Developer McKillen takes first legal challenge against Nama


That is an interesting argument. The AG is basically saying, “tough titties, bud, your lender is screwed, we’re just here to wind up the mess, so suck it up”.

So … uh … why aren’t we allowed say that to the bondholders too? :angry:

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Please stop spoofing. The only way the Oireachtas can pass legislation that violates the constitution is if it’s during a time of war or armed rebellion, and even then only to secure public safety and the preservation of the state (Article 28.3.3).

McKillen’s loans, like any other, were always liable to be bought and sold. McKillen isn’t even having the terms of his loans changed. He’s bringing his challenge on the basis of fears over how NAMA status will affect refinancing and other aspects of his business.

He seems to be quite a distance from proving an unjust attack on his constitutional rights. And he has some neck to point to refinancing and NAMA difficulties when it was state action that saved the banks, preventing him having to deal with the tender mercies of foreign bondholders taking over and deciding who to bankrupt. Even if he’s not defaulted on any loans, he should be grateful he’s in NAMA, compared with the likely alternative.


Reading the latest update on RTE -

Our C&AG has stated today in court that NAMA was set -up to - “He said the legislation was trying to regulate the relationship between borrowers and bankers that had contributed to the problem and now had to be rectified at the taxpayer’s expense.

I was sure NAMA was set-up to make a profit for the taxpayer? :unamused:


All I can say is read the Bill, both the Draft and the Final. Parliament can pass any law it wants. It is up to the courts to strike them down on constitutional or other grounds. In the meantime its the law of the land…

During discussions we had here after the Draft was first published we covered in quite a lot of detail some of the more outrageous provisions in the 180 plus pages of the Bill. The Bill gave the minister an exceptionally wide financial and economic remit and almost unlimited powers to implement and modified the scope of those powers without oversight. The bill specifically sets aside large area of Contract and Commercial statute and case law. It specifically sets aside the right to challenge on constitutional grounds certain key provisions of the Bill.

I’m certain large swathes of the Bill are unconstitutional but it does not matter. Though a simple procedural ruse, the challenge set aside, the Bill has been protected from any effective challenge for long enough for it to runs its course. You cannot have a Bill declared unconstitutional if you cannot bring a challenge to the Bill in the relevant higher court in the first place.

We both know that the constitution is so badly drafted that any competent AG could run a very successful stalling operation for years before any effective constitutional challenge could be mounted to the Bill. I’m sure he would make his case specifically under (Article 28.3.3). Read the preamble of the Bill. Very different from your usual Financial Bill. The often very odd wording is there for a reason. By the time any challenge might have been mounted successfully then it wont matter any more. Which was the whole motivation behind why the Bill was drafted the way it was in the first place. To buy time.

So the McKillen case is little more than an interesting aside. Battleship NAMA sails on, ready to repel all domestic boarders. But just one small torpedo from Brussels or Frankfurt and she’ll sink faster than the Barham.


I don’t know where you got that crazy idea, only a complete moron would ever have suggested that NAMA was ever going to turn a profit… :angry:


The state should steam roll this guy. How his business could be better off by having its loans parked with a bunch of discredited nationalised banks that are in effective run-off as opposed to with Nama does not add up. He hasn’t bought property in Ireland for a long time but he has leveraged his Irish properties - the tide is gone out and he should take his medicine.

When his properties do recover in value he should pay back his non recourse loan to buy Anglo shares.

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McKillen has lost his legal challenge to Nama in the Commercial Court
Lost it on all five grounds in which he brought the case


I hope NAMA hang this guy out to dry. He didn’t play ball with the agency so they are due to pursue him to the fullest extent possible ( if you were to believe the PR that is).

We will see now how NAMA plans to recover the debts owed to the Irish people.


Simon Carswell from the Times on about this very thing on Newstalk now.


Erm, McKillen’s whole case was based on the fact his loans are not under water - they are being repaid in full - and so he should not have been in NAMA. Seems to me that amongst all these guys he is one of the least sinning, if he is sinning at all.


But wasnt namas remit just to take all loans over a certain value, performing or not.


So we were told, and then we found out that *some *needed refinancing last summer and were not refinanced. He is, of course, solvent overall.


I am not an expert, but that seems to me to be precisely the point and the reason why having a pop at him is unfair. McKillen’s loans were taken by NAMA not because they were impaired, performing or something in between, but rather because they were of a specific size. The bald fact of transference to NAMA does not signify the quality of the loans.

Which is why it bugs me that this Newtalk presenter keeps saying the state has taken McKillen’s life’s work from him. That sounds like absolute bollox to me.


When McKillen originally took his case he sounded like every loan he had was up to date fully paid , it turned out in evidence that they were not.

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Bof. So now the door has been opened to a series of constitutional challenges to NAMA. Which discussion board was it that recommended el Pres refer it to the supreme court initially to make it bullet-proof? On the grounds that if you are so certain it is the only game in town and you are so sure it is going to work, you’d better make sure there is no chance the courts will reverse it? Oh yeah, this one.

Now we face the tragi-comedy of the workout vehicle being constitutionally gutted in pieces, the loans already marked down and being plonked back on the balance sheets of the banks. It is only a small chance that this could happen, but it is a small chance with a big outcome. And thereby hangs a fat tail…