ABOUT 20 minutes into proceedings, a group of transition year students filed out of the public gallery, clearly underwhelmed by Michael Cush’s valiant attempt to rouse three High Court judges to righteous indignation.
His client was being forcibly sucked into Nama, merely because of the size of his borrowings; there was no “qualitative assessment”, no reference to diversity of portfolio or geographic spread . . . Upon which the transition years arose and left.
Had they waited a few minutes, they would have seen Mr Justice Frank Clarke try to broaden the picture. Did Mr McKillen have a view on the approach being taken by the banking industry, he asked. Did he think the approach being taken was the right one? At last, a question everyone could get their heads around – and perhaps an answer from someone with a world view. The court leaned forward. Silence. Mr Cush stood there with a slight, nonplussed smile. What he probably wanted to say was, “eh, what’s the big picture got to do with me?”. He settled for a more diplomatic, “Em, eh . . . well, Mr McKillen has a HUGE amount to say about issues of that nature . . .”
Another pause.
“I might reflect on that . . .” Mr Justice Clarke nodded agreeably and suggested they come back to it at the end of the day. We entertained visions of the mysterious Mr McKillen galloping into court at 3.55 to deliver a historic address, complete with bullet points on how to deliver ourselves from what Mr Cush termed “the Irish mess”. He didn’t, sadly. And the court never got back to it either.
The judges’ determination to keep an eye on the big picture, beyond Mr McKillen’s personal vicissitudes, featured again in the afternoon, as Mr Cush read from affidavits. There was a reference to how banks operate ordinarily, in ways which wouldn’t be available to his client if his borrowings were taken into Nama “Or USED to operate, prior to Lehman Brothers and all the events of the past few years,” interjected Mr Justice Kearns. “And surely taking into account if the bank is solvent,” chimed in Mr Justice Clarke. If there had been no government intervention, Mr McKillen would be dealing surely with a bank that was no longer in business?
For a conservative businessman who despises publicity, one can only imagine Mr McKillen’s thought processes as he fashioned an affidavit that included the information that when he set about opening branches of Captain America’s and Wagamama in Blanchardstown, with 100 permanent jobs at stake, he found that all the banks approached were unwilling to lend, “afraid [the companies] would end up in Nama, which would give no value for the debt”.
There was a glimpse into Mr McKillen’s mindset when Mr Cush read a three-page letter, dated June 10th, 2010, from Anglo Irish Bank’s group chief executive, Mike Aynsley, to Nama’s chief executive, Brendan McDonagh – bizarrely, one State body taking severe issue with another, in defence of a client. Aynsley included a covering e-mail from Patrick McKillen, which indicated that McKillen was “clearly distressed” that his loans are going to Nama.
“I didn’t buy in Ireland since 1998, hence avoided the reckless property speculation,” Aynsley quotes, adding : “Mr McKillen is a successful, high net worth individual who, in the absence of Nama involvement, represents a desirable ongoing, bankable client to the bank. It is very disappointing to me that Mr McKillen seems to have become disillusioned, frustrated and alienated when he is clearly an individual who offers great future value to Ireland, having the capacity to actively participate in the country’s recovery.”
Aynsley is not alone in his view. Interestingly, Nobel laureate Joseph Stiglitz seems to agree.