NAMA’s terse statement after yesterday’s judgment in the Treasury case reminded me of that old and slightly politically incorrect joke of the recently-widowed Mordechai who found that there was a five-word minimum spend when placing a death notice in the newspapers, and thus the notice appeared as “Esther dead Volvo for sale”. NAMA’s statement merely said “NAMA welcomes today’s decision from the High Court and will continue to work with the NAMA-appointed receivers in this case to maximise the return to the taxpayer”
And in truth, despite nominally winning the judicial review action, NAMA actually lost the judicial review itself with the judge ruling – in the circumstances of the Treasury case – that the decision to foreclose on Treasury’s loans was amenable to judicial review, that Treasury did have a right to be heard before NAMA foreclosed the loans and that NAMA’s procedures as a public body were unfair in the Treasury case. Were it not for Treasury apparently signing away its legal rights as a condition of the so-called “standstill agreement” in January 2012, then Treasury would seemingly have NAMA by the gooleys this morning. The “standstill agreement” meant that the appointment of receivers by NAMA was deferred pending NAMA’s examination of third party investors being brought to the table by Treasury in return for Treasury agreeing not to pursue legal action against NAMA.
What does the ruling mean for other foreclosure action? We learned in a recent Parliamentary Question from the Fianna Fail finance spokesperson Michael McGrath that “to the end of June 2012, 235 Receiver appointments had been made to 176 separate debtor connections” by NAMA and its banks.
Might some of these companies and individuals now consider legal action against NAMA claiming damages because NAMA did not offer them an opportunity to be heard, and that NAMA used unfair procedures in the appointment of receivers? Remember the judge was careful to stress that her judgment pertained to the facts and circumstances of the Treasury case, but it doesn’t seem on here that Treasury will be unique, and I would have said most NAMA debtors who had initially cooperated with the Agency and had evidence of cooperation from the Agency, could claim that their circumstances were practically the same as Treasury’s as set out in the present case. So it seems that there is the potential for a large volume of applications, in the aftermath of the Treasury ruling yesterday.
But would there be any point in such applications. Having the right to be heard and to be subjected to fair procedures doesn’t mean that if you are massively insolvent that NAMA cannot enforce loans – that would be a mockery of both the NAMA scheme and the NAMA Act. So developers may not in fact have incurred any legally assessable damages despite NAMA’s actions. On the other hand, if you were a developer who might have had third party investors or feasible plans to deal with your debt, and NAMA railroaded you into receivership, there may indeed be the potential for damages.
So, you might sympathise with the terseness of the NAMA statement yesterday and wonder if indeed the Agency is panicking at the prospect of floodgates of legal action in the wake of yesterday’s judgment.
Be handy if one was cleared of bankruptcy in the UK then or at least in the process of being so discharged.
@NWL
Surely this ruling highlights the stupidity of the IBRC appointing a receiver to the Quinn Group. At the time this was still a very profitable entity with scope to deal with and repay significant sums back to the IBRC however in appointing the receiver in the manner which Alan Dukes et al did suggests not only stupidity but something underhand.
I fully appreciate that Quinn Groups debts were or are not in NAMA but presumably this ruling has scope to be interpreted in a wider context.
It was and is a pointless useless waste of time and resources,if they had “won” what would they have won?
More time to chat in that opulent regal boardroom,art dripping from every inch of wall space,is someone compensating for some size inadequacy with that table,and Bruder pontificated on about mediators etc. yesterday on RTE.So NAMA did not dot all the I cross ALL the T’s and give the boys a little hug.
Keep in mind,NAMA to some degree is making it up as they go along.There was/is limited case law on this area in Ireland,brand new legislation,rapacious lawyers/barristers at every corner.Very few skilled loan work out or people with the experience in this area.
NAMA’s biggest mistake was in not reading the available reports on REO,they bought into this,by about 100,000,000 the smoke and mirrors Tresaury bulls**it.
These people including Bruder are in denial,profit is the metric that business is judged by,they failed get over it.NAMA bent over backwards here,meeting after meeting,emails,phone calls,man up NAMA grow a pair.Stop funding hopelessly insolvent companies.
Oh for heavens sake this is the one jurisdiction with volumes of case law. Remember the NAMA Act is nothing more than a variant of the Land Acts and an extension. Nothing more nothing less. Attempting to call it other is due to the Constitutional issues with 40.3.2. Why the heck they simply didn’t deploy ‘The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good. ‘ and have done with it.
I have blogged some comments on the decision here, more or less in agreement with the general take you have: http://bit.ly/N2opjf