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Leave refused to serve amended defence and counterclaim where no substantial issues are raised

By: James Cross BL

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High Court, in consolidated proceedings relating to assets in the National Asset Management Agency, determines that leave was required to serve an amended defence and counterclaim in the within proceedings, and refuses leave on the grounds that: no issue met the threshold criteria of a substantial issue; no substantial reasons were established why the application was not made within 30 days as required by law; and damages would constitute an adequate remedy to the issues raised.

National Asset Management Agency – consolidated proceedings - application that the first and second named defendants do not require the leave of the Court to deliver and serve the amended defence and counterclaim in the within proceedings on National Asset Loan Management DAC (“NALM”) – seeking an order granting the first and second named defendants leave to bring an application pursuant to s. 182(2) of the National Asset Management Agency Act, 2009 in respect of the non-damages reliefs sought against NALM in the amended defence and counterclaim herein - an order pursuant to s. 182(2) of the National Asset Management Agency Act, 2009, permitting the first and second named defendants to seek reliefs in the amended defence and counterclaim herein other than for damages against NALM and to deliver and serve the amended defence and counterclaim on NALM - background facts and circumstances - NAMA Act – counterclaim seeks to join an additional party - relief will not be granted unless the court is satisfied that the application raises a substantial issue - provided that the court is satisfied if outside of the 30 day time limit that there are substantial reasons why the application was not made within the period and the just and equitable criteria as to whether to grant the relief - no order should be made were damages to be an adequate remedy - what constituted a “substantial issue” - whether the defendants’ counterclaim comes within its provisions as applying “in relation to legal proceedings….” - characteristics of a counterclaim - clear that a counterclaim constitutes a separate and distinct claim brought within the same proceedings - satisfied that this counterclaim within these proceedings comes within the definition of “legal proceedings” - within the counterclaim there are clearly pleadings that solely seek damages and therefore do not come within the rubric of s. 182 - estoppel case - bankruptcy summonses - link between the bankruptcy process and the timings with regard to the amended defence and counterclaim - nothing within the statute which precludes a claim of estoppel, laches or delays from being advanced pursuant to this amended defence and counterclaim – leave of court required - no argument that reaches the threshold criteria of substantial issue as to any alleged breach of contract by NALM in enforcing its security or its entitlement to appoint the plaintiff receiver - cannot discern any estoppel being raised to meet the threshold criteria of a substantial issue on the basis of any of the representations or assurances made - no substantial reasons why the application was not made within 30 days - bulk of the counterclaim is a claim for damages – Court satisfied that the matters coming within s.182 (2) of the NAMA Act would be properly also be met with an award of damages – leave to serve amended defence and counterclaim refused.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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