In Dellway and Ors. v National Asset Management Agency & Ors., a number of companies and Paddy McKillen appealed a decision of the High Court in relation to the purported acquisition of €2∙1 billion in loans to the appellant companies by NAMA.
The appeal was brought on five grounds:
- whether NAMA should have afforded the companies a right to make submissions prior to acquiring the loans;
- whether any decision taken by NAMA was invalid or unlawful;
- whether the decision of NAMA was a nullity because it was made prior to the establishment of NAMA and was not subsequently ratified;
- whether a power to acquire both impaired and unimpaired loans was inconsistent with the Constitution; and
- whether a European Commission decision not to raise objection to the state aid involved in the establishment of NAMA had direct effect and limited NAMA to acquiring loans that were impaired.
The Court held that it should first address whether the purported decision of NAMA was a nullity because it was made prior to the establishment of NAMA and was not subsequently ratified as the other issues would only arise if this argument failed.
The Supreme Court held that:
- a decision was made by an interim NAMA team prior to the establishment of NAMA by statute;
- that there was no provision equivalent to Section 37 of the Companies Act 1963 in the NAMA legislation that could save the decision;
- that the NAMA board could have made a valid decision after establishment, either independently or by reference to the work done by the interim team but that, on the evidence given by NAMA, it had not in fact done so; and
- that a requirement for such a decision to be taken by the board of NAMA was not purely technical or formal, but was an essential step in the statutory process.
State aid Issue
Mr. Justice Fennelly delivered a separate judgment in relation to the state aid issue and held that nothing in the EC Commission decision (not objecting to the establishment of NAMA) had direct effect in Irish law so it could not be relied on by the appellants.
On foot of further submissions by the parties the Supreme Court has indicated that it will deliver judgment on the remaining issues raised in the appeal.
This case can be viewed as an example of judicial restraint of State power and support of the rule of law. The court held it was “axiomatic” that NAMA could not make any decision before it came into existence. The court looked for evidence of a subsequent decision by NAMA and found none so it held that the decision by the interim team working before NAMA came into existence was a nullity and of no legal effect.
While NAMA has indicated that it intends to acquire the loans the subject of this decision, the further judgment of the Supreme Court on the other issues raised in the appeal is expected to provide a level of certainty regarding the status and powers of NAMA.