When a company is in financial distress, its directors will face difficult choices. Should they trade on to trade out of the company's financial difficulties or should they file for insolvency? If they delay filing and the company goes into administration or liquidation, will the directors be at risk from a wrongful trading claim by the subsequently appointed liquidator? Once in liquidation, will they be held to have separately breached their duties as directors and face a misfeasance claim? If they file precipitously, will creditors complain they did not do enough to save the business?

The UK High Court has considered and granted permission for a so called “credit bid” in an application by the Special Administrators of Sova Capital Ltd (in special administration) for a substantial portfolio of illiquid Russian securities. The transaction structure, involving the transfer of securities in exchange for the release of a £233m claim against the estate, is unprecedented in the UK where ‘credit bidding’ has no technical recognition.

Company directors who act in breach of their statutory and fiduciary duties can face disqualification for up to 15 years pursuant to the Company Directors Disqualification Act 1986 (CDDA). Prior to 15 February 2022, civil disqualification proceedings on the grounds of unfitness could only be brought in relation to directors of 'live' companies under s.8 CDDA (where the court retains a discretion whether or not to disqualify) or those subject to insolvency proceedings under s.6 CDDA (where the court is obliged to exercise its power to disqualify).

1. State of the Restructuring Market

1.1 Market Trends and Changes

State of the Restructuring and Insolvency Market

There were 27,359 insolvencies in France as of the end of September 2021, down 25.1% from the same period in 2020, and down 47.9% from September 2019. Such reduction is relatively stable across all sectors, including those most severely affected by the health-related restrictions, such as accommodation and food services (down 44.2% year-on-year) and trade (down 28.1% year on year).

Fewer Insolvencies for More Opportunities

At the end of 2021, corporate bankruptcies (for most company sizes and in most sectors) were at their lowest level compared to the pre-COVID-19 figures from 2019, with a 50% drop in insolvency proceedings and a 10% decrease in pre-insolvency situations. This was largely due to the temporary impact of government emergency measures and support, including:

The Pension Schemes Bill [HL] 2019-20 (Bill) was re-introduced before Parliament on 7 January 2020. Among its proposed amendments to the Pensions Act 2004 (Act) are new criminal offences for failing to comply with a contribution notice, avoiding employer debt, conduct risking accrued scheme benefits, an expansion of the moral hazard powers and an extension of the ‘notifiable events’ framework. The Government’s stated intention is to “ensure that those who put pension schemes in jeopardy feel the full force of the law“.

On 19 September 2019, Norris J handed downjudgment in the challenge brought by six landlords against the Debenhams Retail Limited (Debenhams) company voluntary arrangement (CVA) which was approved by 94.71% of Debenham’s unsecured creditors on 9 May 2019.