McKillen secures leave to appeal

The Commercial Court has granted businessman Paddy McKillen leave to appeal the rejection of his bid to prevent transfer of €2.1 billion of his loans Nama to the Supreme Court.

A three judge High Court today 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 the appeal.

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

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 the agency.

The Nama Act provides no appeal on non-constitutional issues raised in legal challenges to the Act 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 has “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 which should, in the public interest, be decided.

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

However, Mr Justice Kearns 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 does not expressly preclude Mr McKillen seeking to have the Supreme Court determine other issues raised by him 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.

In his unsuccessful High Court challenge, Mr McKillen claimed his right to fair procedures was breached because he was not given an opportunity to be heard before Nama made the decision to acquire his loans.

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

Mr McKillen and 15 of his companies had sought judicial review of the decision of Nama to acquire their Bank of Ireland loans, estimated by them at €211 million and by NAMA at €297 million, but the case had implications for Nama’s intention to

acquire his €2.1 billion loan portfolio with the five participating institutions in Nama.