In a press release on 28 March 2020, the Government set out plans to amend insolvency law to give companies breathing space and keep trading while they explore options for rescue.
This will include enabling companies undergoing a rescue or restructure process to continue buying much-needed supplies, such as energy, raw materials or broadband, while attempting a rescue, and temporarily suspending wrongful trading provisions retrospectively from 1 March 2020 for three months for company directors so they can keep their businesses going without the threat of personal liability.
The proposals will include key safeguards for creditors and suppliers to ensure they are paid while a solution is sought.
Current insolvency rules stipulate that directors can become personally liable for business debts if they continue to trade when uncertain about whether their businesses can continue to meet their debts. Relaxation of these wrongful trading rules will reassure directors that the difficult decisions they have to make about the future viability of their business will not have to be unduly influenced by the exceptional circumstances which are entirely beyond their control.
Existing laws for fraudulent trading and the threat of director disqualification will continue to act as an effective deterrent against director misconduct.
Legislation to introduce these changes will be introduced in Parliament at the earliest opportunity. Provisions will be included to enable the changes to be extended if necessary.
Personal Insolvency - Bankruptcy
This is a formal legal process by which individuals deal with debts they are unable to pay. The bankruptcy process ensures that the assets of the individual are divided amongst those to whom money is owed (creditors). It is a way to make a fresh start free from the onerous debts, but the process does have an effect on your credit rating for six years after the order is made.
It is possible to declare yourself bankrupt, but creditors can also apply to make an individual who owes them money bankrupt too.
Once declared bankrupt the Official Receiver (or an insolvency practitioner) is appointed to take control of the individual’s assets and they are referred to as the ‘trustee in bankruptcy’. It is a legal requirement to co-operate with them in the orderly disposal of your assets. All assets are essentially transferred to the trustee, but you will be allowed to keep items which are necessary for work along with everyday household items such as furniture and clothing. The effect of bankruptcy is to freeze your bank accounts. It is possible to open a new account after the date of the bankruptcy, but you must tell the bank or building society that you are bankrupt.
If you own your home this can be sold to pay your creditors although there are protections if you have a partner or children living with you. A trustee can also sell your motor vehicle but can ‘exempt’ this if deemed necessary for work or family circumstances.
What if I’m self-employed?
If you are self-employed your business will be closed with any business assets being claimed by the trustee. You can commence trading again but there are a number of strict requirements which you will need to follow.
What will I have to pay?
The trustee will realise your assets for the benefit of your creditors but, if you can afford it, the trustee may require you to make payments towards your debts from your income for up to three years. There is a process for establishing an appropriate level of contribution based on your income and expenditure.
When does bankruptcy end?
Discharge from bankruptcy usually occurs after 12 months but can be extended if you don’t co-operate with your trustee.
Are there other options?
Yes, there are which is why it is important to seek professional advice on the most appropriate course of action as early as possible. There are alternatives to bankruptcy which may be preferable:
An Individual Voluntary Arrangement (IVA)
An agreement to settle all or part of your debts which can include regular payments or lump sum contributions. This is a formal agreement administered by an insolvency practitioner which can be quite onerous but essentially prevents creditors from taking action against you and avoids bankruptcy. However, failure to comply with the terms of the arrangement can ultimately still result in bankruptcy.
Debt management plan
An arrangement via a debt management company which will collect contributions from you and distribute them between your creditors. This type of arrangement is only available for unsecured borrowings.
Debt relief order
Available where debts are less than £20,000, where you have negligible spare income or assets which can be realised. This route has similar restrictions to bankruptcy.
A company is deemed to be insolvent when it is unable to pay its debts as they fall due or has liabilities which exceed its assets. There are a number of legal procedures for dealing with a company’s insolvency but the main avenue for this is to liquidate the company. Creditors can take action to recover the amounts owed to them through the courts which can result in an application to wind up the company if those debts remain unpaid. The directors of the company can also apply to wind up the company themselves.
If a company is to be wound up, or liquidated, it will cease trading and ultimately be struck off from the Companies House register and will cease to exist. An insolvency practitioner is appointed to act as the liquidator which involves realising the company’s assets, settling any outstanding legal matters, before distributing any available funds to the creditors.
What are my responsibilities as a director?
The liquidator is appointed by a court to wind up the company. The liquidator has the responsibility of investigating why the company became insolvent and will ask you to provide the company’s records and other information about the circumstances which led to the company being liquidated. You will be released from your obligations as a director on the appointment of the liquidator but have an ongoing legal obligation to co-operate with the liquidator.
What happens to me after an insolvent liquidation?
You will be able to act as a director of another company unless specifically prohibited from doing so. The liquidator will consider whether the insolvency resulted from conduct by the directors which is deemed to be unfit and contributed to the failure of the business. If that is the case a disqualification order can be sought which prevents you from acting as a director of a company for up to 15 years in the most serious cases.
Can I be liable personally for the company’s debts?
There are provisions in UK insolvency legislation for ‘wrongful trading’ which means that you could potentially be personally liable for some of the company’s debts. This occurs if you allowed the company to continue trading past the point at which it was apparent that an insolvent liquidation could not be avoided and took no action to minimise the losses faced by creditors.
Are there other options?
Yes, there are which is why it is important to seek professional advice on the most appropriate course of action as early as possible. The following options are available:
Company Voluntary Arrangement (CVA)
A binding agreement supervised by an insolvency practitioner which provides for the payment of all, or part of the company’s debts over a period of time. This requires the agreement of at least 75% of the creditors. It does, however, mean that the company is able to continue trading during the CVA and afterwards but a failure to comply with the terms of the arrangement can ultimately result in the company being liquidated.
This process essentially passes control of the company to an insolvency practitioner, the Administrator, which has the effect of preventing the creditors from taking legal action to recover their debts. The Administrator’s role is to identify potential courses of action to make the company profitable again or to realise more funds than simply liquidating the company. It may be possible to sell the business as a going concern for example.