National Asset Management Agency Act, 2009
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.
