9) Corporate Insolvency I Flashcards
Principal statute dealing with corporate insolvency
Insolvency Act 1986
Amendment of IA1986
- Enterprise Act 2002 - promoted rescue of companies, and new admin procedure
- Small Business Enterprise and Employment Act 2015
- Insolvency (England and Wales) Rules 2016
*Corporate Insolvency and Governance Act 2020
Two key insolvency procedures introduced by IA 1986
Aim of corporate rescue
* Company voluntary arrangements
* Administration
Corporate Insolvency and Governance Act 2020 introduced
- Restructuring plan also aimed at rescuing the company
Meaning of insolvency
s122(1)(f) IA 1986
A company must be wound up “if it is unable to pay its debts”
Four tests of insolvency
- The Cash Flow Test (123(1)(e))
- The Balance Sheet Test (123(2))
- Failure to comply with a statutory demand for a debt of over £750 (123(1)(a))
- Failure to satisfy enforcement of a judgment debt (123(1)(b))
The most commonly used tests for insolvency
Cash flow test
Balance sheet test.
s123 (1) (e)
The cash flow test = an inability to pay debts as they fall due.
s123(2)
The balance sheet test = the company’s liabilities are greater than its assets.
s123(1)(a)
Failure to comply with a statutory demand for a debt of over £750
s123(1)(b)
Failure to satisfy enforcement of a judgement debt
Directors’ obligation in financial difficulties
Directors must review the financial performance of a company and recognize when it is facing financial difficulties
Directors have a duty to promote the success of the company for the benefit of the members as a whole
s172 CA 2006
Duty of directors in insolvency
Duty changes in cases of potential insolvency from members to creditors.
Interest of creditors are to be balanced alongside the interests of the members
Case that clarifies the interests of creditors against members
BTI 2014 LLC v Sequana SA
BTI 2014 LLC v Sequana SA
Principle
The further a company deteriorates and less likely it is to recover, more weight should be given to the interests of creditors.
Who can enforce a breach for not considering the interest of the creditors
The company, liquidator s or adminstrator
The duty is owed to the company, not the creditors and only the company can enforce the breach
BTI 2014 LLC v Sequana SA
Three principles - when to consider creditors
- Not when there is a risk of insolvency
- Duty engaged when
- Balance sheet or cash flow insolvent; Bordering on a state of insolvency; Likely to enter a formal insolvency process.
- Interests of creditors prevails where insolvent liquidation or administration is inevitable.
BTI 2014 LLC v Sequana SA
Case
- Liability for river pollution
- Dividend payment was allowed
- Did not amount to defrauding creditors.
- Scale of liability was uncertain
Options for a company facing financial difficult
- Do nothing
- Apply for pre-insolvency moratorium
- Do a deal
- Appoint an adminsitrator
- Put the company into liquidation
Options for a company facing financial difficult: Do nothing
Directors risk personal liability under IA 1986 and breach directors’ duties under the CA 2006
Options for a company facing financial difficult: Apply for a pre-insolvency moratorium
This gives the company some “breathing space”
Options for a company facing financial difficult: Do a deal
Reach either an informal or formal agreement with the company’s creditors with a view to rescheduling debts.
Options for a company facing financial difficult:
Appoint an administrator
Collective formal insolvency procedure which aims if possible to rescue the company.
Options for a company facing financial difficult:
Liquidation
Collective formal insolvency procedure under which a company’s business is wound up and its assets transferred to creditors and (if there is a surplus of assets) to its members.
Corporate insolvency procedures
- Informal arrangements
- Formal arrangements
- Company voluntary arrangement
- Restructuring plan
- Administration
- Liquidation.
Key feature of formal arrangements
- CVAs and Restrucuturing Plans
- Directors remain in control of the company and can exercise
Administration and Liquidation - control
Take control of the company and the directors are then unable ot take decisions on behalf of the company
Informal agreements
- To avoid time and cost of formal insolvency
- Difficulty is getting all creditors to agree to decisions on behalf of the company
- additional payments / security / reschedule debts / hold salaries.
- Standstill agreements
Standstill agreements
Agree not to take enforcement action for a certain period of time to give the company a breathing space to reach agreement with other creditors.
Likely to decline in use following CIGA 2020, pre insolvency moratorium
Pre-Insolvency Moratorium
- Pre-insolvency moratorium for struggling companies that are not yet in formal insolvency rocess.
- Moratorium is a period during which creditors are unable to take action to enforce debts.
- Comes to an end when enter formal arrangement or insovlency procedure
CIGA 2020
Moratorium
- A period during which creditors are unable to take action to enforce debts.
- Lasts 20 business days, can be extended for another 20. Further extensions can be agreed
- Max is up to 1 year
- Court order to extend further.
Procedure for obtaining the pre-insolvency moratorium
- Apply to the court s A3 IA 1986 accompanied by s A6
- Statement that a company is, or is likely to become unable to pay debts
- Statement from a monitor, that this is an eligible company (sch ZA1)
It is likely that a moratorium will result in the rescue of the company. - Moratorium into force once documents are filed.
- Monitor steps in
Monitor
- Specialist external individual - usually accountabnt.
- Has responsibility to notify the registrar of companies and creditros of the company that the moratorium is in force.
- Has a supervisory function
Company Voluntary Arragement
s1(1) IA 1986: “ a composition in satisfaction of its debts or a scheme of arrangement of its affairs”
* Agreement for part payment or timetable
* **Must be reported to a court **- need not be approved (s4(6))
* Implemented by an Insolvency Practioner
s1(1) IA 1986
A composition in satisfaction of its debts or a scheme of arrangement of its affairs
Setting up a CVA
- Company not in liquidation or administration - directors draft proposals and appoint nominee.
- Submit proposals to nominee (Insolvency Practitioner)
- Considered within 28 days, report to a court on whether to call a meeting of company and creditor
- Nominee to give 14 days meeting to creditors
- Voting
- Nominee reports to court on approval
- Supervisor and proposals
Voting on CVA
Proposals must be approved by:
- 75% in value of creditors
- Simple majority of members
How are CVAs used
- Either alone or within administration
- To reach a compromise with creditors - especially landlords
- CVA’s remain in control of the company, can trade.
- Disadvantage cannot bind secured or preferential creditors
Why are CVAs relatively rarely uesd
- Largely due to the complexity of the procedure
- The fact that secured and preferential creditors are not bound by the proposals
Examples of the companies that have used CVAs
- All Saints
- Frankie & Benny’s (owned by The Restaurant Group)
- New Look
Likely that CVAs will decline further
Ultimately to be replaced by the restructuring plan introduced by CIGA 2020
Restructuring Plan
- Introduced by CIGA 2020
- Purpose of the Plan is to compromise a company’s creditors and shareholders & restructure liabilities
- Bind secured creditors and displace CVAs.
Features of a Restructuring Plan CIGA 2020
- Creditors must be divided into classes
- Each class that votes on the Plan must be asked to approve it.
- Plan must be approved by at least 75% in value of each class of voting.
- Court must sanction the Plan and it will bind all creditors.
Parties who can apply for the court for sanction of a Plan are:
- The Company
- Creditor
- Member
- Liquidator
- Administrator
Advantages of a restructuring Plan
- Court can sanction a Plan if it is just and equitable to do so even if
- One or more classes do not vote to approve the plan.
- It brings about a cross class cramdown
- Brings about a cramdown of shareholders.
- Can be used by administrators and liquidators
- Can be used against secured creditors and shareholders
Cross Class Cramdown
Where a class of creditor can force the Plan on another class of creditor who has voted against the Plan
Cramdown of shareholders
Means forcing shareholders to accept the Plan, diluting equity, creating debt for equity swaps.
Objectives of administrator
- Collective procedure - acts in the interests of creditors as a whole
- May continue trading , others may go into adminstration
Administration
A procedure which aims to rescue a company which is insolvent if at all possible, or to achieve a better result for creditors if not
Cath Kidson
Went into administration in 2020, resulting in closure of their high street shops, but continuation of the online business.
BHS
Went into administration in 2016, ultimately into liquidation.
Objectives of administration - statutory basis
Section 8 and Sch B1 IA 1986 set out the objectives of the administration
Section 8 and Sch B1 IA 1986
Must perform his functions with an objective of
* Rescuing the company as a going concern.
* Achieving a better result for the company’s creditors as a whole than would be likely if the company were wound up.
* Realizing the property to make distribution to secure / preferential creditors
Appointment of administrator
- Court procedure
- Out of court procedure
Appointment of administrator - Court procedure
- Court may appoint an administrator where the company is or is likely to become unable to pay its debts SchB1 para 12
- Appointment may be where the order is reasonably likely to achieve the purpose of the administration **Sch B1 para 11(b))
AA Mutual Insurance Co Lt 2004
- Applicant was an insurance company which sought an adminstrative order.
- Court found probable that the applicant is unlikely to be able to pay his debts.
- Administration held to be a better outcome fore creditors thatn winding up.
Appointment of administrator - out of court procedure
Following parties may appoint an administrator using the out of court procedure.
* Company or directors Sch B1 para 22 IA 1986
* Qualifying floating charge holder Sch B1 Para 14 IA 1986 - usually bank
Qualifying Floating Charge Holder
Means the holder of a floating charge created after the 15th September 2003 relating to the whole, or substantially the whole, of the company’s property
Most common method of appointing and administrator
By directors using the out of court procedure.
Directors cannot use the out of court procedure
Where a creditor has presented a petition for the winding up o the company .
Directors can apply for an admin order or the qualifying floating charge.
Role of the administrator
- Officer of the court
- Owes its duty to all of the company’s creditors
- Directors need consent for administrator.
- Takes on the running of the business.
One appointed, the administrator….
- Has up to 8 weeks to produce a report.
- Set out proposals and future
- To put to creditors for their approval - may implement CVA
- If rejected - liquidation
Time limit for the completion of adminsitrations
12 month fixed time limit
Can obtain extensions
Administration - Moratorium
During administration the company has the benfit of a moratorium
* Key benefit
Sch B1 para 42-44 IA 1986
During moratorium / administration all business documents
Must state that the company is in administration
During moratorium (except with the consent of the court or the administrator)
- No order / resolution to wind up the company
- No adminstrative receiver appointed.
- No steps can be taken to enforce any security / repossession over the company’s property
- No legal proceedings can be commenced
- A landlord cannot forfeit a lease of the company’s premises by peaceable re-entry.
Powers of the administrator - general
IA 1986
“do all things as may be necessary for the management of the affairs, business and property of the company”
s14(1) IA 1986
Powers of the administrator includes
- Powers to remove and appoint directors
- Dispose of property subject to a floating charge
- Dispose of property subject to a fixed charge (court approval)
s 14 Sch 1 and para 61 Sch B1
IA 1986
Administrators power to remove and appoint directors
Para 70 Sch B1
IA 1986
Administrators power to dispose of a property subject to a floating charge.
Para 71 Sch B1
IA 1986
Administrators power to dispose of a property subject to a fixed charge
with courts consent
Small Business, Enterprise and Employment Act 2015
SBEEA 2015
Granted additional powers to administrators to allow them to bring proceedings against directors for fraudulent and wrongful trading.
Re T&D Industries Ltd 2000
Commercial decisions are for the administrator and and not the court, application for directions should only be where there is a point of principle in issue, or a dispute as to the appropriate course of action to be taken.
When an administrator needs to make an urgent decision
They should consult the creditors as much as possible.
Pre-packaged administration
Where the business of an insolvent company is prepared for sale to a selected buyer prior to the company’s entry into administration.
Agreed sale carried out by an insolvency practioner.
Pre-packaged sales are controversial
Particularly where the sale is to existing members / management.
Concern is that creditors are not given sufficient info to ascertain if sale is in their best interests.
There are calls for greater transparency with pre-packaged sales
- Association of Business Recovery Professionals issued a Statement of Insolvency Practice in 2013
- Require clear, comprehensive and timely explanations to creditors.
Debenhams
- UK dept store appointed administrators for a second time in May 2020
- Debenhams was bought for £55 mill in Jan 2021
- Closed Irish stores
Cath Kidston
- Closed stores and cut staff.
- Parent company bought brand and online operations through pre-packaged deal.
- Closure of 60 UK stores and loss of 900 jobs
- Online only retailer - flagship store in Piccadiilly
Receivership
Individual enforcement procedure that benefits the appointing creditor
Difference between receivership and administration
Receivership = an individual enforcement procedure
Administration = collective procedure
Fixed charge receivers
Appointed to enforce the security and recover debt to their appointer.
Duty to the appointer - act in good faith.
Fixed charge receivers are usually an agent of the charger
Where do powers of the of Fixed Charge Receivers derive
- Law of Property Act 1925
- Security documentation
- Typically include the ability to sell, mortgage and collect rents from the property.
Most common type of insolvencies
Liquidations
Liquidation definition
The process by which a company’s business is wound up and its assets transferred to creditors and (if there is a surplus of assets over liabilities) to its members.
What happens when a company is liquidated on Companies Houses
Removed and dissolved
Liquidators Function
Realise the company’s assets for cash, determine the identity of the company’s creditors and the amount owed to each of them and then pay a dividend to the creditors on a proportionate basis relative to the size of their determine claims
Pari Passu
Creditors of the same rank
Where is the ranking of creditors claims laid out
IA 1986
IR 2016
General law
Liquidator’s powers to carry on the business of a company
Very limited powers
Liquidation general process
- Not a rescue mechanism
- Very limited powers to carry on the business.
- Usually close and dismiss employees.
- Sell assets on a piece meal basis
- Statutory moratorium = very limited.
Common for companies to enter into liquidation only when….
They have been through insolvency first
Types of liquidation
1) Compulsory Liquidation
2) Voluntary Liquidation
- Members’
- Creditors’
When is a company brought to an end through compulsory liquidation
- Three months after notice by liquidator to the Registrar of Companies that the winding up has been completed .
When is a company brought to an end through voluntary liquidation
Three months from the filing by the liquidator of the final accounts and return.
On dissolution the company cease to exist.
Compulsory Liquidation
- Court based process
- Presents a winding up petition to the court - applicant requests a winding up order against the company on statutory grounds.
- When granted - order operates in favour of all creditors and contributories.
Official receiver - compulsory liquidation
- Official Receiver will become liquidator and continue in office until another is appointed
s136(2) IA 1986 - Notify CH and creditors.
- Summon meetings to choose liquidator s136(4)
Who can apply for a winding up order
Creditor; Company or Directors (when insufficient funds for voluntary liquidation); Administrator; Administrative Receiver; Supervisor of a CVA; SoS BEIS
s122(1) IA 1986
Grounds for compulsory winding up
Grounds for compulsory winding up
s122(1) IA 1986
* Company unable to pay debts
* Just and equitable
* Special Resolution
* Public company - not issued share capital and more than a year has passed since reg.
* Old public company with meaning of Consequential Provisions Act.
* Company does not commence its business within a year from incorporation or suspends business for a whole year
s123 IA 1986
Inability to pay debts
Inability to pay debts
s122(1)(f) IA 1986 - grounds for winding up
s123 IA 1986 - evidence of grounds for winding up.
Evidence of inability to pay debts
- Failure by the company to comply with creditor’s statutory demand above £750.
Company has 21 days to pay the debt. - Creditor sues the company, obtains judgment and fails in an attempt to execute the judgement debt.
- Cash flow test
- Balance sheet test
Failure by the company to comply with a creditor’s statutory demand
- Statutory demand is a written demand in prescribed form requiring the company to pay a specific debt.
- Only if debt exceeds £750 and not disputed on substanital grounds.
- 21 days to pay the debt
- Failing this - creditor can petition the court to wind up the company.
Cash flow test
Proof to the satisfaction of the court that the company is unable to pay its debts as they fall due.
Usually going through the statutory demand process above.
Balance sheet test
Proof to the satisfaction of the court that the value of the company’s assets is less than the amount of its liabilities, taking into account prospective and contingent liabilities
Re Cheyne Finance Plc 2008
Unable to pay debts - CASE
BNY Corporate Trustee Services Ltd v Eurosale 2007
BNY Corporate Trustee Services Ltd v Eurosale 2007
- Difference between cash flow and balance sheet tests.
- Once the court has moved beyond the reasonably near future. Balance sheet test becomes the only sensible test.
- Burden of proof must be on the party asserting balance sheet insolvency
To prevent an insolvent company from transferring its assets to third parties at the expense of its creditors.
Dispositions of a company’s property, transfers of its shares and changes to its members will be void if made after winding up.
s127 IA 1986
Once compulsory winding up order has been made:
- An automatic stay will granted on commencing or continuing with proceedings against the company.
- All employees automatically dismissed
- Directors lose their power and are automatically dismissed.
On winding up - the following transactions are made void.
- Disposition of company’s property
- Transfer of shares
- Altering status of membership
Section 84(1) IA 1986
Allows for a company to be wound up in three scenarios
* Where company’s purpose (articles) has expired & resolution of the shareholders.
* Where company resolves by SR to wind up the company. = Solvent.
* Company resolves it is advisable to wind up. = Insolvent
Members Voluntary Winding Up
- Only if solvent.
- Directors swear a declaration of solvency s89(1) IA 1986
- statement of assets and liability at latest practicable date
- Special Resolution
s89(4) IA 1986
Directors making a declaration of solvency without reasonable grounds is liable for a fine or imprisonment.
If debts are not actually paid in full within a specified period….
It will be presumed that the director did not have reasonable grounds.
MVL winding up commences…
- When the special resolution is passed to place the company into MVL
s84(1) and s86 IA 1986 - Ordinary Resolution to appoint liquidator.
Conversion of MVL to creditors’ voluntary liquidation
- Unable to pay debts & interest within period.
- Go through s95
- Liquidator prepares and sends a statement of affairs to creditors.
- Creditors may nominate a liquidator
CVL takes place from nomination of liquidator
CVL definition
Form of insolvent liquidation commenced by resolution of the shareholders, but under the effective control of the creditors who chose the liquidator.
Where a director’s declaration of solvency has not been made
…will be creditors’ voluntary liquidation
Procedure for CVL
- Pass a special resolution
- Creditors may choose liquidator
- Shareholders may nominate a liquidator - within 14 days of the SR being passed, creditors to approve or appoint.
- Creditors choice take precedence.
- Directors produce statement of affair.
Role of liquidator - impact on management powers
Terminates the management powers of the company’s directors, powers transferred to the liquidator with fiduciary duties.
Silkstone and Haigh Moore Coal Co v Edey 1900
Liquidator takes on management power and fiduciary duties.
* Must act in good faith
* Avoid conflicts of interest
* Not make a secret profit.
s230 IA 1986
Liquidator must be either a qualified Insolvency Practitioner.
Or Official Receiver and acts as an officer of the court.
Liquidator must be either
- A qualified Insolvency Practitioner
- Official Receiver and acts as an officer of the court.
Statutory powers of liquidator
Two principal functions:
* Secure and realise the assets of the company and distribute to the company’s creditors. s143 IA
* Take into custody or their control all the property of the company s144 IA
s 143 IA 1986
Liquidators function to secure and realise the assets of the company and distribute to the company’s creditors.
s 144 IA 1986
Liquidators function to take into their custody or under their control all the property of the company.
Liquidator’s power to manage the company
Part 1 to III Sch 4 IA 1986
Part 1 to III Sch 4 IA 1986
Liquidators power to manage the company:
* Sell any of the company’s property
* Execute deeds and other documents in the name of the company
* Raise money on security of assets.
* Make or draw a bill of exchange /promissory
* Appoint an agent
* Do other things necessary to wind up
* Carry on the business of the company - for winding up
* Commence or defend court proceedings - recover debts owed.
* Pay debts and compromise claims.
Liquidators powers to avoid certain transactions
- Duty to preserve company’s property
- Maximise value of assets.
- Avoid antecedent transactions to maximise assets available for distribution
Avoid antecedent transactions to maximise assets available for distribution to creditors
- Disclaim onerous property s178 IA 1986
Apply to court to set aside - a transaction at an undervalue s238
- a preference s239
- vary the terms of, an extortionate credit transaction s244
- Set aside a transaction that will defraud creditors s423
- Claim that a floating charge created for no new, inadequate, consideration is invalid s245
s178 IA 1986
Creditors empowered to avoid certain transactions:
* Disclaim onerous property
s238 IA 1986
Creditors empowered to avoid certain transactions:
* Apply to court to set aside a transaction at an undervalue.
s239 IA 1986
Creditors empowered to avoid certain transactions:
* Apply to court to set aside a preference
s244 IA 1986
Creditors empowered to avoid certain transactions:
* Apply to court to set aside, or vary the terms of, an extortionate credit transaction
s 245 IA 1986
Creditors empowered to avoid certain transactions:
* Claim that a floating charge created for no new, or inadequate, consideration is invalid
s245 IA 1986
Creditors empowered to avoid certain transactions:
* Apply to court to set aside a transaction that will defraud creditors.
The order of priority assumes that there is a…
Qualifying Floating Charge granted on or after 15 Sept 2003
Where do the rules for order of priority come from….
- IA 1986
- IR 2016
- General law
Administrators may pay dividends to unsecured creditors….
If they have court permission to do so.
What can effect the statutory order of distribution?
- Priority or subordination agreements entered into by creditors.
- One class of creditor agrees to rank behind another.
Summary of the statutory order of priority
1) Liquidator’s fees and expenses of preserving and realizing assets
2) Amount due to fixed charge creditor out of proceeds of selling fixed charge asset
3) Other costs and expenses of liquidation
4) Preferential creditors (first, then second tier)
5) Creation of prescribed part fund unsecured creditors
6) Amount due to creditors with floating charge
7) Unsecured / trade creditors
8) Interest to unsecured creditors
9) Shareholders.
Fixed charge assets
Assets subject to fixed charges are realised first by the liquidator. Proceeds:
- Liquidator costs of preserving and realizing assets with a fixed charge
- Fixed charge creditors in respect to assets subject to a fixed charge.
Assets subject to the floating charge (all assets)
- Other costs and expenses of the liquidation
- Preferential debts
- Prescribed part fund
- Floating charge creditors
- Unsecured creditors
- Interest on unsecured (including preferential) debts
- Shareholders
Costs and expenses in liquidation
- Cost of selling assets
- Litigation costs - prior approval needed from court, or floating charge holders / preferential creditors.
Floating / preferential creditors pay the price if litigation fails
Preferential Debts sch 6
Two tiers
1) Employees remuneration
2) HMRC: PAYE NI and VAT contributions
Tier 1: Preferential Debts sch 6
- Employees for remuneration due in the four months before winding up petition, max of £800 per employee, plus holiday pay
- Retail deposits insured by Financial Services Compensation Scheme if bank / building soc
Tier 2: Preferential Debts sch 6
HMRC: PAYE NI and VAT contributions
Prescribed Part Fund
Ring fenced fund - Intro in The Enterprise Act 2002
% Net Property for Unsecured Creditors
s176A
Net Property
Proceeds of selling property other than that subject to fixed charge after deduction of liquidators expenses and any preferential debts
Shortfall in floating charge holder
- Although an unsecured claim against the company
- Does not share in Prescribed part fund
Floating charge creditors
After payment of general liquidation expenses, preferential debts and the prescribed part.
* Floating charge holders paid according to priority of security
Unsecured creditors
- Trade creditors
- Secured creditors whose security is invalid, or hasnt realised sufficient funds
All equal pari passu
Interest on unsecured (including preferential debts)
Interest accruing on unsecured debts from the commencement of winding up
The shareholders
Check Articles Shareholder agreements
