either McFadden or Dix was on the trip.  The IBRC Commission said it found this “implausible and not credible”.

Asked about the significance of Harvey cutting a deal with O’Brien at this stage in the process, Neil Collins for KPMG said such an incentivisation package could give rise to a perceived or apparent conflict of interest.

Collins, like all of the advisors, and Walter Hobbs, the IBRC observer of the sales process, did not know about this MIP arrangement or the bootcamp. Collins said if he had known about it, he would have told all of Siteserv’s other advisors, as well as the sales committee and Hobbs. He said Harvey would have been required to recuse himself from further meetings about the sales process in order to ensure a proper process. 

But Harvey didn’t tell the relevant people: his board, his advisors, and IBRC. Instead, he continued on in the sales process as chief executive keeping his burgeoning deal with O’Brien to himself.

*****

Back in St Moritz, O’Brien had gone home having hurt his heel. The bootcamp trip was still not over, and while on it, McFadden wrote an email to Hayes in O’Brien’s Island Capital on February 2, 2012, at 5.26 pm. 

He said in this email that he had heard Anchorage was “apparently” working with AIB on its bid.

He also said: “I understand the board [of Siteserv] will meet Monday to consider offers and bring the best three forward. That’ll probably be Island, Anchorage and McCourt.”

Anchorage was indeed working on a deal with AIB. McFadden said he heard the information about AIB “on the street.” The Commission disagreed with him, and said it was “of the view that McFadden obtained this information from someone inside the Siteserv sale process”.

The three names mentioned by McFadden were the top three at that time – in the same order as in his email – as identified by Davy / KPMG back home in Dublin.

McFadden accepted in his evidence that there were only two scenarios for having the detail: either he had “deduced” the three names himself or Harvey or Dix had told him them.

McFadden insisted he had “deduced” the names and it was a “coincidence” he got them all right.

The IBRC Commission said it believed this explanation was “not credible”. It then turned to who it believes told McFadden the three names. McFadden said Dix did not give him the information, and Dix agreed with this. The IBRC Commission said it accepted this evidence ruling Dix out.

It then turned to Harvey. The IBRC Commission said Harvey knew the top three bidders. Both Harvey and McFadden admitted that they spoke on February 2, 2012.

“I’ve no recollection of speaking to anyone on the phone that week while I was away,” McFadden said. “Except the discovery informs me that I did. So, my memory is I didn’t but discovery suggests I must have.”

McFadden then said if he did receive a phone call from Harvey, it was after 5.26 pm when he sent his email to Island listing the three bidders. So, therefore, Harvey couldn’t have told him.

The IBRC Commission said McFadden’s evidence on this matter was “evasive and misleading”.

Brian Harvey has denied giving McFadden the information. He also suggested it wasn’t important information in any event, as the race was still running.

The IBRC Commission said it believed that Harvey was the source of information. It said Harvey knew the information, and that Harvey had reason to support O’Brien’s bid as it would personally benefit him, and he was friends with McFadden who was negotiating on his behalf.

O’Brien for his part said the email was just “back channelling” and made no difference to the price he was prepared to pay for the business.

In its draft report, the IBRC Commission said there was no evidence that O’Brien or Island Capital “ever sought this information or solicited in any way, or did anything improper to obtain it”.

“An error of judgement”

There is a certain inevitability about business deals: people meet and information leaks. However, when the bootcamp trip was uncovered during the IBRC Commission, a number of underbidders complained. John O’Connor of Lincolnshire told the commission: “That a representative of the company, who I presumed was charged with ensuring that – I keep going back to the level playing pitch – is at a bootcamp with one of the bidders just does raise an eyebrow, it would have to.”

Anchorage advisor Dan O’Connor in his evidence said: “…to go away to a bootcamp with one of the bidders is an interesting error of judgement. I can’t say what was said or whether it afforded an advantage or otherwise but it just strikes me as odd.”

At the time Anchorage (and the other bidders) didn’t know of the bootcamp, but they did sense something felt strange. On February 27, 2012, Anchorage became aware that an unnamed bidder had been granted exclusivity.

They complained to Kyran McLaughlin in Davy that they believed the bidding was “rigged” and that Ireland appeared to be a “banana republic.” They said they did not believe the process had been “run in a neutral fashion”.

The IBRC Commission examined the boot camp trip in detail. It found in its draft report: “Mr Dix did not disclose his bootcamp trip to the board, the sale sub-committee, the company’s advisers, Mr Hobbs or the bank at any time.

“Mr Dix’s relationship with Mr O’Brien, his friendship with Mr McFadden, and his trip with them to bootcamp, would, if known at the time, have given rise to a perception on the part of a reasonable, objective person that Mr Dix was not impartial in his role as chairman of the sale sub-committee.”

Dix accepts he should not have gone, saying it was an “error of judgement”. But he does not accept he favoured the O’Brien bid unduly as a result. The Commission does not say Dix gave O’Brien any inside information at bootcamp. The Commission said O’Brien was “not at fault” for going on the trip, and said there was “no evidence” he sought to discuss Siteserv on it. From O’Brien’s perspective the IBRC Commission finds nothing wrong about the trip.

 A “very dangerous situation”

The day after Robert Dix came home from bootcamp in St Moritz, he chaired a meeting of Siteserv’s sale sub-committee. At this meeting a decision was taken to recommend O’Brien’s bid and Anchorage to go forward to a third and final round of bids. Soon afterwards on February 8 Siteserv’s sale subcommittee and its advisors met IBRC executives Pat Walsh and Karl Cleere to update them.

Walsh, the more senior executive in IBRC, said he would prefer if three bidders went into the final round to ensure competition if one dropped out.

Siteserv said it only wanted two bidders, but Walsh was insistent. He said he would talk to others in the bank and come back with a decision the following day about how many bidders should be taken forward. 

As this meeting was ongoing, Dermot Hayes, on behalf of Denis O’Brien, sent an email to KPMG at 3.41 pm saying the businessman was prepared to offer a headline price of €48 million for Siteserv less €1.5 million in deductions in return for two weeks of exclusivity. Hayes did not mention tax or the Petroplus issues; this was taken by Siteserv to mean they were prepared to suck both of these up. KPMG forwarded the email to Davy, something that would be expected. Siteserv never disclosed this exclusivity request to Hobbs or IBRC’s executives, but it was discussed instead after they left the meeting.

Later that evening KPMG spoke to Hobbs. The email from Hayes was not mentioned. KPMG was employed by Siteserv, so anything it said had to be approved by the company. Siteserv did, however, tell Hobbs at 9.26 pm that one of its biggest customers had named it a “high risk supplier”. This was because of the level of its debts on top of a recent media report in The Sunday Independent it was for sale. Hobbs told Siteserv this was something he needed to tell IBRC about.

Within half an hour he had done just that, briefing IBRC that Siteserv was now in a “very dangerous situation” and that decisions needed to be made fast. Hobbs said he believed Siteserv should go forward to a third round of bidding with just two parties and that it should try to select a winner as soon as possible.

The next morning Walsh rang KPMG stating that despite the late-night warning, IBRC still wanted three bidders to go into the final round of bidding. Collins again did not mention the Island Capital/Hayes email. Yet again, Siteserv had not told him to do so. 

Later Walsh, Cleere and Hobbs would tell the IBRC Commission that they believed they should have been informed about the Hayes email sooner as it was relevant to their considerations. 

In a meeting on February 9, 2012, the subcommittee took the decision to grant exclusivity to Denis O’Brien’s bid. Siteserv sought approval for this decision from Anglo and the bank granted this on the basis of the information that had been furnished to it.

But the IBRC Commission would conclude in its draft report that Dix “did not disclose” and Harvey “concealed” from the bank information that was material to the bank’s decision.

Going exclusive gives any bidder an advantage over other bidders as they are usually allowed to find out more about the business. Bad news reached IBRC in thirty minutes. News of the O’Brien email was not so prompt.

Within reach

On Monday February 27, 2012, Anchorage increased its offer for Siteserv to €52 million. It couldn’t understand what was going on, so it opted to expedite matters with its new bid.

There were still conditions to its bid, but, on a headline level, the offer was above that of O’Brien.

On February 29, Anglo told KPMG that any “chipping” of the price offered by O’Brien could end his exclusivity as the bank would have to return to its credit committee for additional approval.

On March 1, 2012, O’Brien submitted his “final offer” for Siteserv. This offer was €45 million, some €3 million less than the €48 million maximum he had previously offered.  His team also raised an issue about working capital saying there should be a provision in it – in O’Brien’s favour – of £750,000 which related to a troubled supplier contract. There were also various other issues O’Brien raised concerns about.

O’Brien was perfectly entitled to do all this, as he would not have known of IBRC’s ‘no chipping’ instruction. A copy of this “final offer” letter from O’Brien was not given to IBRC by Sitserv.

The effect of this lower O’Brien offer put Anchorage’s new offer almost €7 million in front (at a headline level as no price is ever fixed until it is paid).

Siteserv decided not to engage with Anchorage’s higher bid, but instead carried on with O’Brien.

After receipt of O’Brien’s “final offer” letter, a call was held to discuss it between Dix and Siteserv’s advisors KPMG and Davy. Hobbs, representing the bank, was not asked to join the call.

Dix told Davy to tell O’Brien’s team that the €3 million price reduction was not acceptable either to the company or IBRC. On Friday 2 March, O’Brien’s Island Capital met with KPMG to discuss the bid further.

O’Brien had been granted exclusivity based on a €48 million price and that he had no issues with the potentially troubled Petroplus contract; now things had changed.

Eventually it was agreed by Island Capital that O’Brien would pay a headline price of €48 million. Notes of the meeting prepared by Neil Collins of KPMG’ state: “Price: suggestion – do something in working capital.”

Based on its reading of Collin’s various notes of the meeting, the IBRC Commission found “two separate issues of headline price and working capital adjustments had become linked.” Collins explained this by saying that in deals there is a “kind of a horse trade”, a not unreasonable stance provided everyone relevant knew about it. 

Nicolas O’Gorman, who worked with Davy, also had notes. They state: “Over the course of this meeting it was agreed that Island would revert to their original pricing in exchange for certain concessions on working capital items which in the company’s advisors’ view was reasonable.”

Neil Devereaux, the CFO of Siteserv, said he asked Collins after his meeting with Island: “Are we done yet?” and Collins said: “No, they need a reduction of €1.8 million.”

Collins produced a working capital report on February 29, 2012, that showed a working capital adjustment in favour of O’Brien of €1.37 million. This was less than Island Capital thought reasonable, as they believed they had agreed a €1.8 million revision.

O’Brien felt his reduced offer was justified, but to maintain good relations with IBRC, he instructed that the price paid should be €48 million.

Island Capital rang back and told KPMG it would pay a headline price of €48 million and accept the working capital movement in its favour of €1.37 million. This meant Siteserv would get €430,000 more than previously. 

However, when KPMG produced its new working capital report, it showed a €1.79 million movement in O’Brien’s favour. KPMG said in its evidence that there were various reasons for this which it detailed. It said the adjustment was the right one and it “would have happened either way”. The rules around calculating working capital are not set in stone, and the IBRC Commission accepts this.

However, the IBRC Commission concludes that the issues surrounding working capital were not “disclosed” to IBRC by Siteserv. Not only did IBRC not get to see O’Brien’s “final offer” document, the commission said it also was “fixed with this €1.8 million reduction in the proceeds of sale for Siteserv without ever being made aware of that agreement.” On Sunday March 4, the board of Siteserv met along with its advisors KPMG and Davy, as well as Hobbs. At this meeting the board resolved to approve O’Brien’s bid and recommend to the bank that it be accepted. Siteserv was now almost in Denis O’Brien’s hands.

*****

On March 5, 2012, Anglo / IBRC received a document entitled “Project Cable – indicative schedule of proceeds to IBRC.” The document was sent to IBRC for consideration, unlike the O’Brien final offer letter. Hobbs said of it: “I think I probably didn’t see this [final offer] letter at the time but I knew about it through phone calls.” He suggested it might have come up in a face-to-face meeting but didn’t have any detail. The IBRC Commission found that Hobbs was not given the final offer letter and he was “not told clearly” by Siteserv of the contents of O’Brien’s final offer but was instead informed on “general terms” that O’Brien was looking for a reduction.

The IBRC Commission said it found the decision by Siteserv not to disclose the final offer letter from O’Brien was “on the balance of probabilities, deliberate and not accidental”.

The Commission said, “the decision not to disclose to the bank the final offer letter was made by Robert Dix.” The Commission also found that Hobbs did not consider issues around working capital to be part of his role. It found that neither the bank nor Hobbs received the working capital report of February 29, 2012, and that neither knew of the “€1.8 million working capital reduction agreement”.

The Commission said this was “deliberate.” Dix admitted in his evidence that if IBRC had all the information it might have been enough for the bank to insist on ending O’Brien’s exclusivity period allowing Anchorage back in. The IBRC Commission found there is “no evidence” that Dix much considered ending O’Brien’s exclusivity in order to fully consider Anchorage’s offer.

****

The consequences for IBRC of all these non-disclosures were important. Karl Cleere of IBRC said if he had known more about it, he was certain that the bank would have discussed running Island Capital and Anchorage against each other in a third round of bidding.

Pat Walsh of IBRC said the matter would have gone back to the bank’s credit committee again to seek its consul if the bank had known of the various issues it wasn’t told about. He said the bank would have considered reopening the race to allow a run-off between O’Brien and Anchorage if it had known everything.

In its draft report, the IBRC Commission found Siteserv’s decision not to disclose important information to the bank – specifically the O’Brien final offer letter and the working capital reduction – were “not reasonable from the perspective of the bank”.

It adds: “The bank had explicitly required that the sale process be conducted with demonstrable integrity. However, contrary to that requirement, these non-disclosures undermined the integrity of the Siteserv sale process and tainted it with impropriety.”

The IBRC Commission then tries to calculate how much state-owned IBRC lost out on. It found that the Anchorage offer at €52 million “could have provided up to €5.8 million more for the bank than Mr O’Brien’s €48 million offer after he had reversed his €3 million headline price reduction of 1 March 2012 and negotiated the €1.8 million working capital reduction”.

The Commission said that “even” if Anchorage had also price-chipped its offer it “could” still have provided a better outcome for Siteserv and IBRC.

This is all hypothetical, as Anchorage was not allowed to proceed.

The Commission said there is no evidence that O’Brien or Island Capital played any part in the non-disclosure of important information to the bank. The Commission concludes that neither of them had anything to do with this. It also said it was a matter for O’Brien and his advisors what price they were prepared to pay and how they negotiated it. Whatever was done was done without O’Brien or Island’s knowledge or request. 

Unknown knowns

Courtesy of Niall McFadden, Brian Harvey now had the shape of a deal in place with Denis O’Brien in relation to himself. Harvey would emerge from the wreckage of the old business he ran as a shareholder in the new company that owned Siteserv if O’Brien won. Very few people however knew of this. Harvey attended a Siteserv sale committee meeting on February 5, 2012, where it was decided to take only Island and Anchorage into a third round. Harvey did not tell the meeting, Siteserv’s advisors, or the bank’s representative Hobbs, of his and McFadden’s personal arrangements with O’Brien.

When the decision was taken at Siteserv’s board to grant O’Brien exclusivity, Harvey agreed with the recommendation. Again, he failed to disclose his private deal with O’Brien.

He did however provide some assistance to the O’Brien bid that others didn’t get. O’Brien had said he was going to pay for the business from his own resources, but then he changed his mind and decided to borrow some money from AIB to help fund it. There was nothing wrong with O’Brien doing this, but it did create an issue for Hayes as the bank sent over reams of questions about the business of Siteserv. On February 13, 2012, Hayes sent an email to Harvey asking him to help answer them. AIB also wanted to meet Harvey, and he did in Island’s offices on February 14, 2012. None of Siteserv’s advisors nor Hobbs were informed of these interactions.

Harvey and Hayes said O’Brien’s bid was exclusive, so he was entitled to this assistance.

Cutting a deal

Meanwhile Niall McFadden still felt more could be done for Brian Harvey. On February 16, 2012, he wrote to O’Brien and Hayes with some suggestions for what might be included in a letter to Harvey setting out the MIP plan. He now put forward another idea: that O’Brien would take Harvey’s personal loans out of IBRC as part of the deal to buy Siteserv.

“I think IC [Island Capital] should say that they wished to buy B’s [Brian Harvey’s loan] (c. 1.5m – have not checked) at the same % of face value as the overall deal (ie c. 30% or c.500k) and then Brian will waive (to avoid tax) his bonuses due (c. 250-300k which will form part of the completion cash calculation I suspect) and top it up with some of his sale proceeds (the balance of which he will put into the deal)…this is the most tax effective way of dealing with this Anglo will see Brian’s booty (bonus and shares) being used up, which are the optics we need to create,” McFadden wrote.

McFadden attached to his email a letter he wanted Island Capital to sign and put on its headed notepaper for Brian Harvey setting out the terms of the management incentive plan.

The terms of the deal McFadden outlined would see O’Brien buy Harvey’s personal loans at a 70 per cent discount i.e., roughly the same as the discount it was buying Siteserv’s loans from IBRC.

In other words, McFadden proposed that O’Brien would pay €510,000 for Harvey’s personal loan of €1.7 million from IBRC, a transaction that would free Harvey from the bank.

Harvey would then say he had waived his bonus. But actually, the plan was to use his bonus to buy shares in the new vehicle buying Siteserv.

“This entire plan was a scheme to ensure that Mr Harvey never paid tax on his bonus and that there would be no signs that a bonus had ever been paid to him,” the IBRC Commission said in its draft report.

At this stage Harvey said his bonus was €300,000 (but it later turned out to be €350,000).

McFadden referred to this dance around Harvey’s bonus as a “bonus barter”. 

Hayes wrote to O’Brien outlining the plan to buy out Harvey’s personal loan as part of the Siteserv deal. He said: “This seems ok as long as there’s no cash cost to you.” Hayes then wrote back to McFadden after speaking with O’Brien with a revised proposal. This said that senior management would be issued 15 per cent of the shares in the company that bought Siteserv, and that these shares would vest over three years.

In Hayes’s letter he refers to shares being granted to Brian Harvey, Neil Devereux, TJ Malone and “possibly” Stephen Flounders, who were all key members of management.

There is no mention of McFadden in Hayes’ amended draft letter. As it would turn out McFadden wasn’t forgotten about. It would be only he and his friend McFadden who would get the shares.

Niall McFadden’s bankruptcy

Niall McFadden’s financial problems were not just with IBRC. In 2010, two years before the sale of Siteserv, another financial institution called National Irish Bank, obtained judgments totalling €15.2 million against him. IBRC followed by securing a judgment of a further €15 million more. In May 2011 the Commercial Court in Dublin heard that McFadden was insolvent with debts of €100 million. The court heard that McFadden’s liabilities to Anglo were €65 million, and the value of his unencumbered assets were £500,000.

During this case, NIB’s senior counsel John Hennessy, SC for NIB, cross-examined McFadden about his debts.

During the 2011 case, Mr Justice Peter Kelly asked McFadden if his complex business affairs in Ireland, Britain and the Isle of Man were structured in order to reduce his tax bills. McFadden, The Irish Times reported, replied it was to “maximise returns for investors”.

McFadden was however still some way from bankruptcy. It was only on October 27, 2013, that The Sunday Times reported that he was judged bankrupt in the High Court. The paper said this had happened on June 10, 2013, and that McFadden was now due to make a full disclosure of his assets to the High Court. Not disclosing assets in a bankruptcy situation is a serious matter, so presumably McFadden did so fully, including any interest in Siteserv.  

“False and misleading answers”

Niall McFadden set up a meeting between Denis O’Brien and Brian Harvey in the Four Seasons Hotel in Ballsbridge, which took place at noon on Sunday, March 4, 2012. Harvey prepared an agenda for this meeting and sent it to McFadden, who came back with some suggestions. In the hours before this meeting the board of Siteserv met to approve in principle the sale of Siteserv to O’Brien.

The board “unanimously” gave its approval subject to some outstanding points being clarified, and approval from IBRC. Harvey “concealed” at this meeting, the IBRC Commission said, his financial interest in the O’Brien bid.

Harvey said he didn’t believe he made “any secret” of his meeting with O’Brien in the luxury hotel. “I’m not saying I put an ad in the paper,” he admitted. “I didn’t go around shouting about it.”

Dix and KPMG both said they did not know Harvey was meeting O’Brien after the Siteserv meeting. Devereux said Harvey told him he was meeting O’Brien, but on the following day, not immediately afterwards. Hobbs said it might have been “mentioned casually” but he couldn’t remember any detail.

When Harvey got to the Four Seasons, McFadden joined him and O’Brien. Harvey said at his meeting he did not discuss his and McFadden’s MIP with O’Brien, but he did discuss his personal loans owed to IBRC at a “very, very high level”.

O’Brien said they mainly discussed Harvey’s personal financial affairs, while McFadden could not recall the meeting.

From the IBRC Commission’s point of view, this confirmed that from at least March 4, 2012, Harvey had an additional reason to do a deal with O’Brien. The tycoon was the only bidder considering sorting out his personal debts at the same time as buying Siteserv.

On Tuesday of that week, Devereux rang him to ask him how the meeting went with O’Brien. Harvey said he still hadn’t met O’Brien, according to notes of the call made by Devereux.

Devereux said he was by now conscious of his responsibilities as a director of a public company, so he had started to take notes of all his interactions with Harvey. He was now concerned. Devereaux asked Harvey directly if there was a MIP package with O’Brien, and he was told there wasn’t one.

After this conversation, Devereaux suspected that there was a MIP, but he wasn’t part of it.

He asked TJ Malone if there was one, and Malone said he hadn’t heard of one either. Devereaux contacted Arthur Cox on March 12, 2012, to ask what the rules were around disclosing MIPs ahead of Siteserv’s forthcoming egm to approve the sale of the business to O’Brien. Fortified, he met Harvey for coffee later that day and told him Arthur Cox’s advice was if Harvey had a “deal” with O’Brien he must disclose it to the board of Siteserv. The board could then take advice on what needed to be disclosed to shareholders. Harvey said he could not recall this conversation, and that at the time he was telling the truth as the MIP deal hadn’t been fully agreed.

The Commission said it believed Harvey was giving “false and misleading answers” to Devereaux. It said also that Harvey and McFadden didn’t want Devereux to know that McFadden was involved in the transaction, as they feared he would tell the company’s advisors and IBRC. McFadden referred to Devereux as a “snitch” and he didn’t want him to know about his involvement. The Commission found that Devereux had “acted properly” at all times. He was not offered any shares in the company that bought Siteserv called Cathkin Holdings until the correct time, some 17 days after the transaction.

As CFO, Devereux was told he could buy 1 per cent of the company over three years at a specified price. This compared with the 6 per cent of “free” shares Harvey received, plus 3 per cent more in exchange for his bonus, and the 4 per cent of the company to be received by McFadden. Devereux left the company shortly thereafter so he never became a shareholder.

Stories and reality

Things were now really progressing. On Wednesday March 14, 2012, the day before the board of Siteserv met to sign off on the sale of the business to O’Brien, Harvey again wrote to him. He again asked O’Brien for assistance with his “personal situation.” At 2.30 pm on March 15, 2012, McFadden met with Hayes to finalise the MIP deal. Thirty minutes later IBRC was due to sign off on the sale of the business to O’Brien, to be followed immediately afterwards by the board of Siteserv approving it. McFadden says he can’t recall his meeting with Hayes. But there is an email detailing his proposals for the MIP that would see “the CEO & Co” take the “lion’s share” of the available shares. The ‘CEO & Co’ was Harvey and McFadden only. Hayes made a counteroffer, but both agreed that Harvey would get at least 6 per cent of the company for “free” under the MIP.

McFadden then sent an email to Hayes setting out two scenarios called “story” and “reality.” In the “story” version of the world McFadden said Harvey would receive his bonus of €300,000 (which was more in the end) and pay tax of 55 per cent on it. In the “reality” scenario McFadden said Harvey would “waive” his bonus and therefore not pay tax on it, while in “reality” still getting his bonus but using it to buy shares in the new Siteserv company. The Commission said it found “as fact” that based on the above Harvey had reached a deal with O’Brien on March 15, 2012, giving him 6 per cent of the company, plus an option to buy more taking his potential holding to 9 per cent.

Later that day IBRC signed off on the deal selling Siteserv to O’Brien for a headline price of €48 million, with net proceeds going to the bank of €44.3 million. The balance of Siteserv’s loans of €119 million were then written off by the state-owned bank.

Over in Siteserv its board then met to sign off on the sale. The draft minutes of this meeting – which were never signed – saw Harvey declare he had no personal interest in the outcome of the meeting. Harvey, according to the draft minutes, then voted the deal through along with everyone else.

The Commission found Harvey had a “significant financial interest” in the O’Brien bid and a “clear conflict of interest” between his company and his own interests. It said the fact that Harvey voted for the O’Brien sale without disclosing this was “manifestly improper and wrong”.

The sale was now official, but McFadden still wasn’t satisfied. On March 25, 2012, he asked Hayes for a 1 per cent transaction fee which equated to €480,000. McFadden also estimated that Siteserv was worth €12 million, meaning Harvey’s 9 per cent share was already worth €1 million, and his own 4 per cent stake was worth €480,000. He also said he thought Devereux and TJ Malone should be offered no free shares, but instead they should have to buy in over time after the deal was done.

Six occasions

It was now time to get approval for the sale of the listed company Siteserv to Denis O’Brien at an egm. As documents were being prepared for this Harvey did not disclose his deal with O’Brien. Arthur Cox said in evidence it believed this should have been disclosed to Davy in order to determine did this have to be disclosed to shareholders. Siteserv knew the meeting was likely to be contentious, so Davy prepared a Q&A which it circulated to Harvey and its board to help them answer any questions from shareholders or the media.

This included a question asking was McFadden going to be a shareholder in Siteserv in the future. “Its ownership is none of Siteserv’s business,” was the prepared response. Other answers included: “There has been no incentivisation arrangements agreed.” Another question was whether any inducements or bonuses were to be paid, to which Davy said the answer was no. The IBRC Commission said Harvey knew some of these answers were “false and misleading”, but he approved them. The IBRC Commission said Harvey had a “manifest conflict of interest” when he voted through the sale of the company. It said the various “undisclosed negotiations” led to an “extraordinary situation” where Harvey and McFadden negotiated 15 per cent of the new company without the board of Siteserv, the sale subcommittee, the corporate advisors, the CFO, the lawyers, Hobbs, IBRC and Siteserv’s shareholders knowing anything about it. It found on six occasions Harvey acted in “favour” of the O’Brien bid. These were:

• Disclosing “confidential information” about the top three bidders to McFadden who passed it on to Island on February 2, 2012.
• Granting exclusivity to O’Brien as part of the sales subcommittee on February 9, 2012 – whilst “concealing” his “significant financial interest” in O’Brien’s bid.
• Voting in favour of this exclusivity being extended at the Siteserv board meeting of February 10 2012.
• Participating in the meeting that continued this exclusivity on February 27, 2012.
• Voting in favour of the sale to O’Brien at the board meeting of March 4 2012 – while “concealing” his financial interest.
• Doing the same at the board of directors’ meeting on March 15 2012.

The IBRC Commission described this as a “pattern of secret negotiations” while “concealing” it from relevant parties that led it to find that “Mr Harvey improperly favoured Mr O’Brien’s bid on a number of crucial occasions putting his own financial interests, ahead of the best interests of the company, and its main creditor, the bank”.

In relation to Island Capital, the IBRC Commission said it had “ignored” the confidentiality agreement and process letter governing the sale. It said it appeared O’Brien did not read these documents, and his position was that in deals these were often ignored. Other bidders also ignored elements of the agreement and letter, supporting O’Brien’s position. The advisors to Siteserv didn’t agree, saying they believed these documents should be “followed”. Hayes and Harvey’s position was there was nothing untoward from their point of view in anything that happened between them. The IBRC Commission said that was “not the issue.” O’Brien and Hayes were entitled to do what they wanted, but Harvey had different obligations as the CEO of a public company that answered to a board and shareholders.

The Commission also noted that in the end O’Brien had done nothing for Harvey in relation to his personal borrowings from IBRC. The Commission said that while it found that Harvey had taken actions to favour O’Brien, neither O’Brien or Hayes “ever asked him to do these things on his behalf or regarded these actions of Mr Harvey as being part of a bargain between them.”

The Commission also found that Davy and KPMG were entitled to assume that Harvey would follow the rules and not engage in “undisclosed negotiations” or “conceal significant information” and so on. It said it “makes no criticism” of either on this matter.

But as all of this was going on within Siteserv, just what was happening within the IBRC?

*****

Part 3 – Good faith, misleading information and the seven-year fallout of a single deal

There has been an overarching theme to this story; time and again information was withheld from IBRC over the sale of Siteserv. And, as the deal came ever closer to being completed, this pattern showed no sign of slowing. 

On March 5, 2012, Siteserv sent IBRC an indicative schedule of proceeds it could expect from the sale of Siteserv to the businessman Denis O’Brien. On March 7, IBRC wrote back requesting more information. The indicative schedule, according to the IBRC Commission’s draft report, was “seriously misleading”.

Siteserv said the cash available to it post the sale was €51.5 million, when it was in fact €51.95 million. The estimate of transaction costs included €430,000 to cover Siteserv’s running costs while the sale closed, which the bank should not have had to pay. Siteserv also said that Davy’s fees were €500,000, when the company knew it was actually €275,000. The schedule said that O’Brien’s headline price of €48 million had remained constant, when Siteserv knew he had reduced it to €45 million in his final offer letter of March 1, 2012, before increasing it again after negotiation. The working capital adjustment of €1.8 million in favour of O’Brien was not disclosed. 

In IBRC, Karl Cleere, prepared a presentation for the bank’s credit committee relying on this information from Siteserv. The bank’s credit committee decided not to recommend the transaction to the bank’s board. Instead, it asked Siteserv to explain why Anchorage had been rejected in favour of O’Brien. It also wanted to know more about €5 million that was going to be paid to Siteserv’s shareholders to get the deal approved. (We will return to this issue later).

And finally, the committee asked for the deal to be referred to the bank’s CEO Mike Aynsley, because of the “headline risk” of selling a business to O’Brien that involved a large write off, when there was a competing bid from Anchorage. In the draft report Aynsley expands upon this risk: “I think the fact that he was one of the largest borrowers for the bank, he was someone who was very well known publicly, there is an awareness around him having the problems that he’d had previously with the Moriarty Tribunal and that during these difficult times that all of a sudden he was coming along and purchasing a loan and the nature of just the noise around his name would mean there would be critics and people would throw stones.”

Aynsley said there was a “red flag that there could be enhanced reputational risk involved. So, we needed to make sure that we got the checks and balances on that. It was a very large amount that we were writing down”.

On March 13, 2012, Robert Dix and Hugh Cooney, the senior independent director and the chair of Siteserv respectively, wrote back. Their letter said O’Brien’s bid was the only firm offer, and there was less execution risk attached to it. A comparison was again made between O’Brien and Anchorage, giving the impression that Anchorage would want a €3 million reduction in respect of a tax issue the company had in Britain. It said Anchorage would also have received the €1.8 million working capital reduction, while omitting to say O’Brien had received this after negotiations that saw him agree to reverse his €3 million price decrease.

It said it also believed Anchorage was likely to seek another €1.3 million reduction due to other tax issues, even though Anchorage had never mentioned such a large number. It added Anchorage was likely to seek another €500,000 deduction in relation to tax accruals, which again Anchorage had never mentioned. It also said Anchorage was likely to seek €1.5 million in reductions for debt-like items, which O’Brien wasn’t seeking. 

On March 13, 2012, the bank’s credit committee met again. It considered all the deductions that Siteserv said Anchorage was going to seek, and concluded this made its bid “potentially lower” than that of O’Brien. The credit committee – based on the inaccurate information provided to it – decided to recommend O’Brien’s bid.

Mike Aynsley attended this meeting and asked that KPMG and Davy write letters to the bank confirming they were satisfied with the integrity of the sale process. Aynsley asked for these letters because of the nature of the deal, and not because he had any doubts at that time about its integrity. Aynsley said the reason he attended was: “The board expected me to be comfortable with what went to the board.” 

Approval for the Siteserv transaction now moved up to IBRC’s board on March 15, 2012. The board of IBRC was told there was a risk O’Brien would walk from the deal if Anchorage was let back into the process to carry out more due diligence. IBRC’s board expressed disquiet about the €5 million payment to shareholders in Siteserv but accepted it. Aidan Eames, a director of Siteserv and a solicitor, said: “While not ideal, there was a real risk that these shareholders could at least frustrate if not delay the time critical sale process if they were not compensated to some degree so as to have them acquiesce to the proposed transaction.”

The board approved the sale of Siteserv to Denis O’Brien. The board of IBRC did so without knowing of Harvey’s financial interest in O’Brien’s bid, McFadden’s involvement, and the “misleading information” furnished to IBRC by Siteserv, the commission said. The IBRC Commission, in its draft report, said IBRC did not know “fundamental” matters about the transaction. “The bank approved an offer from Mr O’Brien in circumstances where a competing offer from Anchorage had been made which could have resulted in a payment to the bank of up to €5.8 million more than it received from Mr O’Brien’s offer,” it said. 

IBRC received a fixed amount of €44.3 million for Siteserv, based on calculations received from the company. Unknown to the bank this created surplus cash of €800,000 which was used to pay bonuses to a small number of Siteserv directors. IBRC said it would not have approved these bonuses if it had known of them. Brian Harvey was paid a bonus of €350,000, Niall Devereux was paid €175,000, Robert Dix was paid €100,000 and Hugh Cooney was paid €60,000. It is important to note that Devereux did not know he was to be paid a bonus until early May 2012, after the shareholders of Siteserv had approved its sale at an egm on April 5, 2012. However, Cooney, Harvey and Dix had been discussing the potential for bonuses since November 2011. 

In its draft report, the IBRC Commission described these bonuses as “lavish” and more than Davy and KPMG’s entire fees combined, while the company defended them as not out of line with what was common in business deals of similar size and complexity. 

In addition to the bonuses that it didn’t know about, the bank also paid Siteserv’s running costs of €430,000 while the sale was closing, which it was not obliged to do. The IBRC Commission also said in its draft report it believed the €5 million paid to shareholders was too much given where Siteserv’s share price had fallen to. The bank it estimated could have got between €700,000 and €2.1 million more, if this number had been recalculated again as the deal closed. Adding everything up the IBRC Commission said this created the “possibility” that IBRC could have recovered €8.7 million more from the sale.

The €5 million to Siteserv shareholders

On the face of it Siteserv’s shareholders had backed a loser. The company had effectively failed. As such, market forces would say they deserved nothing from the sale of the business to Denis O’Brien. However, the problem was that some of its shareholders were well resourced, so they could have potentially sued the company or otherwise tried to stall the sale. Des Carville of Davy, as advisor to Siteserv, had presented a paper on December 15, 2011, to Walsh, Cleere, Hobbs, Dix and other people from Davy and KPMG examining the issue of what incentive was required to get shareholder approval. 

Carville said shareholders in public companies typically expected to be offered the average value of the previous twelve months, which in Siteserv’s case was €5 million. The Commission draft report said that by the time the sale of Siteserv actually happened three months later, in March 2012, this average had fallen sharply. It brought in an expert witness who said he believed IBRC should have appointed its own advisors on this matter, and not relied on Davy. IBRC said it was often criticised for spending too much on expensive advisors. The expert witness also maintained that Davy had clients among Siteserv’s shareholders, so it might have wanted a higher price in order to preserve its own reputation.

The issue about Davy’s motivation is a highly subjective opinion, without supporting evidence that this was ever a consideration by the stockbroker. Alan Dukes, a former finance minister and the chairman of IBRC, said of the €5 million payment: “It was a figure that seemed to us to be rather steep but if that was the price of getting the deal done, then, and you know avoiding an even bigger write-down, then that was the way we made the decision.” 

The IBRC Commission said IBRC could have recalculated the amount to be paid to shareholders as the deal closed and if this had happened it might have received between €700,000 and €2.1 million more. It said this was a “collective failure by all persons within the bank dealing with this matter – i.e., the lending team and the credit committee.” It said the €5 million figure was not “set in stone” and should have been reviewed downwards as Siteserv’s share price continued to fall. It said on this occasion there was “prima facie evidence of a material deficiency” in the lending team and members of the credit committee of IBRC.

In relation to its board however it found no such evidence, as they were entitled to rely on the advice and recommendations of the lending team and credit committee.

The IBRC Commissions’s calculation of the potential loss to the bank in relation to the €5 million payment to shareholders is a headline estimate. As some of Siteserv’s larger shareholders owed it significant sums, it is possible they used their Siteserv dividend to repay their IBRC debts taking some of the sting out of it. It is not clear however what happened in this respect.

A “hijacked” meeting

In the aftermath of the Siteserv EGM on April 11, 2012, approving the sale of the listed company to Denis O’Brien, executives from IBRC contacted Brian Harvey, the Siteserv chief executive. The bank was inquiring about his future terms of employment with Siteserv as he owed the bank €1.7 million personally. Harvey emailed O’Brien asking for “divine intervention”. 

On April 27, 2012, O’Brien arranged to meet a senior executive in IBRC, Richard Woodhouse, in Cafe Java on Leeson Street, Dublin 2 to discuss other business. Woodhouse was in charge of O’Brien’s loans, so this was a perfectly normal interaction. Unknown to Woodhouse, O’Brien decided to invite Harvey to join them. Woodhouse was not pleased. He told the Commission he felt his scheduled meeting had been “hijacked”. He declined to engage with Harvey and told him firmly IBRC would not be offering him a write-off on his personal debts.

O’Brien for his part said he knew IBRC was selling off loan portfolios at a discount to funds, so figured it might do the same for individuals. “I went in pretty strongly with Mr Woodhouse but I soon realised it was a firm no. You know, it was a red no. Not a black no,” he told the Commission. O’Brien stopped pursuing the issue. Harvey left the meeting after a short period, and afterwards O’Brien stopped all efforts to help Harvey settle his personal borrowings from IBRC.

No material deficiencies 

It is only in the 21st chapter of the draft IBRC Commission report that things really turn to IBRC. This is a very detailed chapter which assesses the performance of the bank in relation to Siteserv. It finds numerous things including that there was “no prima facie evidence of any material deficiency” in the performance of the bank and its team when it decided to appoint Walter Hobbs as an observer to the sales process and in their duties in respect of the first round of bids for Siteserv. 

It finds the bank acted “appropriately” when it heard Denis O’Brien had entered the bidding process and it was right to ask Woodhouse to step back to avoid any conflict of interest. It also finds there was “no reasonable basis” for the bank to object to O’Brien being allowed to bid. The report said Mike Aynsley, the CEO, was right to take steps to mitigate the “headline risk” of selling Siteserv to O’Brien. 

In its draft report, the commission found that there was no evidence of any “material deficiency” in relation to IBRC up until the consideration of second round bids. The Commission said it agreed with Pat Walsh who had said he wanted three bidders brought into a third round of bidding, and that Walsh and Cleere of IBRC had behaved correctly in relation to the transaction. In relation to the credit committee meeting on February 23, 2012, to grant exclusivity to O’Brien, the IBRC Commission said that, based on the information supplied to it, the committee was “reasonable” to grant this. 

However, it said the committee should have enquired more about the status of exclusivity at this meeting, and that the committee did not seek more information about the €5 million that was proposed to be paid to shareholders. In relation to the board of IBRC’s decision to approve O’Brien’s purchase of Siteserv, the commission said: “There was no prima facie evidence of any material deficiency in the performance of their functions by the board of IBRC in relation to the approval of the Siteserv transaction.” It also found that other issues like the payment of bonuses were not the bank’s fault, as it knew nothing about it. 

IBRC also looked at the issue of Arthur Cox advising both Siteserv and O’Brien. It said IBRC was right to seek written assurances from Arthur Cox that it had the appropriate protections in place.

Key findings about the key bankers

In its draft report, the IBRC Commission makes a detailed assessment of the roles of the various IBRC bankers involved in the deal. The below are its findings on some of the main players:

Walter Hobbs: Hobbs was IBRC’s “eyes and ears” overseeing the sale of Siteserv. The Commission said at a sale subcommittee meeting of February 10, 2012, Hobbs made an “inappropriate intervention” when he said that Siteserv should not wait for IBRC’s consent before granting exclusivity to O’Brien. The Commission said it was “of the view” Hobbs should have told Siteserv to await IBRC’s decision. It also said that on February 27, 2012, Hobbs should have insisted IBRC was allowed to consider Anchorage’s higher bid for Siteserv, before the company continued its exclusivity. The Commission said it accepted Hobbs’ contention that his motivation for doing this was to ensure a timely completion of the deal. After considering other issues too, IBRC said there was “prima facie evidence of a deficiency by Mr Hobbs in the performance of his duties for and on behalf of the bank.” 

Karl Cleere: An IBRC executive working on the sale, the IBRC Commission in its draft report said Cleere was an “assiduous and diligent banker,” and that he was a “reliable witness.” It said he exercised his duties “honestly and diligently and in a proper and professional manner.”

Pat Walsh: Karl Cleere’s boss also working on the sale. The IBRC Commission said Walsh “exercised his duties honestly and diligently and in a proper and professional manner”. Like Cleere he was a “reliable witness” and there was no evidence of any deficiencies in his performance. 

Richard Woodhouse: Woodhouse was a senior banker responsible for large clients including Denis O’Brien. The IBRC Commission said Woodhouse had only a “limited” role due to Aynsley’s request that he step aside from any decision making to avoid the potential for a conflict of interest as the manager of O’Brien’s loans. Woodhouse did attend the board meeting where the board of IBRC approved the sale, but there was “nothing improper” about this. It said there was no evidence he had an “improper or unduly close relationship” with O’Brien. An allegation made in the Dail that Woodhouse had tipped off O’Brien to increase his first round bid in order to stay in the race, the Commission said, was simply untrue. Another claim that he had given O’Brien favourable interest rates was also untrue. As it turned out Woodhouse had increased O’Brien’s rates. The IBRC Commission said Woodhouse had acted “honestly and diligently and in a proper and professional manner at all times”. He too was a “reliable witness”.

Tom Hunersen: A senior banker asked to step into Woodhouse’s role as the boss of Walsh and Cleere, Hunersen was mainly involved in the Siteserv sale towards the end. The IBRC Commission dismissed as false allegations he had an “inappropriate relationship” with O’Brien or anybody else connected with Siteserv. It said Hunersen was working on a huge number of other deals at the time, and he was involved in the Siteserv deal as much as could be reasonably expected. It said Hunersen exercised his duties “honestly and diligently and in a proper and professional manner at all times.” It also said he was a “reliable witness”.

Jim Brydie: Jim Brydie was head of group lending in IBRC. He said he was now living in the UK and was too busy to attend the IBRC Commission. The Commission said it had found “no prima facie evidence of any material deficiency” in relation to his performance, but it expressed its frustration at his “unacceptable” refusal to attend.

Mike Aynsley: The chief executive of IBRC had, according to the Commission, only “limited” involvement in the Siteserv transaction. It said Aynsley wanted to ensure the sale was conducted properly and with integrity, and he had taken steps to try and ensure this. It said there was no evidence that Aynsley’s relationship with O’Brien “influenced” his decision-making in relation to Siteserv. The Commission also considered an Irish Times article by John McManus on March 26 2012. McManus appeared to suggest the old Anglo board was somewhat similar to the new IBRC board, before putting in a reference to the sale of Siteserv to O’Brien. This article led to questions being raised with the bank by the Department of Finance fuelling a bubbling tension between some civil servants and the bank. The Commission said it found no basis for McManus’ statement that Aynsley was “chumming up to big Anglo clients”. It said it was “reasonable” for Aynsley to have a good working relationship with O’Brien as he was one of the bank’s biggest and best customers. In summary the Commission said Mike Aynsley had acted “honestly and diligently” and in a proper and professional manner at all times. It also said he was a “reliable witness”.

Alan Dukes: A former Minister for Finance and leader of Fine Gael who chaired IBRC, Dukes at all times behaved “entirely properly”. The IBRC Commission said he was a “hard-working, committed and effective chairman of the bank who exercised his duties honestly and diligently and in a proper and professional manner at all times.” The Commission said he was a “reliable witness” who had attended nearly all hearings as its work went on for years. The Commission said this indicated his “extraordinary level of commitment to the work of the Commission”.

Other board directors: All board directors of IBRC “acted appropriately and in the best interests of the bank, with a view to minimising the loss to the bank, by approving the proposal made to it, on the basis of the information before it.”

The Commission’s assessment of IBRC

After six and a half years of investigating IBRC, the Commission found only two issues it could criticise the bank on. 

One: IBRC’s credit committee could have found out sooner that O’Brien had been granted exclusivity if the bank’s lending team had told it that it knew there was de facto exclusivity some time earlier. Equally the credit committee could have inquired more about O’Brien’s exclusivity to determine its status. The Commission said it would be “unfair to blame any one individual for this matter.” It said it was due to an “unfortunate lack of communication” between the credit and lending functions of the bank.

Two: The payment of €5 million to Siteserv shareholders. The IBRC Commission said the bank could have “revisited” the amount to be paid as the deal closed, and it might have saved between €2.1 million and €700,000 if it had done so. Again, no individual is blamed for this.

The Commission said that while these two issues were material deficiencies, it was a responsibility that should rest not on any individual but on the bank’s lending team and credit committee “collectively.” “However, in an overall assessment the Commission concludes that the bank’s executives worked honestly and diligently throughout the Siteserv transaction to protect the interests of the bank,” the IBRC Commission concludes.

“Not commercially sound”

The IBRC Commission finds in its draft report that there were “two parallel processes” running when it came to the sale of Siteserv. One was “above the surface” that IBRC knew about, and the other was “below the surface” that the bank didn’t know about. This below the surface world it said, “undermined the integrity of the sale process”.

Events that occurred unknown to the bank included “Mr Harvey’s concealed financial interest in Mr O’Brien’s bid.” It said: “The Commission has found that at key stages in the sale process, Mr Harvey improperly favoured Mr O’Brien’s bid and put his own personal financial interests ahead of the interests of the company and its main creditor, the bank.”

The Commission said it was “extraordinary” that Harvey and McFadden ended up with 15 per cent of the company O’Brien used to purchase Siteserv without Harvey’s board, the sale sub-committee, the company’s advisors and Hobbs / IBRC knowing.

“The Commission has determined that it can be concluded that Mr Harvey’s actions were so manifestly improper and wrong that they undermined the integrity of the Siteserv process,” it said in its draft report.

The impact of information being not given promptly or withheld from the bank combined with it being given information that was misleading, as well as the decision to in its opinion overpay Siteserv’s shareholders, meant the IBRC Commission estimated the bank “could” have received up to €8.7 million more if it was “commercially sound”.

The IBRC Commission finds in its draft report that IBRC sold Siteserv to Denis O’Brien in “good faith,” but “based on misleading and incomplete information provided to it by the company”.

It added: “The Commission has also determined…the Siteserv transaction was, from the perspective of the bank, so tainted by impropriety and – in respect of Mr Harvey’s concealment of his material interest in Mr O’Brien’s bid – wrongdoing that the transaction was not commercially sound.

“The Commission finds that it can be concluded that the Siteserv transaction was not commercially sound in respect of the manner in which it was conducted, the decisions made, and the outcomes achieved.”

Postscript

The IBRC Commission under Judge Brian Cregan has certainly produced a thorough draft report.

It is over 1,000 pages long, and within its pages is a drumbeat of a deal “tainted with impropriety”. 

The work of the team in the Commission has to be acknowledged in getting to this point. They were not given an easy task and the issues they considered were more complex than expected.

For example, there is an entire section of its work that looks at trading in Siteserv’s shares in the run up to its sale. This finds there is “no evidence that any unusual trading in Siteserv’s shares occurred”, and the volumes being exchanged was down to Davy staff transferring Siteserv shares from personal dealing accounts to their pension accounts, for tax planning reasons.

The work involved in reaching this one conclusion – of the many tasks given to the IBRC Commission – was immense.

But at the same time, it is impossible not to question the sheer time involved in getting to this point. The entire Siteserv deal took place in the guts of six months, yet we’ve spent 13 times that so far, trying to find out what happened. 

During the years the IBRC Commission has carried out its work there has undoubtedly been a price paid by many of those caught up in it. 

Alan Dukes, the former chair of IBRC, has spent years sitting in attendance at the Commission, when he should have been enjoying a deserved retirement. 

The three overseas bankers who joined IBRC – Mike Aynsley, Richard Woodhouse, Tom Hunersen – have had their reputations unjustifiably damaged, as has other former employees of the bank as well as its entire board. 

Employees of Siteserv like its then CFO Niall Devereux have also had a question mark hang over them, despite their behaviour being impeccable. 

The IBRC Commission estimates its costs at €30 million, but when third party costs are included this could rise to €70 million or more. Viewed strictly on the basis of cost, the state is likely to spend €70 million to find out why it might have missed out on a little over ten per cent of that amount. This is crazy. 

If, however, the IBRC Commission leads to a real cultural change in how Irish business is done in all quarters then it would be worth it. But we know from previous tribunal reports, this doesn’t seem to happen. The specific repercussions of the report also remain to be seen.

From the beginning the IBRC Commission was given an impossible task, and the fact it has nearly concluded its investigation into Siteserv at all is remarkable. 

The original terms of reference given to the Commission under then Taoiseach Enda Kenny were farcical. It was so broad its work was made unworkable. As a reporter in The Sunday Business Post I said this at the time, but the state allowed things to trundle on regardless. 

A decision has to be made soon – several Taoisigh on from Kenny – on whether the IBRC Commission should be allowed to continue on to look at the next deal (of dozens) it has been asked to deal with. There is no way it should be, unless the IBRC Commission can make a very strong argument that it has rock solid evidence that must be investigated in relation to a particular deal. And even then, it might be better if it just referred its suspicions on to the relevant authority and asked it to investigate.

The state now needs to reflect on how it investigates business deals, as it has cost too much and taken too long to get to almost the end of its investigation into Siteserv. The IBRC Commission did get many answers – for which it must be commended – but we’ve had to wait a long time and a final report by the IBRC Commission still isn’t out, so it will be nearer to seven years by the end.

Ireland has many brilliant entrepreneurs and business people. Values like integrity are important to them. We have a history of being an open economy that welcomes inward investment. Good business people and companies deserve to know that doing business in Ireland is fair, and that there will be timely consequences when that isn’t the case.

They deserve not to live in what was described by one underbidder for Siteserv as a “banana republic”.