Murphy v ACC Bank

JurisdictionIreland
JudgeMR JUSTICE O'SULLIVAN,Mr. Justice Brian J, McGovern
Judgment Date12 April 2011
Neutral Citation[2000] IEHC 162,[2011] IEHC 541
CourtHigh Court
Date12 April 2011
MURPHY v. ACC BANK PLC

BETWEEN

LIAM MURPHY
Plaintiff

AND

ACC BANK PLC
Defendant

[2000] IEHC 162

NO.474P/2000

THE HIGH COURT

Synopsis

Injunction

Interlocutory application; plaintiff dismissed on grounds that his activities were in breach of normal banking practice; plaintiff contends that he was dismissed in breach of fair procedures; whether plaintiff entitled to interlocutory injunction restraining dismissal until question of fair procedures is decided; whether substantial case to be tried; whether balance of convenience lies in favour of granting relief; undertaking as to damages.

Held: Interlocutory relief granted

Murphy v. ACC Bank - High Court: O'Sullivan J. - 04/02/2000

The plaintiff had been employed as a bank manager of the defendant bank. The plaintiff had allegedly failed to follow standard banking practice in accepting a deposit from a customer and as a result was dismissed. The customer in question was under investigation by the Criminal Assets Bureau. The plaintiff initiated proceedings challenging his dismissal and in this application sought an interlocutory injunction to prevent same. O’Sullivan J held that the plaintiff was entitled to the injunction sought. Given that the plaintiff’s only income was from the defendant the possible payment of an award of damages after the trial would not be an adequate remedy and relief would be granted in respect of this.

Citations:

MONEY V AN POST 1998 4 IR 288

HARTE V KELLY 1997 ELR 125

TRANSCRIPT OF JUDGMENT
1

DELIVERED EXTEMPORE BY THE HONOURABLE MR JUSTICE O'SULLIVAN ON 4TH FEBRUARY 2000

APPEARANCES

For the Plaintiff;

Mark G. Connaughton BL

Instructed by

O'Mara Geraghty McCourt

For the Defendant:

Ercus Stewart SC

Roddy Horan BL

Instructed by

Tara Glynn

2

On 11th January 1999 a customer of the Kilrush Branch of the Defendant Bank approached the Plaintiff (the manager of that Branch) outside the Bank's premises with £100,000 in cash in a bag for lodgment at that Branch. The Plaintiff contacted the internal audit department of the Defendant Bank for guidance but deposited the money in a new account before that guidance was given. Having telephoned the internal audit department on the next day, the 12th of January, the Plaintiff sent a written memorandum confirming his request for advice.

3

The depositor had been under investigation by the Criminal Assets Bureau (CAB) but told the Plaintiff on the 11th that these inquiries were completed. Subsequently the Plaintiff arranged a loan for the depositor with the Defendant Bank. These events and the surrounding events are more completely detailed in correspondence to which I will refer at a later point in this judgment.

4

The Defendant says that these activities of the Plaintiff were in gross breach of any normal banking practice and of all relevant norms and standards. By accepting the money from the depositor and lodging it before the internal audit department had an opportunity to give advice the Defendant Bank was, it is submitted, put into a contractual relationship with the depositor which was wholly inappropriate and which subsequently tied its hands in its relationship with him.

5

In the context of the Plaintiff arranging the subsequent loan, the Defendant complains that the Plaintiff failed to disclose relevant information available to him to the discredit of the depositor.

6

By letter of 11th January 2000 the Plaintiff was dismissed. That letter reads as follows:

"I refer to our meetings of 10th December 1999 and 17th December 1999 in the presence of your representatives. The following facts have now been established:-"

1. You have admitted receiving money in a plastic bag from a customer on 11th January, 1999 and without counting it or providing a receipt continued home for your dinner. You then held the cash overnight in Kilrush branch without putting in place the proper level of insurance cover.

7

The above issues are contrary to all reasonable standards of good banking practice. Moreover they were done with the prior knowledge that the said customer was being investigated by the Criminal Assets Bureau (CAB).

8

2. Subsequent to accepting the cash you then asked Internal Audit for advice yet before they replied you took it upon yourself to lodge the said cash to a deposit account.

9

This action is inexplicable particularly in light of the fact that you were sufficiently on your guard to phone Internal Audit to ask for advice in the first instance.

10

3. You subsequently proposed a number of loans (for the same customer) to Area Credit Management yet failed to divulge any background character information on the said client despite becoming aware at a date unknown that:-

11

a) CAB had not concluded their investigations into his affairs.

12

b) That the CAB investigation was more than a TAX and VAT matter.

13

c) That the said individual was implicated in assisting in an armed raid in Galway on 19th January, 1999 during which £300,000 in jewellery was taken.

"Points a-c above were conveyed to you by Declan McGrath (of Internal Audit) after the lodgement of the £100,000. You initially stated at our meeting on the 10th December that you were aware of all these facts prior to the sanctioning of any loans by Area Office. Later during the same meeting you said that you weren't aware of the full extent of these issues until after the 15th March 1999 by which time Area Office had sanctioned these loans."

"Even if one is to accept this point, you then proposed a £20k facility to credit in full knowledge of all this background information on the customer."

"A very serious view is taken of all of the above matters as they reflect on your honesty, integrity and competence. Employees of the bank must have the highest degree of trust. The above actions taken by you in relation to these matters clearly breach this trust, question your honesty and are grossly incompetent."

"Having considered all of the above and carefully taken on board the points made in your defence by your solicitor and union representative, the bank considers that we have no alternative but to terminate your employment with immediate effect. Any outstanding monies will be forwarded to you in due course."

14

It is apparent from the text of that letter that the Plaintiff did not accept, and still does not accept, the entire of the averments therein recited.

15

The relevant part of the procedures which the Defendant accepts governed the process to which the Plaintiff was entitled and which would have led up to the foregoing dismissal include at paragraph 5 under the heading “Disciplinary Procedure”: "The employee will also be informed of the charge or complaint against him/her". The Defendant accepts that it did not so inform the Plaintiff in explicit terms in writing although it does rely on a letter sent on 26th November 1999 and also on an averment to the effect that the Plaintiff was verbally informed of the charge against him. The letter of 26th November 1999 to the Plaintiff is signed by Patrick G. Horgan, Area Manager Midlands West, and is headed “Meeting with Alastair Purdy and Paddy Horgan”. Alastair Purdy, who has sworn affidavits on behalf of the Defendant in this matter, is general manager of human resources with the Defendant, or so signs himself in the dismissal letter. The text of the letter of 26th November 1999 is as follows:

"The Agenda for this Meeting is in my view to seek explanations why:-"

1. The Area Office were not advised of important information when asked to approve loan applications.

16

The information concerned is:

17

a) The known C.A.B. involvment.

18

b) The numerous allegations and rumours circulating locally in regard to drugs, arson, robbery and thugery.

19

c) Their reputation.

20

2. Explore your views on creating exposures in such situations, even if you expected the information as outlined above to be supplied by another party.

21

I enclose copies of the loan applications including your Reports which are the only relevant documents."

22

I note from that letter that there is no reference whatsoever to the events of 11th January 2000 wherein the Plaintiff accepted money from the depositor, lodged it and sought advice. That letter is concerned with the subsequent issuing of loan approval on loan applications.

23

Following receipt of this letter the Plaintiff communicated with the Defendant on a number of occasions. I would refer to two communications, one dated 25th November 1999 to Alastair Purdy in which the Plaintiff says:

"I refer to yours of 23rd instant and advise that due to the proximity of notification to the above meeting, and being unable to arrange for representatives to attend, I wish to have the proposed meeting re-scheduled to a later date."

"Prior to such meeting being arranged, I wish to be notified of the agenda of same and in addition, if I am to be required to comment on any documents or memos, I wish to be supplied in advance with copies of any such documents."

24

On 3rd December 1999 the Plaintiff wrote to the same individual. Without citing this communication in full, it is clear therefrom that the Plaintiff was seeking details in relation to the internal reporting procedures in force in the period of 1st January 1999.

25

From this and other correspondence in the case it seems to me that it is not fair to say that the Plaintiff was clearly aware of the charges which were being made against him by the Defendant, nor was he aware of the fact that he was facing the gravest of the potential disciplinary sanctions referred to in the document dealing with the procedures, namely: dismissal. The Defendant submits that it was not obliged to inform the Plaintiff of these charges in writing. That may be so. However, if so, then in my view the Defendant takes on the onus of satisfying the test laid down in the Supreme Court by...

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