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23 Insolvency

1 Insolvency of a company usually results in liquidation either compulsory or voluntary. Liquidation may be avoided by administration. Liquidation may also be entered into whilst a company is still solvent.

2 Administration orders

Purpose of administration

2.1 (a) The appointment of an administrator is designed to give companies in financial difficulty (usually with insolvency looming) a “breathing space” from which to trade out of their difficulties.

(b) Administrators may be appointed either by the court, the holders of floating charges created on or post 15.9.03 and the company and its directors.

(c) If the company and its directors intend to appoint an administrator they must give five days notice to any floating charge holder entitled to appoint either an administrative receiver or administrator. This effectively means that a floating charge holder can either block the company’s choice of administrator or block the administration procedure.

(d) The administrator once appointed must perform his functions with the objective of:

(i) rescuing the company as a going concern, or

(ii) achieving a better result for the company’s creditors than winding up; or

(iii) realising property to distribute to secured or preferential creditors.

Consequences of the appointment of an administrator

2.2 (a) Winding-up cannot be commenced or continued with.

(b) No goods can be recovered from the company (e.g. H.P. repossessions) without court leave.

(c) Legal proceedings can only be commenced or continued with the court's permission.

Administrators proposals and powers

2.3 (a) The administrator should:

(i) Establish the state of the company’s affairs by obtaining a statement of affairs.

(ii) Prepare proposals to achieve the aim of administration.

(b) A creditors meeting must be called within 10 weeks of administrators appointment.

(c) The meeting will

(i) accept;

(ii) accept with modifications which must be approved by the administrator; or

(iii) reject.

Powers

2.4 (a) The administrator has general powers of management derived from..

(b) He can

(i) appoint and remove directors (a unique power in company law normally only available in an AGM)

(ii) call meetings of the members and creditors

(iii) apply to court for directions regarding the carrying out of his functions

(iv) make payments to secured or preferential creditors and with the courts permission make payments to unsecured creditors

(e) He must summon a meeting of the company’s creditors if told to by:

(i) the court, or

(ii) 10% of the company’s creditors. s.17(IA)

End of administration

2.5 (a) The administration has been successful.

(b) Automatically (unless extended) 12 months after the date of appointment.

(c) By court order which includes the granting of a winding up petition on public interest grounds.

3 Liquidation

3.1 Liquidation may take one of two forms:

(i) Winding up by the court – Compulsory liquidation.

(ii) Voluntary Winding Up – Members’ or Creditors’.

Winding up by the court

3.2 (a) s.122(1)(IA) Reasons for which a company may be put into compulsory liquidation:?

(i) The company has passed a special resolution to that effect.

(ii) The company was regarded as a public company on incorporation and not issued with a s.117 certificate within 1 year.

(iii) The company does not start business within one year of incorporation or suspends business for one year.

(iv) The total number of members in a public company is reduced below the legal minimum. (i.e., 2)

(v) The company is unable to pay its debts.

(vi) The court is of the opinion that it is just and equitable that it should be wound up.

(b) s.123(IA) "Unable to pay its debts" (Creditors petition)

There are four ways of proving that a company is unable to pay its debts:

(i) A creditor has served on a written demand for ￡750 or more on the company, and the company has failed to pay within a period of 21 days.

(ii) A creditor has sued the company and obtained judgement but remains unpaid.

(iii) The company is insolvent on the "balance sheet test" (liabilities exceed assets)

(iv) The company is insolvent on the "commercial insolvency test" (i.e. it is unable to pay its debts as they fall due because it lack cash).

(c) s.122(1)g "Just and equitable" (members petition)

Cases where the court has held that it is "just and equitable" to wind up include:-

(i) where the company’s main object has failed: Re German Date Coffee Company.

(ii) where there is deadlock in the management: Re Yenidje Tobacco Company.

(iii) where a director of a "partnership company" is removed under s.303: Ebrahimi v. Westbourne Galleries

Members must stand to gain something from liquidation (the company must not be insolvent).

(d) The court will appoint the Official Receiver as liquidator (he will pass on the role quickly) and encourage the formation of a liquidation committee.

(e) Compulsory liquidation is rare – most frequently a hostile act from creditors.

Members’ voluntary winding up

3.3 (a) Company is solvent.

(b) Directors meeting at which it is resolved that

(i) EGM will be called;

(ii) members voluntary winding up be recommended to the members;

(iii) statutory declaration of solvency sworn.

(c) Contents of the Statutory Declaration of Solvency:

(i) Directors must declare that the company will be able to pay its debts in full within 12 months.

(ii) It must be supported by a statement of assets and liabilities as at the latest possible date.

(iii) The declaration must be made within 5 weeks before the Special Resolution is passed and must be filed with the Registrar within 15 days of it being passed.

(iv) Penalties: – If debts are not paid within 12 months it is assumed that the directors had no grounds for making the declaration.

– Directors can be fined and imprisoned.

(d) Extraordinary General Meeting:

(i) Special resolution to wind the company up under the members’ supervision, s.91(IA).

(ii) Ordinary resolution to appoint a liquidator.

(iii) Ordinary resolution to fix the liquidator’s remuneration.

(iv) If the liquidator (at any time) feels the company will not be able to meet its debts he must:

– summon a meeting of creditors

– present them with a balance sheet

– convert the winding up into a Creditors’ Voluntary Winding Up. s.95(IA).

Creditors’ voluntary winding up

3.4 (a) Directors meeting at which it is resolved that:

(i) EGM will be called;

(ii) creditors voluntary winding up be recommended to the members;

(iii) meeting of creditors be called;

(iv) director to chair the creditors meeting appointed;

(v) a statement of affairs be sworn.

(b) Shareholders' meeting:

(i) Extraordinary resolution (75%) to wind up the company on the grounds it cannot pay its debts is passed;

(ii) Ordinary resolution to appoint a liquidator is also passed.

(c) Creditors’ meeting:

(i) The company must call a creditors’ meeting within 14 days of the EGM;

(ii) Notice must be sent by post to creditors. It must also be placed in the London Gazette and two local newspapers.

(d) At the creditors’ meeting the directors must produce:

(i) A full statement of the company’s affairs

(ii) A list of creditors together with the estimated amount of the claims.

Creditors and members nominate a liquidator; the creditors’ choice prevails: s.100(IA)

(e) A Liquidation Committee may be appointed which has three purposes:

(i) To assist the liquidator as a representative body;

(ii) To keep an eye on him;

(iii) To give the liquidator permission to exercise certain powers (e.g., paying off a certain class) thus removing the need to call a full meeting every time a decision is made.

3.5 (a) All actions for recovery of debt against the company are stopped. (Action in tort will continue.)

(b) The company will cease to carry on business except where it is necessary for the beneficial winding-up of the company.

(c) Directors continue in office but are stripped of power.

(d) Employees automatically made redundant but can be re-employed.

The liquidator’s powers

3.6 (a) Selling the assets

The Liquidator may call in amounts due from contributories and/or directors in some circumstances:?

(i) Secret profits e.g., made by directors from their position Regal Hastings v. Gulliver.

(ii) s.212(IA) Misfeasance: He can recover money improperly retained by promoters, directors, managers or officers of the company.

(iii) s.213(IA) Fraudulent trading: Where a business has been carried on with intent to defraud creditors in a winding up.

(iv) s.214 (IA) Wrongful Trading: Where a director of the company knew or ought to have concluded that there was no reasonable prospect that the company would avoid going into insolvent liquidation and did not take every step with a view to minimising the potential loss to the company’s creditors he may be ordered by the court to contribute to the company’s assets.

(b) The liquidator can apply to the court to avoid:

(i) transactions at an undervalue (2 years)

(ii) preferences (6 months, 2 years if connected).

(iii) floating charges created in last 12 months if company insolvent at time; or no new consideration given.

Distribution of assets

3.7 Order of payment

(i) Cost of winding up – cost of realising assets, liquidator’s remuneration, cost of making statement of affairs, expenses of committee of inspection.

(ii) Fixed charges.

(iii) Preferential debts.

(iv) Floating charges.

(v) Unsecured ordinary creditors. These creditors will also share in a proportion of the net assets secured by floating charge if it was created on or after 15.0.03.

(vi) Deferred debts (e.g. declared dividends).

(vii) Shareholders.