This article is a part one of two series that explores the key issues we have recently seen and the case law arising in Misfeasance and Wrongful Trading claims.
Introduction
What is Wrongful Trading?
Selon Paul Chollet, économiste de Crédit Mutuel Arkea 2024 sera "une année noire" avec un record de défaillances d’entreprises en France. Cela fait maintenant 3 ans que les économistes prédisent un ras-de-marrée de défaillances. Cela étant, avec près de 49.000 de défaillances en France sur 12 mois glissants, il y a une tendance à un retour aux chiffres de 2019.
Il est donc indispensable de rappeler que des procédures de prévention (mandat ad hoc et la conciliation) sont là pour traiter les difficultés en amont de la défaillance.
The restructuring of Casino Group, one of France's top 6 retailers, is at the point of reaching a favourable outcome. An agreement is expected at the end of July 2023. The commonalities between the restructuring of Casino and Orpéa are the preservation of secured debt, the conversion of unsecured debt into capital, asset disposals and, of course, a significant injection of new money.
Understanding whether a company is insolvent, and the date of insolvency, is essential for directors and accountants who advise companies, as well as liquidators and other parties bringing insolvency-based claims. In understanding these issues, the analysis may need to go beyond establishing present-day liquidity – for example, what impact do long term-debts have on a company’s solvency and how are they used to prove insolvency? Which debts are relevant to the cashflow test? Whether a company is ‘able to pay all its debts’ as and when they become ‘due and payable’?
Looking at the most recent figures on corporate insolvencies makes for worrying reading for landlords and occupiers alike, with overall numbers now exceeding pre-pandemic levels. Overall, corporate insolvencies increased by 17% in England and Wales since February 2022 and were a third higher than in February 2020.
A large number of UK companies are in significant financial distress at the moment.
Concern amongst sports aficionados around the financial integrity of the sports industry was raised in late 2022 when rugby union was the latest sport to be dragged into the insolvency conversation. Both Wasps RFC (Wasps) and Worcester RFC (Worcester, and together with Wasps, the Clubs), who can each trace their history back to the mid-19th century, appointed administrators after facing financial difficulties they attributed to the Covid-19 pandemic and resulting lockdowns.
On 8 February 2023, the High Court of Australia (being Australia’s highest court) simultaneously handed down two highly anticipated insolvency law decisions:
In the recent case of LMN v Bitflyer Holdings Inc & Ors [2022] EWHC 2954, the High Court of England and Wales made orders directed at a number of cryptocurrency exchanges requiring them to provide information in relation to misappropriated crypto assets.
Setting aside a transaction on the basis that it was an extortionate credit transaction under the Insolvency Act 1986 (IA 1986 or the “Act”) is difficult. A bargain may be hard or even unreasonable, but that does not make it extortionate. The most important term to any credit transaction is usually the interest rate and that is most likely to be subject to scrutiny when considering whether or not a credit transaction contained grossly exorbitant terms.