Appeal for early Supreme Court date on promissory note challenge

Businessman David Hall has again asked the Supreme Court for an early hearing of his appeal against a finding that he does not have the required legal standing to challenge the State making payments to financial institutions via promissory notes without Dáil approval. Some €31 billion has been paid to date.

Michael McDowell SC, for the State, argued yesterday that the matter was not urgent on grounds including that a €25 million promissory note payment scheduled to be made in favour of the Educational Building Society next June is “quite small” in the context of the financial crisis.

Almost all the money covered by the note payments had been dealt with in a different way by the State, he added.

Ross Maguire SC, for Mr Hall, insisted the matter was urgent because, as the law stood, the Minister for Finance had power to spend public monies “to an unlimited amount” without recourse to the Dáil. “We say that is unlawful.”

Mr McDowell would be aware “things happen very quickly in the context of a financial crisis” and the extent of the Minister’s powers should be decided by the courts. The issue whether Mr Hall had legal standing as a citizen and taxpayer to challenge the note payments was “of substantial public importance”.

Supreme Court backlog
The Chief Justice, Ms Justice Susan Denham, reiterated the "serious backlog" in the Supreme Court list and said its list for the next court term was already full but she would look at the matter again when all the legal documents necessary for the appeal were ready.

Earlier, Mr McDowell argued that resolution of the legal standing issue in the appeal was “important but not urgent”. This was about stopping the State capitalising EBS for €25 million because the Dáil had not approved it in an appropriate way and he did not see what the urgency was.

Given the nature of the financial crisis, the €25 million sum was “quite small” and the EBS would have to be capitalised in one way or another, he said. Even if Mr Hall won the legal standing point, his share of €25 million would be about €100 and any delay in the appeal would not cause him loss or damage, Mr McDowell added.

The central ground of Mr Hall’s case is that under the Constitution, the Dáil must authorise the State’s financial expenditure but it had never voted in favour of the promissory notes. The State accepts there was no Dáil vote, but denies that the specific mandate of the Dáil was required.It claims the notes could be lawfully issued under Section 6 of the Credit Institutions (Financial Support) Act 2008. Mr Hall disputes that.

The High Court made no finding on the central issue after ruling only a TD could challengethe promissory note payments. The Supreme Court appeal will address only the legal standing issue in the appeal. If Mr Hall wins, the High Court will then determine the central issues raised.