On 28 March 2020 the UK government announced that emergency measures will be implemented to provide protection to directors of companies which continue to trade notwithstanding the threat of insolvency, and to prevent, where possible, companies entering into insolvency due to COVID-19.

The proposed measures are as follows:

Cash flow and current and future liquidity are now real concerns for many businesses during this COVID-19 pandemic. Increasingly, the attention of directors and the wider economic ecosystem is turning to consider the issues of approaching insolvency and the duties of directors.

In line with the current approach of the UK Government to support businesses, on Saturday, 28 March, the Business Secretary, Alok Sharma, announced that UK wrongful trading insolvency laws are to temporarily change to help give businesses and directors some "breathing space".

The COVID-19 crisis is already showing signs of pushing the UK economy into recession, has undoubtedly impacted the M&A market in the UK and increased the likelihood of businesses entering into insolvency proceedings. However, history tells us that shocks to the market do give rise to opportunities it's a question of knowing where they are and being prepared.

The restrictive measures imposed in an attempt to curb the spread of Covid-19 are creating an unprecedented and often existential challenge for businesses across the globe, and sports clubs are no exception. Indeed, given the suspension of almost all sports, sports clubs are amongst the worst hit, as most sources of revenue dry up including (depending on where they fall within the pyramid) ticket sales, subs, and revenue gained from hiring out venues for concerts, conferences and other private events.

As a creditor, especially during the current Covid-19 crisis, it may be tempting to accept all and any payments from debtors.

Payments that a debtor company makes to you during the period where there is a winding-up petition in place will be a void disposition, under section 127 of the Insolvency Act 1986, unless there is an application to the Court and receipt of what is known as a “validation order,” allowing you to keep the money.

What’s happening in real life?

A recent Sheriff Court judgment is the latest decision to consider the role and remit of the court reporter in a liquidation which, unusually, involved the court appointing two reporters.

In Scotland, the Insolvency (Scotland) (Receivership and Winding Up) Rules 2018 provide that where there is no creditors committee, the remuneration of a liquidator shall be fixed by the court. In practice, the court appoints a reporter to examine and audit the liquidator’s accounts and to report on the amount of remuneration to be paid.

Earlier this month, a Wolverhampton-based financial advisor was banned by the Insolvency Service for eight years after his firm provided poor pension investment advice, resulting in clients losing £7 million.

Background

In a move that will be greeted with a small sigh of relief by individuals, businesses and insolvency practitioners affected by the coronavirus pandemic (COVID-19), HM Revenue and Customs (HMRC) has published new guidance on its approach to insolvency procedures.

The guidance covers:

With effect from 6 April, the UK government has increased the “prescribed part”—a portion of floating charge realisations that is set aside for unsecured creditors on a company’s insolvency—from £600,000 to £800,000.

Prescribed Part

UK creditor schemes of arrangement under the UK Companies Act 2006 have recently gained popularity as a tool to “amend and extend” or comprehensively restructure debt obligations. In previous client alerts related to the restructuring of bonds issued by DTEK (May 2015) and the standstill scheme of arrangement for Metinvest (February 2016), we outlined some of the common reasons issuers find schemes of arrangement attractive and the types of schemes used to date.