Our experts have created a step-by-step guide to help your business manage financial stress.
FRP Advisory Managing financial stress in your company A step-by-step guide frpadvisory.com
Symptoms of financial stress
Entrepreneurship is a driving ambition for many people, but it’s never been such a challenging time to be running a business. Inflation, energy costs, environmental and sustainability issues, skills shortages, global supply chain concerns, the aftermath of the pandemic and the challenges of hybrid working have created a perfect storm of complications which can cause financial stress in even the most robust companies. Directors need to be aware that the slide towards insolvency can be so gradual that by the time the danger signals are apparent, it’s almost too late to reverse the damage. The issues surrounding a failing business can be financially and personally devastating. Directors often feel out of their depth at a time when prompt action is essential not only to pull the business back from the brink, but to guarantee they are complying with numerous mandatory regulations. Getting advice from a trusted professional - for example, your accountant and/ or solicitor - can ensure that you address the most urgent issues to protect your business. Ill-advised decisions at this stage can create personal liabilities for the directors and accelerate the demise of the business into a formal insolvency process. Early intervention is crucial, but how do you know when to start worrying? And how do you go about putting it right? In this brochure, we’ll answer these questions and hopefully help get your business back on track.
The more of these problems you recognise, the more urgent the action that is required.
Deteriorating results
Adverse performance to budget Declining sales, sales margin or retained profit Reducing order book Significant ‘exceptional’ costs Covenants tight, waived or breached Late accounts or qualified audit report
There are a number of signs that your company may be facing increasing difficulties. Some potential signs of trouble include:
Operational
On stop with suppliers Legal letters, CCJs or the threat of winding-up petitions Loss of credit insurance limits Difficulty retaining or recruiting staff Difficulties fulfilling orders, delivering on time or to specified quality Management time taken up ‘fighting fires’ and managing stakeholders Implementing short term cost reduction programmes
Balance sheet
Negative tangible net worth Trade creditors increasing faster than business growth (stretch) Increasing debtor days (poor credit control)
Arrears accumulating to HMRC Increasing stock holding or stock turnaround times
Negative operating cash flows Tight or hardcore overdraft Time to pay agreements with HMRC or other suppliers Increasing borrowings and financing costs with tertiary funders Inability to make payments on due dates Reduced liquidity (cash flow)
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1. Document your decision making. This will be an important part of any defence if anyone seeks to challenge your actions in the future. 2. Refrain from injecting personal monies into the company to shore up current cash flow issues. If there are solvency issues, injecting personal monies may only delay the demise and it may not be possible legally to recover any money that you have lent to the company. Next steps In normal circumstances the duties of directors are owed to the company and set out in the Companies Act 2006 and through case law. Among other duties, directors are required to: Act within their powers Promote the success of the company Exercise independent judgment Exercise reasonable care, skill and diligence Avoid conflicts of interest Not accept benefits from third parties Declare interest in transactions or arrangements with other directors Maintain confidentiality to the company Comply with health and safety, environmental, GDPR and other statutory obligations
6. Identify and consider any specific issues that your company is facing, e.g. loss of licences to trade, insolvency of a key customer or supplier, litigation, product failure etc. 7. Consider your staffing levels and the requirements to consult with employees concerning potential redundancies. If necessary, complete and submit form HR1. 8. Design and document your strategy to mitigate losses for creditors and/or return the business to solvency ensuring that your strategy incorporates all the issues faced by the business. 9. Check that your strategy and each of the decisions that you are implementing are likely to be deliverable and are demonstrably in the best interests of the company’s creditors and the company. You may need support from professional advisors e.g. property or chattel asset agents, solicitors, accountants or an insolvency practitioner. If insolvency is looming, the focus of a director’s duties changes, and the interests of the company’s creditors (to minimise their losses) become their primary concern. The potential risks for a director at this time are complex and include scope for personal (civil and criminal) liabilities, as well as being disqualified from acting as a director for a period of up to 15 years. If you consider that insolvency may be on the horizon for your business, it’s important that you get expert advice as early as possible. The following list of steps is for guidance only and is not a substitute for professional advice.
3. Ensure that the company’s financial records are accurate and up to date.
4. Establish a clear understanding of the company’s financial position. Review the current balance sheet. Consider what an outcome for creditors would look like if the company went into an insolvency process, and document the impact for creditors of any actions that you propose to take. 5. Prepare a realistic short-term cash flow forecast for the company. This is imperative if you consider that ongoing trading remains appropriate.
10. Check that your proposed actions do not give the directors any specific issues (see next page).
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Ensure directors are aware of potential liabilities At a time of imminent insolvency, directors face substantial repercussions if found to have breached the law or their duties. It is worth noting that all directors in a company have the same responsibilities and the law does not differentiate between directors on the basis of their titles e.g. a sales director has the same responsibilities and obligations as a finance director. The position is complex and often conflicting, for example employee consultation versus keeping the
company’s demise confidential to maximise asset realisations. Professional advice should be sought as falling foul of your duties, whether deliberately, misguidedly or merely naïvely, has the same consequences which can be reputationally and financially expensive. Unfortunately, ignorance is no defence.
The most likely risks that can result in personal liability for directors at this time are:
Continuing to trade when insolvent, and by trading, increasing the losses for creditors. Wrongful trading Failing to act in the best interests of the company. For example using company money or assets for personal benefit. Misfeasance Disposing of assets of the company below their true value. Transactions at undervalue Risk of disqualification under the Company Directors Disqualification Act, for example, failing to keep or maintain proper accounting records. CDDA risks
Putting a creditor in a better position than other creditors, such as making payments to the creditor. Preferences Carrying out business (or specific transactions) with the intent to deceive or defraud creditors. Fraudulent trading If an employer anticipates making twenty or more employees redundant in a period of 90 days or less, it’s a legal requirement to complete an HR1 form and submit it to the Redundancy Payments Service. Non- compliance is a criminal offence. HR1 form
Further risks that need consideration in specific circumstances:
Scope for personal liability in circumstances where a director of an insolvent company has set up a new company or companies to carry on the business under a similar name following a liquidation. Phoenix company provisions
In circumstances where there have been multiple insolvencies in a short period of time and HMRC has been a substantial creditor in each, HMRC can issue a notice to make a director personally liable for outstanding tax liabilities. HMRC scope for personal liability
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Decide whether an insolvency process is necessary for the company The earlier the company identifies and addresses the issues, the wider the range of options available to rectify them. The options set out below begin with the least intrusive to the company and end with the most intrusive, and should be incorporated into any strategy the company is undertaking (see points 8 & 9 on page 4). If decisions are delayed, it’s likely that the least intrusive options will cease to be available.
Restructuring plan (RP)
Trade on or through the financial issues
Moratorium
Members’ Voluntary Liquidation (MVL)
The RP is another option that was enacted in 2020. As with the CVA (see below), an RP can take place with or without a prior moratorium. The RP can achieve similar results to a CVA (and a Scheme of Arrangement) but has an important advantage that the court can order ‘cross-class cram down’, imposing acceptance of the RP on a class of creditors even if they do not agree to it. The RP is still relatively rare, and whilst the size of business seeking RPs is reducing, they are still a relatively expensive solution to implement. Directors remain in control of the company.
It may be that you have identified that the issues were temporary, or you have addressed them at an early stage. You forecast that any financial stress is temporary or will reverse in the short to medium term and you have sufficient funding in place to bridge the company to a position of improved financial performance. If you are confident that underlying performance is now profitable you may consider a cash injection to support the company’s finances. However, you should always take professional advice before making such a cash injection and consider taking security over the company before funds are introduced.
This is a process that was enacted in 2020 to provide additional protection to viable businesses. The process acknowledges that financial distress can absorb significant management time, and the moratorium therefore affords a company twenty business days of breathing space to investigate the rescue and restructuring options for the company. The moratorium can be extended further to enable any rescue plans to run their course. Directors remain in control of the company, and a licensed insolvency practitioner will act as a monitor to ensure that the rescue of the company remains a realistic prospect.
Where you determine that cessation of trade is appropriate, and the company is still solvent, an MVL is a cost-effective and often tax-efficient way of extracting value for shareholders.
Scheme of Arrangement
A scheme is a compromise or arrangement between a company and its members or creditors that requires two applications to court. In practice, due to the costs and complexities involved, schemes tend to be reserved for larger entities.
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Administrative receivership
Company Voluntary Arrangement (CVA)
In rare circumstances, a secured creditor may be entitled to appoint an Administrative Receiver (AR). The AR is appointed over all the assets of the company but has a primary responsibility to the secured creditor that appointed them. specific and increasingly
A CVA enables a bespoke and legally enforceable settlement to be brokered between a company and its creditors (often resulting in creditors writing off a portion of their debt). The usual structure of a CVA results in historic creditor liabilities being ring-fenced within the CVA, whilst the company meets agreed obligations to the CVA, including monthly payments to the CVA. The CVA is overseen by a supervisor, a licensed insolvency practitioner. The directors remain in control of the company and payments to historic creditors are often funded out of future profits.
Creditors Voluntary Liquidation (CVL)
This is a liquidation process for an insolvent company initiated by its directors and shareholders. A CVL can often be commenced within a matter of a few weeks. A licensed insolvency practitioner is appointed as liquidator and realises the company’s assets to seek to generate a return to its creditors. CVL is a terminal procedure.
Fixed charge receivership
When a lender has a fixed charge, such as a mortgage on a property, a fixed charge receiver might be appointed by the lender just to enforce the security of their asset. A receiver will deal with the sale of that specific asset to repay the secured creditor, but the directors will remain responsible for all other aspects of the company, including any ongoing trading.
Compulsory liquidation (WUC)
A compulsory winding up is a court-driven procedure that is the predominant option sought by HMRC or creditors to force a company into liquidation. In certain circumstances, a WUC may be initiated by directors or shareholders. Usually the official receiver (the government’s version of an insolvency practitioner) will automatically take the role of liquidator, but creditors may seek for them to be replaced by an insolvency practitioner to act as liquidator. It is usually more time-consuming and expensive to place a company into WUC, and value within assets may dissipate as a result of any delays. Once in liquidation, the process of WUC and CVL generally results in similar outcomes for creditors.
Administration
Administration allows one of three statutory purposes to be pursued. These purposes are the rescue of the company as a going concern; the achievement of a better outcome for creditors compared to liquidation; or the distribution of monies to one or more secured or preferential creditors. The administrator takes over the management of the company and has extensive protection from the company’s creditors to enable the pursuit of the statutory purpose. A administration can be combined with an RP or CVA to deliver a rescue of the company as a going concern, but more commonly there is a sale of the underlying assets and business on a going concern basis (sometimes shortly after appointment, referred to as a ‘pre-pack sale’) to meet the second statutory purpose.
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If you have realised early enough that your company is approaching insolvency, immediate action is essential to try and head it off in a responsible manner. Whatever the difficulties your company may be facing, it’s critical to draw up a definitive strategy for overcoming the crisis and establishing a firm foundation for the future.
cascade of complications from which there is no way back. If you’re concerned about the viability of your company and need practical and friendly expert advice, why not contact us for an initial chat? The success of your business is our business; whatever your problem, we’ll have seen it before, and we specialise in helping directors of troubled organisations navigate their way through the minefield of imminent insolvency.
Potential company failure is a highly complex labyrinth in which a wrong decision can trigger a
Contacts: Nathan Jones John Lowe Yasmin Bhikha
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