Common sense wins out amid all the warnings of doom and gloom

His evidence boiled down to assumptions and assertions that could not qualify as evidence to satisfy the court

THE only story that would have eclipsed last night's refusal by the Supreme Court to cloak Liam Carroll's insolvent empire under the protection of the courts would have been a decision to give it that protection.

It would have been inherently more controversial had the Supreme Court, led by Chief Justice John Murray, appointed an examiner.

This is because evidence presented both to the High and Supreme Court of Carroll's great escape, or lack of it, did not objectively support the developer's contention that he could turn a €1bn deficit into a €300m profit in less than three years.

Last night's ruling was a victory for the law and a victory for common sense.

How it fares for NAMA and the €90bn gamble that it could represent for taxpayers is another matter.

But that is a question for politicians, and the electorate upon whose votes they rely.

The role of judges is to uphold the current law, not anticipate the fallout of new ones which are not yet in existence.

The Supreme Court, like its High Court colleague Peter Kelly, had one critical question to answer, did Carroll's 51-strong Zoe group have a reasonable prospect of survival?

In any examinership application, the onus lies on the person seeking protection of the courts to satisfy the court that there is a reasonable prospect of survival.

In his petition, Carroll laid great emphasis, by way of sworn statements, on the very negative consequences of a compulsory liquidation.

He warned of a catastrophic fire sale of assets; that the property market in Dublin cannot absorb a portfolio of his scale; and stressed the loss of more than 600 jobs.

Carroll said the market "would be thrown into an unprecedented degree of turmoil", with consequences not just for his group of companies and its creditors.

There would be implications for the wider market as a whole and all those who have an interest in it, which happens to be every man, woman and child in the country.

What Carroll failed to do was give enough evidence to objectively support his doomsday claims.

His evidence, in the end, boiled down to assumptions and assertions that could not qualify as objective evidence to satisfy the court.

Carroll refused to tender to the courts two sets of valuations carried out by estate agents CBRE and Hooke and McDonald in December 2008. This he said, was for reasons of commercial sensitivity.

The valuations could have been tendered to the courts on a sealed (confidential) basis, but this did not occur.

Carroll presented the valuations to his banks as part of a three-year survival plan. The developer envisaged an orderly disposal of his assets over 30 months, provided he had extensive support of his banks.

All of his banks, except ACC, complied.

Carroll said the banks were "very positive" about his plans and, by extension, positive about the valuations on which they were based.

The banks had agreed a two-year moratorium, had bought off his third-party creditors to prevent rogue attacks, and had agreed "in principle" to extend future finance for ongoing developments.

In essence, Carroll invited the Supreme Court to infer from the banks' stunning silence that they were in support of his plans and the valuations that underlay them.

However, the three-judge court gave Carroll short shrift.

There was no evidence of any commitment for future finance by the banks; the business plan was not placed before the court and the valuations were not presented as evidence.

Carroll adduced no evidence of a likely upturn.

In short, he failed to pass the test, his plan was not credible nor reasonably viable.

The Supreme Court would have done itself, and the country, a disservice to rule in any other way.