The Supreme Court has recently held that directors who have caused company property to be transferred to another company under their control may be liable to restore the proceeds even after expiry of the six-year limitation period.

Mr and Mrs Fielding were directors and majority shareholders of Burnden Holdings (UK) Ltd ("BHUK"), a holding company with trading subsidiaries including Vital Energi Utilities Ltd ("Vital Energi").

Following on from a number of recent high profile corporate failures, the Government has issued a consultation focused on specific issues concerning companies which are insolvent or approaching insolvency.

Below is a summary of the areas under consultation. The full consultation can be found here.

The UK’s corporate governance regime has been stress-tested in the past decade and in many respects it has done well. However, in response to certain high profile corporate collapses which have caused heavy losses for creditors, in particular individuals and suppliers with little opportunity to protect themselves against losses, and in the spirit of continual improvement, the government has recently launched its “Insolvency and Corporate Governance Consultation”.

The consultation indicates that the government is considering changes in the law to address:

Summary: Following a number of corporate governance failures, the Government has published a consultation paper aimed at cracking down on directors and employers behaving irresponsibly. “These reforms will give the regulatory authorities much stronger powers to come down hard on abuse and to make irresponsible directors bear the consequences of their actions.” Greg Clark. Responses are required by 11 June 2018.

Sale of Businesses in Distress

 March 2018 The Government has issued a Consultation on proposals designed to reduce the risk of major company failures and to strengthen the responsibilities of directors in the context of actual or threatened insolvency. The principal specific proposals are: • directors of a holding company that sells an insolvent subsidiary to be required to take into account the interests of the creditors of that subsidiary and possibly its other stakeholders • the unwinding of transactions that have “unfairly removed value” from a company that becomes insolvent.

Directors against whom claims for a misfeasance have been intimated often turn to limitation and set off in defence of a request for the repayment or restoration of the relevant sums or property.

Misfeasance and limitation

Over recent years I have been astounded that certain professionals, including accountants, insolvency practitioners (IPs) and solicitors, appear unable to recognise a conflict of interest if it were to stand up and slap them in the face.

Cynically, one could suggest that the blinkers have been on because it serves the interests of the professional concerned. Ignoring a conflict of interest is a fundamental breach of professional ethics, not something that can be brushed under the table for pure personal financial gain.

Capital Funding One Limited (the "Company") arranged short term bridging finance for borrowers who were unable to obtain loans from more conventional sources. The funding for these loans were obtained from King Street Bridging Limited ("King Street").

The recent judgment in Phones 4U Ltd (in administration) v EE Ltd [2018] EWHC 49 (Comm) has highlighted the need for care when communicating the reasons for terminating a contract. In this case EE, as a result of failing to identify a repudiatory breach as the grounds for terminating its trading agreement with Phone 4U, was precluded from later pursuing a common law claim for damages.

Background

Much has already been said about the demise of Carillion and the impact of its liquidation on the various parties with whom it contracted. In this article, I would like to examine what light the demise of Carillion throws on themes commonly encountered within insolvency and whether there are lessons to be learned for everyone.

Having read the various reports in the press, it is clear that whilst Carillion entered into multi-billion pound government contracts, the contracts had extremely small profit margins, ultimately rendering the business unsustainable.