Dellway Investment Ltd and Others v National Asset Management Agency (NAMA) and Others

• Jurisdiction: Ireland
• Judgment Date: 08 November 2010
• Neutral Citation: [2010] IEHC 375
• Date: 08 November 2010
• Court: High Court

[2010] IEHC 375

THE HIGH COURT

KEARNS P.

KELLY J.

CLARKE J.

[No. 909 J.R./2010]

[No. 222 COM/2010]

Dellway Investment Ltd & Ors v National Asset Management Agency (NAMA) & Ors

COMMERCIAL

JUDICIAL REVIEW

BETWEEN

DELLWAY INVESTMENT LIMITED, METROSPA LIMITED, BERKLEY PROPERTIES LIMITED, MAGINOTGRANGE LIMITED, MAY PROPERTY HOLDINGS LIMITED, SCI 20 PLACE VENDOME, DIRECTDIVIDE TRADING LIMITED, SUBMITQUEST LIMITED, BELFAST OFFICE PROPERTIES LIMITED, THE FORGE LIMITED PARTNERSHIP, FINBROOK INVESTMENTS LIMITED, CONNIS PROPERTY SERVICES LIMITED, FORMCREST CONSTRUCTION LIMITED, CHESTERFIELD (THE PAVEMENTS) SUBSIDIARY LIMITED, ABEY DEVELOPMENTS LIMITED AND PATRICK MCKILLEN

APPLICANTS

AND

NATIONAL ASSET MANAGEMENT AGENCY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

NATIONAL ASSETS MANAGEMENT AGENCY 2009 S194(3)

CONSTITUTION ART 34.4.4

EAST DONEGAL CO-OP v AG 1970 IR 317

JACKSON WAY PROPERTIES LTD v MIN FOR ENVIRONMENT & ORS 1999 4 IR 608

ROADS ACT 1993 S55A

ROADS (AMDT) ACT 1988 S6

KELLY IRISH CONSTITUTION 4ED 2003 965

GLANCRE TEORANTA v BORD PLEANALA UNREP MACMENAMIN 13.7.2006 2006/26/5686 2006 IEHC 250

ARKLOW HOLIDAY v BORD PLEANALA 2007 4 IR 112

KENNY v BORD PLEANALA NO 2 2001 1 IR 704

RAIU v REFUGEE APPEALS TRIBUNAL UNREP FINLAY- GEOGHEGAN 26.2.2003 2006/50/10549

HARDING v CORK CO COUNCIL & ORS UNREP CLARKE 30.11.2006 2007/28/5735 2006 IEHC 450

CLINTON v BORD PLEANALA 2007 1 IR 272

PLANNING & DEVELOPMENT ACT 2000 S50A(11)(A)

Abstract:

Practice and procedure - Constitutional law - National Asset Management Agency (NAMA) - Fair procedures - Certification of appeal - Issues on appeal - European State Aid - Loan facilities - Impaired borrower - National Asset Management Act 2009

Facts: On 1 November 2010 the High Court (Divisional) had given judgment in substantive proceedings relating to the National Asset Management Act 2009 concluding that the claim of the plaintiff would fail. A certificate was sought to appeal to the Supreme Court on a point of fair procedures, the subject of the principal judgment, and the European State Aid issue. The issue arose as to whether certification was necessary and its effects upon constitutional questions in so far as it might confine the appeal to the narrow question of the consistency of the Act with the Constitution. Counsel for NAMA and the State had opposed the application. The question to be certified as proposed by the plaintiff was as to whether debtors whose loan facilities were contemplated by NAMA as eligible asserts suitable or acquisition had a right to make representations prior to their loan facilities being deemed eligible and prior to their acquisition and whether a decision of the European Commission concerning the National Asset Management Act 2009 had to be interpreted inter alia by reference to correspondence, whether acquisition resulted in the debtor being regarded as an impaired borrower.

Held by the High Court per Kearns P. (Kelly, Clarke JJ. Concurring) that the Court would certify its decision involved a point of law of exceptional public important so that an appeal would be taken to the Supreme Court. The question certified was as to whether the court was correct in concluding that the applicants did not have a right to be heard prior to a decision of NAMA to acquire loans in respect of which the applicant were borrowers. The question of whether the legislation expressly excluded placing reliance on points not certified was solely a matter for the Supreme Court.

Reporter: E.F.

1. Introduction

2 2 1.1 On Monday the 1 ^st November 2010 this Court gave judgment on the substantive issues arising in these proceedings. For the reasons set out in that judgment ("the principal judgment") the Court concluded that the claim brought by Mr. McKillen should fail. In this judgment terms are used with the same meaning as they were used in the principal judgment.

3 3 1.2 On Friday the 5 ^th November counsel on behalf of Mr. McKillen sought from the Court a certificate which, at least one on one view, is necessary to allow Mr. McKillen to appeal to the Supreme Court on two of the issues which were the subject of the principal judgment, that is the fair procedures issue and the European State Aid issue. While it will be necessary to refer to the relevant statutory framework concerning such certificates in a little more detail later in this judgment, it is at least arguable that such a certificate is necessary in order that those matters be raised in an appeal. The possible requirement for such a certificate arises by virtue of the provisions of s.194 of the Act.

4 4 1.3 Counsel for NAMA and the State respondents opposed the application. This judgment is directed to the issues which arose. Amongst the matters referred to in argument was a question as to the extent to which a certificate is, in fact, necessary. In order to explain how that question arose it is proposed to turn, first, to the question of the necessity for a certificate.

2. Is a certificate necessary?

2 2 2.1. The starting point for a consideration of this question has to be the terms of Article 34.4 of the Constitution which provides that, in the absence of a law to the contrary, an appeal lies from every decision of the High Court to the Supreme Court. However, Article 34.4.4 provides that:-

"No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as the validity of any law having regard to the provisions of the Constitution".

3 3 2.2 Because of that constitutional prohibition, s.194(3) of the Act provides that the general certification requirement of that section "does not apply to a determination of the Court insofar as it involves a question as to the validity of any law having regard to the provisions of the Constitution".

4 4 2.3 First, therefore, it must be noted that Mr. McKillen is entitled, without leave of this Court, to appeal to the Supreme Court from that part of the decision of this Court which rejected his claim that the Act was inconsistent with the Constitution. Mr. McKillen is entitled to appeal that aspect of the principal judgment as of right.

5 5 2.4 However, there is a difference between the parties as to the extent to which it is necessary, having regard both to Article 34.4.4 of the Constitution and s.194(3) of the Act, to obtain a certificate for leave to appeal in relation to other issues which arise in a case involving a challenge to the constitutionality of an act of the Oireachtas where those other issues are closely connected with the constitutional challenge itself.

6 6 2.5 It is, of course, the case that questions concerning the jurisdiction of the Supreme Court to entertain an appeal are principally, if not exclusively, matters for the Supreme Court. However, counsel for NAMA noted that there was a possible basis on which it might be appropriate for this Court to consider the matter. In order to understand the point it is necessary to say just a little about the competing positions of the parties on the general question of whether a party has a right, without leave, to raise what might loosely be called connected questions as part of an appeal against a finding relating to the constitutionality or otherwise of the Act.

7 7 2.6 At its simplest the position argued for on behalf of Mr. McKillen starts by noting the so called constitutional or double construction rule first identified in East Donegal Co-operative v. Attorney General [1970] I.R. 348. On the basis of a long line of jurisprudence following on from East Donegal it is clear that, in the ordinary way, a court will endeavour to place a constitutional construction on any statute under challenge and will only find the statute concerned to be inconsistent with the Constitution if is not possible to construe the relevant legislation in a manner consistent with the Constitution.

8 8 2.7 On that basis, counsel for Mr. McKillen argues that it would be a surprising result if the Supreme Court were faced with an appeal confined to the constitutionality of a statute in circumstances were it was not open to the Supreme Court to consider any aspect of the construction of the statute concerned which might have a bearing on whether that statute should be found to be consistent with the Constitution or not. On that basis it is argued that a right to appeal (without certificate) in relation to a finding by this Court that a statute is not inconsistent with the Constitution necessarily carries with it a right to explore, on that appeal, any questions of interpretation which are directly connected with the question of whether the statute concerned is consistent with the Constitution.

9 9 2.8 On the other hand counsel for NAMA argues that the Supreme Court, in the absence of a certificate from this Court allowing other points to be raised, will be confined to the narrow question of whether the Act is consistent with the Constitution in circumstances where the interpretation of the Act will, at least for the purposes of the case, be definitively taken as being the interpretation placed on it by this Court. On the basis of that argument, if it be correct, the Supreme Court would not be entitled to revisit any questions of interpretation determined by this Court even if, it would seem, such questions of interpretation would ordinarily arise on an appeal to the Supreme Court in relation to the often connected questions of the proper interpretation of a statute and whether that statute is consistent with the Constitution.

10 10 2.9 It is clearly the case that a final decision on which of those two competing propositions represent the law is a matter for the Supreme Court in that the issue itself concerns the jurisdiction of the Supreme Court.

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