Supreme Court allows appeal on NAMA Act 2009 s.69 incompatibility with Constitution property rights and due process.

THE SUPREME COURT

396/10

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

Macken J.

Finnegan J.

McKechnie J.

BETWEEN

DELLWAY INVESTMENTS LIMITED, METROSPA LIMITED, BERKLEY PROPERTIES LIMITED, MAGINOTGRANGE LIMITED, MAY

PROPERTY HOLDINGS LIMITED, SCI 20 PLACE VENDOME, DIRECTDIVIDE TRADING LIMITED, SUBMITQUEST LIMITED, BELFAST

OFFICE PROPERTIES LIMITED, THE FORGE LIMITED PARTNERSHIP, FINBROOK INVESTMENTS LIMITED, CONNIS PROPERTY

SERVICES LIMITED, FORMCREST CONSTRUCTION LIMITED, CHESTERFIELD (THE PAVEMENTS) SUBSIDIARY LIMITED, ABEY

DEVELOPMENTS LIMITED AND PATRICK McKILLEN

APPLICANTS / APPELLANTS

-v-

NATIONAL ASSET MANAGEMENT AGENCY, IRELAND

AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Murray C.J. delivered on the 12th day of April 2011.

Introduction

On the 3rd day of February 2011 the first judgment of the Court in this case was delivered which declared invalid and of no effect a

purported decision of the respondents, the National Asset Management Agency, generally known as NAMA, to acquire from particular

banks certain eligible bank assets directly relating to loans made by those banks to the appellants as borrowers.

On the same date Fennelly J., with whom all other members of the Court agreed, delivered a judgment which dismissed the ground of

appeal in which the appellants claimed that the statutory scheme established by the National Asset Management Agency Act 2009

enabling NAMA to acquire eligible bank assets was unlawful as being contrary to the law of the European Union governing State Aids.

Consequent upon the judgment of the Court that there was not in law any decision of NAMA to acquire the relevant eligible bank

assets the Court heard submissions from the parties concerning the question as to whether two outstanding issues which had been

argued in the course of the appeal might be considered moot and therefore not requiring a decision of the Court in these proceedings.

In general terms these two issues were as follows:

(a) Whether s. 69 of the Act of 2009 should be considered incompatible with the Constitution, in particular the

provisions of Article 40.3.2 or Article 43 thereof, on the grounds that the meaning given to eligible bank asset

pursuant to that section is so broad as to represent an unjust and disproportionate attack on the appellants’

property rights given what the appellants say is the “untrammelled” discretion of NAMA to acquire such a broad

range of assets encompassed by the statutory definition.

(b) Whether the Act of 2009, and in particular s. 84 which confers on NAMA the statutory power to exercise its

discretion to acquire eligible bank assets, must be construed in accordance with the principles of constitutional

justice so as to require NAMA to grant to borrowers in a position similar to that of the appellants the opportunity to

make representations to it before NAMA makes a decision pursuant to s. 84 to acquire eligible bank assets. (As an

alternative to this argument the appellants submitted that if such a right could not be implied that s. 84 should then

be considered unconstitutional).

As appears from the judgment which I delivered on behalf of the Court on the first issue and the several judgments of the Court on

the issue concerning the right of the appellants to be heard, as delivered to date, the Court has concluded that it should address

these two issues in these proceedings.

Background to the Issues

Although the background facts and circumstances have been amply referred to in the judgment of the High Court and in the earlier

judgment of this Court and although they are also addressed, so far as relevant, in the several judgments delivered today I think it is

appropriate, at this point, for the limited purpose of placing the foregoing issues in context, to make some reference to certain salient

aspects of the case.

As was alluded to in the judgment delivered on 3rd day of February 2011 the appellants initiated these proceedings with due

promptness, as the Rules of the Superior Courts require.

In presenting the case counsel on behalf of the appellants placed particular emphasis on the general status and character of the

credit facilities in issue, and in particular distinguished them from eligible bank assets where the borrowers have failed and/or are

manifestly incapable of fulfilling obligations to repay or service their debts. I say the general status and character because the Court

is not being asked in this appeal to decide whether the appellants’ loans, or any of them, could, for example, be considered to be

“impaired” even though there may be an adverse change in the ratio of loan to value in respect of some properties on which the

borrowings are secured.

In this context counsel for the appellants have relied on certain facts relating to what have been described from time to time as Mr.

McKillen’s loans. The reason for this is that Mr. McKillen, while one of 16 appellants has a dominant position as shareholder in the

companies which comprise the remaining appellants.

Among the facts relied upon by the appellants, which are also part of the findings of fact of the High Court, are the following:

(a) Mr. McKillen and his companies have an interest in a portfolio of properties with a current value which seems to

lie somewhere between €1.7 bn. and €2.2 bn. depending on what valuations are relied upon.

(b) Mr. McKillen’s property portfolio is geographically spread between Ireland, the United Kingdom, France and the

U.S.A. with just approximately 26% by value representing properties in Ireland.

(c) The portfolio would appear to consist of 62 properties, 96% of which is let and it would appear that in most

cases the lettings are to what have been described as “blue chip tenants on long leases predominantly with a

twenty five year duration”.

(d) Again, as the High Court found, at an aggregate level it would appear that interest cover is somewhere between

1.7 and 1.8, meaning that the income from the relevant properties is 1.7 to 1.8 times the interest payable at

current interest rates.

(e) Loans secured on those properties in favour of Irish banks who are participating institutions in NAMA amount to

approximately €2.1 bn.

(f) A significant portion of the McKillen loans are not directly loans in respect of land and development, but rather,

are loans which come within the definition of eligible bank assets by virtue of the fact that those loans are to Mr.

McKillen or entities associated with him, and thus are caught by the broad definition of eligible loans contained

within the Act.

(g) All interest payments due under the loans concerned had been paid to date (of the High Court judgment) and at

least in current conditions and at current interest rates the High Court found that there appears to be sufficient

income being generated by the properties concerned to service those loans in the sense of meeting all the interest

payments due on them.

Discretionary Power

Section 84(1) provides as follows:

“NAMA may acquire an eligible bank asset of a participating institution if NAMA considers it necessary or desirable to do

so having regard to the purposes of this Act and in particular the resources available to the Minister. NAMA is not obliged

to acquire any particular, or any, eligible bank asset of such an institution on any grounds.”

It is clear from the provisions of s. 84(1) that the power of NAMA to acquire an eligible bank asset is a discretionary one to be

exercised within the ambit of the criteria or purposes referred to in subsection (1) and with reference, when considered appropriate,

to other criteria referred to in other subsections of s. 84.

It is also important to note that each discretionary decision made by NAMA under that section is to acquire a particular bank asset or

assets and accordingly affects directly and individually the particular borrower or borrowers whose credit facilities relate to such an

asset.

Rights and Interests

Mr. McKillen, and the other appellants, complained that in their business activities certain rights and interests protected by the

Constitution and the law would be seriously and adversely affected by any decision of NAMA to acquire the eligible bank assets

represented by the credit facilities afforded to them by the relevant banks and in particular by the Bank of Ireland.

In that broad context, which is addressed in more detail in the judgments delivered today, it has been argued on their behalf that

firstly s. 69 of the Act is unconstitutional because the excessively wide range of assets which can be treated as eligible bank assets

by virtue of s. 69 in conjunction with the allegedly untrammelled discretion of NAMA to acquire them, gives rise to a disproportionate

and therefore unconstitutional interference with those rights and interests.

As regards the second issue the appellants have, again broadly speaking, argued that a direct interference with their rights and

interests referred to by virtue of the exercise of a discretionary power by NAMA to acquire the eligible bank assets relating to their

credit facilities they have a right, deriving from the principles of constitutional justice, to make representations to NAMA prior to it

taking any such decision pursuant to s. 84.

It is as well to underline at this point that the rights and interests involved in this case are property rights and interests derived from

the ownership of certain properties by the appellants and related contractual rights, which, but for the provisions of the Act, they

would normally be entitled to manage and deal with as they saw fit, within the ordinary parameters of the law. Persons in the position

of the appellants would, but for the provisions of the Act, by reason of the rights and interests vested in them as owners of the

development land in question, normally be entitled, as of right, to independently manage their affairs related to those properties,

including negotiating with private institutions with whom they have credit facilities. It is in this sense that reference is made to rights

and interests.

Decision of the Court on the Constitutional Issue

For the reasons set out in a judgment which I have delivered separately on behalf of the Court, the Court has decided that the

ground of appeal in which the appellants seek to impugn the constitutionality of s. 69 of the Act should be dismissed. The Court has

concluded that the criteria according to which NAMA is required to exercise its discretion pursuant to s. 69 is sufficiently delineated in

the Act and does not confer on NAMA an arbitrary or untrammelled discretion as claimed by the appellants.

Decision on the Right to make Representations

Central to the arguments of NAMA on the question of the right to be heard is that the Act of 2009, and in particular s. 84, not only

fails to provide for representations to be made by the appellants to NAMA but that the Act must be interpreted as prohibiting NAMA

from receiving or considering such representations concerning any proposed decision to acquire the eligible assets in question. In

other words when NAMA decides pursuant to s. 84 to acquire an eligible bank asset a borrower, such as the appellants, whose

borrowings relate to such an asset, has no right to make representation concerning the potential effect of such a decision on the

borrower’s property, including contractual, rights and interests irrespective of how prejudicial those effects might be considered to be.

According to NAMA only the bank concerned may make representations for the limited purpose expressly provided for in certain

provisions of the Act itself.

For the reasons set out in the several judgments delivered by members of the Court the Court has concluded that the provisions of

the Act do not preclude NAMA from receiving and taking into account representations made on behalf of the appellants, (particularly

having regard to their particular circumstances) but on the contrary, properly construed in the light of the Constitution and the

consequential principles of interpretation which must be applied, the Act requires that NAMA accord persons such as the appellants

the right to make representations concerning any decision which it proposes to take pursuant to s. 84 of the Act.

This conclusion of the Court does not affect the fundamental functioning of the system established by the Act but rather the

procedures to be followed by NAMA in the application of s. 84.

Declaration of the Court

As a consequence of the judgments delivered in this issue today the Court declares that the appellants are entitled to be duly

informed by NAMA of any intention to consider making a decision to acquire eligible bank assets related to their credit facilities with

participating banks so as to afford them an opportunity of making appropriate representations concerning such a proposed decision.

JUDGMENT

Having summarised the conclusions of the Court and the context in which they were reached I now turn to setting out, in relatively

brief terms, the reasons why I consider that the appellants’ appeal on the issue of the right to be heard should be allowed.

Interpretation in conformity with the Constitution

I have already adverted above to the fact that a decision of NAMA pursuant to s. 84 to acquire an eligible bank asset is a

discretionary decision which is intended to affect the position of the particular borrower or borrowers whose credit facilities relate to

a particular asset. Section 84 of the Act permits NAMA, in making such a decision, to have regard, inter alia, to the title, value and

adequacy of the underlying security provided by the borrower. If an asset is transferred to NAMA the borrower(s) concerned must

respond to and deal with the policies and practices of NAMA. Legitimate as all that may be it means that the borrowers are directly

affected.

For quite some time the general principles of fairness or due process derived from the Constitution have recognised, inter alia, that a

person has a right to be heard by the decision maker exercising a statutory power before a decision is finally made when that decision

may materially affect rights vested in them or impose obligations.

The most oft cited judicial dicta on this question are those of Walsh J. to be found in East Donegal Co-operative Limited v. Attorney

General [1970] I.R. 317. In that case this Court was concerned with the interpretation of certain provisions of the Livestock Marts

Act 1967 which conferred statutory powers on the Minister for Agriculture to make discretionary decisions concerning individuals. At

343 of that report Walsh J. stated:

“All the powers granted to the Minister by s. 3 which are prefaced or followed by the words ‘at his discretion’ or ‘as

he shall think proper’ or ‘if he so thinks fit’ are powers which may be exercised only within the boundaries of the

stated objects of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in

accordance with the principles of constitutional justice and they do not give him an absolute or an unqualified or an

arbitrary power to grant or refuse at his will. Therefore, he is required to consider every case upon its own merits,

to hear what the applicant or the licensee (as the case may be) has to say, and to give the latter an opportunity

to deal with whatever case may be thought to exist against the granting of a license or for the refusal of a license

or for the attaching of conditions, or for the amendment or revocation of conditions which have already been

attached, as the case may be …”

In Glover v. BLN Limited [1973] I.R. 388 Walsh J. with reference to the principles of constitutional justice in the field of public law

observed: “It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or

agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing

for fair procedures.”

Again in McCormack v. Garda Siochana Complaints Board [1997] 2 I.R. 489 at 499 Costello P. stated:-

“It is now established as part of our constitutional and administrative law that the Constitution presumption that a

statute enacted by the Oireachtas intended that proceedings, procedures, discretions and adjudications

permitted, provided for, or prescribed by Acts of the Oireachtas are to be conducted in accordance with the

principles of constitutional justice. It follows therefore that an administrative decision taken in breach of the

principles of constitutional justice will be an ultra vires one and may be the subject of an order for certiorari.

Constitutional justice imposes a constitutional duty on a decision making authority to apply fair procedures in the

exercise of its statutory powers and functions.”

Furthermore, as Walsh J. pointed out in the East Donegal case the presumption of constitutionality which attaches to every piece of

legislation passed by the Oireachtas means that such legislation must be interpreted on the presumption that discretions and

adjudications which are prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of

constitutional justice governing fair procedures. This is a presumption which has been restated and applied by this Court repeatedly

over the decades when interpreting Acts of the Oireachtas.

It is impossible therefore to reconcile the argument made on behalf of the respondents in these proceedings that the Act of 2009 not

simply failed to provide for a procedure enabling the appellants to make representations to NAMA but actually prohibited or at least

excluded by necessary implication any possibility of any representations to NAMA should a decision under s. 84 interfere with rights or

impose obligations on persons directly affected by it.

Of course there were other dimensions to the respondents’ arguments including the arguments that the decision of NAMA to acquire

the assets in question had no material adverse effect on the appellants because it involved no more than a transfer of the relevant

banks’ interests to NAMA leaving intact the appellants’ existing contractual rights and obligations in relation to their credit facilities. In

short the bank itself had a right to sell and transfer its interest as mortgagee to a third party without reference to, let alone granting

a hearing to, the appellants. The acquisition of the bank’s eligible assets by NAMA, it was argued, had the same effect so far as the

appellants were concerned, except that it was done pursuant to a statutory procedure and power. I will refer to that aspect of the

argument later. What I am concerned with at the moment is the manner in which s. 84 should be interpreted as a matter of principle.

In the light of the interpretative principles referred to above and the constitutional requirements concerning fair procedures I am

satisfied that s. 84 must be interpreted as meaning that NAMA must permit persons whose rights may be adversely affected, or on

whom liabilities are imposed, as a consequence of a decision to acquire an eligible asset to make representations before such a

decision is made.

Given the well established principles of statutory interpretation according to which fair procedures must be observed by decision

makers exercising discretionary statutory powers in such circumstances one would have thought that the Oireachtas, if it had

intended to exclude the operation of procedures of this nature, would have done so expressly. Of course that would then have given

rise to a distinct issue as to whether such an exclusion was compatible with the Constitution.

Participating banks are of course also affected by a decision pursuant to s. 4. No issue has arisen concerning the position of the

banks in this context and of course they are in a different position than persons such as the appellants since, inter alia, any such

bank has taken its own decision and opted to participate in the NAMA statutory scheme and are given certain express, if limited,

rights to make representations to NAMA before a decision is taken to acquire a particular eligible asset.

Adverse Effects on the Rights and Interests of the Appellants and a Right to be Heard

The question remains as to whether the effect of any decision by NAMA to acquire assets related to the appellants’ credit facilities

would, at least potentially, involve a real risk that their rights would be directly affected so as to give rise to a right to be heard on

their part.

Neither the appellants nor the respondents take issue with a statement of principle in the judgment of the High Court concerning the

circumstances in which a right to be heard may arise before a decision is made by a public authority pursuant to a statutory

discretion. At paragraph 7.14 of its judgment the Court stated:

“The Court is not satisfied that any mere possibility that there might be an indirect consequence for a party’s

rights affords the party concerned a right to fair procedures. There must be a real risk that a party’s rights will be

interfered with in the event that there is an adverse decision. The adverse decision will be such as would directly

interfere with those rights, or at least any interference must be so closely connected with any adverse decision as

to warrant that the party concerned be entitled to invoke a right to fair procedures. Obviously, the precise

application of that principle requires an analysis of the right which it is said might be interfered with and the

manner in which it is said that an adverse decision would interfere with that right.” (emphasis added).

As a statement in the abstract the appellants did not argue against such an approach but counsel for the appellants submitted that

the High Court in reaching its final conclusions failed to take account of the practical effects which a decision by NAMA could

potentially have on their rights and interests.

On the other hand the respondents argued, as indicated above, that any decision by NAMA would have no material effect on the

appellants’ rights or that any effect was merely an indirect consequence of the substantive decision.

For my own part I would not take issue with the statement of the High Court as recited above. However I do depart from the

subsequent conclusion that there was no real risk of an adverse effect to the rights of the appellants in the event of an adverse

decision by NAMA and in this respect I agree with the detailed analysis of the potential practical effects on the appellants of such a

decision made by Fennelly J. and Finnegan J. in their respective judgments.

As Fennelly J. points out NAMA has been given powers which a bank does not have and I agree with him when he says that s. 87(3)

(b) of the Act of 2009 qualifies any assertion that NAMA simply takes over all the banks’ obligations and liabilities and in noting that

the section enables NAMA, when acquiring an asset to set out “a statement of any obligations or liabilities excluded from the

acquisition …”.

Of particular significance is the analysis of Finnegan J. in his judgment of the relationship between mortgagor and mortgagee. In his

judgment he points out that NAMA enjoys powers not enjoyed by any other mortgagee some of which impinge, in important ways, on

the relationship between mortgagor and mortgagee. In particular he concludes that the appellants’ equity of redemption is capable of

being adversely affected as a consequence of a decision to acquire by NAMA pursuant to s. 84 of the Act of 2009. I respectfully

agree with the entire analysis of Finnegan J. and therefore with his conclusion that a decision by NAMA to acquire the bank assets

represented by the credit facilities of the appellants carries with it, at the very least, a real risk that the property rights and interests

of the appellants would be directly and adversely affected.

It seems to me that it is relevant to bear in mind that it is not contended that the appellants in this case are, by reason of

insolvency, burden of debt, or otherwise, incapable of fulfilling their borrowing obligations, conducting their business affairs including

the management of their property portfolio and associated loans, in the ordinary course of their own business and for that purpose

conduct their business with private institutions. The Bank of Ireland, with whom the vast bulk of their credit facilities are placed, have

indicated a willingness to continue to do business with them as bank clients.

As was pointed out at the outset of the judgment the High Court found, inter alia, that the appellants have discharged all interest

due on their loans and have more than sufficient income being generated by their properties to service those loans. Ninety six percent

of the properties are let to “blue chip tenants on long leases” with 26% of the property portfolio by value, being represented by

properties in Ireland.

These factors may or may not be considered to be of relevant weight by NAMA in any consideration as to whether it should acquire

the eligible assets in question. That would be entirely a matter for NAMA. They are relevant however to considering the potential

impact of an acquisition of the relevant assets by NAMA.

Those factors underline the position of the appellants who would, but for the provisions of the Act, by reason of the rights and

interested vested in them as owners of the development land in question, normally be entitled as of right to manage their affairs

related to those properties, including by negotiating and dealing with private institutions with whom they have credit facilities.

If the relevant eligible assets were to be acquired the appellants would be subject to the NAMA statutory scheme and all the

potential effects referred to by Fennelly J. and in particular by Finnegan J. concerning equities of redemption and vesting orders.

In short the appellants would be deprived of the right to deal with their property portfolio and associated loan contracts as they

judged fit in the ordinary way on the commercial market even if subject to any vicissitudes of current market conditions. Again as

Finnegan J. pointed out there is a risk that properties could be sold by NAMA in circumstances disadvantageous to the appellants in a

way which could not be done by a mortgager exercising a power of sale.

It is in that sense that I consider that there is a real risk that their property rights and interests may be directly affected by any

decision of NAMA pursuant to s 84 and for that reason they should have a right to make representations to NAMA.

It could indeed transpire that NAMA, having taken into account all relevant representations made on behalf of the appellants and

other relevant factors would decide to acquire the assets in any event. But at least, as a matter of constitutional justice, the

appellants would have had an opportunity to make their own case before the relevant assets are taken into the NAMA scheme.

I should perhaps add that I do not attach a great deal of weight to the argument made on behalf of the appellants concerning their

right to maintain their well established relationship with the Bank of Ireland in the sense, to put it in broad terms, that they would

continue generally to profit or benefit from the positive relationship and lending policies which they have had with that bank as a

customer in good standing. I do not think it can be assumed, particularly with regard to participating banks such as the Bank of

Ireland, that even with the best of good will in the world that they would not be constrained by current day realties, such as

difficulties concerning capitalisation of those banks and limitation on credit facilities, from according to the appellants the same

banking facilities based on the same commercial policies or relationships as heretofore.

What is of prime relevance however for the purposes of determining whether the appellants should be accorded a hearing is the fact

that they would be deprived of the opportunity of actually managing their own affairs with their chosen bank within the parameters of

the law and commercial practice, whatever that may be at any given time. Instead the credit facilities, with a potentially direct

impact on the management and ultimate sale of properties securing those facilities, would be brought under the statutory NAMA

regime. They would be potentially exposed to all the adverse effects to which Fennelly J. and Finnegan J. have referred to in their

judgments.

In the course of the hearing it was at one point argued on behalf of the State that the exclusion of a right to a hearing might be

justified by reason of the crisis affecting the national banking system and the urgency of the measures needed to counter systemic

threats to that system. I have to say that there was no evidence or material before the High Court to suggest that the time involved

in permitting persons such as the appellants to make representations to NAMA before it made a final decision would impinge on, let

alone be fatal for, its effective functioning. Moreover I find it difficult to envisage circumstances where the principles of constitutional

justice ensuring that decisions are fair for the individual could be overridden. To do so would be to abrogate a constitutional

protection which every citizen enjoys when the State decides to exercise a power which encroaches on individual rights.

The State in exercising its powers through the organs of government designated by the Constitution have extensive powers to

regulate and limit the exercise of individual rights in the interest of the common good and this may be relevant where the State is

faced with a national crisis, such as one of a fiscal nature. The State has the power to act in the interests of the common good

because the Constitution, in its provisions, expressly envisages that. It also envisages that in exercising such powers the State must

act within the ambit of the Constitution as a whole. In a democratic State founded on the rule of law there are definite limits to the

extent to which the State can interfere with or restrict constitutional rights or rights vested in or acquired by individuals - freedom of

expression, assembly, freedom of religion, right to education, right to earn a livelihood, property rights (including contractual rights),

right to strike - to name but some, even when it is acting or purporting to act in the interest of the common good in a national crisis.

In common with international instruments, such as Covenants of the United Nations and the European Convention on Human Rights,

the Constitution envisages that rights may be regulated and limited but not to an extent that it is disproportionate or in a manner

which is arbitrary or discriminatory in an invidious sense. In particular the State cannot act in a manner which would abrogate a right

or deprive it of its very essence.

If the State were to succeed in its argument, namely that the Act of 2009 prohibits NAMA from giving any consideration to

representations from persons in the position of the appellants, it would be denying the very essence of a right to a hearing, a concept

at the core of the principle of constitutional justice and due process.

Conclusion

For the foregoing reasons I am of the view that the appellants should succeed on this aspect of their appeal. The process according

to which a person is given an opportunity to make representations will often depend on the nature, scope and purpose of the decision

being made, the rights involved and the manner in which they may be affected. The Courts have always held that the nature of the

procedural process therefore should be one which is flexible but sufficient to give a reasonable opportunity to the party concerned to

present their case having regard to all the relevant circumstances. Should the need for such a process arise in this case, because

NAMA seeks to acquire the assets in question, I agree with Fennelly J. that it is difficult to foresee why there would be a need for a

process that would go beyond a written procedure and that in any such procedure the right of the appellants would be to make

representations concerning the manner in which it submits that their interest would be adversely affected. The Act of 2009 contains

express provisions requiring banks, when furnishing information to NAMA, to do so expeditiously. In the case of a decision pursuant to

s. 84 it seems obvious that all parties concerned would be entitled to expect that the process would be completed with all reasonable

expedition.

Declaration

Subject to any submissions of the parties as to the final form of order of the Court I would hold that the appellants are entitled to a

declaration that they should be duly informed by NAMA of any intention to consider making a decision to acquire any eligible bank

asset related to their credit facilities with participating banks so as to afford them an opportunity of making appropriate

representations concerning such a proposed decision.