Shareholders, Directors and Defacto Directors Should Pay LIAT (1974) Ltd Debts
Submitted by Jolly Green
LIAT has been traded for many years while making massive losses, and those losses were compounded by the gigantic taxes lodged against local air travel by the shareholder governments, despite many warnings about the excessiveness of those taxes. But each time LIAT got into financial difficulties, the shareholder governments put money in to make up the shortfalls. Which meant staff wages got paid, along with creditors. So, people stayed with LIAT, because they knew, or thought they knew that the shareholders would always bail out LIAT. Everyone thought their job was safe, and the creditors thought their money was safe. But LIAT was bought by the shareholders as an insolvent company and was knowingly traded by them ever since as an insolvent company. Now when it suits them, they want to walk away leaving a trail of debts.
The employees and creditors of LIAT were lulled into a false sense of security for many years past. I remember in 2013 a Bajan lady journalist called Beverly Sinclair, interviewed prime minister of Saint Vincent and the Grenadines Dr Ralph E Gonsalves. She did so on a range of issues, including LIAT, in which St. Vincent and the Grenadines, Barbados, Antigua and Barbuda, and, to a lesser extent Dominica, are the major shareholders.
Gonsalves who was then and is now the Chairman of LIAT’s shareholder governments he was or is also CARICOM’s lead spokesperson on air transport. Therefore, people would expect to be able to believe any statements a man described as the Honourable Prime Minister of SVG made as head of authority in both those positions. He was the man who everyone regarded as the spokesman, the leading authority even, for both CARICOM and LIAT on matters of local and regional air travel.
Gonsalves always had plenty to say about everything, and he certainly had plenty to say about LIAT. He must have had the full backing of the shareholders and CARICOM because none of them objected or protested at the statements he made or the actions he took, he was acting on their behalf as their official spokesman, administering their policies.
LIAT had made more massive losses, and the shareholders were putting in more money to keep it running. In the interview, Ms Sinclair opened with “It is generally good business sense to only invest in viable enterprises.” Gonsalves seemed to be unsettled by the question. But he argued that more countries needed to invest in LIAT.
To which she replied, “But, Dr Gonsalves, if you have a business and you are asking investors to come and put money in it, it should be a business that’s viable.”
Gonsalves reply may surprise many people now because it did then. “With respect, you completely misunderstand air transport.” “Ma’am, ma’am, ma’am, you completely misunderstand regional air transport.” She then accused the Prime Minister of assuming what she knows.
In his usual belligerent way, he went on to say “From that comment. Let me tell you why you don’t know. You don’t know because air transportation inside of the eastern Caribbean is not anything of the luxury type of investment. It is an absolute necessity — an absolute necessity for islands”. He further stated that when his Unity Labour Party government decided to invest in LIAT shortly after coming to office in 2001, he told Parliament that he was investing in an insolvent company.
There, right there, is the killer for Gonsalves ‘he told Parliament that he was investing in an insolvent company’. Because now he has told everyone he invested in a company knowing it was insolvent.
Gonsalves told Ms Sinclair that he told lawmakers then that if LIAT didn’t exist, it ought to have been invented “and that the important thing is for us to get involved in that company, put money in it to try to make it better”. He said that “until this recent problem, we have made LIAT better than what it was in 2001.
Gonsalves continued “This is why I make the point with crystal clarity. A regional airline of this kind, this is not anything which is going to make money. This is a service that must be provided, and we seek, if we can break even with this service, fine. But you cannot make money out it.”
So, there was an admission that they continued trading LIAT, knowing it was losing money, hoping it would break even, but not expecting to, reflected in his nonchalant style of reply. Gonsalves said that the same investment criteria as for a hotel or a beer factory could not be used in relation to regional transport.
All this supportive rhetoric by Gonsalves built false confidence in all the creditors and employees, much as I suspect it was designed to do.
Please read the whole article; it was a sterling piece by IWitness News SVG and will be a significant contribution to the historical records of SVG and the region. Be sure to read the comments they are all exposing and genuinely relevant.
Under the direction of Dr Ralph E Gonsalves, PM of SVG, who is also Chairman of the Shareholders, spokesperson and for CARICOM on air transport. LIATS shareholder governments have been directing LIATS board of directors for years, the directors with the full knowledge of the company being insolvent, they have been trading the company while insolvent.
Therefore, the directors and certain politicians from shareholder government who have proven to be, and acted as de-facto directors, may perhaps be held in law responsible for the debts, due to knowingly trading the company and in doing so incurring further obligations, liabilities and debts. Misleading the public, the staff and workers of LIAT and all the creditors, including the bankers and aircraft lessors into believing the shareholder governments would keep funding LIAT whenever they got into financial difficulties. So, unless the shareholder governments announce they are paying all debts in full the shareholders, directors, including de-facto directors, should perhaps be held liable and responsible for paying all debts in full and sued for the same by everyone who lost money in LIAT.
Talking of de-facto directors, perhaps we should also remember the hiring of Jean Holder, who did that? The buying of new aircraft which at the time everyone said were an unsuitable choice, who approved that? Was it the board of directors or the Chairman of the shareholders?
There is so much written about who said what out there that it would take a hundred pages to list it all, I could do that, and perhaps I will, at some other juncture.
What I am saying is that the shareholder governments cannot hide behind liquidation, where everyone loses money except them. They are the culprits in trading while insolvent and as such are responsible for the losses. They acted as de-fact directors. They provided the mouthpiece that fooled creditors and employees, so they should pay up.
As the director of an insolvent company, you have specific duties and responsibilities you must meet. If you fail to uphold those responsibilities, then you could be accused of wrongful trading and held personally liable for company debts. Engaging in any of the following practices while you are in control of the affairs of an insolvent company will significantly increase the risks:
Carrying on trading with no intention of repaying
You must not continue to enter new contracts and trade when you know you have no reasonable prospect of repaying your creditors.
Attempting to repay debts through fraudulent means
If you try to repay debts through dishonest transactions, you cannot fulfil or using misleading information to obtain loans; then you could be convicted of fraudulent trading. Unlike wrongful trading, fraudulent trading is a criminal offence that could lead to a custodial sentence as well as personal liability for company debts.
Selling assets for less than market value
You might think that selling assets at a reduced price to raise funds quickly and repay your debts would be an accepted practice. However, it could lead to your creditors receiving less of the money they are owed on liquidation. The court can reverse such transactions and order you to refund the proceeds of the sale.
Repaying some creditors and not others
Company directors are obliged to act in the best interests of the creditors. Making payments to some creditors, and not others are called showing ‘preference’. As an example, you may choose to repay a personally guaranteed loan or pay a supplier you know personally. The court can reverse such payments and order the creditor to refund the money.
A Danger for LIAT creditors
A possible danger for the creditors of LIAT, one and all, is that some of the shareholder governments leaders control the insolvency laws in their own countries. Some [at least one] have even been known to make or alter laws [not insolvency laws] overnight which could protect themselves, colleagues, and wrongdoers. Taking the bill to Parliament in the morning, giving it three readings, and then walking away, and allowing others to do the same, scot-free of any liability, or prosecution under the law. That was when the honourable went in a different direction.