How one developer's fight ignited a State vs State battle
Paddy McKillen's struggle to save his property empire doesn't look like ending amicably any time soon, writes Tom Lyons
Alan Dukes, the wiry, steel-haired former Fine Gael minister for finance, surveyed the black granite and wood boardroom table on the top floor of Connaught House, No 1, Burlington Road. Although he didn't realise it, it was to be one of his final meetings as chairman of IBRC, formerly Anglo Irish Bank, which the State was plotting to plunge into liquidation a few weeks later on February 6.
As always, Dukes had a packed agenda as the bank thrashed through the numerous problems facing the lender which was doing its best to claw back money for the taxpayer. One of the issues that arose related to Paddy McKillen, the 58-year-old property investor who was IBRC's biggest borrower when his personal and joint venture debts were combined.
McKillen had run up a big legal bill fighting the Barclay twin brothers for control of Coroin, a company which owned London's best hotels – Claridge's, the Berkeley and the Connaught – and required more money to keep fighting his case.
He was asset rich but temporarily cash poor as he awaited the proceeds from the sale of an unencumbered asset on the east coast of America, which he planned to use to fund his legal action.
IBRC had long been supportive of McKillen taking the action to try and overturn the National Asset Management Agency's decision to sell loans associated with Coroin, once-owed by Derek Quinlan, to the Barclay brothers. The State-owned bank backed McKillen because it believed it would recover more by working with him.
Now McKillen asked IBRC for a bridging loan to allow him continue to pursue his court case. The bank mulled the decision over and asked various questions. A decision to advance McKillen a further £5.9m was made.
In the last week of March, The Sunday Times contacted McKillen after the newspaper had been leaked confidential IBRC documents containing intimate details of his financial affairs.
IBRC was by then in liquidation and McKillen was in refinancing talks stretching from London to the Middle East. A leak of this kind appeared designed to damage him.
The Sunday Times also wished to publish details of a confidential commercial relationship between McKillen and Denis O'Brien.
McKillen and O'Brien sought an injunction to block the publication in a seven-hour emergency meeting in the High Court. The two men claimed the publication of sensitive documents relating to their business affairs would cause them "irrevocable damage".
An interim injunction was granted by Judge Colm MacEochaidh who also made the unusual remark that he felt O'Brien's comments on his colleague Judge Michael Moriarty in relation to an unrelated matter were "contemptible".
McKillen made a complaint to the gardai about the leak and he is determined to discover who was behind it. The court decided to allow a report that a further loan had been extended to McKillen from IBRC but not the nature of his business relationship with O'Brien.
The fact that Paddy McKillen required a loan from IBRC for such a relatively small amount would inevitably, he feared, be used by his enemies to undermine him. McKillen was locked in talks with various banks to refinance his debts to IBRC. He had a deal with the bank's previous management to do this over three years but the liquidation of IBRC accelerated events. Negative publicity was not what he needed.
McKillen's investment property empire spans several continents with interests in Dublin, Boston, Buenos Aires, London, Doncaster and California.
His assets generate millions in rents and at times he is cash rich. In May 2012, for example, McKillen has said he had £40m (€47m) in what he called "free cash," from selling €150m worth of buildings. At the end of 2012 McKillen's son sold a mansion in California for $39m (€30m).
But McKillen's outlays were big too. Besides the expensive court case against the Barclays he had to invest money in upgrading his properties. Things could also be tight.
Richard Woodhouse, a senior IBRC executive, and others in the State-owned bank, had worked hard with McKillen to keep his empire together through the global crisis.
Broadly, McKillen personal and company loans from IBRC (totalling about €900m-odd) fell into three categories – there were loans held in partnership with Tony Leonard; loans held jointly with Padraic Drayne; and his personal debts.
His personal facility includes his stake in Coroin, houses in the billionaire's playground of Cap Ferrat, France, and various equity loans.
McKillen's equity in Coroin could be worth €200m or more. Immensely rich Middle East backers were prepared to back McKillen if he could defeat the Barclay brothers.
IBRC decided to work with McKillen to help him unlock Coroin's value and use this surplus cash to help him refinance all his debts.
Conversely, if Nama got hold of his loans, McKillen believed, it would rip his empire apart by selling off his assets piecemeal. Its agenda was to get cash in for the Irish State – not keep developers afloat. It would acquire McKillen's loans at a discount so it didn't have the same need to recover every euro of his loans.
Phase one of his refinance began last December when McKillen provisionally agreed with IBRC he would refinance €179m of his debts relating to mainly American properties owned jointly with Tony Leonard. Two banks were lined up to do the deal which required a relatively minor single-digit writedown relating to the refinancing, including waiving of penalty clauses. Kieran Wallace of KPMG, IBRC's special liquidator, turned the deal down, as he has done with other customers of the bank that are not regarded by him as being at full par.
KPMG's position is it won't agree to do any deal, even if , in their eyes, it is only marginally less than full par, with borrowers prior to completing a full valuation of their loan portfolios.
On April 7, McKillen's lawyers claimed the secretary general of the Department of Finance, John Moran, had engaged in an "inappropriate level of contact" and exhibited "inappropriate informality and familiarity" with Richard Faber, a representative of the Barclays.
The emails produced by McKillen after a Freedom of Information request certainly show Moran in cordial conservation with Faber. But was this an indication of anything untoward?
Minister for Finance Michael Noonan didn't think so and he rapidly backed Moran who he described as "absolutely" acting correctly. The department only released six out of 19 documents relating to McKillen so this story may have more to run.
On April 26, McKillen's Dublin lawyers Lyons Kenny lodged a statement of claim on his behalf against the National Asset Management Agency. The claim reproduces emails and other correspondence between Nama and representatives of the Barclay brothers.
McKillen contends that some of these emails show Nama "improperly offered to assist the Barclay interests", by supplying it with confidential information about Coroin and McKillen.
For example, McKillen produces in his claim a memorandum prepared by Aidan Barclay, the son of David, setting out a "Q&A" he had with Nama. The memo, McKillen alleges, shows Nama and the Barclays discussing strategy on how best to deal with McKillen and Coroin. McKillen has also produced emails he believes that show the Barclays lobbying Nama to his detriment.
He believes Nama has broken its own rules in its treatment of him. In his court action he claims he has "suffered loss, damage, inconvenience, and expense", as a result. Nama refutes this and states it plans to "vigorously defend" itself against the action.
The experience of Derek Quinlan, McKillen's former partner in Coroin, demonstrates the stakes involved. Quinlan went from being a titan of Irish business to employee status.
Quinlan will have reduced his personal and associated debts to Nama by €2.75bn when the sale of the Citi tower in London is completed later this month.
He is packaging up his remaining assets, various minority stakes in about 25 investments, so that Nama can control them.
He will never be able to repay over €100m of his personal debts and maybe considerably more if various syndicates he is involved in are included. However, Quinlan has not gone bankrupt. At 67 he is reliant on funding from the Barclay brothers to pay the bills.
Quinlan now hopes to start again from scratch with a new company run with his business partner Gerry Murphy called Pembridge Capital.
McKillen has no plans to go as quietly – or to give in.
In a statement he told the Sunday Independent: "Every decision concerning my loans taken by the Department of Finance and NAMA since 2010 has been to my disadvantage with no benefit for the taxpayer.
"All of my loans are fully performing and I agreed a plan to repay all of my loans in full with no discount sought at all over three years. This is the best possible deal for the State," he said. McKillen said he believed the actions of Nama and the Department of Finance in relation to him were "bizarre" and would cause "catastrophic damage".
The McKillen story has more to run.