McKillen v Tynan

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian O'Moore
• Judgment Date: 24 January 2020
• Neutral Citation: [2020] IEHC 189
• Docket Number: [2019/392J.R.]
• Court: High Court
• Date: 24 January 2020

BETWEEN

PATRICK MCKILLEN

APPLICANT

AND

DAVID TYNAN

(IN HIS CAPACITY AS ASSESSOR APPOINTED BY THE MINISTER FOR FINANCE PURSUANT TO SECTION 22 OF THE ANGLO IRISH BANK ACT 2009)

RESPONDENT

[2020] IEHC 189

Brian O'Moore J.

[2019/392J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Compensation – Assessment – Shareholders – Plaintiff seeking information from the defendant – Whether the defendant was legally obliged to provide the information sought by the plaintiff

Facts: In 2009, the Oireachtas enacted the Anglo Irish Bank Corporation Act. At the time, the plaintiff, Mr McKillen, owned some 101,000 shares in Anglo Irish Bank Plc. Section 5 of the Act provided that all shares in Anglo Irish Bank were transferred to the Minister for Finance on the commencement of the legislation. Mr McKillen’s shares were so transferred. Section 22 of the Act required the Minister to appoint an Assessor to determine the amount of compensation (if any) payable to former shareholders in respect of the transferred shares and the associated rights extinguished by such transfer. The defendant, Mr Tynan, was appointed by the Minister for Finance on the 16th of November 2018 to act as Assessor in accordance with the provisions of the Act. In these proceedings, three issues were raised by Mr McKillen. As the case was argued, the first two issues fused into one. The essential question posed in this first strand of attack against the way in which Mr Tynan had conducted himself was whether or not Mr McKillen had established that the information sought by him from Mr Tynan was information which Mr Tynan was legally obliged to provide to Mr McKillen, in order to enable Mr McKillen to make meaningful submissions to the Assessor. There was a separate freestanding issue of prejudgment; in this regard, it was alleged that Mr Tynan had expressed (in his affidavit of the 6th of September 2019) a predetermination on the question of the solvency level of Anglo Irish Bank as of the 15th of January 2009 (the date specified as the relevant date in the Act).

Held by the High Court (O’Moore J) that: (1) Mr McKillen had not satisfied it that either Mr Somers or Dr Gurdgiev qualified as experts in the field of valuation of the shareholding in Anglo Irish Bank; (2) even if Mr Somers or Dr Gurdgiev qualified as experts in this field, it found the content and tone of their evidence to be such as to render the evidence of no real value; (3) Mr McKillen relied exclusively on the evidence of Dr Gurdgiev and Mr Somers to make out the proposition that he needed the requested information in order to be able to make a meaningful submission to Mr Tynan and as the evidence of neither Dr Gurdgiev or Mr Somers was capable of supporting that proposition, it found that Mr McKillen had not discharged the burden on him of establishing that the information sought in his letter of the 25th of April 2019 was information which (in whole or in part) was required by him to make a meaningful submission to the Assessor; (4) for that reason, it found that Mr McKillen had not discharged the onus on him of showing that the decision of Mr Tynan not to provide the information was “unreasonable”; (5) given that Mr McKillen had failed to establish that the refusal by Mr Tynan of the requests for information was unreasonable, it followed that the decision to refuse an extension of time was not unreasonable as the sole purpose of the application for the extension of time was the provision of information to which Mr McKillen had not established he was legally entitled; (6) as the only information sought by Mr McKillen was the full panoply of information described in the letter of the 25th of April 2019, the question of whether or not Mr Tynan should have agreed to provide other, lesser tranches of information did not arise and even if it did, no case had been made out on the evidence that any particular tranche of information was required in order to enable him to make meaningful submissions; (7) in the light of its decisions on issue one and issue three, the questions raised in issue two did not arise; (8) Mr McKillen had not succeeded in making out a case of objective bias or premature judgment on the part of Mr Tynan.

O’Moore J refused all reliefs as sought by Mr McKillen.

Reliefs refused.

JUDGMENT of Mr. Justice Brian O'Moore delivered on the 24th day of January, 2020.

1 In 2009, the Oireachtas enacted the Anglo Irish Bank Corporation Act (“The Act”). At the time this legislation came into force, the Plaintiff (Mr. McKillen) owned some 101,000 shares in Anglo Irish Bank Plc. As of the last publicly quoted price before the suspension of trading in shares in Anglo Irish Bank, the value of Mr. McKillen's shareholding was approximately €22,000.00.

2 Section 5 of the Act provided that all shares in Anglo Irish Bank were transferred to the Minister for Finance on the commencement of the legislation. Mr. McKillen's shares were so transferred.

3 Section 22 of the Act required the Minister to appoint an Assessor to determine the amount of compensation (if any) payable to former shareholders in respect of the transferred shares and the associated rights extinguished by such transfer.

4 The Defendant (Mr. Tynan) was appointed by the Minister for Finance on the 16th of November 2018 to act as Assessor in accordance with the provisions of the Act. On the 7th of February 2019 the Minister made Regulations under the Act setting out the procedure to be followed by Mr. Tynan in carrying out his role as Assessor.

5 In these proceedings, no challenge is made by Mr. McKillen to the constitutionality of the Act, no challenge is made by Mr. McKillen to the validity of the Regulations made under the Act, no assertion is made that Mr. Tynan has (in terms) acted In breach of the provisions of the Act and no assertion is made that Mr. Tynan has acted in breach of the Regulations.

6 Instead, three issues are raised by Mr. McKillen. The first two of these are “interlinked,” to use the language of Counsel for Mr. McKillen in opening the application.

7 The Interlinked challenges are described by Mr. McKillen's Counsel as follows:-

1. Notwithstanding the statutory entitlement of Mr. McKillen to make a submission to the Assessor, “the way in which his requests were dealt with by the Respondent effectively made it practically impossible for him to exercise that right.” (Transcript: day one, page six.).

2. The second ground of challenge, stated to be associated with the first, was described at page seven of the transcript of day one as follows:-

“The second this is how that impacts upon what is ultimately a constitutional right on the part of Mr. McKillen and that is the right to ensure that when the shares are being valued that they are done in a way that complies with his constitutional rights. That is effectively the ballpark within which we are arguing about the first two decisions.”

As the case was argued, and in accordance with the issue paper directed by me and agreed between the parties, these first two issues have not so much remained interlinked as have fused into one. The essential question posed in this first strand of attack against the way in which Mr. Tynan has conducted himself is whether or not Mr. McKillen had established that the information sought by him from Mr. Tynan is information which Mr. Tynan is legally obliged to provide to Mr. McKillen, in order to enable Mr. McKillen to make meaningful submissions to the Assessor.

3. There is then a separate freestanding issue of prejudgment; in this regard, it is alleged that Mr. Tynan has expressed (in his Affidavit of the 6th of September 2019) a predetermination on the question of the solvency level of Anglo Irish Bank as of the 15th of January 2009 (the date specified as the relevant date in the Act).

8 In order to decide these challenges to the conduct of Mr. Tynan, it is essential to set out the legislation, and the correspondence leading to this judicial review application.

9 Subsections 22(1) and 22(2) of the Act provide that:-

“(1) The Minister shall, as soon as he or she considers it appropriate in the circumstances, appoint a person (referred to in this Act as the “Assessor”) to determine, in accordance with this Act, the fair and reasonable aggregate value of the transferred shares and the extinguished rights and the consequent amount of compensation, if any, payable to persons in respect of those shares and those rights.

(2) In deciding whether it is an appropriate time to appoint the Assessor, the Minister shall have regard to the public interest.”

10 It will become immediately apparent that the appointment of the Assessor is not a matter for Mr. Tynan, except in as much as he agrees to take on that role. Notwithstanding this, the timing of the appointment of Mr. Tynan has been a matter of adverse comment by Mr. Bernard Somers and Dr. Constantine Gurdgiev (the two persons giving expert evidence on behalf of Mr. McKillen in these proceedings). These criticisms of the timing of the Minister's appointment of Mr. Tynan are irrelevant to any real issues in this action, but the fact that they are made is significant in assessing the quality of the evidence offered to this Court by Mr. Somers and Mr. Gurdgiev.

11 Section 22 (7) provides as follows:-

“(7) In the performance of his or her functions under this Act, the Assessor-

(a) is independent,

(b) shall act as an expert only, and

(c) shall act as expeditiously as possible consistent with fairness.”

12 The obligation on the Assessor to act “as expeditiously as possible consistent with fairness” is of some relevance in considering Mr. Tynan's decision not to provide the information sought by Mr. McKillen.

13 Section 24 of the Act defines the persons who may make submissions to the Assessor “in respect of the aggregate value of the transferred shares and extinguished rights […]”. Mr. McKillen certainly qualifies under that...