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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