The Court of Appeal has dismissed Garrett Kelleher’s appeal against a decision limiting National Asset Management Limited’s guarantee claim to a single issue: whether NAMA was estopped from enforcing the guarantees because of alleged representations and assurances made to him.
The appeal concerned an order made by the Commercial Court on 24 February 2015. That order sent NAMA’s summary summons proceedings to a plenary hearing on the estoppel issue alone. NAMA seeks more than €46 million plus interest under guarantees given for loans to companies in the Shelbourne Connection. The judgment says Kelleher’s liability under the guarantees is capped at €50 million.
Kelleher also wanted to pursue a claim for damages over NAMA’s sale of the Chicago Spire loan, which he alleged was at an undervalue and breached NAMA’s duties. He argued that the claim could be brought as a counterclaim alongside the estoppel issue. The Court of Appeal treated it as an independent claim, rather than a defence or equitable set-off against the guarantee claim. The guarantees in the case did not secure the Chicago Spire loans.
The court said the Chicago Spire issue had been argued in the Commercial Court as a defence, not presented as a counterclaim until after judgment. It therefore upheld the trial judge’s decision that it did not meet the test for a bona fide defence to NAMA’s claim. The appeal court also concluded that including the independent claim in the same proceedings would make the estoppel hearing substantially more complex, lengthy and costly, and delay resolution of NAMA’s guarantee claim.
The court confirmed that Kelleher may bring the Chicago Spire claim in separate proceedings without leave. It did not decide whether the claim is barred by res judicata, an argument NAMA said it may raise. That question was left for determination at first instance if it arises.
The appeal was dismissed, and the proceedings remain confined to the estoppel issue. The judgment did not decide that issue or the merits of the proposed Chicago Spire claim.