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34 2009

National Asset Management Agency Act 2009

Chapter 3

Legal Proceedings Generally

Application (Chapter 3).

183 .— This Chapter applies in relation to all legal proceedings—

(a) to which NAMA or a NAMA group entity is or becomes a party,

(b) relating to a designated bank asset or acquired bank asset, or

(c) otherwise relating to NAMA.

Conduct of legal proceedings in relation to acquired bank assets.

184 .— (1) Where NAMA or a NAMA group entity is a party to any legal proceedings affecting an acquired bank asset, the participating institution from which the bank asset was acquired shall, without prejudice to any other obligation arising under this Act, if NAMA or the NAMA group entity so requests, provide NAMA or the NAMA group entity with any assistance reasonably required by NAMA or the NAMA group entity for the purpose of the proceedings, including—

(a) the provision of documents or information,

(b) the making available of witnesses, and

(c) the provision of evidence by affidavit or otherwise.

(2) A participating institution has, and shall be taken always to have had, as part of its functions and objects, the power and capacity to give the assistance required by subsection (1).

Effect of acquisition, etc., of bank assets on legal proceedings — participating institution plaintiff, etc.

185 .— (1) If legal proceedings were in being in relation to a bank asset immediately before the time when it was acquired under this Act, and the participating institution concerned was a plaintiff in those proceedings, those proceedings shall continue. After the bank asset is acquired, NAMA or the NAMA group entity concerned may elect to be substituted for the participating institution, in its capacity as plaintiff, in the proceedings.

(2) If NAMA or a NAMA group entity is substituted under subsection (1), subject to this section it assumes all of the rights and obligations in relation to the relevant proceedings that the participating institution had immediately before that time, other than the obligations in relation to the defence of or liability for any counterclaim or cross-claim. The participating institution has full rights in relation to, and is solely liable for any remedy awarded in relation to, any such counterclaim or cross-claim.

(3) Notwithstanding subsection (1), where NAMA or a NAMA group entity is substituted under subsection (1), the participating institution remains a party to the proceedings as defendant or respondent to any counterclaim or cross-claim in the proceedings.

(4) Where NAMA or a NAMA group entity is substituted under subsection (1)

(a) the court may order the participating institution to make discovery or answer interrogatories as if it were still a party to the proceedings, and

(b) NAMA or the NAMA group entity shall not be ordered to make discovery or answer interrogatories unless the court considers it necessary to do so for any special reason in the interests of justice.

(5) Notwithstanding subsection (1), an election by NAMA or a NAMA group entity to be substituted under subsection (1) does not render NAMA or the NAMA group entity liable in relation to any counterclaim or cross-claim, or claim to set off, in those proceedings.

(6) Where NAMA or a NAMA group entity has elected to be substituted under subsection (1), NAMA or the NAMA group entity shall as soon as may be file a notice in the court concerned of the election and shall serve a copy of the notice on the participating institution and each other party to the proceedings. No amendment to the proceedings is to be required.

(7) Where NAMA or a NAMA group entity is substituted under subsection (1), without prejudice to any application for costs by the participating institution against any person other than NAMA or a NAMA group entity, the participating institution continues to be liable for—

(a) its own costs in the proceedings before the substitution of NAMA or the NAMA group entity as a party and any potential costs liability incurred to other parties to the proceedings as a result of the participating institution being a party to the proceedings before that substitution, and

(b) any subsequent costs that it may incur in any capacity in which it remains a party to the proceedings.

(8) A party to legal proceedings referred to in this section is not entitled to join NAMA or a NAMA group entity as a party to the proceedings.

(9) The provisions of this section apply with any necessary modifications to arbitration proceedings.

Effect of acquisition of bank assets on legal proceedings — NAMA, etc., may enforce judgment.

186 .— (1) Where a participating institution has obtained judgment in legal proceedings in relation to an acquired bank asset, the judgment so obtained shall be taken to have been assigned to NAMA or the NAMA group entity concerned.

(2) NAMA or the NAMA group entity concerned may enforce a judgment referred to in subsection (1) by any means (including by issuing execution). In particular, NAMA or the NAMA group entity may apply for a judgment mortgage pursuant to the judgment.

Effect of acquisition of bank assets on legal proceedings where participating institution not plaintiff.

187 .— (1) If the participating institution from which NAMA or a NAMA group entity acquires a bank asset is, at the time of acquisition of the bank asset, a party (otherwise than as plaintiff) in legal proceedings in relation to the bank asset, the participating institution remains a party to the proceedings in the same capacity.

(2) NAMA or a NAMA group entity may elect to become a party to any legal proceedings referred to in subsection (1). In a case where the participating institution has brought a counterclaim NAMA or the NAMA group entity may at its election be substituted for the participating institution as counterclaimant but does not become liable in respect of the claim.

Conduct of proceedings.

188 .— If NAMA or a NAMA group entity elects not to be substituted for a participating institution in relation to legal proceedings, or elects only to be substituted as plaintiff under section 185

(a) the participating institution shall conduct the proceedings with all due vigour in a way that protects the interests of NAMA and the NAMA group entity and in accordance with any directions given by NAMA or the NAMA group entity, and

(b) NAMA or the NAMA group entity may at its election join the proceedings as a notice party.

Costs.

189 .— (1) At the conclusion of each interlocutory application in any legal proceedings to which this Chapter applies, the court concerned shall make orders as to costs in respect of the application and, having received submissions from the parties as to the levels of those costs, the court shall measure those costs.

(2) Costs measured under subsection (1) shall be enforceable against the party directed to pay those costs. If the party fails to discharge those costs within 30 days of the court order measuring those costs, the court may on the application of any party to the proceedings or of its own motion impose terms as to the continuation of the proceedings pending the discharge of the costs.

Evidence — amount of debt due.

190 .— In any proceedings for the recovery by NAMA or a NAMA group entity of money, a certificate in writing under the seal of NAMA or the common seal of the NAMA group entity that a specified sum of money was owing to NAMA or the NAMA group entity at the date of the certificate by a specified person on a specified account is, at any time within one month after the date of the certificate, evidence that the sum specified in the certificate is and remains owing to NAMA or the NAMA group entity by the person and on the account specified in the certificate.

Evidence — application of Bankers’ Books Evidence Act 1879.

191 .— (1) In this section “ Act of 1879 ” means the Bankers’ Books Evidence Act 1879.

(2) Where—

(a) a copy of an entry in a bankers’ book (within the meaning given by section 9(2) of the Act of 1879) falls to be produced in evidence,

(b) the book is in the custody or under the control of NAMA or a NAMA group entity, and

(c) an officer of NAMA or a NAMA group entity gives evidence (orally or by affidavit) that—

(i) he or she truly believes that the book or record was kept in the ordinary course of the bank’s business, and

(ii) the book is in the custody or under the control of NAMA or the NAMA group entity,

then the requirement for proof in section 4 of the Act of 1879 shall be taken to have been satisfied.

(3) The Act of 1879 has effect in relation to the books and records of NAMA or a NAMA group entity as if—

(a) NAMA or the NAMA group entity were a bank,

(b) references to bankers’ books in that Act were to the ordinary books and records of NAMA or the NAMA group entity, and

(c) references in that Act to an officer of a bank were references to an officer of NAMA or the NAMA group entity.

Limitation of power to grant injunctive relief.

192 .— (1) Where injunctive relief is sought on an interim or interlocutory basis in proceedings to which this Chapter applies—

(a) to compel NAMA or a NAMA group entity to take or refrain from taking any action, or

(b) to compel any other person to take or refrain from taking any action where the relief if granted would adversely affect NAMA or a NAMA group entity,

the Court shall have regard, in determining whether to grant such relief, to the public interest.

(2) In considering the public interest, the Court shall have regard to—

(a) the purposes of this Act, and

(b) the importance of permitting NAMA to discharge its functions in an expeditious and efficient manner.

(3) Unless the Court is satisfied that not granting injunctive relief would give rise to an injustice, the Court shall not grant such relief where a remedy in damages would be available to the person who seeks that relief.

(4) For the purposes of subsection (3), the possibility that the action against which injunctive relief is sought would or might result in a person being declared bankrupt or ordered to be wound up or otherwise adversely affected is not, of itself, sufficient to establish that not granting such relief would give rise to an injustice.

Limitation of judicial review.

193 .— (1) Leave shall not be granted for judicial review of a decision under this Act unless—

(a) either—

(i) the application for leave to seek judicial review is made to the Court within one month after the decision is notified to the person concerned, or

(ii) the Court is satisfied that—

(I) there are substantial reasons why the application was not made within that period, and

(II) it is just, in all the circumstances, to grant leave, having regard to the interests of other affected persons and the public interest,

and

(b) the Court is satisfied that the application raises a substantial issue for the Court’s determination.

(2) The Court may make such order on the hearing of the judicial review as it thinks fit, including an order remitting the matter back to the maker of the decision with such directions as the Court thinks appropriate or necessary.

(3) This section applies to NAMA and a NAMA group entity in the same manner as it applies to any other applicant for judicial review of a decision under or pursuant to this Act.

Limitation of certain rights of appeal to the Supreme Court.

194 .— (1) The determination of the Court of an application for leave to apply for judicial review, of an application for judicial review, of an application for leave to apply for an order, or an application for an order, under section 182 , is final and no appeal lies from the decision of the Court to the Supreme Court in either case, except with the leave of the Court.

(2) The Court shall grant leave under subsection (1) only if that Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

(3) This section does not apply to a determination of the Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.

Lites pendentes to have no effect, etc.

195 .— Where NAMA or a NAMA group entity has acquired a bank asset, a lis pendens, caution or inhibition registered on or after 30 July 2009 shall be of no effect against NAMA, a NAMA group entity or a person who acquires that bank asset from NAMA or a NAMA group entity, even if it is registered against the title to any registered land that forms part of the bank asset unless the party registering it has secured or secures an order under section 182 (2).