Business Irish

Tuesday 16 September 2014

Judge says McNamara can't continue DDDA action

Tim Healy

Published 19/02/2013 | 04:00

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Developer Bernard McNamara

BANKRUPT developer Bernard McNamara is not entitled to continue his action against the Dublin Docklands Development Authority (DDDA) over the €412m purchase in 2006 of the Irish Glass Bottle (IGB) site at Ringsend, a judge has ruled.

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An issue remains as to whether Donatex Ltd, a company of Mr McNamara's, may continue with the case. That, and other related matters, will be dealt with by the Commercial Court next month.

Donatex and Mr McNamara had alleged that the DDDA had no lawful power to enter into the November 2006 IGB site agreement and was unable to perform its obligations under the deal, therefore frustrating the development of the site and causing substantial losses.

After Mr McNamara was adjudicated bankrupt in the UK, doubts arose as to whether the action would proceed.

As a bankrupt, Mr McNamara is not entitled to maintain court proceedings himself. The UK bankruptcy Joint Trustees had asked for time to consider whether they would continue the action on behalf of creditors of Mr McNamara.

Yesterday, Mr Justice Peter Kelly was told the Joint Trustees had decided not to continue the case. In those circumstances, Brian Murray SC, for DDDA, sought orders dismissing Mr McNamara's case on its merits, and asked that Donatex address issues related to whether its claim should proceed.

His side queried how the company had decided to proceed notwithstanding the bankruptcy of Mr McNamara and when Donatex itself was insolvent.

Depending on the answers to their questions, his side would consider applying to have Donatex provide security for the costs of the case.

Gary McCarthy SC, for Donatex, said he had previously erred in suggesting that Donatex would face "enormous difficulties" proceeding with the case if the Joint Trustees decided against pursuing it.

Notwithstanding Mr McNamara's bankruptcy, Donatex could advance claims arising from the structure of the IGB sale, he said.

Mr Justice Kelly said the case had gone on "far too long" and involved "an unhappy history".

It was claimed Mr McNamara was "calling the shots" in the proceedings and he had previously described Donatex as his nominee, the judge noted.

He said the various issues raised about Donatex's entitlement to continue the case were of concern and could be addressed in the context of an application by the DDDA for directions as to how the case might proceed.

In the interim, he would dismiss Mr McNamara's claim.

Irish Independent

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