Last week we reported on, what was termed by the Supreme Court as, “A Momentous decision,” that laid down the duties of directors. However, coming quietly behind it was another decision that could also have huge implications for directors.

 

When a company goes into an insolvent liquidation, its name becomes prohibited and there are various restrictions surrounding using a name (or brand) that is so similar that it may cause confusion to the public.  For example, if a company was known as “Big Ruined Industry Limited,” any director setting up a successor company and calling it (say) “Big Ruined Industry (2022) Limited” would be in breach of using a prohibited name.

 

What directors are all too often unaware of is a breach of the prohibited name provisions is a criminal offence and a director could be held personally liable for the debts of the company.  This is what has happened in the recent Court of Appeal decision of PSV 1982 Limited -v- Langdon [2022] EWCA Civ 1319.

 

In this case, Mr Langdon was director of Discovery Yachts Limited (“DYL”) and Discovery Yachts Group Limited (“Group”).  A customer commenced legal proceedings against both companies, resulting in DYL going into liquidation.  Some two years later, Group went into administration and then subsequently into liquidation.  The customer claimed Mr Langdon was in breach of using a prohibited name and, as a consequence, was personally liable for their claim.

 

The principal ground of defence was that it is unjust for someone (Langdon) to be bound by a judgment in proceedings (that were against DYL and Group) in which he had not been heard, or able to mount a defence.  In dismissing this argument, the Court of Appeal said the criminal sanctions imposed by breaching the provisions of re-using a prohibited name prevailed and so, it followed, any award must do likewise.

 

Mr Langdon now finds himself personally liable for some £1.6 million with his right to appeal being rejected.

 

Legislation does provide for certain exceptions that enable the re-use of a prohibited name and, with the number of “Phoenix” liquidations steadily rising, directors should ensure they follow set procedures to ensure they do not fall into the same trap as Mr Langdon.  The courts view is those set procedures are so straight-forward, there is no room for excuse if they are not followed correctly.

 

If you require any advice or assistance on any insolvency-related issue, then please contact PBC Business Recovery & Insolvency to discuss and advise on your situation on 01604 212150 or email to enquiries@pbcbusinessrecovery.co.uk.  Alternatively, visit www.pbcbusinessrecovery.co.uk for further information.

 

As a director, do you owe your company any money and, if so, do you know the potential consequences for not repaying the amount?

 

Since the availability of bounce back loans and CBILs, a common feature in companies we are asked to advise upon is the presence of an adverse director loan account (“DLA”) where a director has drawn funds above and beyond their remuneration package in order to address personal commitments or just to acquire luxury items.  This creates a debt, which is repayable to the company.

 

However, what about the other potential issues arising?  These include:

 

• HM Revenue & Customs can determine a DLA as income and assess a tax liability based upon the unpaid balance, in accordance with section 455 Corporation Tax Act 2010. This assessed tax liability can be held against a director

 

• The Redundancy Payments Service will look at this as grounds to reject your claims for entitlements as an employee of an insolvent company. While the basis of their refusal to entertain director claims is wrong, in law, until it is challenged they will use a DLA as sound reasoning for not paying a director.  This could amount to several thousand pounds in many cases that a director loses.

 

 

So, what can you do when confronted with this situation, particularly if there is an insolvent situation looming?

 

1. First, ensure the balance is correct. All too often a DLA becomes a “Dumping” ground for unallocated accounting entries.  Make sure you have an agreed balance.

 

2. Does the company owe you money? If you have paid for goods or services using your own funds or credit card, have these been posted to the DLA?  This may also include your employee entitlements, in terms of wages and accrued holiday pay.

 

3. If you can, repay the agreed balance, which in turn prevents the Redundancy Payments Service from using an adverse loan from rejecting your employee entitlements.

 

4. Offer to repay the agreed balance to an appointed liquidator by way of instalments.

 

5. Alternatively, offer a one-off payment in full and final settlement.

 

Settlements (either by way of instalments or otherwise) are always open to negotiation but can make repaying a DLA more manageable or, in the case of a lump sum settlement, remove that burden from a directors’ mind.

 

The exposure risk of a settlement that is lower than the agreed balance is HMRC could look at a section 455 assessment against the unpaid residue of the loan.  It is not a certainty, but it remains a risk nonetheless.

 

The key message is where a DLA exists, take advice and be prepared before taking that next step.

 

If you require any advice or assistance on any insolvency-related issue, then please contact PBC Business Recovery & Insolvency to discuss and advise on your situation on 01604 212150 or email to enquiries@pbcbusinessrecovery.co.uk.  Alternatively, visit www.pbcbusinessrecovery.co.uk for further information.

Those of you old enough to remember will recall the days of queuing to get into the local cinema to watch the likes of the latest Bond movie, the original Star Wars perhaps, or even Grease.  There were no reserved seats and it was a case of first come, first served.

 

The cinema industry has moved on from those halcyon days, but the key ingredient has remained the same; a good film to attract the audience.

 

And here lies a problem.  Due to the pandemic, many of those blockbuster films were suspended and even to this day are yet to be released.  The first ingredient to the business model is suddenly missing.

 

The world’s second largest cinema chain is Cineworld who operate 751 sites across 10 countries (102 of which are in the UK).  Cineworld recently announced they were consulting with solicitors after reporting suffering a £429 million loss in the last financial year.  It was also reported the group had liabilities of a staggering £4 billion.

 

In those “Good old days” there were no videos, DVDs or live streaming, so if you wanted to see the latest blockbuster movie you had to visit the cinema, or wait 2-3 years for its release on television, normally around Christmas.

 

In modern society, these films become readily available shortly after their release.  Indeed, this has been an issue with many scheduled film releases being delayed.  A statement from Cineworld about their current plight said,

 

“Despite a gradual recovery of demand since reopening in April 2021, recent admission levels have been below expectations.”  This is as a result of few films being available to attract the audience.

 

It is now being muted that Cineworld may enter into Chapter 11 (in the USA) and some form of restructuring vehicle in the UK.

 

At Cineworld, film releases are its raw materials, whereas admissions equate to their income.  At PBC we are seeing many businesses that are suffering a similar fate, only film release is replaced by materials, for example and admissions are similarly replaced with customers who, for one reason or another, are suspending or even cancelling orders.  Both of these issues have an adverse impact on cashflow and, in some cases, jeopardise the viability of the company itself.  “Cash is king” we are all led to believe, yet if a business cannot secure the supplies or is prevented from continuing with a contract then it is at serious risk of failure.

 

If you require any advice or assistance on mediation or any insolvency-related issue, then please contact PBC Business Recovery & Insolvency to discuss and advise on your situation on 01604 212150 or email to enquiries@pbcbusinessrecovery.co.uk.  Alternatively, visit www.pbcbusinessrecovery.co.uk for further information.

Listening to the news all we seem to be hearing is inflation has reached levels not seen in 40 years, petrol prices surging to record levels following the Russian invasion of Ukraine and the demands of employees, including industrial action, for wage increases are putting pressure on businesses and, in particular, their cash flow.  Add to this the cost of raw materials and goods that place a further squeeze of profit margins and you can only conclude it is tough out there in the business world.

 

The Insolvency Service latest statistics, released last week seem to reflect the tough time businesses are facing at the moment with 1,827 company insolvencies in July 2022, a rise of 67% compared with the same month in Covid affected 2021 but also 27% higher than July 2019.  The majority of this figure is creditors’ voluntary liquidations (CVL), which increased to 1,609, some 60% higher than both 2021 and 2019.  Indeed, the level of CVLs for the second quarter of 2022 was the highest on record.

 

The number of compulsory liquidations fell by approximately half from the number in July 2019.  Given the majority of compulsory liquidations pre-pandemic were based on petitions from HM Revenue & Customs, this is a sign that HMRC remain more prepared to compromise than in future.  How long this approach will remain is uncertain so acting now is imperative.

 

While these figures appear daunting, some of the liquidations were companies where the core business was sound; it was purely a cash flow issue, combined with an unmanageable tax liability that prevented a turnaround situation.  This is due to the change in law whereby HMRC now hold secondary preferential status for a large proportion of their unpaid debt.

 

Should you or a client require any advice or assistance on a company suffering as a result of the cost-of living or any insolvency-related issue, then please contact PBC Business Recovery & Insolvency to discuss and advise on your situation on 01604 212150 or email to enquiries@pbcbusinessrecovery.co.uk.

 

 

The Institute of Directors(“IOD”) has recently announced its plans to introduce a code of conduct for directors to rebuild public trust in businesses.  The plans follow in the wake of recent headline-making scandals at Carillion, BHS and P&O Ferries.

 

The proposed code would be voluntary which would automatically weaken its effectiveness, particularly when bearing in mind a survey of IOD members showed only 21% would support a voluntary code compared to 58% backing a mandatory code.  However, the IOD states it believes a mandatory code would produce “a counterproductive focus on compliance” rather than allowing directors to focus on running the company.

 

The draft code released by the IOD focusses on nine key principles ranging from the directors personal conduct, a pledge for businesses reducing their carbon footprint as well as directors understanding their duties as directors.  We have long believed that before any individual is appointed as a director they should pass a basic “director theory test” (akin to the driving test) so that directors know their basic duties and are aware of facts including:

 

• The difference between their property and that of the company.
• Exercising independent judgement and acting with reasonable care and skill – abdicating responsibility to other directors is not acceptable.
• Avoiding conflicts of interest.

 

Perhaps the most important is to recognise when the company is insolvent and how their duties change.  Indeed, one of the points from the draft IOD code is “Maintain the financial viability of my organisation and, if that is no longer possible, take appropriate action to protect the interests of creditors”.  When directors become aware their company is insolvent and cannot pay the debts when they fall due, they should seek advice as soon as possible to protect their position.  In endorsing the IOD code, it cannot be a coincidence that many of the directors who find themselves under the threat of personal liability are, invariably, those who unwittingly breach their duties due to a lack of knowledge.

 

If you require any advice or assistance on any insolvency-related issue, then please contact PBC Business Recovery & Insolvency to discuss and advise on your situation on 01604 212150 or email to enquiries@pbcbusinessrecovery.co.uk.