Business (Insolvency) Flashcards
1
Q
What is Corporate Insolvency?
A
Insolvency is where a court can make a winding up order in respect of a company (IA s.86).
One circumstance is where a company is unable to pay its debts (s.122(1)(f) IA).
s.123 IA describes four tests for when a company is deemed unable to pay debts:
- Cash Flow Test: The company is unable to pay debts as they fall due
- Balance Sheet Test: The company has greater liabilities than its assets
- The company does not comply with a statutory demand for a debt over £750; or
- The company has failed to pay a creditor to satisfy enforcement of a judgment debt
2
Q
What are a director’s obligations in periods of financial difficulty?
A
Directors must continually review the financial performance and recognize when the company faces difficulty, such as unpaid creditors, overdraft issues, or liabilities exceeding assets.
Directors must take action to minimize creditors’ losses under IA 1986.
3
Q
What could a company do during financial difficulty?
A
The company could…
- take no action
- attempt informal or formal debt rescheduling
- appoint an administrator
- request the appointment of a receiver
- place the company into liquidation.
4
Q
What is an informal arrangement?
A
An informal arrangement involves negotiating with creditors to reschedule debts without formal insolvency procedures, and although contractually binding, it is not regulated by IA 1986 or CIGA 2020.
5
Q
What must the company do to obtain creditor agreement?
A
The company may need to grant new security, replace directors or senior staff, sell assets, reduce costs, or issue new shares to creditors.
6
Q
What is a Standstill Agreement?
A
A Standstill Agreement is where creditors agree not to enforce their rights for a specified period during informal negotiations.
7
Q
When do companies use the pre-insolvency moratorium?
A
CIGA introduced the moratorium for struggling companies to buy time before entering formal insolvency.
It halts creditor action, including enforcement of security and legal proceedings, allowing companies time to reach an informal agreement.
8
Q
How to obtain the moratorium?
A
The company must file a statement at court stating it is unable to pay debts and submit a statement from a licensed insolvency practitioner (Monitor) that the moratorium will likely result in the rescue of the company.
It lasts 20 business days but can be extended for up to one year.
9
Q
What are Pre-Moratorium Debts?
A
Pre-moratorium debts, such as the Monitor’s fees, wages, or loans under financial services contracts, must still be paid during the moratorium.
10
Q
What are Moratorium Debts?
A
Moratorium debts are debts incurred during or after the moratorium that must be paid.
These debts arise from obligations incurred while under the moratorium.
11
Q
Why use a formal arrangement?
A
A formal arrangement, such as a CVA or Restructuring Plan, if the requisite majorities of creditors vote in favour of it, are legally binding on all unsecured creditors, even if some of them voted against it or did not vote at all
12
Q
What are the types of formal arrangements?
A
Two types of formal arrangements are
* Company Voluntary Agreements (CVA)
* Restructuring Plans under CIGA
13
Q
What is a CVA?
A
A Company Voluntary Agreement (CVA) is a compromise between a company and creditors where creditors agree to part payment or new repayment terms.
14
Q
How to set up a CVA?
A
- Directors draft a CVA proposal
- Appoint a nominee (insolvency practitioner).
- Submit the proposal and a statement of company affairs to the Nominee
- The Nominee within 28 days must report to court on whether the creditors and shareholders should be asked to vote on a CVA proposal
- The Nominee must allow 14 days for the creditors to vote on the CVC proposal.
- A meeting of shareholders must take place within 5 days of creditors decision
- The nominee reports to the court the CVA is approved. The Nominee becomes supervisor and implements the CVA
15
Q
How to vote on a CVA?
A
- At least 75% in value of voting creditors must agree. The CVA is binding on all unsecured creditors, even if they did not vote or voted against it; and
- A simple majority (over 50%) of shareholders vote in favour
16
Q
What is the effect of a CVA?
A
A CVA is binding on all unsecured creditors, but secured and preferential creditors are only bound if they consent unanimously.
17
Q
Can creditors challenge the CVA?
A
Yes, creditors can challenge the CVA within 28 days on the grounds of unfair prejudice, but it becomes binding after 28 days if no challenge is made.
18
Q
What are the advantages of a CVA?
A
The director remains in control, and the company continues to trade under the terms of the CVA.
19
Q
What are the disadvantages of a CVA?
A
A CVA cannot bind secured or preferential creditors without their consent.
20
Q
What is a Restructuring Plan?
A
A Restructuring Plan is a formal arrangement between a company and its creditors and shareholders to restructure liabilities and return to solvency.
21
Q
How does a Restructuring Plan differ from a CVA?
A
It is a hybrid between a CVA and a Scheme of Arrangement, and it can only be used by companies in financial difficulty.
22
Q
How can a Restructuring Plan be used?
A
The court must approve the plan, and it must be approved by at least 75% in value of creditors and shareholders in each class.
23
Q
Who can initiate a Restructuring Plan?
A
A company, creditor, member, liquidator, or administrator can initiate a Restructuring Plan.
24
Q
When does a Restructuring Plan bind?
A
A Restructuring Plan binds creditors and shareholders only when the court sanctions it.
25
What is a cross-class cram down?
A cross-class cram down allows a court to sanction a plan **even if one or more classes of creditors or shareholders have voted against it**, provided certain conditions are met.
26
What is administration?
Administration is a collective insolvency process where **administrators act in the interest of all creditors to rescue the company** or achieve a better result than liquidation.
27
Who can be an administrator?
Licensed insolvency practitioners can be appointed as administrators.
28
What are the statutory objectives of administration?
The objectives are:
(1) **rescue the company** as a going concern, (2) achieve a **better result for creditors** than liquidation
(3) **realise company assets** for the benefit of secured or preferential creditors.
29
What is the role of an administrator?
An administrator acts in the interest of creditors to achieve the objectives of administration, managing the company’s business, assets, and liabilities.
30
How to appoint an administrator using Route 1: Court Appointment?
The court appoints an administrator when the company is **unable to pay its debts**, based on the application of the company, directors, creditors, or liquidator.
It triggers a temporary moratorium on creditor actions.
31
How to appoint an administrator using Route 2: Out of Court Appointment?
Directors, the company, or a holder of a Qualifying Floating Charge (QFC) can appoint an administrator. The appointment is **filed at court after a notice of intention to appoint**.
* If the appointment is by directors, they must file a notice of intention to appoint at court and, no less than 10 business days later, file a notice of appointment at court.
* If the company has granted a QFC, when the directors file a NOI, the QFC then has 5 business days to appoint its own choice of administrator. If it does not, the director can file the noice of appointment as usual.
32
What is the Administrative Moratorium?
**During administration, a full moratorium is in effec**t, preventing creditor action, including enforcement of security and legal proceedings, without consent from the administrator or court.
33
What powers do administrators have under IA 1986?
Administrators can manage the company, remove and appoint directors, dispose of property, and bring proceedings against directors for wrongful trading.
34
What is Pre-Packaged Administration?
In a Pre-Packaged Administration, assets and business are sold to a selected buyer before administration begins, typically to **preserve goodwill** and business continuity.
35
What is receivership?
Receivership is an enforcement procedure in the interest of secured creditors, with three types:
* Administrative Receivers
* Fixed Charge Receivers
* Court-Appointed Receivers.
36
What is an Administrative Receiver?
An Administrative Receiver is **appointed by a creditor with fixed and floating charges**, takes control of assets, sells them, and repays the creditor.
ARs may only be appointed by QFC holders where the floating charge must have been created before 15 September 2003
37
What is a Fixed Charge Receiver?
A Fixed Charge Receiver is **appointed by a fixed charge holder** to enforce the security over specific assets, manage and sell them to repay the debt.
38
What are Court-Appointed Receivers?
Court-Appointed Receivers are appointed by the court to manage the company’s assets, often in cases of shareholder disputes or corporate crime investigations.
39
What is liquidation?
Liquidation is the process by which a company’s assets are sold, creditors are paid, and any remaining funds are distributed to shareholders. It can be compulsory or voluntary.
40
How are creditors of the same rank treated?
Creditors of the same rank **share equally and proportionately based on the size of their claims**, as set out in IA 1986 and Insolvency Rules.
41
What happens at the end of liquidation?
The company is **dissolved**
In compulsory liquidation, this occurs **three months after the winding-up is completed**.
In voluntary liquidation, dissolution happens **after filing the final accounts.**
42
What is compulsory liquidation?
Compulsory liquidation is a court-based process where a **petition is presented to the court**, which appoints a liquidator to wind up the company’s affairs and pay creditors.
Ther main ground is that the Company is unable to pay its debts and it is just and equitable for the company to be wound up (s.122(1) IA 1986)
43
Qhat is a Voluntary Liquidation?
s.84(1) IA 1986 allows for a company to be wound up without a court order in three situations:
* Where the company’s **purpose according to the articles has expired** and resolution of shareholders (Rare)
* Where the company **resolves by special resolution to wind up the company**. The company must be solvent (Members Voluntary Winding Up)
* Where the company resolves that it is advisable to wind up the company due to its **inability to carry on business** - company is insolvent (Creditors Voluntary Winding Up)
44
What is needed for a Members Voluntary Winding Up (MVL)?
* May only be used if solvent.
* The directors swear a declaration of solvency.
* Members must pass a **special resolution (place into MVL) and an ordinary resolution to appoint a liquidator.**
45
What is a Creditors Voluntary Winding Up (CVL)?
Insolvent liquidation commenced by resolution of shareholders under the control of the creditors who can choose a liquidator.
* Shareholders pass a **special resolution** to place company into CVL
* Shareholders pass an **ordinary resolution** to appoint a liquidator
* Within 14 days of the special resolution, the directors must ask creditors to either approve the liquidator or put forward their own choice of liquidator. If they differ, the creditors option takes precedence
46
What are the conseqwuences of a compulsory liquidation and winding up order?
* Automatic **stay** on commencing or continuing proceedings against the company
* All **employees automatically dismissed**
* **Directors lose their powers** and are automatically dismissed
47
What are the two formal insolvency procedures for insolvent **individuals**?
Bankruptcy & IVA
48
What is an IVA?
An arrangement under which a debtor makes a **proposal for a compromise** of their liabilities with creditors.
The debtor usually only pays part of the debt owed or has longer to pay.
An IVA can last any length of time, **but 3-5 years is common.**
49
How to set up an IVA?
* Debtor drafts a proposal for compromise.
* The nominee submits a report to the court stating their opinion
* A debtor can apply for an interim order to bring about a **moratorium lasting 14 days** which can be extended.
* The proposal must be approved by **creditors holding at least 75% of the value** of the total debt owed, but it will not be effective if more than 50% of the total value of creditors not associates of the debtor vote against it.
50
Effect of an IVA
If approved, the **IVA binds the debtor and all unsecured creditors**.
It cannot bind secured or preferential creditors without their consent.
Useful since it avoids the stigma of bankruptcy and associated restrictions, however it lasts longer than bankruptcy, cannot bind secured/preferential creditors, and can be expensive and time-consuming.
51
What is Bankruptcy?
The equivalent of liquidation for a company.
It usually starts by a bankruptcy petition being presented by a creditor (but sometimes the debtor themselves).
52
What are the Petition Grounds for Bankruptcy?
The creditors petition…..
* At the time of the petition, the debt is one the **debtor appears unable to pay or has no reasonable prospect of paying**
* The debt owed is for an unsecured liquidated sum exceeding £5,000****
* The debtor is domiciled or present in England and Wales
The debtors petition…..
* The debtor is unable top pay their debts
* The petition is accompanied by a statement of affairs
53
What happens when a Bankruptcy Order is made?
Upon a court making a bankruptcy order, the Official Receiver becomes the first trustee in bankruptcy.
A majority of creditors can seek an appointment of another trustee (must be a licensed insolvency practitioner).
54
Effect of the Order on the Bankrupt
On the order, the bankrupt is prohibited from
* acting as a director or managing a company,
* obtaining credit over £500 without disclosing the bankruptcy
* giving gifts
* practicing in certain professions
* deprived of ownership of their property.
55
What is the Bankruptcy Trustee's role?
**The bankrupt’s estate vests to the trustee immediately and automatically** - they must give up possession or give their assurances to the trustee who has wide power to sell or deal with the assets.
The trustee will ask creditors to prove their claims and then determine the amount of the claim.
56
Bankruptcy Order of Priority
This order differs from corporate insolvency.
* Secured creditors
* Expenses of the bankruptcy including the Trustee’s remuneration;
* Two tiers of preferential creditors
* Ordinary unsecured creditors
* Statutory interest;
* Debts of a spouse
* Any surplus is payable to the bankrupt
57
What are the bankrupt's duties?
* Give the trustee all information as to their affairs.
* Do all things as the trustee needs for the purpose of carrying out their functions.
It is a criminal offence for the bankrupt to fail to comply with s.333 IA 1986 and can face 2 years imprisonment and unlimited fines.
58
When is the individual discharged from bankruptcy?
**Automatically discharged after a maximum of one year period** - released from most debts and restrictions.
The trustee may apply for an order suspending the automatic discharge if the bankrupt fails to comply with their obligations.
It may be discharged sooner if the trustee files a notice stating the bankruptcy does not require investigation.
59
What are Voidable Transactions?
A trustee has the power to challenge voidable transactions with the aim of increasing the assets available to creditors.
The trustee can bring a claim for the following:
* Transaction at an undervalue (gift or transaction 5 years preceding the petition)
* A preference (putting a creditor in a better position within 6 months/2 years for associates), or
* Transaction defrauding creditors.
60
What is the liability of a director of an insolvent company?
If the company faces the prospect of entering insolvency, **directors may be held personally liable to compensate the company and creditors** if they are found guilty of fraudulent or wrongful trading.
Liquidators and Administrators can bring proceedings.
61
What concern is the Fraudulent Trading provision dealing with?
The concern is that **directors may continue to trade and incur further debts** at a time when the company is in financial difficulty, increasing creditor losses.
62
Who can bring a claim for fraudulent trading?
Liquidators or Administrators by making an application to the court.
63
What are the remedies for fraudulent trading?
A person found liable under s.213 can be ordered to **make a contribution** to the company’s assets reflecting the loss caused to creditors. **Criminal sanctions** can be imposed including up to 10 years imprisonment and/or fines.
64
What is wrongful trading?
S.214 ensures that when **directors become aware** (or ought to become aware) that an insolvent liquidation (or insolvent administration) is **reasonably inevitable,** they are under a duty to take every step possible to **minimise the potential losses** to the company’s creditors.
65
Who may bring a claim for wrongful trading?
Liquidators and Administrators.
66
What are the requirements for wrongful trading?
The company must have gone into an insolvent liquidation or administration and the director must have known or ought to have known that there was no reasonable prospect of avoiding insolvency. If so, the director must have taken every step possible to minimise the potential losses to creditors.
67
How does wrongful trading compare to fraudulent trading?
Wrongful trading claims are more common than fraudulent trading because they require a lower standard of proof.
68
What are the remedies for wrongful trading?
The court can order the director to make **contributions** to the company’s assets as the court thinks fit.
There is no criminal liability unlike fraudulent trading.
69
What is a Voidable Transaction under s.238 IA?
This provision concerns transactions at an undervalue where there is a significant inequality in the value of the consideration received compared to the value of the asset given away.
70
When can a TUV be avoided in relation to the relevant time?
The transaction took place within **2 years ending with the onset of insolvency.**
71
What happens if a transaction is at an undervalue?
The court can seize the transaction if it was entered into for **significantly less than the consideration provided by the company,** within the relevant time, and the company was **insolvent or became insolvent as a result of the transaction.**
72
What are the defences for a TUV?
No order will be made if the court is satisfied that the company entered into the transaction in **good faith for the purpose of carrying on its business** and that at the time there were reasonable grounds for believing the transaction would benefit the company.
73
How does the court act when it finds a TUV?
The court has discretion to make an order as it thinks fit to restore the position as if the company had not entered the transaction. The order should not prejudice a subsequent 3rd party purchaser acting in good faith.
74
What is a Transaction Defrauding Creditors (TDC)?
A TDC involves a transaction at an undervalue with the intention of putting assets beyond the reach of creditors or prejudicing their interests.
This includes transactions with unknown future creditors.
75
What are the sanctions for a TDC?
The court has discretion to make an order as it thinks fit to restore the position as if the company had not entered the transaction.
76
Who may claim under a TDC?
Liquidator or Administrator, Supervisor of a Voluntary Arrangement, or the victim of the transaction (e.g., creditor).
77
What does s.239 (Preferences) IA prevent?
It prevents creditors from obtaining improper advantages over other creditors at a time when the company is insolvent.
78
When can a preference be avoided?
The preference can be avoided if it was **given within 6 months ending with the onset of insolvency** (extended to 2 years for connected persons) and the company was influenced by a desire to prefer the creditor.
79
What is a floating charge?
A floating charge is a security interest over a company’s assets that allows the company to continue to use and dispose of the assets until a default occurs.
80
When can floating charges be avoided?
A floating charge is invalid if **created within 12 months ending with the onset of insolvency** (extended to 2 years for connected persons), *unless* new money or fresh consideration is provided to the company.
Where void under s.245, only the security is void - not the debt itself.
81
What time is used to determine the ranking order of security?
Security ranks in the order of creation and not the date of registration at Companies House, provided the charges are registered within the required period
82
Against whom are claims such as transactions at an undervalue or preferences brought?
Against the recipient of the transaction
83
If a bank has a fixed charge on an asset that would be sufficient to discharge the liabilities outstanding, what should be done?
Appoint a fixed charge receiver
84
What is the treatment of VAT in a contract if it isn't specified?
A price is deemed to be VAT inclusive unless the contract for the supply of goods states otherwise.
85
When calculating CGT, do you apply the tax rate to the whole figure, or do you have to use up some of the lower band?
Apply to the whole.
If the income is in the higher tax bracket, the higher rate of CGT (20%) applies to the whole gain being taxed
86
When it comes to close companies, is 50% of the shareholders sufficient?
No
The shareholders who are directors must have 'control' which would be 51% +
87
Will there be a presumption of desire to prefer with a close friend?
No.
There is only a rebuttable presumption if given to a connected person or associate, there is a rebuttable presumption hat the company was influenced by the desire the prefer the creditor - shifting the burden to the preferred person to rebut the presumption
88
A bank is owed £90,000 by a private limited company. This amount is due under a loan secured by a floating charge granted in early 2023. The company is in liquidation. The liquidator has realised the company's assets. After paying the expenses of the liquidation and preferential creditors, the liquidator holds £100,000.
Calculate the amount the bank is likely to receive. Why?
£77,000
The liquidator is required to make a prescribed part of the company's net property available for unsecured creditors.
This amount is 50% of the first £10,000 and 20% of the remainder up to a maximum value of £800,000.
Here, this would be 50% of £10,000 = £5,000
20% of £90,000 = £18,000
.... which gives a total of £23,000.
Taking this from the available £100,000, the bank is likely to receive £77,000.
89
Where a personal bankruptcy results in the sale of a property covered by the security of a mortgage or fixed charge-holder but the sale is insufficient to meet that secured creditor's debt, what is the entitlement to the remainder?
The bank can claim as an ordinary unsecured creditor, following payment of the costs of bankruptcy and preferential creditors.
90
What is the requirement for creditors to be bound by an IVA proposal?
Provided 75% or more of creditors by value of their debt attending a meeting or responding in writing accept the proposal, it will be binding on all creditors.
91
What is a debt relief order (DRO)?
A Debt Relief Order (DRO) is a solution to deal with personal debts.
A DRO normally lasts 12 months. If approved, the individual stops making payments towards the debts (and interest) listed in the DRO during that time. After the 12 months, they will not have to pay those debts anymore.
You can apply for a DRO by contacting an authorised debt advisor.
92
For how long does a DRO stay on credit file?
A DRO stays on your credit reference file for 6 years from the date it was approved, which is the same for other debt relief options
93
When will someone be eligible for a DRO?
1. Owe less than £50,000 in total
2. Have savings or valuable items worth less than £2,000 in total
3. Own a vehicle worth less than £4,000
4. Do not have enough money left at the end of the month to make debt repayments
5. Have lived or worked in England and Wales in the last 3 years
6. Have not had a DRO in the last 6 years
| You cannot apply for a DRO if you live in Scotland or Northern Ireland
94
What debts must someone with a DRO still have to pay?
There are some types of debts that cannot be included in a DRO.
* Child maintenance
* Student loans
* Budgeting and crisis loans
* Debts secured against possessions you
* Damages for personal injury or death a court has ordered you to pay
* Unpaid TV licence fees
* Rent Arrears
* Normal Household Expenses
95
What is the status of a transaction after a creditor has presented a bankruptcy petition, before an order is made, but which is later made?
Any payment of money following the presentation of a bankruptcy petition, ***if*** the debtor is subsequently adjudicated bankrupt, will be void unless the court approves the transaction either before or after it takes place.
It is not enough for the petitioner to agree to it being made.
96
What are the basic requirments for applying for a DRO?
* They do not own their own home
* Have debts of up to £50,000
* Have savings and other specified assets that, together, are worth no more than £2,000.
97
In an individual bankruptcy, if there is an intention to defraud creditors with transactions, what is the timelimit for setting aside?
Such transactions that are the subject of an action to set them aside on this ground can have taken place at **any time before the date of the bankruptcy petition**. There is no time limit.
98
