The High Court has refused all relief sought by Patrick McKillen in a judicial review of decisions by David Tynan, the assessor appointed to determine compensation for former Anglo Irish Bank shareholders whose shares were transferred to the State.
Mr McKillen challenged Mr Tynan’s refusal to provide a large volume of information about the bank and to grant a further extension for submissions. He also alleged that Mr Tynan had prejudged the bank’s solvency on 15 January 2009, the statutory valuation date.
Mr Justice Brian O’Moore found that Mr McKillen had not established that the requested information, in whole or in part, was required to make a meaningful submission. The court gave no ruling on whether Mr McKillen could have been entitled to a smaller, defined set of information: it said that question did not arise because he had sought the full range described in his 25 April 2019 letter, and had not shown that any particular tranche was necessary.
The judge said the request involved a vast amount of material, an undefined timeframe and the prospect of further requests. He accepted the assessor’s evidence that providing it could make the statutory process unworkable. Given the assessor’s duty to proceed as expeditiously as possible consistent with fairness, the court held that refusing the information was not unreasonable. It also found no unreasonableness in refusing more time, as the stated purpose of the extension was to obtain and consider information Mr McKillen had not shown he was entitled to receive.
The court’s conclusion relied in part on its assessment of evidence from Bernard Somers and Dr Constantine Gurdgiev, whom Mr McKillen had relied on to establish why the information was needed. The judge found Mr McKillen had not shown they qualified as experts in valuing Anglo shares. He added that, even if they did, their evidence’s content and tone left it with no real value.
On prejudgment, the challenge concerned Mr Tynan’s affidavit statement that, without State funding, Anglo would have been severely insolvent. The judge accepted that Mr Tynan had been working on the assessment and had formed a view on solvency while preparing the draft report. He said the legislation required the assessor to form provisional conclusions for that report, which would be open to further submissions. The court found no objective bias or premature judgment and refused all relief in the judicial review, in its amended form.