The High Court has ruled that four applicants do not need leave to appeal the dismissal of their challenge to a 2011 direction order concerning Irish Life and Permanent Group Holdings and Irish Life and Permanent. It also granted leave on two questions in case leave is later found to be required, and awarded the applicants specified proportions of allowable outlay and legal costs.
The judgment, delivered by Ms Justice O’Malley on 1 December 2017, addressed appeal rights and costs after the court’s substantive dismissal of the challenge on 31 July 2017. In that earlier judgment, the court found that the applicants had not proved the Minister for Finance’s opinion was unreasonable or affected by legal error.
The original challenge sought to set aside a direction order made under the Credit Institutions (Stabilisation) Act 2010. The order enabled the Minister to acquire 99.2% of the company by requiring it to issue shares at just under 6.5 cents each, in return for €2.7 billion. The applicants were Gerard Dowling, Padraig McManus, Piotr Skoczylas and Scotchstone Capital Fund Limited. Permanent TSB Group Holdings and Permanent TSB plc were notice parties.
Justice O’Malley held that section 64 of the Act did not clearly restrict appeals from a refusal to set aside a direction order. The applicants therefore did not require the High Court’s leave to appeal. She nevertheless granted leave, if needed, on whether she had correctly applied the Court of Justice of the European Union rulings in the case and in Kotnik, and on whether she had correctly interpreted and applied section 11 of the Act.
She refused leave on other proposed grounds. These included a challenge based on the Bank Recovery and Resolution Directive and proposed grounds she found did not amount to stateable points of law of exceptional public importance. She also rejected the applicants’ claim that she had treated State aid approval as legal justification for the direction order.
On costs, the court rejected the argument that applicants pursuing their own interests could not rely on public importance. It found the case’s implications extended beyond the applicants, including its treatment of emergency powers, property rights and EU company law. However, the court also considered it a case involving material private interests and found the applicants’ arguments about the bank’s viability and recapitalisation options misconceived.
The court awarded Piotr Skoczylas 40% of allowable outlay, Gerard Dowling and Padraig McManus 20% each, and Scotchstone Capital Fund Limited 30% of its legal costs. The judgment does not state a total monetary amount for these awards.