The Suspension of Wrongful Trading Provisions and a Moratorium for Businesses in Restructuring: What Is the Likely Impact on Insurers?
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COVID-19: The suspension of wrongful trading provisions and a moratorium for businesses in restructuring: what is the likely impact on Insurers? On 28 March 2020 the Business At this stage there is little detail in In the event these changes fulfil the Secretary announced further respect of the proposed legislation with Government’s policy objective and large new far-reaching measures to the Business Secretary stating that such numbers of COVID-19 related corporate help businesses combat the legislation would be introduced “at the insolvencies can be avoided, Insurers are financial impact of COVID-19. earliest opportunity”. Nevertheless, RPC likely to share in the potential benefits. In a welcome intervention, the restructuring and insolvency partner Paul In particular, the suspension of wrongful Bagon commented: “The government’s trading provisions should curtail the Business Secretary declared it intention to introduce new measures to number of related claims under directors’ was the government’s intention suspend director liability for wrongful and officers’ liability (D&O) policies to suspend wrongful trading trading will be welcome news to boards of and measures reducing the number of provisions and to introduce directors around the country. Boards are insolvencies should limit potential Third a moratorium for businesses encountering unprecedented challenges Parties (Rights against Insurers) Act 2010 undergoing a restructuring in assessing the ongoing viability of (the Third Parties 2010 Act) claims. process. Both measures are otherwise financially sound companies intended to assist companies to that are faced with the unexpected The Government, however, has also made trade through financial distress prospect of significantly reduced revenue it clear that the proposed reforms are caused by the loss of business for an unknown period of time”. not intended to limit other checks and due to the COVID-19 pandemic. balances governing directors’ duties. ADVISORY | DISPUTES | REGULATORY | TRANSACTIONS 2 April 2020 COVID-19: The suspension of wrongful trading provisions and a moratorium for businesses in restructuring 3 The sudden and unparalleled financial the future prospects of the company less than £10.1 million and less than for insolvency prematurely. This should As RPC restructuring and insolvency challenges imposed on companies of avoiding insolvency due to uncertainty £5.1 million balance sheet assets) can limit claims against Insurers under D&O Partner Finella Fogarty comments: “The all sizes can be expected to give rise to regarding when the COVID-19 crisis will seek a moratorium when proposing a policies and the Third Parties 2010 Act. proposed changes may be welcomed an increase in claims against directors end. Consequently, the measures should Company Voluntary Arrangement (CVA) but do they really change anything? and recourse against Insurers under reduce the number of unnecessary and and no such moratorium is available Wrongful trading and D&O policies Very few directors are actually found D&O policies. Furthermore, the stay of likely terminal corporate insolvency filings for businesses seeking a Scheme of For D&O underwriters, any steps taken guilty of wrongful trading and it may execution for otherwise unviable companies and allow viable companies to trade Arrangement with their creditors. The to limit insolvency filings should be bring a false sense of security. It is the arising from the Government’s intervention through the COVID-19 crisis and recover introduction of additional moratoria for welcomed as it will reduce the number current intention that the majority of the may make future underwriting assessments once normal trading activities resume. businesses implementing turnarounds of claims for wrongful trading. This is existing legislation remains unchanged, more difficult. through restructurings has been mooted because, absent fraud, wrongful trading and so directors will continue to need to One of the most difficult directors’ duties for some time and was considered in the claims may only be brought against consider and document very carefully Temporary suspension of decisions faced by boards of distressed Government Consultation on Insolvency directors in the event of a company’s decisions relating to creditor payments wrongful trading companies relates to whether to drawdown and Corporate Governance in 2018. insolvency. Indeed, although ordinarily and asset disposals where there is a risk on unutilised headroom under revolving wrongful trading claims against directors of the company entering insolvency and In these uncertain times directors have credit facilities to provide much needed We await the Government’s legislation are uncommon and mitigated by to seek relevant professional support to become increasingly concerned about liquidity at a time when there is uncertainty for clarity on the exact scenarios in which responsible boards seeking professional mitigate their risks in these areas”. the risk of personal liability that can arise about a borrower’s ability to avoid businesses will be eligible to benefit from assistance, in circumstances in which in respect of wrongful trading. Under insolvency. The relaxation of wrongful the proposals and the length of time the even experienced directors are faced Third Parties 2010 Act current legislation a director can be liable trading provisions during the COVID-19 moratorium will be imposed. However, with unprecedented challenges there is a Claimants bringing claims under the if they are found to have continued trading crisis should enable directors to more easily we would expect this to be similar to perfect storm of factors in which wrongful Third Parties 2010 Act against insolvent a business and did not minimise losses evaluate such decisions and in so doing those currently granted to companies trading liabilities could arise, had the companies are permitted to require to creditors at a time when they knew, reduce the prospect of large numbers of in administration or proposing a CVA, Government not intervened. Insurers to defend the claims directly. or ought to have concluded, that there companies becoming cashflow insolvent. and as a minimum, prevent creditors In such scenarios, the directors and/or was no reasonable prospect of avoiding Each such decision, however, will remain from independently taking action to This “good news” however is tempered by management of the insolvent company insolvent liquidation or administration. highly fact specific and to mitigate potential place companies in to liquidation or the Business Secretary’s warning that “all that possess knowledge of the claims are liability boards should continue to seek administration while the financial rescue of the other checks and balances that help often unavailable or unwilling to assist The Business Secretary announced new professional advice. In addition, as the or restructuring is ongoing. directors fulfil their duties properly will post-insolvency. This requires Insurers legislation would be introduced to grant proposed measures are universal and do remain in force”. Directors therefore must to seek the assistance of the insolvency a temporary suspension of the wrongful not distinguish between businesses that We are also expecting, following the continue to act in accordance with their office holders (IPs) appointed to the trading provisions, which would take were struggling prior to the COVID-19 crisis announcement by the Business Secretary, duties, both fiduciary and those codified insolvent companies, in circumstances effect retrospectively from 1 March 2020. and those whose financial performance that provisions will be introduced to ensure in the Companies Act 2006. Those that in which the IPs may have limited has been affected only by the pandemic, businesses are still able to gain access to do not, face the risk of personal liability, knowledge of the claims and scarce Prior to the announced measures, it is likely that the suspension of wrongful essential supplies. The extent of these sanction and possible disqualification as a resources. Consequently, the defence of wrongful trading provisions provided trading rules will enable so called unviable provisions is unclear however we anticipate result of any misconduct. Third Parties 2010 Act claims are often protection to creditors by imposing “zombie companies” to continue to limp on that they may expand the existing essential challenging and time consuming. personal liability on directors of insolvent fuelled by low interest debt. supplier regime set out in the Insolvency Act Existing insolvency legislation, such as the companies that continued trading 1986 under which essential suppliers, such rules around preferences and transactions The Government’s measures to reduce beyond a time at which there was no Moratorium as utility and IT suppliers are prohibited from at undervalue, remain. As such there is insolvencies should therefore be viewed reasonable prospect of the company The Business Secretary also announced relying on an insolvency event as a trigger to still a risk of significant claims under D&O as a positive move for Insurers as it should avoiding insolvency. The aim of the a moratorium for businesses which terminate the provision of ongoing supply. policies. Indeed, if directors interpret the result in a lower number of potential proposed temporary suspension is to need to undergo a financial rescue or Government’s relaxation of the wrongful Third Parties 2010 Act claims and requests allow directors to continue