A comparison of the new Dutch Scheme and the new UK Restructuring Plan.

Introduction

Life has a habit of testing us, personally and in business. In challenging circumstances, corporate insolvency can threaten even the strongest businesses, large or small.

Here are some tips to help you minimise the threat of insolvency.

What is it and what has changed?

Wrongful trading is a term that has received quite a bit of press over the last few months, mainly through the headlines generated by the UK Government’s unprecedented amendment to the wrongful trading provisions contained within our insolvency legislation.

But what exactly is wrongful trading and what has changed?

July Bankruptcy and Restructuring Developments

What does the Corporate Insolvency and Governance Act 2020 (CIGA) do?

CIGA introduces various changes to various provisions of the Insolvency Act 1986 and the Companies Act 2006.

Some of these changes are designed to be permanent changes to the insolvency landscape (largely implementing proposals for insolvency law reform introduced in 2018) – for example, the introduction of a moratorium, a ban on termination provisions (also known as ipso facto clauses) and a new pre-insolvency rescue and restructuring regime.

We live in uncertain and financially very troubling times. The coronavirus pandemic and the unprecedented measures put in place to tackle it have caused severe disruption to businesses. Big names such as Harveys, TM Lewin, Intu and the owners of Café Rouge and Bella Italia all went into administration at the beginning of the month. They will not be the last.

Background

On 26 June 2020, the Corporate Insolvency and Governance Act (CIG Act) came into force which introduced fundamental changes to the UK’s company and insolvency laws which not only provide temporary assistance to companies and their directors during the Coronavirus Disease 2019 (COVID-19) crisis, but on a permanent basis have significantly bolstered the UK’s restructuring tool kit. Amongst other matters, the CIG Act implements measures contained in the UK Government's consultation on Insolvency and Corporate Governance which concluded in August 2018.

Interviews are frequently conducted by office-holders with individuals previously involved with an insolvent company, such as directors and officers, employees, accountants, lawyers and other third parties. Such interviews will often provide key information regarding the company’s trading and dealings and the actions of its directors and employees, thereby assisting office-holders seeking to investigate potential fraud, misfeasance and other forms of misconduct.

Third parties are often caught (innocently or not) in the cross hairs of office holders seeking information and/or documents on the asset and liability position of a company in order to fulfil their functions properly and their duties to the creditors.

The recent case of The Official Receiver v Andrew Nathaniel Skeene and Junie Conrad Omari Bowers [2020] EWHC 1252 (Ch) (“Skeene”) is a good example of the crossover between insolvency related proceedings and criminal proceedings. In this case, the High Court considered the Official Receiver’s (“OR”) ability to disclose to the Serious Fraud Office (“SFO”) documents which had been obtained by the OR during the course of disqualification proceedings.