Usually, the expenses and fees of the Liquidator will be met out of the assets that are realised in the liquidation.
But there is another potential source of funding-the Government.
Many directors overlook the fact that the company that they run is in fact their Employer as most directors are also employees.
So when that Employer goes into a formal liquidation process, the director/employee is entitled, like all other employees of the company, to claim for money owed by the Company in liquidation. The claim is effectively made against the Government’s National Insurance Fund which is a state sponsored safety net for employees caught up in a formal insolvency procedure.
Not so many years ago the claims of directors, who were also shareholders, of the Company were rejected by the Government’s fund, but a number of decisions in the Employment Tribunals have led to the position where Directors claims, in their capacity as Employees, are now treated in the same way that all other employee claims are dealt with. Please refer to the Government’s own Factsheet which you will find here in our Downloads section.
As you can appreciate, the aforementioned claims can soon mount up and quite often, the costs of putting the company into liquidation can be easily met out of the monies that are paid over by the Government.
A Winding Up Petition is an application to the court, usually by a creditor, seeking an order that a company be placed into compulsory liquidation. The service of the Petition on the company carries with it serious consequences that cannot be ignored.
Immediate action by directors is essential. As soon as the company’s bankers are made aware of the Petition [which in due course will be advertised in the London Gazette], a freeze will be placed on the company’s bank accounts. Directors, in order to safeguard their own position, should not conduct any business for the company without first approaching the court in order to secure a Validation Order, unfreezing the bank account, allowing payments to creditors and enabling the directors to continue to trade the business pending the withdrawal or outcome of the court hearing. The hearing itself is usually fixed for between 2-3 months from the date of the application itself, so a long hiatus period can ensue, leading to great uncertainty and worry for directors.
Many directors simply believe that paying the petition debt and associated costs will be the end of the matter, but that is far from the case as payment does not automatically result in the petition being dismissed. Other creditors can effectively jump on the back of the petition and make representation to the court seeking to have the winding up order made.
Early professional advice should be sought and representation at any hearings is extremely important in order to avoid grievous harm to the company’s future prospects.
These are transactions that take place before some insolvency procedures that might be subject to challenge, usually, but not always by the Office Holder. Preferences and Transactions at Undervalue are the commonest types. If the challenge is upheld, Directors can be ordered by the court to pay monies to the company by way of restitution.
MBI will help you identify which transactions may be vulnerable to challenge and provide you with clear advice as to your options.
These schemes mainly relate to tax arrears and are agreements with HM Revenue and Customs [HMRC] to repay arrears over a period of time. Such schemes need to be realistic, affordable, and achievable and we at MBI can assist you in reaching agreement with HMRC. There is a lot of anecdotal, some would say apocryphal comment, about reaching lengthy payment terms with HMRC, but in our experience, the Revenue departments will only agree to schemes whereby the arrears are settled within 6-12 months and will never allow you to write off debt other than through a formal CVA or IVA procedure.
In order to put forward a realistic offer, an integrated profit and loss and cash-flow forecast should be prepared that ties in with and reflects the aims of your Business Plan going forward. MBI can help you prepare these documents and we will always challenge your assumptions to ensure that your proposal to deal with any arrears is robust and credible.
If the object of the exercise is to save the business, then in almost all cases, extra cash will be needed to aid the process. Sometimes that additional finance can be generated by accessing the cash tied up in the company’s assets e.g.
- Debtors-Factoring and Invoice Financing
- Plant and Machinery – refinancing through Hire Purchase or Lease - Purchase or Lease Purchase
- Premises – Sale and Leaseback
- Stock – revolving stock financing products
MBI is not a finance broker, but we do know finance providers who are prepared to look at difficult funding propositions
For a detailed review of this aspect of a Liquidator’s duties, please refer to SIP 2 in our Library and Downloads link.
A preliminary review of the company’s books and records will be undertaken in order to identify unusual transactions. A more detailed investigation may follow, but the Liquidator must always bear in mind the level of available assets to fund further investigations and the materiality of matters disclosed.
The Liquidator has a statutory reporting responsibility with regard to the conduct of all directors who had been a director or acted in the capacity of a director within the 3 years leading up to the date of liquidation.
The Liquidator has extensive court backed powers to make third parties deliver up company property but also information and documentation relating to the company.
Liquidators can apply to the court seeking orders making directors and other persons personally liable to make contributions to the company as the court thinks fit [Fraudulent Trading/Wrongful Trading] in addition to seek orders regarding Transactions at an Undervalue, unfair Preferences or Misfeasance.
The first question to ask is- “is the business itself viable?”.
If the underlying business of the company is sound but it is technically insolvent either on a cash flow or balance sheet basis, it is often possible to restructure the company in such a way as to protect the core business.
Protection, by way of a legal moratorium against creditor enforcement action, is first achieved by placing the company into a secure environment where the losses of the past are not allowed to bring down the business, for example by either placing the company into Administration. Both options need a well thought out and achievable business plan which eventually will need to put to the company’s creditors for their approval.
Invariably, the plan will provide for payments to historic creditors, often over several years, out of the future profits of the company, a profitability that would be impossible if the company did not have the ability to “ring fence” the old debts.
The two procedures also lend themselves to situations where a sale of the company’s assets [including goodwill] is the best way forward for the business and the creditors and all the other stakeholders [i.e. bank, employees and customers], as sales of assets on a going concern basis, free of historic debt, bring better returns to creditors and preserve livelihoods.
If the underlying viability is no longer there, the directors need to take prompt action to preserve the assets of the company [directors are after all custodians of such assets for the benefit of the creditors] and take the most appropriate steps to ensure that the company’s affairs are wound up in a proper manner.
A Creditors' Voluntary Liquidation is usually the best course of action in such circumstances as it relatively quickly ensures that a Licensed Insolvency Practitioner can take control and in his capacity as Liquidator can dispose of assets and account to the creditors and shareholders.
There is no legal bar on continuing to act as a director of another limited company and because of the nature of “limited liability”; directors are not normally personally liable for the debt unless they have acted in a mannor detrimental to the creditors of the company, such as wrongful trading which could result in a personal liability for some or all of the debts.
Any personal guarantees that have given will be called and you will have to make arrangements with such guarantee creditors to repay the monies back.
In the Financial Year 2013/14 1,282 individuals were disqualified with 1,209 individuals in 2014/2015 [Liquidation totals in 2013 and 2014 were 11,997 and 14,042 respectively]. The numbers of directors who are disqualified are relatively small given the number of corporate failures; however, quite rightly, disqualification remains a powerful tool against those who abuse the privilege of limited liability.
Directors who have allowed their company to take substantial deposits from customers and have then not provided the goods or services are an obvious target for disqualification. Similarly, anecdotal evidence would suggest that directors involved in their third or fourth corporate failure may well [and some may say justifiably] find themselves in the firing line.
Quite often, rather than seek a prosecution through the court, The Insolvency Service will seek to obtain an undertaking from the director which has the same effect as a disqualification order.
The minimum period of disqualification is 2 years and the maximum 15 years.
A disqualification order or undertaking does not stop you from having a job with a company, but unless you have court permission, it does stop you from:
- being a director of a company;
- acting as receiver of a company's property;
- being concerned in or taking part in the promotion, formation or management of a company
The order or undertaking does not stop you carrying on business as a sole trader or in partnership with others but, unless you have court permission, you must not be a member of or be concerned or take part in the promotion, formation or management of a Limited Liability Partnership. Contravening the order or undertaking is a criminal offence with a possible jail sentence for up to 2 years and a fine.
It is a civil liability imposed on directors who allowed their company to continue trading when they knew or ought to have known that there was no prospect of meeting the company liabilities as they fell due. An action for Wrongful Trading can only be commenced by a Liquidator after a company has gone into insolvent liquidation.
A successful Wrongful Trading prosecution can result in a financial order against a director for the payment of monies to the company.
In order to minimise the risk of a prosecution for Wrongful Trading a director should at all times act in good faith towards all parties and where possible take early professional advice.
A director should not:
- Assume that the solvency or otherwise of the company is simply the Finance Director’s responsibility
- Only look at or ask for the company’s accounts at year end
- Ignore the warning signs of creditor "payment chasing" letters, demands and CCJs
- Simply hope that everything will work out ok in the end
A director should:
- Ensure that the company has proper accounting and reporting systems in place
- Minute all major commercial decisions.
- Take professional advice and act upon it
It is automatically a criminal offence to act as a director or be involved in the set up or management, within the next five years, of another company with the same or a similar name, without the court's permission. Although there are certain sets of circumstances where the restriction would not apply.
The term “pre-pack” has arisen to reflect the increasing numbers of sales of businesses on the day or shortly after the date a company is placed into Administration. Effectively, a buyer has been found for the business, before formal insolvency proceedings have been commenced and in order to preserve continuity and enhance asset value. The sale is conducted by the Administrator almost immediately after his appointment. Such a sale process contrasts with an open marketing of the assets after the appointment of an Administrator.
Our trade association R3 has defines a pre-pack sale as “an arrangement under which the sale of all or part of a company’s business or assets is negotiated with a purchaser prior to the appointment of an Administrator, and the Administrator effects the sale immediately on, or shortly after, his appointment”. These sales are normally done by Administrators although, in theory, such sales can be achieved in liquidation by a Liquidator
The courts have held that an Administrator can sell the company's assets immediately upon his appointment, without court approval or the approval of the creditors.
Speed and preservation of the continuity of the business are the real advantages to the process. Uncertainties regarding trading operations are removed and invariably the value of the business and jobs are preserved.
The sale process is backed up by independent valuations and sometimes by way of open or discrete marketing of the business and assets prior to the company being placed into Administration. Given that many pre-pack sales are to connected parties/current directors, we at MBI ensure that the process is carried out in such a way as to ensure that no justifiable criticism of the directors or the Administrator can be made.