When a company director fails to carry out their legal responsibilities, they run the risk of being disqualified. This can be a lengthy procedure resulting in a period of disqualification during which it is not permitted to form, promote or manage a company.

The main law governing disqualification is contained in the Company Director Disqualification Act 1986.

Grounds for disqualification as a company director

* On March 30, 2020, Fried Frank published a memorandum titled COVID-19 Pandemic: Key UK Government and Bank of England Initiatives to Support Businesses ("March 30 Memorandum"). In light of the rapidly developing situation and government response, the March 30 Memorandum has been updated to include the latest guidance provided by the UK Government, in particular as to employment retention initiatives and loan schemes, and is current as of April 15, 2020.

On 28 March 2020, business secretary Alok Sharma announced plans to reform insolvency law to add new restructuring tools, including:

As reviewed previously, the impact on Covid-19 losses will result in a steep increase in insurance claims under business interruption, public liability, product liability, employer’s liability, asset management, directors and officers, professional liability, errors and omissions, and marine insurance policies.

In Hunt (as Liquidator of System Building Services Group Ltd) v Michie & Ors [2020] EWHC 54 (Ch), ICC Judge Barber has confirmed that directors of insolvent companies remain subject to fiduciary duties, even after those companies enter into an insolvency procedure.

Background

随着新冠肺炎疫情在全球范围内持续引发财务不确定性，我们认为是时候简要介绍英国法适用于陷入财务困境的公司的各种公司破产程序。下文将依次讨论管理程序 (administration)、接管程序 (administrative receivership)、公司自愿安排 (company voluntary arrangement)、债务偿还安排 (schemes of arrangement) 和破产清算 (liquidation)。此外，还将简述董事职责、有关破产中资产分配的规则以及在破产中可撤销或“可审查”的交易。

在本专业概要发文之前，英国商务、能源与产业战略部于2020年3月28日发布公告，旨在帮助处于破产拯救或重整程序中的公司继续开展交易，避免破产。简言之，英国商务大臣宣布：

In what is good news for many organisations struggling with the economic challenges posed by Covid-19, the UK's Business Secretary announced over the weekend that the government will push forward with various reforms to the English insolvency laws; in effect fast tracking reforms that were under discussion back in 2018.

When a shareholder’s rights have not been observed by a company and/or its directors, it is possible for them to ask the court to impose a fair remedy.

The government has introduced a number of measures in order to assist businesses during the current Covid-19 pandemic. Unfortunately, for some businesses, this may not be enough to prevent their business entering some form of insolvency. Businesses and directors need to beware of the pitfalls that they could fall into, as they continue to trade. Two of the most common are Preference Payments and Transfers at Undervalue, both of which are discussed below.

Preference Payments

The Carluccio’s judgment provides some much-needed clarity on the interrelation of the Furlough Scheme and the requirements of insolvency legislation. It is to be commended for its clarity and for the fact that it had to construe the workings of the Furlough Scheme in the absence of any statutory guidance as to its implementation. It is to be hoped that, when the Government comes to enact the necessary legislative measures (including perhaps amendments to Schedule B1 and IR 2016), that it does so with this judgment very firmly in mind.