NAMA AND THE RIGHT TO BE HEARD - MCKILLEN AND BEYOND Bar Council CPD seminar Wednesday 9 May 2012 John O Donnell S.C. Introduction 1. Does the grave economic crisis justify giving a State Agency (NAMA) the power to acquire compulsorily a loan where, although the borrower is currently in negative equity, all interest payments under an interest-only agreement with the bank have (to date) been made,without affording the borrower a right to fair procedures; in essence, a right to be heard? This question (and others) confronted the Divisional Court and the Supreme Court in Dellway Investment Limited and others v NAMA, Ireland and the Attorney General ( McKillen ), and has been debated thereafter in the High Court. The Powers And Purpose of NAMA the 2009 Act 2. The general powers of NAMA are set out at Section 12 of the Act which makes clear that NAMA has all powers necessary or expedient for, or incidental to, the achievement of its purposes and performance of its function. The specific powers of NAMA in relation to assets are set out under Part 9 of the Act. Notably Section 84(2) provides that, for the avoidance of doubt NAMA may acquire, from a participating institution performing or non-performing(essentially, defaulting) eligible bank assets. 3. In McKillen the Divisional Court placed particular emphasis on the purpose of the Act (as opposed to the purposes of NAMA itself). The Act s purpose is to address a serious threat to the economy and the systemic stability of credit institutions in the State generally. It does this by establishing NAMA, whose purpose is, in effect, to obtain the best achievable financial return for the State; NAMA does this by expeditiously acquiring eligible assets from participating institutions, hopefully thereby removing uncertainty about those assets, and the effect of that uncertainty on credit institutions. NAMA is then entitled to deal with those assets and to protect 1
or otherwise enhance their value in the interests of the State. Eligible bank assets in broad terms are assets which are (or are connected with) development lands, though again the definition is extremely wide. A participating institution (i.e. one of the five banks) may object to the designation of an asset as an eligible bank asset, but there is no provision for an objection by a borrower. 4. The central issue in McKillen was the power of NAMA to acquire eligible bank assets, which power is set out in Section 84 of the Act. It can do so where it considers this necessary or desirable... having regard to the purposes of the Act and the resources available to the Minister [for Finance].The Applicants, property investors, had met their interest obligations as required by their banks.the Court did not find it necessary or appropriate to reach any concluded view as to the status of the Applicants loans(and in particular whether or not they could properly be described as impaired or non-impaired). Nor did the Courts base their decision on the value of the properties to be acquired, it not being part of the Court s function to resolve any valuation difference between the parties. The Arguments Appropriate Considerations 5. The Applicants contended NAMA did not take into account appropriate considerations in coming to its conclusion to acquire the McKillen loans. This was rejected by the Divisional Court and by the Supreme Court. European State Aid 6. The Applicants maintained that because the European Commission had determined the acquisition of loans by NAMA amounted to State aid under Article 107 of the Treaty,having regard to the functioning of the European Union (and to a recent Commission decision), NAMA was obliged only to acquire what could properly be described as impaired loans. This too was rejected. The Constitution 7. The Applicants suggested that if the Act was to be construed as not permitting the Applicants to be heard, and/or permitted the acquisition of unimpaired loans, then the Act must be unconstitutional (and perhaps also incompatible with the European Convention on Human Rights). This contention was also rejected. 2
Timing 8. The Applicants contended the decision to acquire the loans was taken before NAMA came into existence, and therefore the decision was not legally capable of ratification, and had notbeen ratified or retaken by NAMA in any legally permissible fashion. Mr McKillen contended the decision to acquire the loans was taken on the 11th and 14th of December 2009. NAMA was established on the 21st of December 2009. 9. The Divisional Court concluded the decision made on the 11th and 14th of December 2009 was adopted (albeit not expressly) by the subsequent actions of NAMA following its establishment (in particular, at a board meeting on the 23rd of December 2009). The Supreme Court took a different view. Delivering the court s judgement, Murray CJ indicated it was an essential pre-condition of the acquisition process that NAMA formed an intention to acquire. It must exercise its discretion under the section and form an opinion that it is necessary or desirable to acquire the assets: NAMA is a body established by Statute and no act performed in its name has any legal effect except as provided in the Act. It is axiomatic that NAMA could not make any decision before it came into existence. It follows that the decision of the interim team made meetings on 11th and 14th December 2009 was in law at the time when it was made a nullity and had no legal effect This is no mere matter of form. It is fundamental to the functioning of a statutory body that it, itself, take such decision as it is empowered to make by the Statute and exercise any discretions conferred on it. Consequently NAMA has made no decision to acquire the Appellant s loans. Fair Procedures 10. The Applicants contended they had various constitutionally protected rights which would actually or potentially be affected by acquisition by NAMA, namely (a) property-related rights and (b) the right to fair procedures and in particular the right to be heard - before any decision adverse to the Applicants rights was made. 11. The Divisional Court held that the clear underlying imperative urgency of the Act suggested the process of acquisition of loans needed to be conducted in an extremely expeditious manner. The absence of a provision for consultation with a borrower (especially where an express entitlement to object is given to banking institutions) suggested an ordinary construction of the Act could not lead to an implied entitlement to the part of the borrower to be heard. 3
12. However the Supreme Court concluded the Act did not preclude NAMA from receiving and taking into account representations on behalf of borrowers, particularly having regard to their particular circumstances. On the contrary, properly construed in the light of the Constitution and the consequential principles of interpretation which must be applied, the Act required that NAMA accord persons such as the Appellants the right to make representations concerning any decision which it proposes to take pursuant to Section 84 of the Act. 13. The Court declared the Appellants were entitled to be informed by NAMA of any intention to consider making a decision to acquire eligible bank assets related to their credit facilities with participating banks, so as to afford them an opportunity of making appropriate representations concerning such a proposed decision. The judgements referred tovarious decisionsemphasisingthe presumption of constitutionality attaching to every piece of legislation passed by the Oireachtas. Such legislation must be interpreted on the presumption that discretions and adjudications prescribed by an Act are to be conducted in accordance with the principles of constitutional justice governing fair procedures. Murray CJ said it was impossible to reconcile this presumption with the Respondent s argument that the 2009 Act not only failed to provide for a procedure enabling the Appellants to make representations to NAMA but actually prohibited (or at least excluded by necessary implication) any possibility of representations to NAMA under Section 84. He was satisfied that Section 84 must be interpreted as meaning that NAMA must permit persons whose rights may be adversely affected or on whom liabilities are imposed as a consequence of a decision to acquire an eligible asset to make representations before such a decision is made. I would have thought that the Oireachtas if it intended to exclude the operation of procedures of this nature, would have done so expressly. After McKillen 14. The decision of the Supreme Court in McKillen has been cited in other contexts; e.g. Re Custom House Capital Limited(final order appointing of company inspectors not appropriate on an ex parte basis), Caldwell v- Mahon &Ors(Tribunal of Inquiry not entitled to refuse to hear any submissions from an affected party before deciding whether to commence or to proceed with particularinvestigation). 15. Daly and others v National Asset Loan Management Limited and othersis a further refinement of the principles set out in McKillen. In Daly the dispute between the Applicant property investors and NAMA did not relate to the decision to 4
acquire the Applicants loans; instead the issue as to whether the loans were term loans or were repayable on demand. Having acquired the loans NAMA demanded repayment and appointed receivers. 16. At the leave application Peart J agreed with NAMA s submission that the facilities were repayable on demand. However he gave leave to the Applicants to commence proceedings against NAMA (under Section 182) as they had established there was a substantial issue that their right to be heard prior to demand being made and receivers having been appointed had been breached. Peart J refused to grant an injunction restraining receivers appointed by the Respondents from acting, noting Section 192 provided that where there was a remedy in damages an injunction can only be granted against NAMA if not to do so would constitute an injustice. Treasury 17. In Treasury Holdings and others v National Asset Loan Management Limited and otherstreasury sought orders of certiorari quashing NAMA s decisions to enforce various securities held for multiple loans previously made to Treasury as well as NAMA s decision to appoint receivers to companies within the Treasury group. There was no real dispute that the Treasury group was in default in respect of the majority of its loans, and although in receipt of rents and management fees, was insolvent.in essence Treasury complained NAMA had not treated Treasury fairly by failing give adequate notice of the proposed decision and failing to give Treasury an opportunity. 18. Once again the High Court confirmed a substantial issue had been raised as to whether the decisions to enforce and appoint were taken in the area of public law and were amenable to judicial review; the fact that these decisions were taken as successor to AIB and IBRC did not mean a substantial issue did not arise. A Useful Checklist 19. In examining the particular complaints made the courtalso provided a useful checklist of matters to be examined by the court in the application. It held it should consider (a) whether Treasury had established a substantial issue that it had a right to be heard prior to the taking of the impugned decisions, (b) the statutory scheme, (c) the facts pertaining to Treasury and its relationship with NAMA, (d) the effects on Treasury of the challenged decision, (e) the representations which it might have wished to make if entitled to be heard, (f) whether it would have been lawful for NAMA to take into account such representations prior to reaching its decision. 5
20. In essence Treasury contended it had reached a modus vivendi with NAMA (through inter alia a non-binding Memorandum of Understanding) which would have provided for a phased disposal of certain Treasury properties by 2017. In the autumn of 2011 Treasury was also in negotiations with two separate unidentified - entities to try to have the NAMA- owned loans purchased. NAMA appears to have considered these negotiations a betrayal of the arrangement between Treasury and NAMA. Treasury complained NAMA s decision to enforce securities in December 2011 (and to appoint receivers in January 2012) should have been notified to Treasury in advance. The court held Treasury had raised a substantial issue for determination that NAMA in December 2011 was in breach of its duty to notify and give Treasury an opportunity to be heard prior to taking a decision to enforce. 21. While refusing to decide the exact extent of a public authority respondents obligation to disclose documents on a leave application, in granting leave on this basis the court also held the applicant should not be prejudiced by the absence before the Court at this stage of relevant documents such as the record of the Board decisions and any recommendation or other document considered by the Board. 22. Although allegations of bad faith and improper purpose were also made by Treasury against NAMA, the court refused leave on these grounds. An Undertaking Not To Sue? 23. The case raises some interesting side issues. NAMA contended Treasury had agreed in writing not to challenge its decisions and so could not bring the application for leave.treasury challenged the validity and enforceability of any agreement incorporating such an undertaking, pointing to the common law principle that a contract which ousts the jurisdiction of the Court is invalid and unenforceable as a matter of public policy, as well as to the right to litigate as an aspect of the right of access to the courts protected by Article 40.3.1 of the Constitution. The court heldtreasury had established a substantial issue for determination as to whether or not there exists an enforceable undertaking given by it as part of the standstill agreement which prevents it from now seeking orders of certiorari of the decisions of 8th December and that of 25th January as contended for by NAMA. Damages Inadequate and Arguably Unavailable 24. The court also held that even if damages were available as a remedy should Treasury succeed (which was doubtful having regard to the judgmentin Pine Valley 6
Developments &Ors v. Minister for the Environment &Ors) the impact of the challenged decisions on Treasury and its business set out above was such that damages would not be an adequate remedy. If successful in its claim for orders of certiorari, Treasury should be entitled by way of remedy to have the decision quashed so that new decisions may be taken in accordance with the applicable principles of constitutional justice. Conclusion 25. McKillen and Daly emphasise the limited options open to borrowers under the 2009 Act. Practitioners would also do well to note the thirty day time limit within which any application for leave to challenge NAMA must be made, as well as the significantly higher threshold required under section 193(1)(b) to obtain leave than is required for normal judicial review applications, being the obligation to establish a substantial issue (as opposed to an arguable case) for the court s determination. Neither case decides whether NAMA was the best - or even a good - solution to the economic problems facing the country.but many who read the Supreme Court judgements in McKillen may find it heartening that NAMA is not above criticism. In addition the unambiguous declarations of a borrower s entitlement to be heard (particularly a non-delinquent borrower) are a welcome assertion of the primacy of the fair procedures guaranteed by the Constitution, notwithstanding the awesome powers given to NAMA.Daly and Treasury likewise highlight how the rights of an entity to be given notice and to be heard, even though insolvent and in NAMA, are preserved, being so important as to be, arguably, incapable of being compensated by damages. John O Donnell S.C. Further Reading: Dellway Investments Ltd. and others v National Asset Management Agency [2011] IESC 4,13,14 Re Custom House Capital Limited [2011] IEHC 298 Caldwell v- Mahon &Ors[2011] IESC, 21 Daly and others v National Asset Loan Management Limited and others (High Court, 12 September 2011, Peart J) Treasury Holdings and others v NAMA and others [2012] IEHC 66 7
Pine Valley Developments &Ors v. Minister for the Environment &Ors [1987] I.R. 23 The National Asset Management Agency Act (No. 34 of 2009) The National Asset Management Agency Act 2009: Annotations and Commentary (Hugh B. Byrne and Louis McEntagart) (Bloomsbury Professional, Tottel Publishing) 8