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Thursday 16 April 2015

What would you do if someone was stealing your property? Remember this has never yet reached a courtroom to determine ownership.

Talks between Sean Quinn's family and the liquidator of IBRC about a legal settlement might have come as a surprise to some people. The high profile and vitriolic battle between both sides since the old Anglo Irish Bank moved on Sean Quinn's business in 2011, would
This toxic financial and legal war has been both nasty and for the Quinns at least, personal. Two Quinn family members spent time in prison for contempt of court. Another, Peter Darragh Quinn, failed to show up in court for a contempt hearing, opting to hide north of the border instead.
Actions by some Quinn family members have forced IBRC to spend four years and tens of millions of euro trying to take possession of properties pledged as security by the Quinns on loans that remain unpaid.
It is a battle that has seen action in courts from Dublin and Belfast, to Stockholm, Cyprus, Belize, Panama, Kiev, Moscow and Hyderbad in India.
A settlement between both sides of all outstanding legal issues might yield a higher financial return to the liquidator and the taxpayer than continuing with the fight. However, it will raise questions of moral hazard and would vindicate the actions of the Quinns in deliberately putting assets beyond the reach of the bank.
So, what is there to settle and why might the IBRC liquidator, under the instruction of the Minister for Finance, do a deal?
The Quinns are taking a High Court action against IBRC, the State and the Central Bank. They claim €2.3bn of loans given by Anglo to the family to cover Sean Snr's CFD gambling in Anglo shares was an illegal transaction by the bank. The High Court action is expected to begin in June.
If the Quinns win, they will seek massive damages from the State. Even if they lose, the case will dredge up old sores, sensitivities and probably new information that could be very embarrassing for the Central Bank, the Department of Finance and Anglo.
If the Quinns lose, IBRC would then be obligated to pursue the Quinn family on foot of the €500m worth of personal guarantees they gave on those loans.
The family have not been pursued pending the outcome of the High Court action. But the IBRC liquidator would be expected to take personal assets and homes of Sean Quinn's son and daughters. Sean Quinn's multi-million euro home in Cavan is owned by the Quinn children and would also be up for grabs.
It is hard to see the IBRC liquidator having much of an appetite for all of that. It is hard to see him getting a buyer for Sean Quinn's home after it had been repossessed. It would prove messy, lengthy, expensive and probably not yield a lot of money.
Sean Quinn may be bankrupt but it is worth noting that we have no idea how much the Quinn children hold in personal assets.
IBRC is also suing some members of the family for deliberately seeking to put hundreds of millions of euro worth of international property beyond the bank's reach in a scheme described by a High Court judge as "mesmerisingly complex", "reeked of dishonesty" and aimed at "feathering their own nests."
A full settlement would probably see this action dropped.
The Quinns still owe IBRC €2.8bn. The bank has already made a provision against about €2.3bn of that money. Does that mean, in a settlement, the Quinns would pay nothing towards that bill? The idea that they could just walk away and retain their personal assets after borrowing €2.8bn and pledging €500m in guarantees, would be an affront to every person struggling to pay their mortgage or facing bankruptcy and repossession.
IBRC has already spent between €30m and €50m in legal and other fees trying to get control of property assets pledged as security on Quinn loans. It would do well to get €200m for what was originally €500m worth of assets. Some of those assets have been hived off to various international entities and IBRC is still locked in legal battles to gain ownership.
The Quinns say they are not the beneficiaries of those properties. Presumably, in the event of settlement, all legal actions seeking to recover tens of millions in missing rent and ownership of these assets would simply stop.
The sad fact is that the delays caused to IBRC by the behaviour of Quinn family members has cost the liquidators time and money. During the years it took to get control of property assets in Ukraine and Russia, their value has plummeted on the back of economic uncertainty and currency collapses.
The value of assets that were pledged as security has been driven down by the responses of the Quinns. This will result in several hundred million euro less flowing back to the exchequer.
IBRC liquidator Kieran Wallace will do the maths on all of these cases. As a liquidator he has a specific and defined job to do. On paper, that job does not include issues of moral hazard or the punishment of the appalling behaviour by some of the Quinns.
He will want to complete the liquidation and get as much back for the taxpayer as he can. As a politician Michael Noonan will have to take a broader approach. He will have to concern himself with how doing a deal will look politically. What would such a deal say about fairness and accountability in our society?
He will have to weigh up the financial pragmatism of a deal, with the question of fairness and the moral vacuum it could create.
It is too early to say exactly what the terms of a deal might look like. On some issues the Quinns have a point.
For example, if Anglo had not lent them all that money, their losses would only have been the €300m deposit that was put down on the CFDs. It would have been a big hit, but only 10pc of the €3bn that was actually lost.
However, for that to happen every other bank would have had to say no to Sean Quinn and declined to fund his CFD losses. At a time when banks were falling over each other to lend, it is highly unlikely that no other bank would have lent the money.
Did Anglo cross all of the Ts and dot all of the Is on every detail of these loans or are there gaps in the paperwork as claimed by the Quinns?
However, there are aspects to the collapse of the Quinn empire that have shown some of the Quinns in a very poor light.
Selling on millions in group debts for as little as €1,000 or a laptop was a deliberate attempt to thwart the State-owned bank.
The High Court even found that the asset-stripping exercise continued after they were ordered not to do so.
Awarding massive new salaries from subsidiary companies while Anglo was literally at the door is another.
The mechanisms used in the clean up of the banking crash have not been transparent enough given the extent of the taxpayer losses. Whether its Nama, receiverships or liquidations, they don't have the transparency mechanisms which give people at sense that they are getting the full story.
As the likes of Nama and the IBRC liquidation move towards their endgame, resolving final investigations and pieces of litigation will move centre stage.
Out-of-court settlements may result in better financial outcomes but might not be the best thing for society as a whole. I can only presume the details of a confidential out-of-court settlement in the Quinn case would not even be published.
There is a sense of fatigue with people about all of this. They are scarred by the financial crash but also want to move on.
Settling this litigation would speed up the completion of the IBRC liquidation and allow the liquidator to distribute any surplus to creditors/the exchequer more quickly.
That is money that could be used to fund investment or tax cuts. It is very tempting for the government.
The question is whether something else, less quantifiable would be lost in the process.
There is no doubt that Sean Quinn achieved something extraordinary in business and job creation. But he blew it. And it has cost him and all of us dearly.
I never believed the State would allow the Quinn High Court action to go ahead. Similarly, I could never envisage IBRC/Anglo pursuing the Quinns for their personal guarantees. I first speculated back in December 2012 that a deal would be done.

As with so many other aspects of this €60bn financial crash and clean up, we will never know the full story.

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