In this three part blog we highlight three recent court decisions concerning landlord rights and insolvency, which provide cautionary warnings and surprising twists. The questions we consider are:
- Does a company voluntary arrangement (“CVA”) permanently vary the terms of a lease?
- Can a landlord be forced to accept a surrender of a lease?
- What are the consequences of taking money from a rent deposit if the tenant company is in administration?
In part 1 we consider the first question.
Dealing with pensions in insolvency can be challenging for insolvency practitioners (“IPs”) and the Pension Scheme Bill (“Bill”) presents another.
Whilst a prudent insolvent practitioner should not be unduly alarmed, s114 of the Bill inserts a new section 80B into the Pensions Act 2004 which gives the Pensions Regulator (tPR) power to issue insolvency practitioners with a fine of up to £1 million.
A significant amount, and payable personally!
Can a CVA bind a landlord in respect of future rents? Is the landlord a creditor in respect of future rent? What about the right to forfeit; can a CVA modify that right? Is compromising rent under a CVA automatically unfair to landlords when other trade creditors are paid in full?
These were some of the points considered by the Court in determining whether the Debenhams’ CVA (which had been challenged by landlords) should fail.
One point of particular interest is whether reducing rents below market value in a CVA is automatically unfair to landlords?
公司资本充足是指股东实缴的出资与公司的经营规模相适应，以确保公司有充足的资本应对经营风险、偿付到期债务，与之相匹配的法律规范就是公司资本充足制度。近年来，随着市场经济的发展，立法机关改变了法定资本制的立场，在司法实践中，公司资本充足制度也呈现出渐见宽松的趋势。
一、《公司法》多次修改公司资本制度，大幅放宽了资本管制
1993年12月颁行的《公司法》采取了严格的法定资本制度。
2005年10月修订的《公司法》在保持法定资本制度的同时，降低了设立公司的资本门槛，将严格的法定资本制度修改为法定资本分期缴纳的资本制度。
2013年12月修正的《公司法》大幅修改了公司资本制度，将实缴登记制改为认缴登记制（特殊行业除外），取消了注册资本的最低限额、分期认缴期限、首付出资比例及出资财产形式的限制等规定，改由股东在公司章程中自行约定，基本完成从法定资本制到授权资本制的转变。
2018年10月修改的《公司法》增加了允许上市公司回购本公司股份的情形，并实际上赋予上市公司回购股份的自主决定权（“上市公司为维护公司价值及股东权益所必需”），还简化了股份回购的决策程序，提高了公司持有本公司股份的数额上限，延长了公司持有所回购股份的期限。
Today the Government published draft provisions for inclusion in the Finance Bill which will amend the Insolvency Act 1986 and grant HMRC preferential status on insolvency. A status that was removed in 2003 but which will be re-instated (in part) from 6 April 2020.
Despite huge concern from the lending market, voiced in responses to the Government’s consultation on this measure, the only material change we can see is confirmation that preferential status will not apply to insolvency proceedings commenced before 6 April 2020.
The proposal to reinstate Crown preference in insolvency has met resistance from all angles; the insolvency profession, turnaround experts, accountants, lawyers and funders. But despite HMRC’s bold statement in its consultation paper that the re-introduction of Crown preference will have little impact on funders, it is clear following a discussion with lenders that it may well have a far wider impact on existing and new business, business rescue and the economy in general than HMRC believes.
Crown prerogative dates back to the Magna Carta entitling the monarch to absolute priority for revenue related debt. Come 6 April 2020 will we really be heading back to feudal times and 1215?
The proposal to reinstate Crown preference was announced as part of the Autumn Budget last year and came as a surprise to many. The expected consultation paper published by HMRC this week seeks the views of individuals, shareholders, directors, lenders, companies and insolvency practitioners on the proposal to reinstate Crown preference in part.
There has always been a tension between protecting the interests of defined benefit pension schemes and insolvency given on the one hand The Pensions Regulator (TPR) seeks to protect the interests of pension scheme members and the Pension Protection Fund and on the other, the insolvency regime seeks to protect the interests of creditors as a whole.
We are yet to see the true impact of Christmas trading in the retail industry although HMV is already a victim of the tough conditions for retailers. Additionally, Boots has announced a fall in sales and the launch of a “transformational costs management program” to save more than $1 billion and Next has confirmed that profits in store have fallen and although online sales are up, the uncertainty about the UK economy after Brexit makes forecasting difficult. Only one thing is clear – consumers remain at risk in the event of a retail business entering administration.
Following the Enterprise Act 2002, the preferential status which HMRC had enjoyed in an insolvency was abolished, rendering HMRC the same as any other unsecured creditor. The effect of this was to swell the pot of assets available to be applied to all unsecured creditor claims.
Philip Hammond announced in Monday’s budget that HMRC’s preferential status is to be restored. What does this mean for HMRC and unsecured creditors?
The Budget provided that: