The family of bankrupt businessman Seán Quinn will challenge the constitutionality of the new IBRC Act if the courts are found to have no power to lift the “absolute” stay in the Act halting the family’s action against the bank, their lawyers have said.
Martin Hayden SC, for the Quinns, said yesterday his side would bring “a full challenge” to the Act if it prevented the stay being lifted.
He suggested that the Attorney General should be put on notice of the possible challenge.
Mr Justice Peter Kelly will hear arguments on March 7th before deciding whether the Act, which last week liquidated Irish Bank Resolution Corporation (formerly Anglo), permits the courts to lift the “immediate stay” on “all” existing proceedings against IBRC.
Provisions disapplied
That stay is set out in section 6 of the Act; the judge previously noted that the Act also disapplied provisions which normally allowed the courts to lift such stays.
The many existing proceedings against IBRC include the action by Patricia Quinn and her children alleging that they are not liable for €2.34 billion loans by Anglo to Quinn companies on grounds that those were made for the unlawful purpose of propping up the bank’s plummeting share price.
There is no stay on existing – or new – proceedings “by” IBRC. Issues were mentioned at the Commercial Court yesterday arising from its action alleging that various Quinn family members and others conspired to put assets in the Quinn’s international property group beyond the bank’s reach.
The full hearings of the IBRC action and the family’s action have been parked pending criminal proceedings against former Anglo chairman Seán FitzPatrick and two former bank executives, Pat Whelan and Willie McAteer.
However, pre-trial matters have continued, including the cross-examination of the five Quinn children and two of their spouses – Niall McPartland and Stephen Kelly – about whether they have fully disclosed details of their assets and involvement with Quinn property companies.
That cross-examination has concluded and the judge yesterday fixed dates for the exchange of legal submissions between the sides. He also fixed March 19th to hear oral submissions as to whether the bank is entitled to fuller disclosure.
Freezing orders
He also agreed to vary freezing orders on the Quinns accounts to allow them to pay €6,285 fees for the transcripts of the five- day cross-examination, plus another €15,000 for stenography fees related to earlier matters.
Mr Hayden asked that the oral hearing be deferred so as to allow his side adequate time to prepare submissions for the March 7th hearing concerning the stay issue.
The hearing was “not a matter of small import” and “goes to the heart of the constitutionality of the Act”. Mr Hayden said the court would be asked to construe the Act and he would be making the case that for the Act to be constitutional, it must allow the court to lift the stay on the Quinns’ action.
The judge said if an issue arose from the March 7th hearing regarding the validity of the Act, the attorney general would have to be put on notice.
The hearing would not be deciding the issue of constitutionality, he stressed.
Adequate time
The judge added that he believed the Quinns’ lawyers had adequate time to prepare submissions both for the March 7th and March 19th hearings and he refused to defer the latter date.
