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Posts tagged ‘Supreme Court’

What is going on in NAMA and Anglo. It is truly shocking!

Sent in to us to-day

When an Irish company is placed in liquidation, Irish com-pany law requires the directors of the company to produce a so-called ―statement of affairs‖ of the company within 21 days. This SoA sets out the financial position of the company at the date of liquidation and is in-tended to assist creditors in understanding their prospects for recovering any debt.

 

All standard so far, and this type of arrangement appears to exist in most advanced econo-mies, and Ireland certainly claims to be such an ―advanced economy‖

Yet , six months (that‘s 180 days) after the IBRC liquidation, and there was no sign of any SoA. A litigant in a case against IBRC, who would potentially become a creditor, sought the SoA without success. The liti-gant is hotelier Johnny Moran who is locked in a bitter dispute with IBRC on foot of the ap-pointment of receivers to his assets. With no sign of the SoA, Johnny went to the courts to force the directors – techni-cally, the members of the board which includes the chairman – to produce the SoA. The case was scheduled to be heard on 22nd July 2013, a Monday.

 

On the preceding Friday 19th July, 2013, Johnny served the former IBRC board members with summonses. There was what should be a memorable incident outside the Institute of International and European Affairs on North Great Geor-ges Street, when Johnny per-sonally placed the summons in the hands of Alan Dukes, for-mer chairman of Anglo/IBRC and former finance minister who should be more than famil-iar with requirements under company law. This personal service took place at 3pm.

Less than two hours after Alan Dukes was served with the summons, Minister for Finance Michael Noonan rushed out a letter in which he granted the former IBRC board members a waiver on their obligations to produce a SoA. Remember this was 180 days after the SoA was in fact due, and it was the first waiver provided by the Minis-ter. You can view the letter here, the list of recipients and their addresses is here though we have redacted some of the address details, the publication of which might give rise to Data Protection issues.

 

At the court hearing on the following Monday morning 22nd July 2013, Ms Justice Mary Laf-foy was presiding in the High Court where she heard Johnny‘s motions to compel the production of the SoA. She adjourned the matter ‗til after lunch when she decided that the Minister‘s letter prevented her taking any action. There is no written judgment in the matter, but those who attended the hearing report her saying she ―could not get involved because the Minister was in-volved‖, which didn‘t seem a satisfactory state of affairs in an ―advanced economy‖ where there is separation between the executive (the Government) and the judiciary. A coinciden-tal footnote to this matter was the appointment/promotion of Judge Laffoy to the Supreme Court three days later on 25th July 2013.

It was only a fortnight after the court hearing that Minister Noonan signed into law an Order pursuant to the IBRC Act 2013 which waived the obligations of the former IBRC board members, and gave them until 30th September 2013 to produce the SoA. That Order, dated 6th August 2013, is avail-able here, but it goes further than just granting an extension, it allows the SoA to conceal the names of the creditors………………………

Full article in PDF doc here: NAMA

A HIGH Court judge has cleared the way for aggrieved customers to initiate private criminal prosecutions against bank staff.

By SHANE PHELAN and RUAIDHRI GIBLIN

 In a landmark judgement, Mr Justice Gerard Hogan upheld the right of citizens to bring private prosecutions, after lawyers for Irish Bank Resolution Corporation (IBRC) claimed this right had been abolished 14  years ago.

His decision paves the way for a hotelier to bring a  private prosecution against two IBRC officials he claims behaved  dishonestly during discussions about a rescue plan for his business,  which has debts of €23m.

It is believed to be the first case of its kind since the banking collapse and could lead to a raft of similar actions.

“Employees of financial institutions never thought that they could be prosecuted  for their actions as bank officials,” one senior counsel told the Sunday Independent.

A summons has been issued to compel the bank officials to attend to answer allegations in a district court.

Once that hearing takes place, it will then be up to the Director of Public  Prosecutions to decide whether the case should proceed further.

“The underlying purpose of the private prosecution is . . . to draw the  public prosecutor’s attention to the case with the implicit request that the prosecution be taken over (by the DPP),” Mr Justice Hogan said in  his written judgement.

The ruling opens the way for disgruntled customers to take cases against officials at all levels of the banking sector.

However, legal experts warned there are dangers involved for people seeking  private prosecutions, as they could find themselves liable for  substantial legal costs if they fail.

The ruling came after one  current and one former member of IBRC staff sought a judicial review to  bring a halt to hotelier Pat Halpin’s private prosecution against them.

Mr Halpin, 62, has run hotels in Dublin and his native Clare for a quarter of a century, but got into difficulty in recent years over borrowings  with the former Anglo Irish Bank.

His businesses include the Aberdeen Lodge and Merrion Hall boutique hotels  in Ballsbridge, Dublin, and Halpin’s Townhouse in Kilkee, Co Clare.

IBRC last year appointed a receiver to two of his companies, Crossplan  Investments Ltd and Elektron Holdings Ltd, which look after his  interests in Dublin.

He claims he was invited to a  meeting with two IBRC officials in February last year – before the  receiver was appointed – to discuss the sale of Merrion Hall in a bid to pay down debt.

Mr Halpin says he and his accountant were left with the impression from the meeting that the matter would be  considered further “within the higher echelons” of the bank and that the bank would come back to them with proposals.

However, Mr Halpin claims he later learned it had already been decided by IBRC that a receiver be appointed to both companies.

He alleges a letter he subsequently received from the bank showed clearly  that both officials had known that a receiver was to be installed at the time of the meeting and had deliberately concealed this knowledge from  him.

Mr Halpin subsequently initiated a private  prosecution against the two officials in the district court – alleging  offences of dishonesty under the Criminal Justice (Theft and Fraud  Offences) Act 2001 – and succeeded in getting the court to issue a  summons against both. The charges have been denied by the two officials. Both went to the High Court seeking to halt the private prosecution,  claiming such prosecutions had been effectively abolished by the 1999  Criminal Justice Act.

They contended that there had to be a preliminary examination procedure for a private prosecution to take place.

The officials argued such prosecutions had been effectively abolished  because the Act did away with the traditional practice of holding a  preliminary investigation in the district court to determine if  sufficient grounds existed for sending a person forward for trial to a  higher court.

In his ruling last week, Mr Justice Hogan  disagreed and said the right to a private prosecution had not been  indirectly affected by the abolition of the preliminary examination.

The judge also said that, although he felt Mr Halpin’s case “seems slender  and tenuous”, he would not be justified in quashing the summonses.

Mr Justice Hogan cautioned it was also important to remember that the  charges had been denied in the most emphatic terms by the two officials  and they had yet to be heard on the merits of the complaints.

The judge said he would leave it to the DPP to decide whether the case should proceed or be dismissed.

He also awarded Mr Halpin 60 per cent of his costs. A stay has been placed on the private prosecution until January to allow the bank officials to appeal to the Supreme Court.

As yet, there has been no indication such an appeal will be lodged.

Law Library sources said the ruling was significant as it confirmed the  rarely used right of people to bring private prosecutions.

Any citizen with a reasonably credible complaint against somebody can walk  into the district court and convince a judge to grant permission for a  criminal summons, one senior legal expert said.

The  standard of proof for the issuing of a summons is low and those who were summonsed would, in all practical circumstances, have to challenge the  allegations made against them in court, the source added.

Mr Halpin told the Sunday Independent he was hopeful he would succeed in persuading the DPP to take up his case.

The businessman is also taking a separate action against IBRC for alleged overcharging to the tune of €2.6m.

source: Sunday Independent

Priory Hall residents hold vigil outside homes

Residents of the Priory Hall apartment complex in north Dublin braved the bitter cold last night to hold a vigil outside homes they cannot safely enter for a second Christmas.

Their properties were abandoned on October 14th last year after being declared a fire hazard. The residents – 256 people in 187 apartments – were given 48 hours to leave.

More than a year later they face an uncertain future and are still liable for mortgage repayments on their homes.

Dublin City Council – under High Court orders – has spent more than €2 million on accommodation for them. But an appeal to the Supreme Court means residents again face the threat of being forced to search for alternative homes……………

Last night about 150 residents, many with small children in tow, huddled in small groups, clutching red candles at the Donaghmede complex.

Passersby beeped their support as the children held aloft signs reading: “Santa please don’t stop here.”

When Graham Usher of the residents committee urged those present to remember the no show by Government TDs at the vigil when next they come looking for votes, there were cries of “hear! hear!………………………………………….

Full article at source: http://www.irishtimes.com/newspaper/ireland/2012/1218/1224327961359.html

Paddy McKillen’s case against NAMA

By Namawinelake

There might be some raised eyebrows at the speed with which Paddy McKillen’s case against NAMA has been dealt with. To remind ourselves, here are the key milestones
1st July, 2010 – Paddy McKillen submits application to Ireland’s High Court for a judicial review of NAMA’s dealings with his loans
14th July, 2010 – Application made by the State (unopposed by the applicant) to have the matter transferred from the High Court to the Commercial Court
19th July 2010 – approval to transfer case from the High Court to the Commercial Court, case set down for 4 days in October, 2010
5th October, 2010 – the case opens at a special three-judge division of the High Court
14th October, 2010 – the hearing at the High Court concludes
1st November, 2010 – the judgment at the High Court is handed down – Paddy loses on all counts.
18th November, 2010 – terms of appeal to the Supreme Court decided by the High Court
15th December, 2010 – opening of appeal hearing at the Supreme Court
23rd December, 2010 – hearing of appeal at the Supreme Court concludes
3rd February, 2011 – judgment from the Supreme Court
But this was an important case to the financial well-being of the country as it threatened one of the government’s key planks in sorting out the financial crisis (and to remind ourselves they were the guarantee, NAMA, recapitalization and restructuring). If NAMA’s acquisition of loans (€71bn+ so far) is undermined then NAMA might face all sorts of challenges by developers unhappy with their treatment at the hands of the agency.
The Supreme Court has ruled on two of the five strands to the appeal and have determined that NAMA’s decision in December 2009 to absorb Paddy’s loans was not validly taken as it pre-dated NAMA’s coming into being on 21st December 2009. However it would appear that all NAMA need do is formally decide to absorb his loans. So not much of a victory for Paddy.
The other strand ruled on – whether the EU intended that NAMA only take non-performing loans – NAMA’s position was upheld, that is, that the agency is entitled to absorb both performing and non-performing loans.
The other three strands, consultation, fairness and constitutionality of absorbing Paddy’s loans have not been ruled on since the Supreme Court decided NAMA’s decision to absorb the loans was invalid. It is expected that NAMA will formalize now its decision to absorb Paddy’s loans in which case, the Supreme Court will then rule on the other three strands. Yes, it’s a little bizarre.
What next? A formal decision by NAMA to absorb Paddy’s loans. Then a judgment from the Supreme Court on the other three strands to the appeal. I would expect Paddy to lose but not as comprehensively as at the High Court. What then?  An appeal by Paddy beyond these shores to the European Court of Justice? Maybe, but more practically important is how NAMA will now act. Bizarrely the agency decided to refrain from absorbing Paddy’s loans pending the outcome of the Supreme Court appeal. Meanwhile there has been a flurry of activity with one of Paddy’s key assets on which there is substantial NAMA-eligible lending, the three luxury Maybourne hotels in London, Claridge’s, the Connaught and the Berkeley. The owners of Britain’s Telegraph newspaper have recently acquired 25% of the Maybourne group and are said to be about to acquire Derek Quinlan’s 35% interest in the group which would then give them a controlling interest. Paddy McKillen is reported to own 37% of the group and Kyran McLoughlin and others 3%. There are conflicting reports about the group’s €784m of debt with some suggestion that NAMA has extended the loans (through its control of NAMA banks pre-acquisition, one would guess) and other reports suggested the loans needed to be redeemed at the end of January 2011 (three days ago!).
Remember you will find extensive background (including dates, participants including representatives, witness statements etc) and detailed updates on this case under the dedicated tab, Paddy McKillen v NAMA.

source: http://wp.me/pNlCf-10C

comment:

Two and a half years after this mess blew up in our faces the ordinary home owners are left bewildered and out in the cold facing huge increases in their mortgage payments not everybody can avail of special treatment and this only enforces the notion one law for the rich and another for the poor

We urgently need a NAMA for the ordinary home owners .piling ever more taxes on the homeowners and expect the economy to grow is just plane stupid.

We cannot afford to bail out the private debts of the corrupt banks and expect the ordinary homeowners to put up and shut up.

What are the established political parties going to do about this ask them when they come to your doors?

Ivor Callely’s legal bill of more than €100,000

This is a photograph of the Seanad chamber, Le...

Image via Wikipedia

By Dearbhail McDonald and Tim Healy

Tuesday February 01 2011

THE taxpayer is picking up Ivor Callely‘s legal bill of more than €100,000 — dwarfing the €81,000 travel expenses claim that led to his suspension from the Seanad.

Mr Callely, who mounted a successful High Court challenge to his 20-day suspension from the Seanad last year, has also been awarded almost €17,000 for loss of earnings.

The Seanad committee on members’ interests is preparing to appeal the High Court ruling to the Supreme Court.

But it agreed yesterday to compensate Mr Callely for his loss of earnings and to pay his legal costs, estimated at more than €100,000, for the five-day hearing. This figure does not include the State’s legal costs.

The High Court heard that snakes had been placed on the porch of the north Dublin politician’s home, such was the level of vitriol that descended on him in the wake of his expenses scandal.

His senior counsel Michael O’Higgins told the court that at his son’s graduation from Trinity College Dublin, Mr Callely had to leave early “such was the level of snide comments” to which he was subjected.

After securing the payout for docked wages, the senator claimed he had suffered an abuse of power.

“I don’t think we’ll ever see the likes of it happening again,” Mr Callely said. “I’m always supportive of people who have been unfairly treated by people in a position of power, who feel they can abuse that.

“I had to take extraordinary steps to deal with an extraordinary situation and I have been cleared 100pc and it’s brilliant.”

The High Court heard that Mr Callely suffered catastrophic consequences to his reputation as a result of a senate committee’s incorrect finding about his expenses claims.

The judge who found in his favour earlier this month also said yesterday there had been a “grievous and egregious” breach of his constitutional rights which did “untold damage” to him.

Mr O’Higgins told High Court judge Mr Justice Iarflaith O’Neill that Mr Callely’s reputation had further suffered at the hands of media outlets which felt “emboldened” by the finding of a Seanad committee that Mr Callely had misrepresented his place of residence as west Cork.

That finding was overturned on January 14 by Mr Justice O’Neill, who ruled Mr Callely was in compliance with the applicable definition of “normal place of residence” when he made his expenses claim. The committee and the Seanad had misdirected themselves, in law, on this definition, the judge said.

They had also breached fair procedures in failing to afford the senator a reasonable opportunity to defend himself on a charge of breach of political ethics, the judge found.

The case was back before Judge O’Neill yesterday to deal with costs and ancillary orders arising out of his judgment.

However, the court heard there was a dispute between lawyers for Mr Callely and the Seanad over whether he was entitled to damages.

Gobsmacked

Conleth Bradley, for the Seanad, said he was “gobsmacked” that such a claim was made now.

Mr O’Higgins said while his side was seeking payment for the 20 days Mr Callely had been suspended — totalling €16,948 — he was also asking the court to take into account the damage caused to his good name. Mr Justice O’Neill said the judicial review proceedings had not included a claim for damages and it was rare that they would.

Following talks, Mr Justice O’Neill was told an agreed order had been drawn up between the parties that the committee’s findings should be quashed and that he was entitled to be paid for the 20 days he had been suspended.

The judge agreed to put a stay on his order in relation to costs in the event of an appeal.

– Dearbhail McDonald and Tim Healy

Irish Independent

comment:

This is one of the reasons I am standing as an independent in the coming  General Election the current political system seems no to be able to cope with the obvious in built failures in the overly corrupt system. There seems to be one law for the political elite and one for the citizens.

This award is outrageous and the glee in this man’s face is a slap in the face to the ordinary citizens of Ireland. Unless we collective decide now that we want real change this kind of thing will only continue and we the taxpayers will only get squeezed still further.Its about time this house of elitists be shut down

Is it right that the State must pay 5.8% on bailout funds whilst NAMA is lending billions to developers at 3%?

NAMA SPV structure

Image via Wikipedia

By namawinelake

Whilst Minister for Finance, Brian Lenihan continues to exhibit signs of schizophrenia with his stance on the cost of our bailout funds from the EU/IMF (5.8-6%), telling Opposition politicians only last week that it was not possible to renegotiate the interest rate of the EU element and then later claiming that it was possible, there is seemingly a scandal going unnoticed with NAMA developers being advanced funds at rates significantly below the rate that we, the nation, must bear.
Last Friday, Britain’s Property Week reported that Paddy McKillen’s Maybourne Group had been given an extension of two years to repay GBP £660m (€784m). The loan was reportedly due to be repaid by the end of last year and indeed it seemed as if the second part of last year was one long scramble by Maybourne to find a financing partner – Deutsche Bank, Westbrook Partners, Northwood were all reported to have had talks with the luxury hotels group about refinancing the loans that were due for redemption to banks which include Bank of Ireland and Anglo Irish Banks. If the Property Week story is correct then it was NAMA that recently green-lighted the extension of the loan for two years.
This is on some levels a curious development as Paddy McKillen has been locked in a bitter legal dispute with NAMA for the past six months – a dispute which Paddy comprehensively lost in Dublin’s High Court but which is presently awaiting the outcome of an appeal to the Supreme Court which was held before Christmas. The curiosity is that Paddy seems to be dependent on the grace of an organisation which he is litigating against. It seems that NAMA has not yet absorbed Paddy’s loans pending the outcome of the Supreme Court appeal.
What was not disclosed by Property Week was the interest rate payable by Paddy on the GBP £660m of borrowings. However NAMA CEO Brendan McDonagh has previously stated (“those loans would typically be priced at a six month EURIBOR rate plus a margin, typically 2% approximately”) that NAMA developers were typically paying interest at ECB + 2% (that is 3% at today’s rates). If, and to stress we do not know in the present case, the interest rate charged to Paddy on the best part of a €1bn facility is 3% and on the other hand Ireland must pay 5.8-6% to the IMF/EU for the funds to bailout Anglo in particular and potentially Bank of Ireland, which is flouncing around at the moment ahead of its deadline in 40 days to raise €1.5bn (not to mention pay the NPRF €214m interest on its preference shares “investment”), then is it not scandalous that, going forward, the nation subsidises this developer to the tune of €22m per year (5.8% – 3% * €784m).
NAMA of course was intending to raise up to €5bn to fund developments and working capital. However its funding plans were apparently put on hold following the freeze-out of the State in raising finance late last year. It is not presently clear how NAMA will raise this development funding and the agency seems to be relying at present on some loan repayments from borrowers to enable it make new advances to selected borrowers. What rate is NAMA charging on these additional advances and does it mean that if NAMA (which is effectively state-owned) is charging less that the State is paying to the IMF/EU that we are again subsidising developers?
Arguably variable rate mortgage lenders paying less than 4% at present are also being subsidised, though it seems likely that lenders will start raising their standard variable rate in the near future with Permanent TSB being the first tipped to raise their rates by 0.5% from 4.19% to 4.69% with others expected to follow suit. There are some 792,000 mortgages in the State with some 271,000 standard variable rate (407,000 trackers and 113,000 fixed). So standard variable rate mortgage holders might also be receiving a subsidy which is apparently fast reducing but that still leaves well over 80% of the population not receiving any subsidy.

source:URL: http://wp.me/pNlCf-Xc

 

Comment:

Again we catch Lenihan and Co giving support to their pals in the building Industry having bailed out the bondholders and the bankers closer to home he is still looking after the chosen few .His conduct in the last few days stabbing his so called colleagues in the back with regards to the Cowen confidence vote only shows that this man is a true Slievieen as we say in the west (not to be trusted)A lifetime in a political party like Fianna Fail where your co members and colleagues are more dangerous to your prospects of staying in the Dail than the opposition political parties. There seems to be a culture of mistrust and Fear of been out done!

Allowing people like this to run our country is only asking for disaster to happen. Over the last two years the Irish Nation have experienced the largest fraud in the history of the state and this NAMA con job continues to fleece us the taxpayers and its all down to this conman who clearly cannot be trusted when he cannot be relied upon when he gives his word even to his so called pals in Government. The Greens have now woke up to this and are looking now to get out all too late I’m afraid!

Supreme court carrousel

 

The seven companies, Vantive Holdings, Morston Investments, Villeer Developments, Paytor Developments, Carragh Enterprises, Parlez International and Royceton controlled by developer Liam Carroll, that had a second application for High Court protection refused last week are now going to appeal that decision to the Supreme Court again

The group’s original application was turned down by the Commercial Court and the Supreme Court.

Last Thursday, the High Court refused a second application for examinership by the seven companies.

Has it occurred to anyone that we are seeing a pattern of behaviour here? Lisbon 1,

Lisbon 2, Lisbon 3? Lisbon 4?

For Liam Carroll
it would seem if you don’t get the results you want just keeping going back again and again, everybody knows that this is just moving around the deck chairs on the titanic

This is also making a mockery of the Supreme Court.

The message is coming out loud and clear

There is one law for the Rich and one law for the poor in this country .There is special treatment for the super rich and the poor are just kicked out of their homes dumped out on to the street

I these crooks in the Dail manage to push through NAMA then I propose that all home owners in the country create one large housing association and then clam the same protection for all householders in the country this should stop all evictions and people who are about to lose their homes should be able to say to the banks to come back when the property market has recovered to the previous levels

This should give the same protection that is being given to the Banks and developers to all the citizens of the state

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