The High Court granted Patrick McKillen a certificate to appeal a fair procedures question to the Supreme Court, but refused his request to certify issues concerning European State aid.
The ruling, delivered on 8 November 2010, followed the court’s substantive judgment of 1 November, which rejected Mr McKillen’s claim. His counsel had sought a certificate on 5 November to appeal two issues: whether borrowers had a right to make representations before NAMA identified or acquired their loans, and how the European Commission’s State aid decision applied to NAMA’s acquisitions.
The court said Mr McKillen could appeal as of right the part of the earlier decision that rejected his constitutional challenge. It considered separately whether a certificate was needed for other issues connected to that challenge. The court noted that the Supreme Court would ultimately decide the scope of its own jurisdiction.
Under section 194 of the National Asset Management Agency Act 2009, the High Court could certify a point only if it involved a point of law of exceptional public importance and an appeal was desirable in the public interest.
The court found that the fair procedures question met that test. It concerned whether borrowers were entitled to be heard before NAMA decided to acquire loans on which they were borrowers. The court said the issue related to a central feature of legislation that formed an important part of the Government’s response to the banking crisis. It also considered that a Supreme Court ruling would serve the public interest by clarifying the law concerning NAMA.
The certificate framed the question as whether the court was correct to conclude that the applicants had no right to be heard before NAMA decided to acquire their loans. The certificate permits an appeal on that point; it does not reverse the earlier decision or decide the appeal.
The court refused certification on the State aid issues. It said the rules were intended to prevent Irish banks gaining an unfair competitive advantage, rather than to protect borrowers from having their loans transferred to NAMA. It also described Mr McKillen’s challenge as tangential to the primary State aid question, which it said lay between the European Commission and the Irish Government. The court found the proposed points did not warrant certification and that an appeal on them was not in the public interest.
The court left to the Supreme Court the question of whether other uncertified issues could be raised alongside the certified fair procedures point.