The High Court has agreed to review its decision to refuse approval for a rescue plan for two companies in the McInerney construction group.

Mr Justice Frank Clarke accepted arguments from the company that new information had come to light since his ruling two weeks ago refusing to approve a rescue plan or scheme of arrangement.

McInerney had asked the judge to re-visit his decision, which was given prior to a formal order of the court, after it became clear there was a high probability its loans would be transferred to the National Asset Management Agency.

The original refusal to approve a survival scheme was based on the fact that a syndicate of three creditor banks would be unfairly prejudiced by it. The banks, which are owed €110m, had contended they would do better by appointing a receiver to the companies.

But last week lawyers for McInerney said the loans from two of the three banks in the syndicate would be transferred to NAMA. As a result, the company claims the banks would not be in a position to appoint a receiver, thus removing any prejudice.

Mr Justice Frank Clarke said both McInerney and the banking syndicate were to blame for not dealing with the prospect of NAMA's taking over the loans in the original hearing.

The transfer of part of the loans to NAMA was not of itself a material matter because it would simply mean that NAMA would become the lender instead of Anglo Irish Bank and Bank Of Ireland, he said. The contractual position between the company and the lender would remain the same, according to the judge.

But he said the effect of the transfer on the likelihood of a long-term receivership model being followed was of considerable importance in considering whether or not a survival plan was prejudicial to the banks. The probability that the loans would be transferred to NAMA was a material fact which was not before the court when his decision was made.

He invited both sides to address the issue in sworn statements by next Tuesday, adding that he would expect 'realistic assessments' rather than submissions of formal legal positions. The case will be mentioned before the court next Friday.