The Corporate Insolvency and Governance Act 2020 (CIGA) came into force on 26 June 2020 and introduced some permanent reforms to corporate insolvency law together with some temporary provisions required as a result of COVID-19.
The reforms have been described as “the most significant change in English insolvency laws for commercial lawyers in a generation”.
We will focus on the impact of the new legislation on invoice financiers both in terms of their relationships with clients and in enforcing debts against clients’ debtors.
We will firstly examine the permanent changes before reviewing the temporary changes and ending with some thoughts on the overall effect of the reforms on the invoice finance sector.
Back in 2004, Porter Capital Corporation (“Porter”), a US finance Company based in Birmingham, Alabama, financed a US corporation (“Corporation”) via an invoice finance facility. To secure the finance, they took guarantees from three guarantors, one of whom lived in London and was a co-owner of a valuable Knightsbridge apartment on Hyde Park in London and shares in a family company. The finance documentation was expressed to be under Connecticut law.
By 2008, things were going wrong for the Corporation and by March 2010 just prior to the Corporation’s Chapter 7 Bankruptcy in the US, Porter wrote making its demand for the account shortfall against the finance agreement’s three guarantors.
As with everything else about the pandemic, the legal position remains both fluid and uncertain; the best we can do at present is to highlight some of the issues which are likely to arise both in terms of:
(1) the relationship between invoice financiers and their clients; and
(2) supply contracts between suppliers using invoice finance and their debtors.
Before considering some issues which may arise in each of these situations, it may be helpful to set out some general high level comments on various parts of contract law which may be relevant in these circumstances, and which include terminology which may be misunderstood and is likely to be discussed amongst financiers and clients in the coming months.
Although invoice finance remains by and large unregulated by Government, there is little doubt that the pace of regulation marches on and recently concerns have been expressed by some in the invoice finance industry that invoice financiers may be at risk of committing offences under the Criminal Finances Act 2017, for example where clients are suspected of building up substantial VAT/PAYE/Corporation Tax arrears.
In our Briefing 12 months ago we reported on the August 2018 Consultation paper issued by the Law Commission on the law relating to the electronic execution of documents, which suggested that the Law Commission was sympathetic to moves to allow all contracts and other documents to be completed electronically, particularly in the commercial context.
On 1 April 2019 the jurisdiction of the Financial Ombudsman Service (“FOS”) was extended to include additional categories of eligible complainants such as more SMEs and individual guarantors of loans. The FCA has also indicated that it intends to increase the limit of an award which can be made by the FOS under its compulsory jurisdiction scheme from £150,000 to £350,000, probably sometime later in 2019.
The Credit hire and credit repair industries and ancillary services provided to claimants in “no fault” accidents have traditionally been regarded as challenging sources of business for invoice financiers, but there are signs that financiers are becoming more comfortable with the risks involved.
It is fair to say that these industries have over recent years been subject to a number of measures by the Government in attempts to reduce overall insurance premiums, but they continue to display a sense of innovation.
Invoice financiers may take some comfort from a recent press release from the Insolvency Service which is worth setting out in full:
The recent decision by one of the main bank owned invoice financiers to withdraw from the provision of credit protection has highlighted a continuing debate within the industry on issues arising from the interface between bad debt protection on the one hand and the provision of insurance on the other hand.
It is now widely understood within the industry that the provision of insurance is a regulated activity under the Financial Services and Markets Act 2000 (“FSMA”) which requires providers to be authorised and regulated by the Financial Conduct Authority.
The Government recently announced that it does not intend to legislate to implement the September 2016 Law Commission proposals to modernise the archaic Bills of Sale regime:
“Given the concerns that were raised in the consultation, the small and reducing market and the wider work on high-cost credit, the government will not introduce legislation at this point in time. The government will continue to work with the FCA as they carry out their high-cost credit review, and then further consider government action on alternatives to high-cost credit in light of the FCA’s review”.