AT A time when the people of Ireland are being asked to accept an enormous burden of responsibility for the controversial National Assets Management Agency (Nama) and the courts are being requested again today to consider the provision of special protection for some of Liam Carroll’s companies, who is asserting the public interest? The High Court and the Supreme Court already have had to raise obvious concerns about the application in the absence of a legitimate contradictor. This should not be so.
On the first application to the High Court, Mr Justice Peter Kelly refused to grant the protection of examinership to a number of companies within Mr Carroll’s Zoe group because he believed he had not been given sufficient information. He found that a three-year rescue plan put forward on behalf of Zoe bordered on the fanciful and was lacking in reality.
The Zoe companies then appealed to the Supreme Court. The latter agreed with the High Court decision because of obvious problems concerning assumptions underlying the survival plan. And, in the absence of detailed property valuations, it concluded that the Zoe strategy was neither credible nor reasonably viable.
Following the appointment of a receiver and a provisional liquidator on the back of moves by Dutch-owned ACCBank last week, the Carroll companies returned to the High Court before Mr Justice Eamon de Valera late on Friday evening. They claimed that letters of support from their other lenders, which are owed more than €1 billion, along with property valuation reports and new economic and trading assessments, offered the group a reasonable chance of survival, if placed in examinership. Mr Justice de Valera gave permission to Zoe’s legal team to present the petition for examinership in the High Court today. However, Zoe has argued that the property valuation reports should remain closed to the public over commercial sensitivity.
That confidential information goes to the very core of the issues that will face Nama in the future. The value of properties the taxpayer will be asked to take over, under its auspices, should not remain secret. Financial institutions are clearly cooperating in an attempt to prevent the sale of Carroll properties and to artificially support the property market, in advance of the establishment of Nama. The Government has indicated it will pay above the going market rate for such assets. But what represents economic value? The public has a right to know what the people who got us into these difficulties are saying now about property valuations. What are we being made to buy and at what cost?
The assertion of the public interest is not without precedent. Besides being legal adviser to the government of the day, the attorney general has the independent role of parens patriae, guardian of the public interest. It was used by former Attorney General Harry Whelehan in the “X Case” on abortion in 1992. Could it not be more appropriately asserted by current Attorney General Paul Gallagher in the biggest bail-out of banks in the history of this State?