A guide to business rescue & the insolvency process Foreword

Contents Foreword Sean Cavanagh is a founding This guide will be of interest to accountants, Foreward 1 Partner in CavanaghKelly and solicitors, banks, credit unions and other advisory heads CavanaghKelly’s Business bodies and professionals who wish to be aware of Recovery & Insolvency division. Financial difficulties – The people test 2 Sean is a Licensed Insolvency the options open to their clients who may be in Practitioner and is a regular financial difficulty. Taking decisive action & responsibilities 3 speaker at professional seminars on insolvency issues. Developed by Sean Cavanagh and Michael Drumm Financial difficulties – The options 4 of CavanaghKelly, it is prepared in an informal style and provides a general overview of the practical Sean Cavanagh Company options 5 options available to businesses and individuals. It forms part of a suite of guides developed on Michael is dedicated Partner Trading out / Informal arrangements 5 for the firm’s Advisory offering. this topic. As a Licensed Insolvency Formal arrangements 6 Practitioner, he works alongside Company Voluntary Arrangement (CVA) 6 CavanaghKelly is a leading provider of Sean in leading the Business professional advice to help businesses and Recovery & Insolvency division. 6 individuals in financial difficulty and has over 30 Michael is a respected and Administrative Receivership 8 trusted advisor who uses a years’ experience in delivering solutions to help combination of knowledge, Liquidation 8 businesses overcome these difficulties and make experience and commercial a fresh start. Michael Drumm thinking to advise corporate Personal options 11 clients, individuals and advisors. Whilst every effort has been made to ensure the Trading out / Informal arrangements 11 contents of this guide are factually correct, we Individual Voluntary Arrangement (IVA) 11 strongly recommend that specific advice and Debt Relief Order (DRO) 11 guidance be sought for a more detailed appraisal 12 of each individual case. The law is stated as at September 2018 in Partnership options 13 Northern Ireland. Trading out / Informal arrangements 13 Partnership Voluntary Arrangement (PVA) 13 Separate Interlocking IVAs 13 Partnership Administration 13 Insolvency of LLPs 13

1 Financial difficulties - The people test Taking decisive action and responsibilities

Financial difficulties – Taking decisive action Events requiring urgent attention The people test The key challenge for advisors and responsibilities Statutory demand Court orders is to provide a platform and a Winding up petition HMRC enforcement of debt First and foremost, business rescue is about realistic solution based upon both If a client is facing the prospect of insolvency, it Bank calling in overdraft/ Unable to pay wages people. Advising a client in financial difficulty the financial position and the is vital that the warning signs are spotted so that Loan facility can be daunting both for the advisor and the client. people involved. action is taken to remedy the problem as soon as Generally, most people in financial possible. The earlier advice is sought, the wider the In the event of the above, to prevent a formal difficulty fall into one of these categories: range of options available, increasing the likelihood insolvency procedure, immediate action is required. The client or advisor should seek insolvency advice Those who have the strength of character to of a positive resolution for the client. The approach and strategy to be applied will as soon as possible. cope with the demands of debt pressures, are of course be dependent on each individual case. Initial warning signs willing to take decisive action and manage the Directors’ responsibilities The key challenge for advisors is to provide a Extending payment terms Ignoring calls/letters transition back to financial stability In recent years there has been increased focus in platform and a realistic solution whereby clients VAT/PAYE arrears Bad debts Those who may be in need of reassurance, who can, at the end of the process, move forward in a the courts and within the Insolvency Service on Loss of turnover/trading losses Overtrading will ‘over-worry’ if immediately presented with a positive manner with renewed hope and energy the responsibility of directors when a company Delay in preparing/filing Lack of management or business fails. It is vital to remind directors that very negative outlook for the future. financial accounts information failure to take appropriate action can (and often Those who ignore the warning signs and appear Poor cash flow Applying for additional credit does) result in director disqualification or even unable to take decisive action to weather the personal liability. storm. Very often if these issues are only short-term problems they can be managed and normal Some key actions the client should take include: This is the well-known ‘Know Your Client’ test and trading restored. When they continue over a longer often our initial approach is to reassure the client Be aware that in an insolvency scenario, directors term serious issues can arise. Often the client is that various rescue options are available. have a duty to act in the best interests of creditors unaware of these signs and the advisor can provide Prepare realistic financial projections to support invaluable assistance in spotting a negative trend ongoing trading and document key decisions and highlighting this to the client. Review position regularly and document it Serious issues Preserve the value of and safeguard the company’s assets Legal letters Legal judgements Keep customer deposits separate from normal Legacy VAT/PAYE arrears Final demands trading bank accounts Bank overdrawn beyond Extreme creditor pressure Do not prefer individual creditors or connected facility parties Bounced cheques Supplier withdrawing supply Do not worsen the creditor position Seek professional advice – this is a key matter These arise when the initial concerns persist and considered by the courts. If a director has sought action isn’t taken. Contacting a professional advisor advice early in the process, it can assist in is vital at this stage to provide an opportunity to avoiding any personal liability action. avoid formal insolvency.

2 3 Financial difficulties - The options Company options

Financial difficulties – Company options Business rescue is always our Commentary The options primary aim and there is often Trading out / Informal When advising clients, the general objective is to a variety of options available to If relations have historically been good, there avoid the ‘nuclear option’ if at all possible. Business those involved. arrangements can be an opportunity to agree an informal rescue is always the primary aim at CavanaghKelly Where there is a viable core trading business to be arrangement with creditors. and there is often a variety of options available to saved and there are robust and realistic financial However, this process is only likely to succeed if those involved. Company options projections going forward, this can provide an there are a small number of key creditors. The first (and most vital step to appraising options) Trading out of difficulty / Informal arrangement appropriate platform for an informal arrangement. Company Voluntary Arrangement (CVA) In addition, these arrangements are generally is to ensure that the current Statement of Affairs A proposal for such an arrangement can be Administration not legally-binding and therefore it only takes (SOA) is accurate. This is the most overlooked submitted to creditors and an agreement reached Administrative Receivership one creditor to break rank for the whole rescue aspect of the entire process as, in the attempt to for trading on without the need for a formal Liquidation (either Creditors Voluntary or process to collapse (and formal insolvency produce a quick solution, extreme pressure is often insolvency procedure. procedures normally follow). applied to produce an SOA within a very narrow Compulsory) The advantages of informal arrangements include time-frame. In addition, HMRC are often a key creditor and their flexibility, less stigma, less publicity, normally Individual options are likely to insist on either a formal procedure Our experience as insolvency practitioners (IPs) less costs and that it can avoid a formal insolvency Trading out of difficulty / Informal arrangement or payment of 100% of the debt. indicates that critical liabilities are often omitted Individual Voluntary Arrangement (IVA) procedure. In addition, the directors will remain in from the SOA whilst assets can also be overvalued. Debt Relief Order (DRO) control of the company. Therefore, extreme care must be taken in Bankruptcy In terms of recording all information this should producing this document. Options to fund an informal arrangement include: In addition to the above, it is vital that robust Partnership options Restructure Cost-cutting Director / A documented external review of the SOA financial projections and cash flows are reviewed Trading out of difficulty / Informal arrangement unprofitable areas Shareholders of the business invest funds and financial projections. We recommend an in conjunction with the SOA. Current creditor Partnership Voluntary Arrangement (PVA) Refinance Mortgage property Third party external review as all too often the internal pressure should also be reviewed. Separate Interlocking IVAs unencumbered investor assumptions made are too optimistic and assets When the above documents are prepared, a proper lack substance appraisal of the various options can be made. Debt factoring Time to pay Debt / interest Fully recorded board minutes / records agreeing Some of these options are listed on the right. arrangement forgiveness the strategy moving forward and, crucially, Sales of surplus Extension of a loan Capital / interest noting the key assumptions made in the SOA assets term repayment holiday and financial projections. In this scenario, it is vital that all steps and decisions are properly recorded so that the business owners and the advisors are not exposed to litigation if all does not go according to plan.

4 5 Company options Company options

Formal Arrangements Administration can be a beneficial business rescue In today’s world, once a company’s potential Commentary procedure to assist a company in difficulties to difficulties become public knowledge, it becomes If an informal arrangement cannot be progressed, receive breathing space so that it can assess how much harder to retain the value and goodwill in there are a number of formal insolvency options best to deal with its financial problems. A key that business with key suppliers, customers and All too often the financial projections within available: advantage is that it is fast – an administrator can be employees often leaving. CVA proposals are unrealistic and aggrieved appointed by the directors through a simple out- Company Voluntary Arrangement (CVA) creditors receive less than the dividend In a ‘prepack’ scenario, a deal can be completed of-court procedure (provided certain conditions Administration promised. quickly with the IP negotiating the best price for Administrative Receivership are met such as consent from any qualifying A 2018 R3 survey of over 550 recent CVAs (of the business with the aim of securing a better Liquidation floating charge-holder). In addition following the which 93% were small companies) indicated return for creditors. appointment, a moratorium commences which Each arrangement is discussed in more detail that unsecured creditors were paid, on average, suspends the power of creditors to take actions. below. only 26% of the dividend they were originally promised. This survey also indicated that only Once appointed, the administrator takes control Commentary 19% of CVAs were fully implemented. and the directors’ powers cease. This is an Company Voluntary There is widespread concern that a CVA of 5 important distinction between an administration Prepacks have been the subject of much Arrangement (CVA) years is too long – 3 years is proposed going and a CVA – in a CVA the directors remain in criticism in recent years and the Government forward. control. The administrator will prepare proposals and the insolvency profession have introduced This is a very popular rescue mechanism for There were 27 CVAs in Northern Ireland in 2017. within 8 weeks and if a meeting is held, acceptance very strict rules and parameters which now companies with a sound core trading business but They usually average c. 30 per year. or rejection of the administrator’s proposals is apply to prepacks, particularly where the with a requirement for some form of formal debt Whilst CVAs have been in the spotlight normally decided by a voting majority. business is sold to connected parties. write-off and/or a time to pay arrangement. recently with so many high-profile Retail These procedures include guidance in the form A CVA requires the approval of 75% of creditors Rescue Schemes, they do have an important by value and, once approved, is legally binding role in business rescue in Northern Ireland. If Commentary of Statement of Insolvency Practice 16 (SIP16) on all creditors, even those who may have voted proposals and financial projections are realistic and the requirement of IPs to use where against it. possible the ‘Prepack Pool’ (an independent they will often have a good chance to succeed. There were 13 administrations in Northern If, however, after a full assessment, the risk body) to review prepack proposals. Often if relations with creditors have been good, a Ireland in 2017, compared to 31 in 2016. is too high, an alternative procedure such as write-off of up to 75% of the debt (and more) can The Government has also announced a full administration via a prepack (discussed in more This is a reflection of the improvement in the be negotiated but there are possible traps: review of prepacks to connected parties and detail in on page 7) might be more suitable. economic climate as well as the banks being this is expected in 2019. We expect that this Any creditor with over 25% of the debt will be more prepared to work through distressed review will make it mandatory for all connected able to exercise major influence over the terms cases without the requirement for a formal party prepacks to be referred to the HMRC will often insist on imposing its standard Administration insolvency procedure. terms which can be restrictive (often insisting ‘Prepack Pool’. on monthly contributions over 5 years). Administration is a formal procedure which can be Therefore, if HMRC hold over 25% of the total entered into by the directors or the company with Prepacks debt, a CVA solution becomes more challenging the aim of rescuing either the whole or part of a A ‘prepack’ is a deal for the sale of an insolvent Suppliers with valid Retention of Title (ROT) business, or for the purposes of securing a better company’s business and assets which is agreed clauses may also repossess their stock. return to the company’s creditors by preserving before the company goes into a formal insolvency the value of certain assets. process, usually administration.

6 7 Company options Company options

Administrative Receivership Court winding up Dissolution Commentary This is often called a Compulsory Liquidation and Whilst this is not a formal insolvency procedure, It is no longer possible to appoint an administrative usually occurs on the application of a creditor, it is becoming increasingly common in Northern receiver in Northern Ireland under any security following the presentation of a statutory demand Ireland. When the company fails to file Returns with instrument created after 27 March 2006 and The directors’ reasons for winding up the business are very often not properly and subsequent winding up petition. Companies House, after the standard statutory therefore they are becoming extremely rare. warnings, Companies House will automatically documented and this leads to problems when In this scenario, the Official Receiver will take There was only 1 administrative receivership in begin the process for dissolution. After the the DDU report is being prepared. In addition, if control of the company, interview the directors 2017 – until then there were only 3-4 per annum. required advertisement period, the company directors are found guilty of ‘wrongful trading’, and require them to submit an SOA. If there are is dissolved. they can be personally liable to pay funds back sufficient assets an IP is likely to be appointed to Liquidation into the company. conduct the liquidation. If there are insufficient The directors of a company can also apply for it to Creditors Voluntary Liquidation (CVL) Proper care and advice at an early stage can assets the liquidation is handled directly by the be dissolved. The procedure and documentation This is by far the most common form of insolvent prevent these problems arising. Advisors are also Insolvency Service. The liquidation procedure is is fairly simple but, for directors to make the liquidation and is often the last resort after the strongly recommended to review the directors’ the same as for a CVL and includes a report on the application, it must be accompanied by a directors have considered and exhausted every current accounts and all their transactions with conduct of directors. statement confirming that the company has no option of rescuing the company. the company to ensure there is no balance assets or liabilities. If any asset is later discovered owing to the company – if there is a debt due the (e.g. an insurance claim or strip of property) this Once the directors of the company have decided liquidator will seek for it to be repaid. Commentary asset automatically becomes ‘bona vacantia’, in it can’t trade on and that it is technically insolvent, other words it becomes an asset of the Crown. they must call a meeting of the shareholders and The DDU decides on the sanctions to apply Whilst the vast majority of court windings pass a resolution to appoint a liquidator. to directors where improper conduct has After a company is dissolved it effectively no been identified. This normally results in up are initiated from a creditor’s petition, the longer exists but, if any person/creditor wishes Creditors are then notified and invited to meet disqualification from being a director or court can also order a company to be wound to make a claim against it, it can be resurrected to vote on the liquidator’s appointment (which is being involved in any company for a period up on the petition of the company itself, the subject to certain time limits. why the process is called a Creditors Voluntary of between 2-15 years. In the year to 31 March company’s director(s) or member(s). Liquidation) and they can, if they wish, appoint 2018, 42 directors’ disqualifications were It is often better to avoid a court winding up a different liquidator from that proposed by obtained in Northern Ireland. if at all possible as the Insolvency Services Commentary the directors. In addition to the liquidator’s resources are limited and the process is likely normal duties of realising the assets and making There are, on average, 70-80 CVLs per year in to take longer than would be the case in a CVL. distributions to creditors, a report on the Northern Ireland. The Government has recently noted alleged directors’ conduct also has to be submitted to abuse of the dissolution process by directors the DDU (Directors Disqualification Unit) of the and is intending to introduce new powers to Insolvency Service in Belfast. This also applies in an investigate the conduct of individuals/directors Administration. of dissolved companies. This could include an order for monetary compensation.

8 9 Company options Personal options

It is therefore critical to get all the preparations but a vast number of these are consumer or Liquidation (Cont.) right and there are two important matters to Personal options personal, non-trading IVA cases. Members Voluntary Liquidation (MVL) highlight: This is a solvent liquidation procedure and is very Trading out / Informal HMRC recently announced a Targeted Commentary widely used for successful companies which have Anti-Avoidance Rule (TAAR) which might apply arrangements come to the end of their useful life and/or where to MVLs if there is any possibility of phoenixism. If cash flow problems arise for individuals in the owners wish to retire and receive cash from Very broadly, if the shareholders were only business, the same principles apply as for Our experience with IVAs, just as with CVAs, is the company in a tax efficient manner. The legal that the dividend promised to creditors is often winding-up their company so as to trigger the companies but generally in a more informal way. procedure is relatively simple: unrealistic and in too many cases aggrieved 10% tax charge and then re-start a similar Therefore, by taking early decisive action and by Directors’ meeting and resolution to wind-up creditors have to be subsequently advised of a business in a new company, this could trigger the negotiating with trade creditors, HMRC and/or the the company and sign a declaration of solvency much-reduced figure payable to them. The crucial TAAR and leave the shareholders with a large bank, the client often has the potential to get their Shareholders’ meeting to pass the resolution significance of this is that a failed IVA can often tax bill. business back on track. (both meetings are usually held together) If there is an overdrawn Directors Current result in the IVA Supervisor (the appointed IP) Appoint a liquidator who takes control of all Account and a liquidator includes this as a having to make the debtor bankrupt. assets and after paying any remaining creditors distribution in specie i.e. by a paper transaction Individual Voluntary As with CVAs, we believe that 5-year IVA’s are too and expenses of the liquidation, distributes the in a non-monetary format, HMRC are threatening Arrangement (IVA) long and look forward to recommendations that assets to the shareholders. to reclassify this loan distribution as income they will be capped at 3 years going forward. An IVA is a popular way for a sole trader/partnership rather than capital and so the tax applied would The accuracy of the declaration of solvency is business in financial difficulty to enter into a formal be up to 38.1% rather than the expected 10%. crucial as occasionally the company is found to arrangement with its creditors and get the business To avoid any problems with this we strongly have liabilities which directors have overlooked. back on track (and also avoid bankruptcy). The Debt Relief Order (DRO) recommend shareholders to repay the overdrawn If the liabilities are greater than the assets, the MVL agreement will typically involve a write-off of some current account before the liquidation process A Debt Relief Order (DRO) is a similar mechanism converts into a CVL (an insolvent liquidation). of the debt and/or a time to pay arrangement. commences. as bankruptcy for those with personal debt of If a false or inaccurate declaration of solvency There is no ‘one size fits all’, so each case is £20,000 or less. There are other conditions, the is made, then the director(s) can face fines and determined by its own particular circumstances. The main ones being: penalties and even imprisonment in serious cases. debtor’s proposal requires the agreement of 75% by You don’t own your home The tax advantages of MVL are that, providing the value of the creditors voting, so larger creditors will You don’t own a car worth £1000 or more shareholders qualify for entrepreneur’s relief, the have huge influence over the proposal. You have less than £50 per month after paying shareholders can extract the cash and/or assets The advantage of an IVA is that it is a formal legal household expenses at a 10% tax rate. This is in contrast to an income solution and is approved by the court and, when The fee to apply for a DRO is currently £90 and tax rate of up to 38.1% if HMRC decide that the approved, all creditors, even those who voted must be applied for via a DRO advisor, also called distribution was a dividend instead of a capital against it, have to abide by it. Another advantage an approved intermediary. You can find a DRO distribution. is that it is not advertised, although a Register of advisor at most local Citizens Advice. A DRO usually IVAs is maintained at the Insolvency Service in lasts for 1 year after which the debtor, with some Belfast and is available online. exceptions (such as student loans), will be released IVAs in Northern Ireland normally average from all of their debts. In 2017/18 year there were 1200-1300 per year (there were 1537 in 2017), 427 DROs in NI, up from 330 in 2016.

10 11 Personal options Partnership options

Other assets, such as vehicles, equipment, Bankruptcy savings etc. are liable to be realised by the Partnership options Separate Interlocking IVAs Bankruptcy is a legal procedure whereby a debtor trustee but the bankrupt is allowed to retain Where there are individual debts, as well as debts can have a total write-off of their debts (with some certain tools, equipment, etc. required to carry Trading out / Informal of the partnerships, it might be advisable to exceptions such as student loans and certain fines). on their work. consider interlocking IVAs for each partner – in this It is a well-established legal procedure and can be Directorships – a bankrupt will have to resign as arrangements way both partnership and individual debts will be triggered either by a debtor personally (it’s now a director in a company until discharge occurs. In an informal arrangement, the principles and covered. even possible to do it online), or by a creditor if the actions to be taken by partners are often the same amount owing is £5,000 or more. for individuals and companies. A critical issue is Commentary Partnership administration The advantage of bankruptcy is that a definite that one or two partners may make decisions for A partnership administration closely follows that of line is drawn on debts and the debtor can make a the partnership as a whole and, if things go wrong, a company administration. It should be noted that fresh start after 1 year (if providing no problems In bankruptcy, pensions are protected. all of the partners can be personally affected. It is in a partnership administration, the IP takes control arise and the debtor is discharged from their In Horton vs Henry (2016) the Court held that therefore critical for all partners to be made aware of the business. bankruptcy). It is also now possible for the debtor the statutory position is that all property vests of these key decisions and the financial position of to continue trading during their bankruptcy. in a trustee, subject to explicit exceptions. the partnership business. You should also be aware There are however some downsides such as: Rights accumulated under pension schemes that former partners could be at risk if the debts Insolvency of LLPs incurred arose whilst they were partners. The family home can be at risk. If a bankrupt were ruled to be one such exception The options in respect of LLPs closely follow that owns their home, either with a mortgage or and are therefore protected in bankruptcy. of company options. outright, this will be considered an asset and However, income which stems from a pension Partnership Voluntary could be used to repay their debts, depending arrangement is not. Arrangement (PVA) on how much they owe. However, a trustee in in Northern Ireland are bankruptcy cannot force a sale within one administered by the Insolvency Service in A PVA largely follows the same procedures as a year (they have 3 years in which to do so) and if Belfast and have averaged around 1,000-1,200 CVA for companies. However, it is crucial to note that deadline is missed, the house reverts to the per annum in recent years. However, the year that a PVA alone will not bind the creditors of bankrupt. Special rules also apply where a house to 31 March 2018 saw an all-time low figure of partners with any personal individual debts is in joint names. 812 bankruptcies – this is probably due to the (i.e. individual debts need to be dealt with via Excess income – if the bankrupt has surplus recent increase in the debt limit for filing for a separate voluntary arrangement). income or profits above their needs, they may bankruptcy from £750 to £5,000. be required to make contributions into the bankruptcy. This is called an Income Payments There has been a considerable increase Agreement / Order. in trading bankruptcies over the last two Investigations – a trustee will also conduct years which we believe is reflective of the investigations into the conduct of the bankrupt. difficulties facing small retailers and hospitality businesses.

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Online contact: E: [email protected] Whilst every effort has been made by CavanaghKelly to ensure the accuracy of the information here, it cannot be W: www.cavanaghkelly.com guaranteed and neither CavanaghKelly nor any related entity shall have liability to any person who relies on the information herein. Information given here is for guidance only. Detailed professional advice should be taken before acting on any information contained herein. If having read the guidance here, you would like to discuss further; a member of our team would be pleased to help you.