Paul Cooper at Blake-Turner has for many years advised clients experiencing cash flow difficulties. All too often an otherwise sound business hits a hurdle and all of a sudden it is “insolvent” because it realises it will not be able to pay certain debts as they fall due in the next few weeks and months.
To describe the current Coronavirus pandemic as a “hurdle” would be a massive understatement, but the responsibilities of directors remain exactly the same.
What directors must do
1. Change your priorities:
As soon as the directors of a company realise that there is a real prospect of them not being able to meet their debts as they fall due (“cash flow insolvent”), whether now or in the future, then when making decisions they must make the interests of creditors paramount. If they fail to do this, then they risk making themselves personally liable for some of the debts of the company.
2. Plan carefully:
Whilst it is far from clear when the current crisis will end (this blog was created in March 2020), we are being given assurances by the Government and international organisations that will possibly be in around 3 months’ time. Also, that the government will assist by way of backing bank loans and paying 80% of furloughed employees’ wages.
Therefore, if you are a director of a company who envisages being cash flow insolvent in the coming three months you need to plan now. If your business is fundamentally sound, you may well be justified in continuing to trade, even if that incurs a lot of debt, provided that you reasonably consider that when we emerge you are likely to be able to trade through those losses and pay off those loans. In those circumstances, creditors will obviously be far better off than they would be were you to simply give up now and allow the company to go bust.
3. Record your decisions to protect yourself:
It is important to protect yourself personally as a director by keeping minutes of your board meetings at which you make the decision to continue to trade. Also, to regularly review that decision and minute each review and the reasons for your decisions. Also, keep copies of your cash flow forecasts as they evolve over time. If the worst subsequently happens, a contemporaneous record of your thought processes and decisions will be of great assistance in defending any claim against you personally by a liquidator or the Official Receiver.
4. Seek advice:
If you carry out your cash flow forecasts, and budget thereafter, and come to a view that it is unlikely that you will be unable to trade through and/or recoup your losses and/or pay off the short term debt, then you must immediately seek advice from an insolvency lawyer such as Paul Cooper at Blake-Turner, or an insolvency practitioner. A director can be made personally liable for certain debts if they continue to trade and spend money where it is not reasonable for them to do so, and in continuing to spend money and incur liabilities they will ultimately make the creditors worse off. Taking professional advice and minuting decisions will show you acted reasonably at all times and be crucial in ensuring you do not become personally liable.
5. If it comes to the worst:
A business can often be saved by putting the company into administration and selling that business. This is often by way of a pre-pack sale in which most if not all of the current debts of the company can be left behind and a new company continue to trade the business and save the employees’ jobs. Blake-Turner have extensive experience in this area.
At Blake-Turner we have years of experience of assisting distressed companies. We understand the desire to save and restructure where possible and we can advise you of various strategies by which you can do this. Please contact Paul Cooper on +44 (0) 7967 014788 or at firstname.lastname@example.org