How does a bugged conversation end up with an heir being pursued around Europe for unpaid debts? News last week that Alistair Barclay had been tracked down in Monaco after a months-long search by creditors was the latest twist in the unravelling of the Barclay family empire.
Built on property, and expanded into hotels, newspapers, fashion, retail and more, their wealth was as legendary as the love of privacy which led them to build their own fortress on Brecqhou, their island off Sark. Today, their media interests (The Daily Telegraph and Spectator), retail business (Very), Sark property portfolio, and delivery group Yodel, are all gone or likely to be sold as lenders look for repayment of the group’s complex debts.
Succession
Much has been written – or said in various courts – about the origins of this family’s difficulties. Some point to tensions about succession between Sir Frederick (who has one daughter) and Sir David (four sons), others to a broader souring of the relationship, manifested in events such as the alleged bugging of Sir Frederick’s private meetings by some of Sir David’s children. The latter’s death and the former’s hotly contested divorce arrangements have added to the disharmony.
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The emotional fallout
What distinguishes any family dispute from a mere fight about money is the emotion. The arguments are never just about Granny’s will or the terms of a trust – they are overlaid with a lifetime of who said or did what and to whom, thickly woven with perceptions of unfairness or exclusion.
And in a different league entirely are disputes relating to a family business. They both involve and impact the business itself, and its dealings with suppliers, customers and above all lenders.
One characteristic of big-money family disputes is that they are often relatively private. While litigation in England is nowadays almost always public, proceedings in other jurisdictions (for example, where an offshore trust is involved) may still be heard behind closed doors.
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But there are plenty of ways a dispute can spill out into the public domain. Divorce proceedings are public (in England at least) and can result in the details of family disharmony becoming known. And if lenders get a whiff of the dispute, or for their own reasons start to seek repayment of loans, the family members whose personal disagreements started the process may soon feel that they are aboard a runaway train.
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The relationship between lenders
Relationships with business lenders are special and, to some extent, capricious. While, of course, based primarily on commercial factors, a crucial part of the decision to lend may often lie in the financing party’s belief in the key individuals and their ability to lead the borrower company successfully.
A bank may have a longstanding lending relationship with a company owned and run by an experienced individual. If they retire or die, or a family dispute erupts, the bank may naturally look very differently at the ability of the business to operate consistently and repay its debts. Erosion of a lender’s confidence in the stability of the business may affect the chances of renewing the loan when its term ends, or of increased lending (which can be helpful in a dispute, to buy out some family interests). Worse still, if the value of the company is impacted by the uncertainty, that can cause it to approach or breach its banking covenants – the percentage of its value above which the lending cannot go – triggering an immediate need for cash to repay the loans, or a forced sale of the business.
Mediation: finding a solution
What can stop the runaway train? Well, there are plenty of options to prevent it: open discussions about succession and family governance; good structuring; and using mediators rather than judges to resolve disagreements. While a judge can only answer the question in front of them – who is right, and who is wrong – mediation can help to find a solution to the broader problem (‘how can we get out of this mess’).
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It’s rarely too early, and never too late, to mediate, and anyone can do it, whether commercial parties or family members. Even when a dispute is public, or lenders are showing signs of discomfort, a mediation can be used to conclude matters privately, limiting the damage. Borrowers and lenders can agree on terms for assets to be sold or refinanced; or family members can agree to end hostilities (whether by dividing the wealth or sharing it in an agreed way), which can sometimes offer enough reassurance of future stability that lenders are prepared to stay their hand.
It’s always better to talk, even if matters have escalated to the point where creditors are chasing you round Europe.
Arabella Murphy is the founding director of Propitious (London) Ltd, a strategic consultancy focusing on HNW risk planning, family governance and mediation.
