Company directors can be disqualified if they do not meet their legal responsibilities. When a company is unable to pay its debts the law sets out a number of specific duties that a director must comply with. However, this is likely to be a highly stressful situation and it is not uncommon for directors to be in breach of one or more of their duties for example, by continuing to trade the business when they know it cannot pay its debts.
If this happens they may be disqualified from being a director. Disqualification is for a specified period, between two years and 15 years. During that time the director is prohibited from being a director of a company, or directly or indirectly being concerned or taking part in the promotion, formation or management of a company without the court’s permission. The term ‘director’ is widely defined in the law and can include individuals who do not have the title ‘director’.
The court also has powers to order a disqualified director to pay compensation to the Company for the benefit of its creditors.
The Insolvency Service
When a company enters into a formal insolvency process a director’s behaviour will come under scrutiny. The liquidators or administrators are required to make a confidential report on the directors’ conduct to the Insolvency Service which may investigate you if there has been a report complaint of unfit conduct.
Unfit conduct covers the following:
- Allowing a company to continue trading when it can’t pay its debts
- Not keeping proper company accounting records
- Not sending accounts and returns to Companies House
- Not paying tax owed by the company
- Using company money or assets for personal benefit
For many directors the first knowledge they may have that there is a threat of disqualification will be the receipt of a letter from the Insolvency Service.
When operating a distressed business you will be making difficult decisions. Having a clear understanding of what is legally required of you is essential.
If you are concerned that you could face disqualification proceedings or if you receive correspondence from the Insolvency Service regarding your conduct as a director, you should seek professional advice as soon as possible.
We have acted for directors facing disqualification proceedings. We have also advised Insolvency Practitioners (IPs) on whether the actions of company directors amount to a breach of their duties. In addition, we have advised individuals who have been disqualified on their roles post disqualification and we have applied for leave of the court for them to hold office during a period of disqualification.
We advise a wide range of stakeholders on litigation that arises as a result of a company being insolvent. This includes actions against the company and its officers as well as actions which the directors, officers or insolvency practitioners (“IPs”) pursue on behalf of the company.
We advise directors/shareholders on numerous matters including:
- Directors duties and how to ensure they do not breach them and leave themselves or the company open to claims.
- Bad debts, property issues and other matters that could give rise to financial issues for the company.
- Claims against the company and the best action to take.
- Claims against employees, fellow directors and other stakeholders.
We regularly accompany directors and shareholders to meetings relating to disputes to enable them to obtain immediate advice on the best way forward.
We advise IPs on all aspects of litigation arising out of insolvency, whether that be bringing a claim on their behalf or defending one.
We also assist IPs with applications to court for directions, administration orders and extensions and approval of their costs.
Advising banks, lenders and other creditors
We regularly advise lenders, suppliers and other creditors on proposed actions against companies which are struggling to pay their debts. Our broad range of experience means that we can give useful commercial advice on the best way to recover debts and the realistic prospects of success. If an insolvency process is the best way forward, we can work with creditors to achieve the best outcome available.
We regularly advise organisations and individuals on loan arrangements with companies which include taking security over assets in case the borrower defaults on the repayments and becomes insolvent. Clients range from banks, finance companies and private debenture holders to shareholders who have taken security for deferred consideration following a business sale or directors who have lent money to a company and require security.
We provide advice on the different types of security available and how effective each type will be in each situation. We draft security documentation and register this where required and we advise clients on how to enforce the security and the different enforcement options available to them.
Types of security
The main types of security that are granted are charges (fixed and floating) on a variety of assets , mortgages and pledges.
When deciding whether to take security and what security is appropriate, the lender must consider a number of factors.
We have a wealth of experience of advising on all types of security and can offer clients legal and commercial advice on their situation.
If you are loaning money to a company or if you are struggling to obtain repayment of an existing loan please get in touch.
Liquidation is the procedure through which the assets of a company are realised and distributed to creditors to satisfy the company’s debts in accordance with the Insolvency Act 1986. At the end of this procedure the company is dissolved and no longer exists. The process is often referred to as winding up a company.
Liquidation can happen in isolation, for example if there is no prospect of selling the company, but it can also follow as an exit route for a company in administration. In 2018 over 15,000 companies were liquidated.
There are two types of liquidation; voluntary liquidation and compulsory liquidation.
Voluntary liquidation can be achieved in two ways:
Members’ voluntary liquidation – this option can be used if a company is able to pay its debts but the management have decided to wind up the company, for example on retirement.
Creditors’ voluntary liquidation – if a company is unable to pay its debts then a creditors’ voluntary liquidation is the process to follow to wind up the company.
A compulsory liquidation comes about as a result of the court granting an order to wind up the company, most likely on the petition by HM Revenue & Customs of one of the company’s other creditors.
The Role of the Liquidator
The liquidator has wide ranging powers including to collect and realise assets, to disclaim onerous property, to pursue or defend legal proceedings and to challenge antecedent transactions.
What to do next?
If you think your company is in danger of being liquidated, has received a winding up petition or if you are considering exit strategies that include liquidation, it is important to seek professional advice.
We act for liquidators, creditors and companies in relation to the liquidation process. We can offer practical and commercial advice as well as giving you expert advice on your legal position.
Prior to 2002, creditors holding a charge over a company’s assets (usually a bank), had the right in certain circumstances to appoint a receiver. A receiver was an Insolvency Practitioner who acted on behalf of the creditor. Its duty was to take custody of the company’s assets and exercise powers with a view to satisfying the debt owed to the creditor.
In 2002 the law changed and restricted the use of this procedure to certain types of companies or floating charges created prior to September 2003. For this reason, administrative receiverships are rare (in 2018 there were only a handful in the UK).
LPA Receivership and Fixed Charge Receivership
LPA receiverships and fixed charge receiverships are different to administrative receivership.
Under the Law of Property Act 1925 (LPA), creditors (usually banks/lenders) that hold a fixed charge over property have a statutory right to appoint an LPA receiver.
A fixed charged receivership is when a creditor who has a fixed charge over a company’s assets, has the power under the terms of the security documentation to appoint a receiver.
In these situations the receiver will have powers to help realise the debt owed to the creditor by taking charge of the assets/property. This could mean selling the assets that are the subject of the charge or managing them and collecting the rent for the benefit of the lender.
What can you do if a receiver is appointed in respect of your company’s assets?
We are experienced in advising both lenders in respect of the appointment of receivers, receivers in relation to legal issues arising from the exercise of their powers and companies facing receivership which gives us valuable experience in advising on this specialist area.
If you receive a formal demand from a lender indicating their intention to appoint a receiver, or a receiver has been appointed in respect of your company, it is critical that you seek urgent advice.
We regularly advise companies on the validity of the appointment of a receiver, their rights and the best course of action. We offer practical, commercial advice rather than just restating the law.
We act for insolvency practitioners, lenders and business owners on all aspects of corporate restructuring and insolvency.
Our client base includes a number of North West based and nationally based insolvency practitioners, most of whom we have advised for many years. They welcome our practical and commercial advice and our responsiveness. We advise them on the full range of insolvency processes.
Where commercial lenders have clients who are struggling to pay their debts, or are involved in an insolvency process, we assist the lenders in recovering their funds.
When businesses are having financial difficulties, we are able to advise the owners on the best solutions for their situation, whether that be a formal process such as administration, or an informal restructuring, a managed turnaround and refinance or just general commercial and practical advice.
We also regularly advise purchasers who are buying distressed businesses that may or may not be in an informal insolvency process.
There are a range of procedures available to struggling businesses including:
- Informal arrangements with creditors
- Company Voluntary Arrangements
Insolvency is defined in the Insolvency Act 1986, but broadly it means when a company does not have sufficient assets to discharge its liabilities as they fall due.
If this occurs, there are options open to the company owners and other stakeholders, one of which is administration. Administration is an insolvency process where an insolvent company is placed under the control of an insolvency practitioner (IP) to enable the IP to achieve objectives laid down in legislation.
How does a company enter administration?
There are two ways for a company to enter administration:
- By court order – an application for a court order can be made by creditors i.e. those owed money by the company, the company itself, its directors, a liquidator, a supervisor of a CVA or pursuant to legislation.
- By an out of court process by lodging certain documents with the court – this process is only available to the company or its directors or a party with a qualifying floating charge (usually a bank or commercial lender).
Why would a company or its directors put it into administration?
From the date that an application is made to court or a notice of intention to appoint administrators is filed, a moratorium in respect of claims will apply to protect the company against actions from creditors. In general terms this means that creditors will not be able to issue proceedings, HMRC will not be able to distrain or issue a winding up petition against the company and the landlord will not be able to forfeit its lease. If the company is concerned that creditors may issue proceedings then administration can provide some short term protection, allowing the company to restructure.
Often companies that enter administration end up being sold or at least their businesses and assets do. Sometimes a sale is agreed prior to the company going into administration and it may be a term of completing the sale that the company is put into administration first. Such sales are known as pre-packs. Pre-packs can be a relatively quick and smooth way to continue the business with as little disruption as possible.
What are the objectives of the administration?
The first objective of an administrator is to rescue the company so it can carry on as a going concern.
If this isn’t possible then the aim is to achieve a better result for the company’s creditors than would be likely if the company was put into liquidation. If such a better result cannot be achieved, then the objective is to realise the property of the company and distribute the proceeds to the company’s secured and preferential creditors in the first instance.
If your company is experiencing financial difficulties and you are considering administration please get in touch. We can provide initial advice about your restructuring options and introduce you to an IP.
If you are considering purchasing a business or assets from an administrator, please get in touch. We have a wealth of experience in structuring pre-pack sale agreements and advising individuals and companies on purchases of distressed businesses and assets
The rush hour commute into Manchester City Centre ground to a halt one morning last month as a disgruntled subcontractor chose to block one of the key routes with plant hire vehicles. The protest was against of non-payment by Dawnus Construction, the main contractor appointed by Manchester City Council to carry of a £15 million road improvement scheme in Manchester and Salford.
The subcontractor, Total Plant Hire (TPL), had supplied plant and machinery to Dawnus for the scheme. When Dawnus failed to pay under the terms of the contract and TPL couldn’t get through to anyone at Dawnus or the Council it took drastic action. Sadly the action was in vain as Dawnus entered Administration that same week. TPL was said to be owed £300,000 by Dawnus. So what can TPL do to recover its money?
In the case of BHL v Leumi ABL Ltd  EWHC 1871 (QB) the High Court required an invoice discounter to refund excessive collection fees charged after the administration of Cobra Beers Limited.
The Neuberg family operated a business producing light metal products and traded under the name Neuberg Metal Spinners for many years. In 1998 a company operated by Mr Neuberg called Neuberg Metal Spinners Limited went into liquidation. Despite this, the family business continued to trade under the name Neuberg Metals but through a new company, Watergate Services Limited, of which Mrs Neuberg was the sole director and secretary.