Lawyers for developer Paddy McKillen have told the Supreme Court it is necessary to guard the right to fair procedures in times of calm and in times of trouble.
The court was hearing an appeal by Mr McKillen aimed at stopping the transfer of more than €2 billion of loans to the National Asset Management Agency. Unusually, seven Supreme Court judges are hearing the appeal.
Mr McKillen's lawyers have made it clear to the Supreme Court that most of the facts in his appeal are unique to him and do not apply to other borrowers taken in to NAMA.
They say the High Court failed to address the facts specific to Mr McKillen - such as the fact that he is making all the interest repayments on his loans, that he has an income of €150m a year from his properties and that even if they were sold now, he would have an equity redemption of €200m.
Senior Counsel Michael Cush, said the High Court had completely ignored the damage to the value of Mr McKillen's properties which would be inflicted if they were acquired by NAMA and if the agency then forced the sale of the properties in a terrible market.
Mr Cush said the potential interference to his property rights was such that Mr McKillen should have been given an opportunity to make his case to NAMA.
Mr Cush said Mr McKillen was prevented from making submissions to NAMA before a decision was taken to acquire his loans, and the legislation prohibited him from making submissions after the acquisition. He said it was a total shut-out. And he told the judges there had never been a case where a total denial of fair procedures was sanctioned by a court.
Mr Cush said the High Court had not conducted an analysis into whether there was a justification for denying fair procedures in this case at all. Mr Cush referred to a United States court case from the McCarthy era - he said there was a necessity to guard fair procedures in times of calm and in times of trouble.
Seven Supreme Court judges are sitting to hear this appeal - something that happens only in exceptional cases. It will continue tomorrow.
