Overview of the English law administration procedure and practical guidance for creditors

Transcription

1 Overview of the English law administration procedure and practical guidance for creditors Set out below is an overview of the administration procedure, together with some practical guidance on the steps which creditors of a company in administration may wish to take during the initial stages of the administration. This overview is a brief summary of the subject matter covered and does not purport comprehensively to cover all aspects of the administration procedure and is not intended to provide legal advice. Should you require more detailed information on any issue highlighted in this summary or have any questions specific to the administration of a particular company then please contact David Morrison (dmorrison@mayerbrown.com or ), Ashley Katz (Ashley.Katz@mayerbrown.com or ), Ian McDonald (imcdonald@mayerbrown.com or ), Devi Shah (dshah@mayerbrown.com or ) or your usual Mayer Brown contact. Summary of the administration procedure 1 Purpose of administration 1.1 Administration is an English law insolvency procedure. An administration will have one of three different statutory purposes: (a) rescuing the company as a going concern; (b) achieving a better result for the company s creditors as a whole than would be likely if the company were wound up; and (c) realising property in order to make a distribution to secured or preferential creditors. January 2009

2 1.2 In giving effect to the statutory purpose, the administrator must perform his functions in the interests of the company s creditors as a whole, as quickly and as efficiently as is reasonably practicable and subject to certain specific statutory deadlines (including those referred to in paragraphs 3, 5, 6 and 11 below). 1.3 A key feature of an administration is that the company is protected from the actions of its creditors by a wide statutory moratorium (this is described in more detail at paragraph 4 below). 1.4 In practice, the way in which the administrator will look to achieve the statutory purpose of the administration will differ in each case. By way of example, the administrator may: use the breathing space afforded by the statutory moratorium to refinance the company with a view to rescuing it as a going concern; continue to trade all or part of the business while buyers for the business and assets are found; or effect a sale of the business which may have been negotiated prior to the administration immediately after its commencement (known as a prepack deal). Alternatively, he may seek to sell the business shortly after his appointment, having undertaken a limited marketing exercise. 1.5 Details of the steps which the administrator intends to take (and has taken) will be included in his proposals which are subsequently circulated to creditors (see paragraph 5 below). 2 Procedure for appointing an administrator 2.1 An administrator may be appointed: (a) by the Court on the application of the company, its directors or one or more of its creditors (including the holder of a qualifying floating charge (see paragraph 2.1(c) below)); (b) out-of-court by the company or its directors; or (c) out-of-court by the holder of a qualifying floating charge (that is, a charge which relates to the whole or substantially the whole of the company s property) (which is enforceable). 2.2 An administrator must be a licensed insolvency practitioner (normally an accountant). In practice, appointments are usually joint with two or more administrators being appointed. The directors managerial powers are suspended during the administration. 2 Legal Alert

3 3 Notification of the administrator s appointment 3.1 As soon as reasonably practicable following his appointment, the administrator must advertise his appointment in the London Gazette and in another newspaper. Within seven days of his appointment he must send notice to the Registrar of Companies and, as soon as reasonably practical, he must send notice to each creditor of whose claim and address he is aware. However, the list of creditors of which the administrator is aware is unlikely to be complete and so not all creditors will receive this notice. Therefore, it is always prudent for a creditor to contact the administrator as soon as practicable upon becoming aware of the administration with details of its claim. This will ensure that the creditor receives notice of the meeting of the company s creditors (see paragraph 5 below). 4 Moratorium 4.1 Statute provides that an interim moratorium takes effect prior to the appointment of the administrator on the filing of specified documents with the Court or where an administration application has been made by the directors or shareholders. 4.2 This statutory moratorium continues once the company is in administration. 4.3 The key effects of the moratorium are principally as follows: (a) (b) (c) (d) no step may be taken to enforce security over the company s property except with the leave of the Court or the consent of the administrator; a landlord may not exercise a right of forfeiture by peaceable re-entry in relation to the company s premises except with the leave of the Court or the consent of the administrator; no step may be taken to repossess goods in the company s possession under a conditional sale agreement, a chattel leasing agreement or a retention of title agreement except with the leave of the Court or the consent of the administrator; and no legal process (including legal proceedings, execution and distress) may be commenced or continued against the company or its property except with the leave of the Court or the consent of the administrator. 4.4 This moratorium is very widely construed by the Court and therefore, before taking any step against the company or its property or property in the company s possession (irrespective of ownership), a creditor should consider carefully whether the step proposed might be in breach of the moratorium. A creditor can breach the moratorium even if it did not know at the time that the company was subject to it. mayer brown 3

4 5 The administrator s proposals, the creditors meeting and the creditors committee 5.1 One of the key duties of the administrator is to formulate proposals for achieving the statutory purpose of the administration (see paragraph 1 above). 5.2 Copies of these proposals are sent to the Registrar of Companies and to every creditor of the company of whose claim and address the administrator is aware within eight weeks of the commencement of the administration. 5.3 The proposals are accompanied by an invitation to attend a creditors meeting to be held within ten weeks of the commencement of the administration. At this meeting, the proposals are presented for consideration by the creditors, who may approve them with or without modification. It is usually the case that this will be the only meeting of creditors in the administration. 5.4 At the same meeting, the creditors will also be asked to decide whether a creditors committee should be formed. The purpose of a creditors committee (which comprises between three and five creditors) is to assist the administrator and it may also fix his remuneration. Members of the committee will be more closely aware of progress in the administration and will be involved in key decisions. There is often a significant (unpaid) time commitment in being a member of a committee. 5.5 A creditor does not have to attend the meeting of the company s creditors (or to vote on the proposals) as not doing so will not prejudice any claims it may have against the company in administration. However, if proposals are approved they are binding on all creditors, including those who did not attend (or vote). 5.6 If a creditor wishes to attend and vote at the meeting then it must send details of its claim in writing to the administrator to arrive no later than 12 noon on the business day before the meeting, together with a form of proxy appointing a named individual (and up to two alternates) to attend and vote on its behalf. The claim which is submitted is solely for the purposes of entitlement to vote and does not affect whether the creditor has any entitlement to a dividend or how much it will receive. If the creditor wishes to vote on the administrator s proposals but does not wish to appoint a proxy to attend on its behalf, then it may appoint the chairman of the meeting to act as its proxy. 5.7 It is the chairman of the meeting who decides whether a creditor is permitted to vote. If the chairman is in doubt as to whether a claim should be accepted for voting purposes, the creditor will be allowed to vote but its vote will be marked as objected to (and the vote will be declared invalid if the objection is later sustained). A creditor can appeal to the Court if it disagrees with the chairman s decision. 4 Legal Alert

5 5.8 The requisite voting majority is more than 50% in value of those creditors present (in person or by proxy) and voting. A resolution is invalid if those voting against it include more than half of the value of creditors to whom notice of the meeting was sent and who are not (to the best of the belief of the chairman of the meeting) connected with the company. A secured creditor is entitled to vote only in respect of the balance (if any) of its debt after deducting the value of its security. 5.9 If the proposals are approved, the administrator will run the administration in accordance with those proposals. If the proposals are rejected the administrator will report this to the Court and the Court may decide to bring the administration to an end or make such other order as it thinks fit Notice of the result of the meeting must be sent to creditors as soon as reasonably practicable following conclusion of the meeting. 6 Progress reports The administrator must send a progress report to creditors, the Court and the Registrar of Companies every six months. This report will include details of the progress made by the administrator during the period to which the report relates, a receipts and payments account and details of the assets which remain to be realised. 7 Powers of the administrator and treatment of creditors claims 7.1 The administrator has wide statutory powers to enable him to carry out his functions. These include the power to dispose of the company s assets, including those which are subject to a floating charge as if they were not subject to that charge (although the charge holder will have the same priority in the proceeds as he had in respect of the property disposed of). Property subject to security other than a floating charge may be disposed of pursuant to a Court order (with proceeds being applied towards sums secured) or with the consent of the holder of security. Property which is the subject of a conditional sale agreement, chattel leasing agreement or retention of title agreement also may be disposed of pursuant to a Court order (with proceeds being applied towards the sums payable). 7.2 An administrator also has the power to apply to the Court for an order setting aside antecedent transactions on the grounds that they were at an undervalue, preferential or defrauded creditors. An administrator may also pursue claims (for example against debtors or management) on behalf of the company. 7.3 An administrator may enter into correspondence with a creditor during the administration with a view to disputing or agreeing the creditor s claim. Final determination as to the quantum of any claim may, however, be left to be dealt with in the procedure which follows the exit from administration (see paragraph 11 below). mayer brown 5

6 8 Payments to creditors The administrator has the power to make distributions to secured and preferential creditors of the company. However, the permission of the Court is required for distributions to unsecured creditors unless the administrator thinks that such a distribution is likely to assist in achieving the purpose of the administration. Therefore, if there are sufficient resources to make payment of a dividend to unsecured creditors, this will usually be done through a creditors voluntary liquidation or a company voluntary arrangement (see paragraph 11 below) which follows the exit of the company from administration. 9 Continuing to do business with a company in administration 9.1 Once a company is in administration, all dealings should be with the administrator, not the directors. A counterparty may continue to deal with its usual opposite number at the company on day-to-day matters, but any decisions will need to be approved by the administrator. 9.2 Administration of itself will not terminate pre-existing contracts. Specific contracts may, however, contain an express provision allowing either or both parties to terminate the contract in the event of administration. Counterparties should check their contracts to see whether this is the case. If there is a provision permitting the counterparty to terminate a contract, it should consider whether it would be beneficial to terminate the contract in question. If the contract does not permit the company to terminate the contract in the event of administration then it may not do so, however, the company simply may not perform the contract, leaving the counterparty with an unsecured claim for damages in respect of such nonperformance. 9.3 If the administrator is continuing to trade all or part of the company s business, he may wish to continue to receive goods and services from one or more counterparties. If a counterparty is minded to agree to this, then it should ensure that the administrator expressly agrees that payment in respect of such goods and services is payable as an expense of the administration (that is, ahead of pre-administration creditor claims). It may also seek to negotiate the payment of sums due to it in respect of goods provided and services rendered prior to the administration to be paid, preferably in full. Whether this is achievable will usually depend on the counterparty s bargaining position with respect to post-administration goods and services. The more important they are, the more amenable the administrator may be to permiting at least some of the pre-administration debt to be paid off as part of the price for the counterparty continuing to deal with the company in administration. The counterparty also has an opportunity at that point to renegotiate payment terms for the post-administration goods and services. 6 Legal Alert

7 9.4 In the event that sums are due from a creditor to the company relating to the preadministration period, payment of these sums should not be made without first considering (with the benefit of legal advice) whether there are any sums owing from the company which may be set-off against such payments (for instance, any claim for damages arising from post-administration non-performance by the company (see paragraph 9.2 above)). 10 Retention of title 10.1 A valid retention of title clause may enable a creditor to recover goods which have been supplied to the company and which remain in the company s possession. Such creditors should check whether any retention of title provisions are included in the contractual documentation and, if so, consider (with the benefit of legal advice) whether those provisions are valid and have been properly incorporated into the contract (often a battle of the forms issue) and implemented in practice, and whether the goods which remain in the possession of the company are identifiable as the creditor s property However, even if the retention of title provision is valid, a creditor cannot take steps to repossess its goods as this is prohibited by the administration moratorium (see paragraph 4.3(c) above) without the consent of the administrator or the leave of the Court. Therefore a creditor looking to recover goods pursuant to a retention of title clause would need to notify the administrator in writing of the clause, requesting an undertaking that he will not dispose of the goods in question and will permit the creditor to recover them. If the administrator does not accede to this request (he will not allow goods to be collected unless he is satisfied that the clause is valid as he may be personally liable if he permits goods to be repossessed by a creditor which is not entitled to them) it may be necessary to seek the assistance of the Court It may also be open to a creditor to use a valid retention of title clause as a bargaining tool in order to reach a commercial deal with the company whereby it pays part or all of the value of the goods, for instance, if it requires these goods in order to continue trading. 11 The end of an administration 11.1 The administration terminates automatically one year after the appointment of the administrator. The term may be extended by an order of the Court or for up to six months with the creditors consent (which must include the consent of all secured creditors). mayer brown 7

8 11.2 The company may exit administration into (amongst other things) a creditors voluntary liquidation, a company voluntary arrangement or a compulsory liquidation (each of which may be used to facilitate the payment of dividends to unsecured creditors). If the administrator thinks that the company has no property which might permit a distribution to creditors, then the company may be dissolved. Alternatively, if the administrator has achieved the statutory purpose of rescuing the company as a going concern, control may be handed back to the directors (though this is a relatively unusual occurrence). Practical guidance Set out below are steps which a creditor of a company in administration may wish to consider taking in the initial stages of the administration. Upon becoming aware of the administration, collate details of any claim(s) which it may have against the company (for instance, in relation to unpaid invoices or a damages claim), together with supporting documentation. Consider whether there are any third parties which are obliged to meet these claims (for instance, pursuant to a guarantee or insurance policy). Contact the administrator in writing with details of its claim. The administrator s details will be included in the advertisement which is placed in the London Gazette and in the notice given to the Registrar of Companies. It is possible that they may also be obtained by contacting the company directly or from its website or from any press release. Check existing contracts for retention of title provisions and notify the administrator of any claims for the return of goods. Check existing contracts to establish if these can be terminated and, if so, consider whether it is beneficial to do so. If the creditor is minded to continue to deal with the company, confirm that post-administration goods and services will be paid for as an expense of the administration and seek to agree that any pre-administration debts are paid, preferably in full. If sums are due from the creditor to the company in administration, consider whether they may be set off against sums due from (or claims against) the company before payment is made. On receipt of the administrator s proposals (if these are not received within eight weeks of the commencement of the administration, request a copy from the administrator), consider whether it wishes to vote on the proposals (and how it wishes to vote). Consider whether it would wish to propose or join a creditors committee. If it wishes to attend (or vote) at the creditors meeting, submit details of its claim in writing and proxy form to the administrator to arrive no later than 12 noon on the business day before the meeting. This Mayer Brown publication provides information and comments on legal issues and developments of interest to our clients and friends. The following is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers shouldseek specific legal advice before taking any action with respect to the matters discussed herein Mayer Brown LLP, Mayer Brown International LLP, and/or JSM. All rights reserved. Mayer Brown is a global legal services organisation comprising legal practices that are separate entities ( Mayer Brown Practices ). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; and JSM, a Hong Kong partnership, and its associated entities in Asia. The Mayer Brown Practices are known as Mayer Brown JSM in Asia. mayerbrown.com 0190fin January 2009