High Court sets aside permission for Thomas McEvaddy snr to challenge Nama

A decision allowing a businessman to challenge the constitutionality of sections of the National Asset Management Agency Act, 2009 has been set aside by the High Court.

Thomas McEvaddy snr claimed Nama’s actions displayed an intention to “pluck each and every income stream” from him and leave him “destitute”.

McEvaddy and his company, Thomas McEvaddy Developments Ltd, last year secured permission to bring judicial review proceedings against Nama, Irish Bank Resolution Corporation (IBRC), the State and receivers appointed over various assets.

They sought various declarations that certain sections of the Nama Act are unconstitutional and incompatible with the European Convention on Human Rights and Fundamental Freedoms.

It was alleged that Nama was not entitled to recover any loans advanced by Anglo Irish Bank, IBRC's predecessor in title, on public policy grounds and that Anglo had engaged in unlawful actions, including failing to report impaired loans.

It was also alleged Anglo was not entitled to place a legal charge over one property because that arose from a loan facility provided for monies “never drawn down”.

Mr McEvaddy also claimed a signature on a purported guarantee for a development in Co Mayo was not his signature.

Alleged wrongs

Nama and IBRC brought pre-trial applications to set aside the High Court’s February 2014 decision grating permission for the judicial review. They argued the Nama Act prevents claims against the agency based on alleged wrongs by a participating institution and Anglo was such an entity. It was also argued there were no substantial issues to be tried.

In his judgment, Mr Justice Michael Peart set aside the permission because some of the grounds were out of time while others were insubstantial and “not firmly based in fact”.

Under the Nama Act, no liability can attach and no proceedings can be brought against Nama for alleged wrongdoings by a participating institution and Anglo is such an institution, he said.

A claim against IBRC concerned alleged overcharging of interest on the loans must also be set aside as that could not be advanced via judicial review.

Mr McEvaddy was successful in business, bought several properties with loans from Anglo between 1993 and 2008 and was not in default with those loans until 2011.

He could not understand why Nama chose to wait until January 2014 to move against him, having held back during the worst years of the recession, Mr Justice Peart said. His anger towards Nama/IBRC was “subjectively understandable” viewed against this background.

The claims against the State respondents have been adjourned generally with liberty to re-enter, the judge said.