Phoenix company

The term ‘phoenix company’ refers to a new company that has been specifically created for the purpose of continuing the business of an insolvent company which ceases to exist. The sale or transfer of the business and assets of the insolvent company often occurs through the use of a pre-pack administration, or a pre-pack liquidation. In order for this to go ahead, assets from a previous enterprise that was no longer viable, will be purchased at market value by the directors of the new company. It will often have the same board of directors as its predecessor and may even be permitted to use a similar trading name, provided that strict guidelines are adhered to.

A phoenix company is able to pick up right where its predecessor left off, provided it has purchased the assets at market value. It will, however, be free from the debt that forced the old company into insolvency. The money realised through selling the assets will be used to make repayments to creditors after deductions for the costs and expense of the insolvency process, and any remaining debt will be legally written off, giving the company a fresh start.

It is perfectly legal to set up a phoenix company, as long as the assets are acquired at market value following a formal insolvency process such as a pre-pack administration or liquidation. This ensures that all regulations are complied with and all creditors are dealt with appropriately.

The advantages of a phoenix company

Where the use is permitted, they have several advantages over other processes.

  • A phoenix company can help preserve the jobs of employees. This will not only protect their livelihoods but also reduce redundancy pay-outs and may increase the amount of money available for distribution to creditors.
  • The phoenix company will be able to continue trading free from its historic debt using the assets of its predecessor, providing they have been bought at market value. It may even be able to continue using the same premises if the landlord agrees.
  • The phoenix company may be able to continue to do business with many of its old suppliers and customers.
  • In certain circumstances, the company may be able to continue trading using a similar name to its predecessor. This preserves the brands, goodwill and previous marketing efforts.

Can a phoenix company re-use a trading name?

It is possible in some instances for a phoenix company to use a similar or near-identical name to its predecessor, however, several regulations apply. Failure to adhere to these regulations can result in fines, loss of limited liability and even imprisonment, so advice should be sought from a reputable solicitor before any decisions are made.

In summary

A phoenix company is a business which is reborn in the ashes of its predecessor. The process is known as a pre-pack administration or liquidation and it enables a new business to be created, with the historic debt of the previous company written off. It cannot trade with the same name and all assets that are transferred must be sold at market value.

How we can help

The procedure of creating a phoenix company is a complicated process that should only be dealt with under the supervision and guidance of a licensed insolvency practitioner. We have years of experience dealing with phoenix companies, pre-pack administrations or pre-pack liquidations, so if you think one of these options might be appropriate for your business, get in touch for a free, confidential chat today.

Case Studies

Authored by Kelly Burton

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.

Authored by Kelly Burton

LCP Pattern Book Makers

Kelly Burton • Manufacturing • Pre-Pack Administration

All 63 jobs at an Ilkeston company, which can trace its history back over a hundred years, have been saved following a pre-packaged sale. The original business operated by LCP Pattern Book Makers Ltd, which trades as Lee Colourplan Pattern Book Makers, started life in 1909 in the North of England, moving to Derbyshire in 1970.

Licensed insolvency practitioners Kelly Burton and Lisa Hogg both of Yorkshire-based insolvency specialists Wilson Field were appointed as Joint Administrators on 7th August 2017. The business and assets have been sold for an undisclosed sum to GB Patterns Ltd, a company managed by Gareth Bolsover, a former director of LCP Pattern Book Makers.

Kelly Burton - Director & Licensed Insolvency Practitioner

Kelly Burton, director and insolvency practitioner at Wilson Field said;

 “The company enjoyed profitable trading in recent years but 2017 saw a 10% fall in turnover which created cash flow problems. This resulted in arrears with rent, HMRC and other suppliers.”

“GB Patterns Ltd bought the company with all 63 staff being transferred to the new company under TUPE. As well as saving jobs, the pre-packaged sale has mitigated employee termination claims estimated to total £414,018, resulting in a significantly better return to creditors”.

Kelly further commented;

“It is always good to see long-established businesses survive after facing difficulties. In this case with continued financial support from Regency Factors plc, we were able to work with all other parties to reach an outcome which would be in the best interests of creditors and at the same time preserve the business.”

Gareth Bolsover, owner of GB Patterns said;

“This has been an uncertain and very difficult period for the business but the continued financial support from Regency and advice from the administrators at Wilson Field has made the whole process less stressful. Working closely with them has meant we have been able to keep all 63 staff. The future now looks very positive.”

“With our strong reputation within our niche sector and with the same staff team, we are confident that the company has a viable future and is able to offer our customers the same high quality of products and service.”

The business will continue to trade from premises at Crompton Road, Ilkeston, specialising in the manufacture of fabric, wall/floor covering sample books, swatches, PVCU and cardboard binders, on behalf of manufacturing clients, including Colefax & Fowler and Laura Ashley.

Mark Wilkinson of Shulmans LLP, solicitors of Leeds advised and dealt with legal work with asset sales through Robert McArdle of David Currie & Co

Authored by Kelly Burton

Scottish Pub Chain

Kelly Burton • Leisure & Hospitality • Pre-Pack Administration

The director initially approached Wilson Field for assistance with the drafting of a Company Voluntary Arrangement (CVA), following HMRCs refusal to allow the company a time to pay agreement. Wilson Field drafted a CVA proposal, which was rejected by HMRC, who then issued a winding-up petition.

Wilson Field then advised the director to his remaining options, of which placing the company into Administration was one.

Due to the petition, the director was unable to appoint administrators. However, following protracted discussions with the company’s debenture holder, it was agreed that the secured creditor would appoint Wilson Field, at the request of the director.

Insolvency practitioner and director at Wilson Field, Kelly Burton, said:

“After being refused a CVA by HMRC, the company received a winding-up petition and we were appointed Administrators after speaking with the debenture holder.

Although it was a tricky start, there was a good outcome as the assets and business were sold and 75 employees kept their jobs.”

A licence to occupy was granted to an associated company to trade the pubs, whilst a sale could be finalised post appointment.

The sale was completed to an associated party a number of months after appointment, and secured over 75 jobs.

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