Insolvency & restructuring

Corporate insolvency and restructuring

• Issuing and defending winding up petitions, Court administration applications and hostile administration appointments.
• Liquidations, receiverships, administrations and voluntary arrangements.
• Business restructuring and turnaround.
• Insolvency and Company Act offences including wrongful trading, fraudulent trading, misfeasance and misappropriation of assets.
• Overdrawn directors loan accounts.
• Security advice and refinancing.
• Acquisitions of distressed businesses.
• Debt and asset recovery.
• Directors' duties.
• Directors' disqualification proceedings.

Insolvency law

Insolvency law is a system for dealing with assets or insolvency individuals, companies or partnerships, with the competing claims of the insolvent's creditors.

Insolvency law also provides a structure for what happens to individuals, companies (including directors) and partnerships following the commencement of an insolvency process.

There are various formal insolvency processes and rescue mechanisms.  These are administered under the Insolvency Act 1986 ("the Act")

Corporate insolvency

Companies

If a company does find itself experiencing trading difficulties, then there are many available options:

Administration

Administration is a procedure which allows for the reorganisation of a company or the realisation of its assets under the protection of a statutory moratorium.

An administrator is appointed to control the affairs of the company and takes over control and management of the company’s business and assets in order to achieve one of the statutory purposes of Administration, which might be to rescue the business of the company or to obtain a better outcome for creditors than would be achieved in a liquidation.

Liquidation

Liquidation is an insolvency procedure through which the assets of a company are realised and distributed to creditors by an appointed liquidator.

Liquidation can be compulsory (instigated by a creditor through the courts), otherwise known as a winding up, or voluntary (instigated by the company itself where it is unable to continue trading).

Liquidation always results in the ultimate dissolution of the company.

Company Voluntary Arrangement

A Company Voluntary Arrangement involves the company and the creditors reaching an agreement regarding the payment of the debts of the company and with a view to avoiding liquidation. It is implemented under the supervision of an insolvency practitioner and it binds all unsecured creditors of a company who were entitled to vote and who would have been entitled to vote had they received notice of it. As such, it binds known and unknown creditors.

Directors

As well as helping companies that are in financial difficulty, we advise directors on the personal consequences of insolvency of their company.

It is often a delicate balancing act for directors to determine when they should cease trading and directors must be careful to avoid the risks and consequences that may arise if a company were to continue trading while insolvent.

Our insolvency and restructuring team is experienced in advising directors on their duties and obligations in connection with insolvent companies.

Personal guarantees

Generally, the directors of a company are not personally liable for the debts of a limited company. However, if a director has given a personal guarantee in respect of a company debt, it is likely that he will be pursued for that debt under the personal guarantee in the event that the company is unable to pay it.

Wrongful trading

Once directors of a company concludes that there is no reasonable prospect of the company avoiding liquidation, the directors have a duty to take steps to minimise the potential loss to the company's creditors.

If the directors fail to comply with this duty, it is possible for any subsequently appointed liquidator or administrator of the company to seek an order from the court for the directors to make a personal contribution to the company's funds or assets, so that there is more money available for the company's creditors. Liability will arise if, on a net basis, it can be shown that the company is worse off as a result of the directors continuing to trade when they knew or ought to have known that at some point before the commencement of the insolvent liquidation or administration, there was no reasonable prospect that the company would avoid going into that insolvency processes.

Fraudulent trading

Fraudulent trading is a criminal offence.

If it appears that the business of the company has attempted to defraud creditors, or for any other fraudulent purpose, the liquidator of the company can seek an order from the court that requires anyone who was knowingly a party to the fraudulent activity to make a personal financial contribution to the assets of the company so that there is more money available for distribution to the company's creditors.

The liquidator must show that there was actual dishonesty.

Misfeasance or breach of fiduciary duty

Directors owe duties to the company, its shareholders and its creditors. If a director acts in breach of these duties, for example in relation to the misapplication of company's assets, this is known as misfeasance. If a director is guilty of misfeasance then they may be ordered to repay, restore or account for money or property or contribute a sum of money by way of compensation as the Court thinks fit.

Insolvency practitioners

We work with a number of insolvency practitioners from sole practitioners to large firms to help companies achieve their goals, whether that be to rescue, reorganise or restructure the company or to Liquidate it with a view to protecting the creditors’ interests. The team advises insolvency practitioners both pre- and post-appointment. The team deals with all aspects of insolvency law and procedure across a wide range of business sectors.

We act for and advise administrators, administrative receivers and liquidators regarding the collection and protection of assets including wrongful/fraudulent trading actions, transactions at an under-value and preference claims.

We advise insolvency practitioners on security, priority and inter-creditor arrangements, debt collection and reservation of title claims.

Creditors

Where a customer/debtor of yours is in financial difficulty, we can advise you practical steps and methods available to you for recovering your debt or for winding up a company when they are unable to pay the debt. We also regularly advise creditors concerning their ongoing trading with a debtor company/individual and on securing their position and debt.

Our team advises businesses on the strengths of their existing retention of title clauses and regularly assists businesses with the recovery of goods supplied under retention of title clauses.

Personal insolvency

• Issuing and defending statutory demands and bankruptcy petitions.
• Bankruptcy and individual voluntary arrangements.
• Income payment agreements.
• Insolvency act offences, including transactions at undervalue and preference claims.
• Possession and sale applications by trustees in bankruptcy.
• Equity of exoneration and equitable accounting.

If you or your business is struggling with debt, or you are owed money from a third party, our insolvency solicitors will be able to help you find a solution.

How we can help

It has never been more important for companies to keep their finances under control and review and to manage their cash flow and liabilities. 

Our corporate insolvency team can advise on ways to avoid insolvency by way of specialist and practical advice. However, if a company does find itself unable to pay its debts and insolvency is unavoidable, then there are several procedures which are applicable and available.

Our solicitors can provide expert advice on the options available for the appropriate formal or informal insolvency procedure for the company and its directors.