Analysis and Commentary on the Insolvency Statistics Q2 2023

The quarterly insolvency statistics for April to June 2023 show that corporate insolvencies across the UK¹ are at a 14-year high.

Increased insolvencies appear to be continuing with the monthly statistics for both August and September 2023, showing corporate insolvency numbers were higher than the same month last year. July’s figures showed a slight decrease year on year.

Deciding the parameters of directors' personal liability for actions, or omissions, when a company continues to trade while it is or near insolvent requires a balance to be struck between allowing directors latitude to try to rescue the company and protecting the company's creditors.

Protecting your business from exposure to supplier and customer insolvency

As we move through Q1 of 2023, significant shifts are occurring in the Global financial and economic landscape which are of significant consequence for business. The marked upward shift in the cost (and reduced availability) of finance, largely unseen for over a decade, combined with high energy and natural resource/raw material costs and challenges and currency fluctuations has the potential to sharply to expose financial distress in businesses in many countries and global supply chains.

Germany’s planned Stabilization and Restructuring Framework (Stabilisierungs- und Restrukturierungsrahmen) is essentially an independent, out-of-court tool to implement a restructuring process by means of a restructuring plan in order to avert insolvency proceedings. The debtor and supporting creditors can rely on certain procedural assistance in order to implement and enforce a restructuring plan with their majority despite resistance on the part of individual stakeholders.

The rapidly changing impact of COVID-19 on companies and the wider economy presents directors with the unenviable task of balancing the immediate need to secure the survival of their company against the longer-term implications for their stakeholders. In March, the UK Government announced that wrongful trading measures would be temporarily suspended to ease this pressure. The suspension measures are included in the Corporate Insolvency and Governance Bill, which introduces both temporary measures, such as this, and permanent and significant changes to UK insolvency law.

The German Parliament passed an act to reduce the risk of clawback actions and provide more legal certainty in this regard under German law, the so called "Act for the Improvement of Legal Certainty concerning Clawback pursuant to the German Insolvency Code and the Creditor's Avoidance of Transfers Act" (Gesetz zur Verbesserung der Rechtssicherheit bei Anfechtungen nach der Insolvenzordnung und dem Anfechtungsgesetz) on Thursday, 16 February 2017.

The Federal Court of Justice (Bundesgerichtshof – BGH) on 5 March 2015 issued a decision (case no. IX ZR 133/14, available here) that is of immense relevance for all creditors and debtors that face the need of a subordination agreement (Rangrücktrittvereinbarung) under German law.

Impending major reform of German insolvency clawback regime