A HIGH COURT challenge has been brought to the decision of Anglo Irish Bank to appoint a member of Nama’s board of directors as receiver to a number of properties in Co Clare.
Two businessmen have alleged Brian McEnery has a conflict of interest arising from his being both the receiver over their properties and being on the Nama board.
Mr McEnery was appointed last April as receiver arising out of some €15 million unpaid loans obtained from Anglo which, the businessmen allege, are “bound for Nama”. The appointment raises issues of public law, it is claimed.
It is claimed the role of a receiver, if he opts to sell the properties, is to get the best price available for the assets. As Mr McEnery was appointed last December to Nama’s board, his appointment as receiver could lead to a perception of bias even if no actual bias occurs, it is claimed.
There is no issue with Mr McEnery himself and he is a person “of the highest integrity”, the court has been told. It is also accepted Mr McEnery has not made any decision yet in relation to the properties.
Leave to have the appointment judicially reviewed was sought by businessmen John Flanagan, Ballyvara House, Doolin, Co Clare, and Gerard Lillis, Alva Cree, Kilrush, Co Clare, and two companies – Atlantis Development Ltd and Liscannor Properties.
Mr Justice Michael Peart yesterday granted leave to bring the proceedings against Mr McEnery and Anglo, with Nama as a notice party. The case was adjourned to October.
In seeking leave, Gerard Hogan SC, for the applicants, said Mr McEnery should not be appointed receiver to the properties because of his role in Nama.
The plaintiffs were concerned, due to Mr McEnery’s presence on the board of Nama, that the loans may be acquired by Nama at a cheaper price.
Mr Hogan also argued, given Anglo is now in public ownership, that Mr McEnery’s appointment raised issues of public law.
The bank had a public duty to ensure no risk of possible bias even when there was no actual bias, Mr Hogan said.
Mr McEnery is a former president of the Association of Chartered Certified Accountants and is a senior partner with Limerick-based accountancy firm Horwath Bastow Charleton, where he specialises in corporate finance and insolvency.
The applicants are seeking orders to quash the bank’s decision to appoint Mr McEnery as receiver. They also want declarations that Anglo Irish Bank, now it has been nationalised and is publicly owned, and Nama, as a public body, are both amenable to judicial review.
The applicants are subject to other proceedings before the Commercial Court, arising out of Anglo’s decision in March and April last to call in a number of loans relating to various sites around Liscannor, Co Clare, including a park-and-ride facility to service the Cliffs of Moher.
