We have recently experienced an increase in mandates concerning disputes between shareholders and the Board of a Cayman company, which in many cases, leads to a shareholder applying to appoint provisional liquidators over the Company on a just and equitable basis. Therefore, we considered it important to remind those considering this remedy of the evidentiary hurdles they need to overcome to exercise it successfully.
During the course of 2022, Part V of the Cayman Islands Companies Act (the "Companies Act") will be amended to introduce a new restructuring officer regime available to companies in financial distress, which can be accessed without the need to present a winding up petition to the Grand Court of the Cayman Islands ("Cayman Court").
The common law imposes on all company officers (directors and secretaries), fiduciary duties and a duty of skill, care and diligence. The Companies Act 1981 (the "Act") codifies certain of the common law duties (but is not exhaustive), such that officers' duties are governed by both common law and statute.
A director has been found liable in the High Court for fraudulent trading as a result of failing to carry out proper due diligence in a series of transactions which were found to be part of a VAT fraud scheme.
The claim was brought against the director by the Liquidator of JD Group Limited (the “Company”).
Background
Company insolvencies have recently hit a record high and are on an upward trend in the aftermath of the COVID-19 pandemic. This means that we are likely to see an increase in claims against directors, especially in light of new legislation that expands the government’s powers of investigation.
Record high insolvencies
The right of a creditor who is owed a liquidated debt that is not subject to a bona fide and substantial dispute to have the debtor company wound up if that debt is not paid in accordance with its terms is fundamental to the proper functioning of any modern financial system.
“the new restructuring officer regime and the other amendments to the Companies Act … address certain of the challenging issues previously experienced by practitioners with the restructuring provisional liquidation regime”
Introduction
The Cayman Islands continues to be at the forefront of developments in restructuring and insolvency law in the offshore world and one of the premier jurisdictions of choice to facilitate complex and high-value cross-border restructurings.
There is an expectancy of an increase in this area, together with a rise in distressed mergers and acquisitions activity, writes William Greensmyth of Walkers Ireland.
Corporate insolvency rates have been relatively low during the pandemic, but as government support measures fall away, there is an expectancy of an increase in corporate restructurings, together with an increase in distressed M&A activity.
The impact of Covid-19 is clearly the big talking point for 2022, with several questions arising: will new variants emerge, what steps will governments take to limit the spread, and what impact will it have on industries? To date, enforcement actions, insolvencies and restructurings have been relatively light, but with new restructuring legislation reforms on the horizon, and creditors starting to ramp up speed to enforcement, it appears likely that there will be an increase in winding up and cross-border restructuring work.