The Supreme Court will proceed to rule on the outstanding constitutional and fair procedure issues raised in the case taken by businessman Paddy McKillen against the National Asset Management Agency to stop the transfer of his €2.1 billion in loans.
The court reserved judgment on the remaining issues around the constitutionality of the Nama legislation and whether the agency breached his right to fair procedures in relation to the acquisition of his loans.
Chief Justice John Murray said that Nama retained the statutory power to make a decision to acquire Mr McKillen's loans but that the court would proceed to consider the outstanding objections raised by his companies in their appeal against a High Court ruling.
There was no proper basis on which to adjourn the court's ruling on the constitutionality of Nama and Mr McKillen's right to fair procedures to allow the agency to make a decision to acquire his loans, said Mr Justice Murray.
He asked both sides to inform the court if any matter arose where issues no longer needed to be determined by the court, he said.
Counsel for Nama, Maurice Collins SC, told the court that a special meeting of the Nama board would be convened within the next two weeks to decide whether or not to acquire his loans.
Mr Collins had asked the court for an adjournment on a ruling on the outstanding issues to allow the board of Nama to make a decision on whether to acquire Mr McKillen's loans.
Michael Cush SC, for Mr McKillen's companies, said that it was surprised by Nama's application for an adjournment pending the agency's decision. "We think that they are in a bit of a muddle and they got it wrong," he told the court.
A new decision by Nama to acquire Mr McKillen's loans could lead to the businessman taking new legal proceedings in the High Court challenging such a move, Mr Cush told the court.
The court ruled last week that a decision by the interim Nama team in December 2009 to acquire Mr McKillen's loans was not legally valid as the decision was taken before the agency came into force under the legislation.
The Chief State Solicitor's office wrote to Mr McKillen's companies last Monday, saying the board of Nama would make a new decision on whether to acquire his loans with reference to the material put before the court in the legal proceedings.
The Supreme Court had deferred consideration of the outstanding issues relating to the constitutionality of Nama and whether it followed fair procedures until today to hear whether there was a "justiciable" controversy between the parties over these matters.
The Chief State Solicitor's office told Mr McKillen's companies in its letter that Nama and the State believed that the remaining issues in the case were "justificiable controversies" that should be determined by the court.
"If those issues are left unresolved in these proceedings, there will inevitably be serious ongoing uncertainty as to the status and powers of Nama which would not appear to be in the interests of the parties any more than it would be in the public interest," it said.
Solicitors for Mr McKillen replied yesterday, saying that he took the case against Nama on issues relating in particular to him and his companies and that he "did not purport to raise issues of general application".
"Ultimately however there are considerations of principle for the court as to how it conducts its affairs which go beyond the interests of our clients so that the issue is one principally for the court," Eugene F Collins, solicitors for Mr McKillen wrote in reply.
His lawyers objected to Nama's plan to make a decision on whether to acquire his loans, saying that he did not accept that it was appropriate for Nama to do so.
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