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Martina Devlin: Taxpayer has to foot bill for 'bankruptcy tourism'


SO, Tom McFeely was strolling along a pavement in London and happened upon the legal quarter, where he thought: "Sure I might as well take the bull by the horns, as my dear old cattle dealer dad taught me, and file for bankruptcy while I'm here."

Not that the developer was manipulating laws to his own ends. Nor was he intending to frustrate the Irish taxpayer, left with a bill for his wheeling and dealing, and eyeing up assets to offset some of it. It's simply a coincidence that creditors won't be able to pursue their claims against him so easily now.

And as for Mr McFeely shedding his hardline republican principles to treat with the traditional enemy -- business is business. Even a former Maze Prison hunger striker learns to accept that.

All in all, it was just convenient to have insolvency declared in Britain. It was equally handy for brothers Ray and Danny Grehan, of Glenkerrin Homes, who also beat a path to the British courts. They share the dubious accolade of settling on the highest figure per acre for property during the boom, overpaying handsomely for the UCD Veterinary College, now a car park. Actually, who wouldn't prefer to own a car park than a house?

And then there was Sean Quinn, once Ireland's richest man, who suddenly decided the North was his centre of business despite being Cavan-based for decades, and applied to a Belfast court for bankruptcy.

Mr Quinn's UK adjudication has been overturned following legal action by the bank formerly known as Anglo, acting on behalf of the taxpayer. The grounded entrepreneur -- Irish bankruptcy means you can't leave the State without informing the appropriate authority -- is now dealing with creditors in the Republic, rather than in the more lenient jurisdiction where he tried his sleight-of-hand. However, since even the roof over his head is owned by his children, for 'convenience' doubtless, the battle will continue with the Quinn Juniors.

The Government hasn't said if it will challenge the McFeely and Grehan insolvency rulings -- but it ought to step up to the mark, if only to deter other developers. The trickle will turn into a tide unless the State clamps down, and the taxpayer will take another bath.

That's because a new form of tourism is proving popular with certain sections of our business community. It's called bankruptcy tourism, otherwise known as forum shopping.

Mr McFeely's Irish lawyers were caught unawares by his action, midway through contesting bankruptcy proceedings in Dublin on behalf of the man behind the infamous Priory Hall complex. It was evacuated amid health and safety fears, otherwise known as developers cutting corners.

Bankruptcy tourism is an example of that old Hydra, moral hazard, rearing one of its many heads -- standard business practice in Ireland, where all the profits go to the individual and all the losses get manoeuvred on to the taxpayer.

But I have another name for it. It's wrong. Except wrong, as we learned to our cost, doesn't automatically equal illegal.

If Mr McFeely pulls off this stroke, it's a useful get-out-of-jail-free card for a man who broke out of maximum security prison Portlaoise with gelignite, and subsequently spent years locked up in the H-Blocks.

It must be ironic for someone with presumably strong views on the British penal system, after 53 days on hunger strike, to realise British bankruptcy arrangements are softly-softly compared with ours. Bankrupts are clear in 12 months or less, compared with 12 years in Ireland, and a more indulgent attitude to overwhelming debts is applied.

These bankruptcy tourists -- Mr McFeely, the Grehans and Mr Quinn -- are shedding personal responsibility and looking after number one. Equally, they might argue the banks were negligent in their lending, yet have been pardoned their sins. Bank of Ireland's Richie Boucher, who headed the retail financial services division at the height of the reckless era when it ramped up lending to compete with Anglo and others, became chief executive in 2009 . . . the ultimate insider appointment.

And so, when developers see the insider class treated with kid gloves, no wonder they are inclined to shrug and apply to British courts -- even though it means their debts landing on the taxpayer, already buckling under the weight of demands.

Our ongoing tolerance for insider appointments and cosy arrangements in corporate Ireland has consequences.

Even now, the mantra remains: all of the profits and none of the liabilities. How prescient was Lenin, in his 1916 book 'Imperialism, the Highest Stage of Capitalism', when he noted a fundamental principle of the capitalist state was to amalgamate itself with the banks and industry. "Capitalists are no more capable of self-sacrifice than a man is capable of lifting himself up (literally) by his own bootstraps," he said. As we see only too clearly today.

Reform of our outdated bankruptcy laws is long overdue, and fortunately the Troika is on the Government's case. The Coalition is obliged to publish something within a few months. But that alone is inadequate: we need laws enacted, fast, to dam an outflow of developers.

Twelve years of bankruptcy is excessive, especially where victims are ordinary businessmen and women in difficulties due to the recession, rather than because of attempting to carpet the country in housing estates and apartment blocks.

It is right and fair to allow them to start over after a reasonable period, but perhaps the timeframe should be adjusted for scale. Someone €300,000 adrift ought not to be treated the same as someone €300m or more in debt. I suggest different durations depending on the debt.

Which reminds me of the Grehans. Ray was ordered by the Irish courts to pay €312m to NAMA last year, and Danny has a personal judgment of almost €300m against him. The taxpayer is likely to be the Grehans' largest creditor. No sign of them being keen to settle up, yet they can go back into business next January.

Ray Grehan said recently he expected hundreds of builders to follow him and apply for bankruptcy over the water. The State standing by while that happens won't protect the creditors' interests -- AKA you and me.

To us, the British quick-fix solution means slow suffocation under yet more debt.

Irish Independent