In Short

The Situation: Directors in England and Wales owe duties to the companies to which they are appointed (and may face personal liability for breaching such duties). Although the Companies Act 2006 obliges directors to maximise value for a company's shareholders, case law has suggested that directors should act in the interests of a company's creditors if a company becomes distressed.

After a weekend that saw the tech ecosystem unite to fight for its future, on Monday 13 March 2023, the Bank of England (the Bank) effected the sale of Silicon Valley Bank UK Ltd (SVB UK) to HSBC. It used the resolution powers for stabilising failing banks granted by the Banking Act 2009 which were introduced following the 2008/9 financial crisis.

Resolution powers

Under German law, company directors have a statutory duty to file for insolvency once the company has become insolvent or over-indebted. Company directors can be held personally liable for any payments they make after that point of time unless they prove that they exercised reasonable care, skill and diligence. After the German Federal Court of Justice (Bundesgerichtshof) clarified that standard terms and conditions of German D&O insurance contracts cover this directors’ liability, many D&O insurers have tried to find new ways to avoid their coverage.

After a turbulent weekend, the news on Monday morning that HSBC had acquired Silicon Valley Bank UK (SVB UK) caused the UK tech community to breathe a huge sigh of relief.

It was also a very different outcome to the one that seemed destined on Friday when the Bank of England announced it intended to put SVB UK into a bank insolvency procedure.

The United Kingdom Supreme Court has just released an important insolvency judgment in BTI 2014 LLC v Sequana SA [2022] UKSC 25 (Sequana), which concerns when and the extent to which directors of a company must consider the interests of creditors.

The United Kingdom Supreme Court has just released an important insolvency judgment in BTI 2014 LLC v Sequana SA [2022] UKSC 25 (Sequana), which concerns when and the extent to which directors of a company must consider the interests of creditors.

The FDIC receiverships of Silicon Valley Bank and Signature Bank have caused certain early-stage companies to face potentially crippling near-term liquidity issues. These liquidity issues may result in a company becoming insolvent. Therefore, boards of directors of such companies need to consider their fiduciary duties as well as steps that can be taken to mitigate risks.

Fiduciary duties are typically owed to the company for the benefit of its owners.

Overview of this submission

As expected, the UK's latest quarterly company insolvency statistics, published on 28 October, follow the pattern of previous quarterly updates this year with the number of insolvencies continuing to rise in comparison with both the equivalent quarter in 2021, and pre-pandemic.

With the temporary insolvency measures implemented under the Corporate Insolvency and Governance Act no longer in force, the Q3 2022 data shows a significant increase in insolvencies from Q3 2021, with the overall number of registered company insolvencies 40 per cent higher.

On Sunday, March 12th, the Treasury Department, the FDIC, and the Board of Governors of the Federal Reserve System (Fed) (the Agencies) announced that the New York Department of Financial Services had appointed the FDIC as receiver for Signature Bank, which was closed on March 11th.  Subsequently, the FDIC announced that it had transferred substantially all of the assets and all of the deposits of Signature Bank to the newly created Signature Bridge Bank, N.A.  Early on March 13th, the FDIC announced a similar transfer of assets and deposits to Silicon Valley Bank, N.A., another n