Authors: Sean Gollin Partner Dispute Resolution and Litigation, MinterEllisonRuddWatts and Leon Bowker. Director, Deal Advisory, KPMG
COVID-19 has had a profound adverse impact on businesses and those governing them. It’s left businesses struggling with liquidity and creditor pressures. Many businesses may be unable to pay debts as and when they fall due and may be technically insolvent.
Directors have a range of duties, some of which are specifically engaged in the event of insolvency:
Companies Act Section 135: not to carry on business in a manner likely to create a substantial risk of serious loss to creditors; and
Companies Act Section 136: not to incur an obligation unless the director believes on reasonable grounds that the company will be able to perform the obligation when required.
When facing the prospect of insolvency, directors are expected to undertake a “sober assessment” of the company’s actual and prospective financial position and performance and the potential for remedying the company’s insolvency.
A “sober assessment” is difficult when the events are unprecedented and there’s no clarity around the recovery period.
This uncertainty risks otherwise viable businesses being unnecessarily shut down to mitigate the exposure to personal liability. It’s against this background that the government announced proposed temporary changes to our insolvency law regime. It’s worth noting the following:
They are to operate to temporarily relieve directors from liability for breach of sections 135 and 136 of the Companies Act only, provided three criteria are satisfied:
The time period of 18 months should allow a reasonable runway within which to return to a position of cashflow solvency. That need not be entirely due to improved trading conditions. It might be achieved through raising debt or equity, or reaching an accommodation with creditors potentially through the Business Debt Hibernation (“BDH”) scheme or a Creditors’ Compromise.
A good faith opinion means an honest belief, which is a relatively low threshold and allows some scope for getting things wrong. Meeting the criteria is not a “set and forget” function. Directors need to constantly review whether the criteria continue to be satisfied, particularly before incurring new obligations.
To be a good faith opinion, you will need to demonstrate a basis for the view formed and you should consider preparing:
While many businesses might already have existing treasury policies regarding cashflow management, these should be reviewed as part of your COVID-19 response to ensure they remain fit for purpose. We consider that as part of your overall governance and risk management framework you should also:
BDH is intended to provide a breathing space through a moratorium on enforcement of debts by creditors, to enable an affected business time to either successfully trade out of the crisis if possible or formulate a plan to put to creditors for more substantively restructuring its debts if that’s feasible.
The scheme should be used as a last resort for a liquidity constrained business that has good prospects and requires breathing space to develop a restructuring plan.
Before preparing a proposal, proponents should have a clear picture on cashflow requirements, and what timeframe and additional restructuring is required to manage the liquidity issues.
Prior to presenting any proposals to creditors, businesses should seek views of key stakeholders, particularly their banks, to discuss options and views on the proposal and whether any conditions might be required to get their support.
Businesses will also need to carefully consider their ability to meet deferred debt obligations post the hibernation period on top of normal trading obligations incurred. This may require some staggering of commitments.
Some businesses might consider using this in conjunction with a Creditors’ compromise proposal to restructure the balance sheet and provide a stable base to continue trading.
In the event there is no realistic path forward, other insolvency options may need to be considered.
BDH may have significant implications for suppliers with multiple customers qualifying for the scheme and likely invoking it at the same time. Hibernating existing debt across numerous customers may create liquidity issues for suppliers as well.
How you respond to a BDH proposal depends on how you view the outcome under BDH compared with the likely alternative of liquidation. If you see benefit in an ongoing supply arrangement:
In the end, a decision whether to support a BDH proposal needs to be on an informed basis. The debtor should be required to disclose to creditors its actual and projected financial position and to explain why allowing more time would improve the prospects for a better outcome for them.
See recorded IoD webcast with Sean and Leon for further information (member-only access).