Monday 15 October 2018

The questions raised over integrity of Nama process should not be brushed under carpet

Frank Cushnahan, former Nama adviser
Frank Cushnahan, former Nama adviser
Dearbhail McDonald

Dearbhail McDonald

We need to talk about Nama. The toxic loans agency, designed to clean up the banks' balance sheets and get them lending again, has been battling a series of wildfires that could yet engulf its critically important work.

Last week saw the airing, on BBC Northern Ireland's ground-breaking Spotlight programme, of a 'secret recording' of Nama's former Northern Ireland adviser Frank Cushnahan accepting a £40,000 (€48,000) cash payment from developer and Nama borrower John Miskelly.

The recording was allegedly made in a hospital car park in 2012, when Cushnahan, who has repeatedly denied any wrongdoing while a member of Nama's Northern Ireland Advisory Committee (Niac), was still working as an adviser to Nama.

The latest 'Spotlight' programme caused convulsions in the North, which is already reeling from the socio-economic fallout of the property crash and controversies surrounding the biggest property deal in Irish history.

That was the purchase, two years ago, of Northern Ireland's Nama loans for some €1.6bn by Cerberus Capital, the mammoth US vulture fund. Given the disproportionate effect of the collapse of the Republic's property bubble on our brethren in the North, Project Eagle (as the sale of the northern loans was known) should have well and truly soared.

Instead, it is mired in controversy and separate investigations by the UK's National Crime Agency and America's powerful Securities and Exchange Commission (SEC) after claims that some €7m was to be paid to Cushnahan by Pimco - a separate US equity fund - if it [Pimco] won the bidding war for the loan book.

Nama has previously said that Pimco, one of nine global funds invited to express an interest in the Project Eagle loan package, told it about the "success fee" plan in March 2014, during the final days of bidding for Project Eagle.

This side of the border, Nama has in recent years faced claims that the extraordinary secrecy surrounding its internal operations, ostensibly required to protect commercially sensitive information, is not worth the paper it is written on.

When it was established at the height of the financial crisis in 2009, the legislation underpinning Nama granted it Special Powers- style confidentiality, with dedicated criminal sanctions for those who shared its secrets.

The secrecy provision (it is an offence under Section 202 of the 2009 Nama Act to disclose confidential information) was primarily aimed at disgruntled developers who fell under Nama's compulsory grip.

However, the biggest threat to Fortress Nama, it seems, has come from within.

Already, one former employee, Enda Farrell, has been convicted of sending confidential information about the Nama valuation of hundreds of properties.

It has now emerged that Farrell told gardai, in the course of their investigations, that he told internal investigators appointed by Nama that he gave Nama's entire US portfolio to a senior executive employed by a US investment firm.

He also told gardai that he received confidential information from a former colleague after he [Farrell] left the agency in 2012 and that, during his time at Nama, other colleagues either assisted him or engaged in the unauthorised disclosure of confidential information.

The employees named by Farrell to gardai and internal investigators appointed by Nama do not include Paul Pugh, another former Nama employee charged last June for allegedly intentionally disclosing confidential information.

For its part, Nama says that it is not appropriate for it to comment on any past or current garda investigation, including the claims made by Farrell. But can Nama really draw a veil of silence over the potential import of what Farrell (not only convicted but sentenced) told gardai?

If it was the case that confidential information, including internal valuations - together with prices below these valuations which Nama was prepared to accept - was disclosed to national and international investors, the market for the sale of those assets may have been distorted - or worse.

How would a developer feel if that material was in the hands of his buyers? How would an underbidder feel if their rivals held a market advantage? How would you, as a taxpayer, feel if Nama's loan book was leaked in part or, as many suspect, in whole?

The State, already fighting an uphill battle to restore its international reputation in the wake of the Apple tax ruling and the paltry tax paid by so-called vulture funds on the back of distressed property assets, would face an appalling vista if it emerged that the Nama process was undermined in this way.

The stakes are incredibly high, which makes the Government's refusal to even contemplate a commission of investigation into Nama more than a little curious.

Sunday Indo Business

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