The Court of Appeal has struck out in its entirety a claim by Vincent Byrne and Vincent Byrne Junior against the National Asset Management Agency (NAMA), allowing NAMA’s appeal and dismissing the Byrnes’ cross-appeal.
The judgment, delivered by Mr Justice Noonan on 11 November 2020, concerned proceedings challenging the process by which NAMA acquired loans and associated securities. The Byrnes alleged that NAMA had failed to provide fair procedures, an opportunity to make representations and adequate reasons before acquisition. They sought damages and pleaded that the acquisition decision was null and void.
The proceedings were issued on 22 December 2016. The High Court had struck out claims based on the EU Charter, the Treaty on the Functioning of the European Union and state aid regulations, but allowed claims alleging breaches of constitutional fair-procedure rights and the European Convention on Human Rights to continue. NAMA appealed that refusal to strike out the remaining claims; the Byrnes cross-appealed the parts that had been struck out.
The Court of Appeal held that the claims for damages were subject to the six-year limitation period in the Statute of Limitations 1957. It found the cause of action could not have accrued later than 17 December 2010, when the loans were transferred to NAMA, so the 2016 proceedings were out of time. The court rejected the argument that time should run from formal notification in 2011. It also noted that a 2013 memorandum from Mr Byrne Junior recorded that he had been told in August 2010 that the facility had been transferred or was to be transferred to NAMA.
The court gave two further reasons the claim could not proceed. It held that, in substance, the claim challenged the acquisition and required leave under section 182 of the National Asset Management Agency Act 2009. It also concluded the allegations were public-law grounds that should have been pursued by judicial review, and that section 193’s leave and time-limit requirements applied.
The Court of Appeal substituted an order striking out the entire claim. Its provisional view was that NAMA was entitled to costs in both courts, including the motion and proceedings. The Byrnes could apply within 14 days for a supplemental hearing on costs; the judgment said an order in the proposed terms would issue if no application was received. The judgment does not record a final costs order.