The Supreme Court of Ireland handed down two judgments in the case of Dellway Investments Limited and Others v NAMA and Others [2011] IESC 4 on 3 February 2011. The application for relief by the appellant companies centred upon a purported decision of the first-named respondent (“the respondent”), National Asset Management Agency (“NAMA”) to acquire from particular banks certain eligible bank assets (“assets”) within the meaning of section 69 of the National Asset Management Agency Act 2009 (“the Act”), these consisting of substantial loans made by the banks concerned to the appellants.

At an earlier hearing the High Court had refused to grant any of the reliefs sought by the appellants, and the appellants appealed to the Supreme Court on the following five grounds: whether the failure or refusal of the respondent to receive and consider submissions from the appellants prior to taking its decision constituted a breach of their constitutional right to fair procedures; whether the respondent when it rejected the appellant’s objection to acquisition failed in its duty to consider and take into account relevant considerations; whether the decision was a nullity because the actual decision was taken prior to the respondent’s establishment and which could not have been ratified or adopted after it was so established; whether, if a proper construction of the Act meant that the respondent was not under an obligation to give a hearing to the appellants prior to its decision, the Act is inconsistent with the Constitution; and lastly, whether the respondent’s acquisition of the assets constituted a breach of a European Commission decision approving the NAMA scheme as a State aid measure.

Although the respondent had been established on 21 December 2009, a number of important steps had been taken following the announcement in the Budget in April 2009 of the intention to set it up. While the respondent accepted that it had not reached an explicit decision to acquire the assets, it argued, and the Court accepted that the decision to acquire “was adopted, albeit not expressly, by the subsequent actions of NAMA following its establishment”.

Murray CJ, delivering the judgment of the Supreme Court, upheld the appellant’s third ground of appeal, holding that certain key decisions could not have been taken by the respondent as that agency did not in fact exist at the time the decisions were made, and nor was it given legal effect by any subsequent act or series of acts. Therefore, the decision to acquire the appellant’s loan portfolio was a nullity and had no legal effect.

Fennelly J in a further judgment dealing with the question of state aid rejected the appellant’s contention in their fifth ground of appeal that the respondent’s decision constituted a breach of the relevant European law. As regards the first, second and fourth grounds of appeal, the Court decided to invite the views of the parties as to whether there can now be considered to be a justiciable controversy between the parties.

The appellants thus succeeded in part.