Friday 23 March 2018

Quinns raise questions about IBRC cases after bank liquidated

Tim Healy

THE Quinn family have raised questions about their court proceedings with IBRC in the wake of the liquidation of the bank this week.

However, a High Court judge said today the new IBRC Act appears to give no power to the courts to lift the new statutory stay in the Act halting all existing proceedings against IBRC, formerly Anglo Irish Bank.

Mr Justice Peter Kelly said the stay is "in absolute terms" and the Act had also disapplied the court's discretion to lift it. There was also "a very wide definition" of legal "proceedings" in the Act, he noted.

The judge stressed his comments were based on his reading of the IBRC Bill as he was unable to access the Act as passed on the Government website  despite it being apparently in force. This was "not a very satisfactory situation", he said.

Included in the many existing proceedings against IBRC is the action by bankrupt busimessman Sean Quinn's family alleging the former Anglo Irish Bank "shovelled" some €2.34bn loans into Quinn companies in 2008 to shore up the bank's plummeting share price.

That action is for mention before Mr Justice Kelly on Monday but counsel for the Quinns indicated to the judge today, when he was dealing with IBRC's own case against the Quinns, that the family have concerns about the implications of the new Act.

Martin Hayden SC said his main difficulty in persuading the court the family's case can proceed is that the Act appeared "to sanitise" their claim Anglo had breached Section 60 of the Companies Act - which makes it unlawful for a company to advance loans to buy its own shares - in making the €2.34bn loans.

The Section 60 issue is also raised in the defence of various members of the Quinn family to IBRC action against them alleging they conspired with others to move property assets in the Quinn internatiobnal property group beyond the bank's reach.

The new Act raises many areas of complexity and drew a distinction between those being sued by the bank and those suing the bank, counsel said. It also provided for an immediate stay on proceedings against Anglo with no ability for the court to lift that stay, he added.

This raised issues for the security held by IBRC over Quinn properties and there would be "a lot of difficulties" arising from the legislation, counsel added.

Mr Justice Kelly was told by counsel for IBRC that, given the liquidation of his client this week, he had no instructions concerning IBRC's motion in its case but hoped to have instructions from the special liquidator of IBRC early next week.

The aspect of the IBRC case being dealt with was to fix a date for hearing of oral submissions following the cross-examination over five days fo the Quinn children and two of their spouses - Niall McPartland and Stephen Kelly - as to whether they have made full disclosure of their assets and involvement with IPG copmpanies.

Mr Hayden said his side was in the court's hands on that matter as it arose in the action by IBRC.

The judge said it was not unreasonable to adjourn the matter to next week when it was hoped the special liquidator would have given instructions.

Another matter before the judge today was an applicaiton to extend a variation of the order freezing the accounts of Peter Darrgh Quinn, nephew of Sean Quinn, to allow for release of a sum of €370 to a woman who is not involved in the case but holds a joint account with Mr Quinn from which mortgages were paid.

While both sides had consented to the extension of the variation order, the judge said he considered he must be very careful given the change in the legal landscape effected by the immediate stay on "all proceedings" against IBRC.

The freezing order was granted to IBRC and he was concerned even this small variation could constitute proceedings as it allowed the payment out of monies captured by that freezing order, he said.

The lack of clarity was unsatisfactory, he said. He has adjourned that matter to later today to allow the special liquidator give instructions and for the court to be provided with a copy of the order triggering the liquidation of IBRC.

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