The wrongful trading provisions in the Insolvency Act make directors liable for a contribution to an insolvent company's estate if it can be shown they continued to trade but knew, or ought to have known, that there was no reasonable prospect of avoiding insolvency. However, directors are not liable if they can establish they did everything they practically could to reduce the potential loss to the company's creditors while continuing to trade. It is up to the insolvency practitioner (i.e. the administrator or liquidator, who is appointed to oversee the insolvency process) to decide whether or not to bring a claim.
The Government is currently suspending wrongful trading provisions until 31st March 2021. This move was taken to "give company directors greater confidence to use their best endeavours to continue to trade during this pandemic emergency, without the threat of personal liability should the company ultimately fall into insolvency", according to the Government.
The temporary suspension of the wrongful trading provisions has attracted some coverage in the press, but directors also owe other duties and face other risks. These other duties arise under the Companies Act and other legislation and the other risks arise under the Insolvency Act, the Company Directors Disqualification Act and other legislation. The temporary suspension of the wrongful trading provisions does not release directors from these other duties or protect them from these other risks.
Brian Hall, West Midlands Regional Chair, IoD
A seasoned Board Director himself, experienced in leading innovation, change and growth, Brian is the IoD Regional Chair for the West Midlands and a member of the IoD Council. Brian has spent two decades serving Midlands businesses as a Director and 30+ years in the insurance industry, so is well-placed to understand the significance of Directors’ Duties and the complexities surrounding insolvency. Chris Radford, Partner, Gateley Legal
Chris is a leading player in the Midlands restructuring market and is widely known for his superb technical ability, the clarity of his advice and his straightforward approach.
Chris’s career in restructuring started in 1989 and since then he has been involved in many of the Midlands’ largest restructuring and insolvency assignments. He acts for companies and their directors, for banks and other financial institutions and for turnaround specialists and insolvency practitioners.
Chris is a fellow of R3 and between 2016 and 2019 was chairman of R3 in the Midlands. Chris is also a member of the Institute for Turnaround (IFT) and part of the IFT's regional steering committee.
Consistent client praise for continued excellence led to Chris being inducted into ‘The Legal 500 Hall of Fame’ in 2018.
• Acting for financial institutions in connection with the financial restructuring of an international group of companies
• Acting for a hospitality business in relation to a company voluntary arrangement
• Acting for the administrators of a property development group in relation to the sale of the group’s business and its assets
• Acting for the directors of a retail business and giving advice relating to their directors’ duties
• Acting for the owner of a football club, resisting winding up petitions and achieving a solvent sale
Eddie Williams, Partner, PwC LLP
As a Partner within PwC’s Deals business, Eddie leads the PwC Restructuring team in the Midlands region focusing on the complex and mid-market sectors. He supports underperforming business and their stakeholders throughout the Midlands and UK, identifying and resolving issues affecting profitability, protecting enterprise value and, where necessary, recovering value for stakeholders.
He has worked in the regional mid market for nearly 25 years with over 10 years’ experience of leading restructuring assignments including time in London and secondments to a major Bank’s restructuring team. He has significant experience in a wide range of restructuring and insolvency assignments of all sizes and complexities advising directors, shareholders, and stakeholders on businesses experiencing differing level of distress.
He is a Fellow of the Institute of Chartered Accountants of England and Wales and sits on its Restructuring committee. He has been a licensed insolvency practitioner since 2009, is a member of the Institute for Turnaround and is the current Chairman of the Midlands R3 committee.
His appointments have won both the TRI mid market insolvency of the year in 2016 for the solvent Administration of HPI Racing, and TRI large insolvency of the year in 2019 for the sale of Covpress which saved the pension scheme from entering the Pension Protection Fund
Other recent experience includes
• Joint Administrator of Economy Energy £120m t/o energy supply business requiring orderly transfer and collection of over 100,000 customer accounts
• Working alongside a law firm to advise to listed plc on options including milestone decision planning and insolvency considerations
• CVA supervisor of Regis, a £40m t/o haircare business operating from over 180 retail salons throughout the UK
• Joint Administrator of All Leisure Holidays £100m t/o business involving sale of travel business and customer balances and sale of 2 cruise ships
• Compulsory Liquidator of Animal Healthcare Trust, a charitable trust which provided leading veterinary, medical and research services to the UK equine industry