The administrators of Avanti Communications Limited (the “Company”) sought directions from the High Court as to whether purported fixed charges in favour of the secured lenders to the satellite operating business should be recharacterised as floating charges (In the matter of Avanti Communications Limited (In administration) [2023] EWHC 940 (Ch)).

Summary of decision

It is now two years since the 30 April 2021 introduction of the Administration (Restrictions on Disposal etc. to Connected Persons) Regulations 2021 (the "Regulations") and a good time to look back at whether the Regulations have achieved their purpose, what issues remain and what the next two years might look like.

Summary

This Quickguide explains the two most common forms to bring a solvent company's life to an end and explains the processes involved in each, as well as in which circumstance which option may be best suited.

Strike-off or members' voluntary liquidation?

When a company has fulfilled its economic purpose or a group of companies wishes to consolidate its structure, there are two main options available to bring a solvent company to an end:

Sova Capital Ltd (“Sova”) was an FCA authorised and regulated broker. Before it went into Special Administration, Sova provided investment brokerage services to institutional and corporate clients, mostly trading in the Russian market.

The High Court has handed down the most significant decision on restructuring plans since Virgin Active in 2021, applying cross-class cram down to an ad hoc group of dissenting noteholders (the AHG).

Background

The insolvency statistics released for March 2023 demonstrate the impact of turbulent trading climates on UK businesses, in particular soaring costs and decreased consumer spending.

The March 2023 insolvency statistics show that UK corporate insolvencies have risen 16% year-on-year and 38% since February 2023.

The High Court refused to sanction the restructuring plan put forward by Nasmyth Group Limited (Nasmyth) pursuant to Part 26A of the Companies Act 2006 on 28 April 2023, despite both statutory conditions for cross-class cram down having been met.

Meanwhile, judgment is awaited in respect of the restructuring plan put forward by The Great Annual Savings Company Limited (GAS), which was proceeding simultaneously to Nasmyth and which also seeks to cram down HMRC.

The UK’s latest quarterly insolvency statistics have been published and, as predicted, continue to show a high rate of insolvencies, both in relation to pre-pandemic numbers and by comparison to last year’s Q1 results. The Q1 2023 statistics show a 18% increase in the overall number of registered company insolvencies from Q1 2022 and a 4% decrease from Q4 2022, with a total of 5,747 company insolvencies (seasonally adjusted) during this past quarter.

There are a number of options and avenues that a company can explore when faced with business stress or distress. Depending on the circumstances, a combination of these could be appropriate to help mitigate or avoid a business failing.

This guide provides an overview of potential options and should be considered alongside specific advice from the company's advisors.

Informal Options

Even when informal options are being considered, directors should engage with their advisors and stakeholders to ensure that their decisions take into account their directors' duties.

Introduction

In a recent article we considered the nature and extent of directors’ duties to take into account the interests of a company’s creditors when a company is in financial difficulty. A recent High Court decision (Mitchell & Krys v Al Jaber & ors [2023] EWHC 364 (Ch)) considered the issue of directors’ duties in the subsequent situation where a company has entered liquidation. Whilst the relevant company was based in the British Virgin Islands (BVI), the case includes analysis of the position in English law.