Treasury Holdings & Ors v The National Asset Management Agency Limited & Ors [2012] IEHC 518 (High Court, Finlay Geoghegan J, 7 December 2012)

In the substantive proceedings, the High Court dismissed the applicants’ claim and refused to quash decisions made by the National Asset Management Agency (“NAMA”), on 8 December, 2011 and 25 January, 2012.

These decisions related to multiple facilities of Treasury Holdings which had been taken into NAMA, including a syndicated loan relating to the Spencer Dock Developments. One of the decisions was to appoint receivers to properties that comprised the security for the various facilities in default, failing repayment.

KBC Bank Ireland plc. (“KBC”) was joined as a notice party to the proceedings on its own application on 26 January, 2012, the day after the proceedings commenced. No reliefs were sought against KBC. However, it successfully sought to be joined in order to protect its own commercial interests which arose from its 25% holding in Treasury Holding Group’s syndicated loan relating to the Spencer Dock Development. If NAMA’s decisions were quashed, it would have affected the enforcement of the syndicated loan and realisation of the relevant security, with consequences for KBC. On this basis, KBC participated fully in both the hearing for leave to bring judicial review proceedings, and the substantive hearing.

Having successfully resisted the applicants’ claim, KBC argued that it was reasonable for it to seek to be joined and to appear before the Court to protect its own interests and that, therefore, it was entitled to its costs against the unsuccessful applicants.

The Court held that, in an application for costs by a notice party against whom no relief is sought and who joined the proceedings to protect its own economic interests, the starting point was not necessarily that it should be entitled to costs against an applicant who has failed in its claim against the respondent.

The Court distinguished the case of Usk and District Residents Association v The Environmental Protection Agency and Greenstar Recycling Holdings Limited on which the notice party had purported to rely[1]. In Usk, the Court had held that, ordinarily, the starting point was that a notice party who successfully resists an applicant’s claim will be entitled to all costs reasonably incurred.

However, in the present proceedings, the Court noted that the position of the notice party was quite different.

In Usk, the applicable legislation required that the notice party, Greenstar, be a party to the proceedings as the holder of the waste licence at issue.

Here, KBC joined, of its own volition, to protect its commercial interests. The Court found that KBC was not a necessary party to the proceedings, regardless of whether its application to join was a reasonable commercial decision.

The Court also applied the approach set out by Mr Justice Clarke in Usk to determine if a notice party who was not a necessary party to the proceedings was entitled to its costs.

It held that it was a matter for the Court, having regard to all the circumstances of the case, including the extent of the notice party’s interest, and the extent to which it was reasonable for it independently to oppose the proceedings, to determine if an order for its costs should be made. In this regard, the Court noted that KBC made only one separate submission which took up relatively little time and had not been determined by the Court. Otherwise, KBC had supported the submissions made on behalf of NAMA.

Conclusion

It is clear, therefore, that a notice party who successfully resists judicial review proceedings, but who was not a necessary party to those proceedings, will not automatically recover its costs.

Thus, parties who may be affected by the outcome of proceedings, and who are concerned to protect their commercial interests, should carefully consider whether to join or otherwise to take an active role in proceedings. It is very possible that costs will not be recovered if they are found not to be a necessary party, notwithstanding the reasonableness of their commercial concerns.