The court's task was to interpret the NAMA Act 2009 (National Asset Management Agency Act 2009), apply the Act to the facts of Mr McKillen's case and to determine whether the Act, as so interpreted, was within the bounds of what is constitutionally permissible, the court said. The President of the High Court, Mr Justice Nicholas Kearns, Mr Justice Peter Kelly and Mr Justice Frank Clarke yesterday delivered their 147-page ruling on the case. It ran for seven days and involved the unusual appearance of the Attorney General, Paul Gallagher, the chief architect of the NAMA Act, for the State.
The court ruled that Mr McKillen had failed to make out a case entitling him to prevent the acquisition of the loans and also dismissed his challenge to the constitutionality of the NAMA Act, noting the constitutional challenge was a "fall-back" position if his other claims were rejected.
The NAMA Act, it held, was "a proportionate response to the very grave financial situation in which the State finds itself". Noting Mr McKillen's arguments that his loans were not impaired, the court said it did not have to address whether they were or not as it was open to NAMA to acquire even non-impaired loans.
There was "ample material" before the court to justify the view it was reasonable for the Oireachtas to decide the relevant loans should be taken "and taken quickly" without determining if there was sufficient impairment of the loans to justify acquisition.
Even if Mr McKillen's loans were not part of the problem, that was not the central consideration as "very many people will be paying, both in jobs and other ways, and for a very considerable time, the price of solving the problems of Irish banks", it said. "The vast majority of those persons had nothing to do with creating the problem."
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