Early hearing of McKillen Nama appeal sought


LAWYERS FOR property investor Paddy McKillen and the State may apply to the Supreme Court this week for an early hearing of Mr McKillen’s appeal against the rejection of his legal bid to prevent the transfer of some €2.1 billion of his loans to the National Asset Management Agency (Nama).

A three-judge High Court yesterday gave its ruling on issues related to the scope of that appeal but also stressed it was for the Supreme Court to finally determine what issues may be raised in an appeal.

High Court president Mr Justice Nicholas Kearns, Mr Justice Peter Kelly and Mr Justice Frank Clarke were ruling on submissions from both sides as to the appeal’s scope.

The court had to address those issues because the Nama Act 2009 provides for certain limitations on the entitlement to appeal to the Supreme Court against the rejections of legal challenges to Nama.

The Nama Act provides that no appeal on non-constitutional issues raised in legal challenges may be brought unless the High Court certifies the issues are of such exceptional public importance the public interest requires they should be determined by the Supreme Court.

Mr Justice Kearns said Mr McKillen had “an unfettered right of appeal” in relation to issues raised by him concerning the constitutionality of provisions of the Nama Act.

The High Court also believed another issue raised by Mr McKillen – related to his right to fair procedures – should be certified for determination by the Supreme Court as it involved a point of law of exceptional public importance.

The fair procedures point requires the Supreme Court to decide whether the High Court was correct in concluding that, under the Act, Mr McKillen had no right to be heard before the decision by Nama to acquire his loans.

Mr Justice Kearns however said the High Court would not grant a certificate sought by Mr McKillen in relation to a second issue – whether the decision to acquire the McKillen loans breached a European Commission decision approving the Nama scheme.

The judge also noted section 194 of the Nama Act did not expressly preclude Mr McKillen from seeking to have the Supreme Court determine other issues upon which the High Court refused certification. It was for the Supreme Court to decide if the appeal should extend beyond the constitutional issue and the certified fair procedures point of law.

While the High Court ruled Mr McKillen had raised substantial grounds on the fair procedures point entitling him to judicial review, it refused him any relief on grounds that any constitutionally protected rights were either not interfered with or interfered with in such a minor way that he was not required to be heard before acquisition.