Why should you avoid making preference payments when your company is insolvent and facing liquidation?
A director could be found personally liable, if, prior to the liquidation and closure of their company they are found to have made preference payments to certain creditors. Under Section 239 of the Insolvency Act, a preference payment, is classed as one payment made by a company which will directly benefit one creditor above another.
It is the duty of the insolvency practitioner to investigate the company, prior to the point of liquidation to see if any preference payments have been made.
If you’re concerned about your company making preference payments, or its solvent position you should seek insolvency advice as quickly as possible. From there you will be guided on what payments your company can and can’t make. Our team of advisors will be happy to provide free, confidential advice and walk you through the options available.
What is a preference payment?
A preference payment occurs when an insolvent company makes an intentional payment which will directly benefit one creditor above another.
It is the duty of a director to ensure that all creditors are treated fairly and to maximise their financial return once they are aware the company is insolvent or is due to become insolvent. Any activity that potentially prioritises one creditor and worsens the position of another will be seen as preferential treatment.
In England and Wales, the Insolvency Act 1986 governs preferential payments in the context of insolvency, specifically payments made to:
- Connected parties
Such as company directors or related entities, are subject to scrutiny if they are made within two years prior to the commencement of insolvency proceedings. - Non-connected parties
Any payments made within six months before the insolvency proceedings can be examined.
The intent of these regulations is to prevent unfair advantages and to ensure a fair and equitable distribution of assets among all creditors during insolvency.
How can I avoid making a preference payment?
If you’re worried that your company is or will soon become insolvent you should seek the help of a licensed insolvency practitioner. From here, an insolvency practitioner will be able give you guidance on the what payments are permitted and the best course of action for your company.
Consequences of making preference payments
During a formal liquidation procedure, the appointed insolvency practitioner will investigate the affairs of the company, including the action of the director, up to and before the point of insolvency. If they find wrongful, or unlawful actions such as a preference payment, the director could be held personally liable or face director disqualification.
If a director is found to have made a preference payment, then they may be found personally liable for the return of that payment. This is to restore the company to the position it was in, before the preference payment was made.
Equal distribution of funds: Pari Passu
During the liquidation process, an insolvency practitioner will work under the principle of ‘Pari Passu’ which refers to the distribution of assets and funds from an insolvent company being equitable. A liquidator will look at any payments that have been made prior to a company entering a formal liquidation procedure. If an unfair preference payment is suspected to have been made, the liquidator may take action to recover the payment in question.
How we can help
Our experienced initial advisors can discuss any concerns you have over preference payments your company could have made. We can also discuss the company’s solvent position and assess the options available.
- Speak with our initial advisers via phone or online chat. If we can help, we will arrange a free consultation with one of our consultants to discuss your situation in more depth.
- During the consultation, we will advise if an insolvency procedure is the most appropriate route forward, or what alternative options are available.
- After your consultation, if there is an appropriate route forward, we will issue the relevant documentation for you to formally engage us.
In summary
A director should always avoid making any preference payments to creditors, leading up to and during an insolvency procedure. If found guilty, a director could be found personally liable, or face director disqualification. It is the duty of the insolvency practitioner to investigate the company and the director, prior to the liquidation to look for any signs of preferential treatment.
Case Studies
M J Squire Limited
Kelly Burton • Construction & Engineering • Creditors Voluntary Liquidation (CVL)
A bespoke joiners and shop fitters in Sheffield, M J Squire Limited, had been in its trade for more than 30 years.
However, recently it has been forced to close due to the downturn in the construction and retail industry.
The company was located at Orgeave Close in Sheffield, after working for many household names over the years including House of Fraser, Levi’s, Austin Reed and Tommy Hilfiger.
Until 2014, it had been a profitable company but over the past couple of years, it had been unable to secure profitable contracts.
February 10th, 2016 saw the appointment of Wilson Field’s Andy Wood and Robert Dymond as liquidators. This development for the company came as a result of suffering cash flow problems.
Operations at M J Squire Limited have now ceased and regrettably, all nine roles within the company were made redundant.
Andy Wood, insolvency practitioner from Wilson Field, spoke about his work on this case.
“Declining sales at M J Squires significantly impacted cash flow and the business’ ability to meet its liabilities. In the face of tough market conditions, the director has taken the difficult decision not to continue trading. The business has closed and the assets are being sold.”
“It is very sad to see this well-known local business cease to trade after over 30 years. The downturn in the retail sector has hit this business hard.”
Derwent Castings Limited
Kelly Burton • Metals • Creditors Voluntary Liquidation (CVL)
Unsecured creditors owed money by a Derbyshire manufacturing company which went into liquidation are to receive a higher than the expected dividend of 60p in the pound.
A total in excess of £128,000 is due to be distributed to unsecured creditors of Whatstandwell-based Derwent Castings Limited, whose claims totalled over £192,000.
The company, whose roots date back to the 1940s, had traded profitably for a number of years but in late 2013 / early 2014 saw the cancellation of its largest sales contract which represented 70 per cent of its turnover.
Bosses at the company, which employed 16 staff including three directors, struggled to attract replacement business and had to drop prices. Further business was lost as a result of foreign competition.
Sheffield’s insolvency specialist Wilson Field was called in as liquidator and worked with the creditors’ committee of Derwent Castings Limited to secure the positive dividend.
Andy Wood, associate director and insolvency practitioner at Wilson Field said:
“Dividends for insolvent companies are generally low, or nothing, for a variety of reasons – cost of staff redundancies, difficulty collecting outstanding invoices, selling assets in a forced sale situation, selling specialist assets which have limited appeal to purchasers, deteriorating or perishable assets, as well as other costs involved.
“However, thanks to a very positive relationship with the creditors committee, I am delighted to return a healthy dividend to the unsecured creditors in the region of 60p in the pound.
“The supply chain is often greatly affected by a liquidation and in this case we have been able to help creditors.”
Derwent Castings Limited was incorporated in August 2002 and specialised in iron casting from the five-acre Derwent Foundry site at Whatstandwell near Matlock.
However, the iron founding operation at Derwent Foundry was first introduced back in 1946 by Wragg & Hawksley which produced cast iron pipes for the water industry.
In 1950 the foundry was acquired by WH Davis & Sons Ltd to supply castings for their railway wagon building business. Following a management buy out in 1984, the company was renamed Derwent Foundry Ltd and following its closure in July 2002, was bought by its present owners and renamed Derwent Castings Ltd.
Amongst jobs carried out on site were moulding using loose pattern and modern air setting (boxless) sand systems; metals work using the latest in electric induction melting producing a wide range of grey, SG and alloy irons; an independent Namas approved test laboratory, finishing, pattern making and machining facilities.
Statestrong Limited
Kelly Burton • Manufacturing • Administration, Creditors Voluntary Liquidation (CVL)
Insolvency experts Wilson Field has helped turnaround the fortunes of a loss-making manufacturing company in Lancashire providing a new future for its 80 employees.
Businessman Russell Blaikie acquired the struggling 40-year-old Statestrong Limited, headquartered in Lytham St Annes, through a pre-pack sale and has been able to help the company immediately utilising his expertise in manufacturing and management.
Arrangements for the purchase of Statestrong’s business and assets were negotiated by Sheffield business specialists Wilson Field who affected the sale shortly after being appointed.
The company, which manufactures and supplies aerosol and liquid products for use in health and beauty, household, automotive and industry globally, posted sales of £12m last financial year, but had suffered pressure from creditors with outstanding arrears.
The total value of the deal is undisclosed but includes the business and the assets of the company based on Boundary Road in Lytham St Annes and Tarporley in Cheshire, which will now trade as Statestrong Products Limited.
Mr Blaikie said:
“Transactions of this nature are sensitive and require careful handling. The team at Wilson Field provided exactly the right professional approach.”
Wilson Field’s insolvency practitioners Kelly Burton and Joanne Wright worked closely with Mr Blaikie along with senior corporate case administrator Gareth Kinneavy.
Kelly Burton, said:
“The company had a wealth of expertise but was straddled with financial liabilities which ultimately made its future questionable. Looking forward, a previously distressed business now has a viable future.”
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