Challenge to Nama board member's appointment as Receiver

A High Court challenge has been brought to Anglo Irish Banks' decision to appoint a member of Nama's board of directors as Receiver to a number of properties in Co Clare.

In proceedings two businessmen have alleged Mr Brian McEnery has a conflict of interest arising from his being receiver over their properties and also being on the Nama board.

The court heard that conflict arises out of the State-owned bank's appointment, last April, of Mr McEnery as Receiver to the properties arising out of loans which are "bound for Nama". The court also heard the appointment raises issues of public law.

In an application to have the appointment judicially reviewed businessmen John Flannagan, Ballyvara House Doolin, Co Clare and Gerard Lillis, Alva Cree, Kilrush, Co Clare and companies Atlantis Development Ltd and Liscannor Properties have brought proceedings arising out of Anglo's decision to appoint Mr McEnery as receiver to a number of the defendant's assets.

Counsel for applicants Gerard Hogan SC told the court that application had nothing to do with Mr McEnery personally, who is a person of the highest integrity.

It was further accepted Mr McEnery has not made any decision as of yet in relation to the properties.

These assets include a park and ride facility to service the Cliffs of Moher.

They are subject to other proceedings before the Commercial Court, arising out of Anglo's decision in March and April of this year to call in a number of loans made to the defendants in relation to various sites around Liscannor Co Clare, the centrepiece being the park and ride facility.

In proceedings against Anglo and Mr McEnery counsel said his client's are seeking orders aimed at quashing the bank's decision to appoint Mr McEnery as Receiver.

They are also seeking orders that both Anglo Irish Bank, because the bank has been nationalised and is now publicly owned, and Nama, as its status as a public body, are amenable to judicial review.

Nama is a notice party to the proceedings. Leave to being the challenge was granted today by Mr Justice Michael Peart. The Judge made the matter returnable to next October.

They claim as it is the Receivers role, if he opts to sell the properties, to get the best price available for the assets. However as Mr McEnery is a member of Nama's board his appointment as Receiver, the court heard, could lead to a perception of bias even if no actual bias occurs.

The court heard Mr McEnery was appointed in connection with loans totalling some €15m obtained by the applicants from Anglo concerning the Co Clare properties.

Seeking leave, Hogan SC 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, the loans may be acquired by NAMA at a cheaper price.

Counsel also argued, given Anglo is now in public ownership, Mr McEnery's appointment raised issues of public law. The bank has a public duty to ensure no risk of possible bias even when there is no actual bias.

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.

Last December, he was appointed by the Government to the Board of the Nama.

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