Protecting your business from exposure to supplier and customer insolvency
As we move through Q1 of 2023, significant shifts are occurring in the Global financial and economic landscape which are of significant consequence for business. The marked upward shift in the cost (and reduced availability) of finance, largely unseen for over a decade, combined with high energy and natural resource/raw material costs and challenges and currency fluctuations has the potential to sharply to expose financial distress in businesses in many countries and global supply chains.
From investors to regulators, FTX Trading Ltd (FTX) filing for bankruptcy was unexpected by all. A catalyst for litigation and regulation over the years to come, this collapse will serve as a warning, particularly to cryptocurrency insurers.
What happened?
In Grant & Ors v FR Acquisitions Corporation (Europe) Ltd & Anor (Re Lehman Brothers International (Europe)) [2022] EWHC 2532 (Ch), the English High Court ruled on an application for directions (the “Application”) made by the administrators (the “Administrators”) of Lehman Brothers International (Europe) (LBIE) relating to the construction and effect of certain bankruptcy-related events of default (“Events of Default”) specified under the ISDA Master Agreements (as defined below), specifically:
The Quincecare duty has become a popular tool for companies (or their liquidators) to claim against banks for funds misappropriated on wrongful payment instructions. It requires a bank to refrain from executing a payment order if and for so long as it was put on inquiry by having reasonable grounds for believing that the order was an attempt to misappropriate funds.
Summary
Today’s statistics reveal a stark reality that insolvencies are continuing to climb in the face of record levels inflation, increasing interest rates and an ongoing cost-of-living crisis, which is pushing businesses to breaking point. The situation is exacerbated by the lack of any new government support for businesses, which are particularly affected by the steep rise in energy costs.
Wind the clock back a couple of years to (dare I mention it…) the Covid-19 pandemic, and insolvency practitioners were getting mildly giddy about a new development in the form of a standalone moratorium. Slotting in at the forefront of the Insolvency Act 1986 courtesy of the Corporate Insolvency and Governance Act 2020 (CIGA), the moratorium was designed to give companies a breathing space to find a solution to their troubles when insolvency was knocking on their door.
I was recently reminded of an upcoming presentation my colleague Dan Conway, and I are due to be delivering to the Association of Professional Compliance Consultants (APCC) on wind down planning and the importance of an effective and executable plan for FCA-regulated businesses.
Amidst the cost of living crisis, businesses are folding in record numbers, with barely a week passing without news of a big company casualty. Paperchase is the latest retailer to collapse into administration, with the business being snapped up by Tesco for sale in its superstores and 820 jobs reportedly at risk. So how can we identify the businesses that are in the danger zone and could be heading for insolvency?
1. Profit warnings
The latest statistics from UHY Hacker Young which reveal the financial difficulties faced by pubs and bars are disappointing and very concerning.
According to the national accountancy firm, insolvencies rose from 280 in 2020/21 to 512 as of the end of 2022. Given the perfect storm caused by rising inflation, the cost-of-living crisis, staff shortages and escalating salary costs, it perhaps isn’t too surprising. Nevertheless, corporate failure is not inevitable and businesses can do something about it.