Our experienced team of solicitors can assist with all legal aspects of Insolvency.
Our specialist insolvency solicitors within our Corporate and Dispute & Claims teams are able to assist on all legal aspects of insolvency, recovery and restructuring. They also have experience advising licenced insolvency practitioners, private companies, individuals and creditors on a full suite of insolvency, recovery and restructuring arrangements.
What we do
We advise on both contentious and non-contentious insolvency matters and pride ourselves on our fast response times and clear, constructive and commercial advice.
Our insolvency solicitors regularly advise on:
- Buying assets and business from an insolvent company
- Compulsory or voluntary arrangements
- Corporate Restructuring Services
- Corporate recovery and restoration procedures
- Creditors’ rights in insolvency
- Debt collection
- Debtors’ obligations in insolvency
- Directors’ duties in insolvency
- Dispute resolution during insolvency
- Employees’ rights when employer is insolvent
- Validation orders
When is a company deemed to be insolvent?
There are well established tests to determine whether a company is legally insolvent, with each of these detailed below:
- Failure to comply with a statutory demand
- Failure to satisfy enforcement of a judgement debt
- Cash flow test
- Balance sheet test
For further information, please refer to the article ‘When is a company insolvent?‘
If there are any concerns as to whether a company is legally insolvent, our insolvency team are on hand to assist.
What are the risks for directors in insolvency?
When a company is insolvent, the directors of a company are under a duty to protect the interests of the company’s creditors. Directors can therefore be liable for the actions they take before a company stops trading and also during insolvency. This includes:
- Wrongful trading
If directors continue to run a business and incur further credits and debts despite knowing there was no way of the company avoiding insolvency, they may be liable for wrongful trading.
- Fraudulent trading
If directors continue to run a business and incur further credits and debts, despite knowing there was no way of the company avoiding insolvency and with an intent to defraud creditors, they may be liable for fraudulent trading.
- Personal guarantees
Insolvency measures will likely result in any personal guarantees that have been given by directors for debts of the company being enforced.
- Preference payments
If insolvency is likely, a company should treat all creditors equally. If one creditor is treated in priority to others so they are in a better position, directors could be personally liable for the payments made to the preferred creditor.
- Transactions at undervalue
If there is a transfer of assets for less than the market value in the two years before insolvency, then the directors may be personally liable to contribute to the difference in value.
If there is concern as to whether a director is at risk during insolvency, legal advice should immediately be sought.
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Contentious Insolvency – Transactions at an Undervalue
Our team explains the process around insolvency, looking at transactions at an undervalue, looking at case examples where this might happen and what happens if transactions at an undervalue are discovered.
I have worked with Herrington Carmichael’s insolvency team over the last 10+ years and they have a great reputation as being extremely commercial when it comes to resolving complex insolvency matters. They are always on hand and their understanding of the requirements in what is often a highly stressful situation, has been invaluable to me on many an occasion.
– Rob Keyes, KRE Corporate Recovery Limited
I came across Herrington Carmichael’s insolvency team in 2018 when they acted for the buyer of an insolvent business. We started to instruct them on matters since then as they dealt with that particular matter extremely well and took a commercial approach to insolvency issues. Both Alex Canham and Edward Beedham provide clear advice and are very responsive which is invaluable when dealing with time pressured situations.
– Andrew Hook, Begbies Traynor (Central) LLP
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Voluntary Liquidation of International Technology Company
Advising a contractor in relation to its rights as a creditor during a creditors’ voluntary liquidation of one of its sub-contractors, and liaising with the liquidators to protect the client’s position.
Appointed Administrators for Leading Transport Distributor
Assisting in the administration process of a national online electric transportation distributor alongside a national insolvency practitioner firm.
Asset Acquisition from Audio-Visual Installation Company
Assisting with the pre-pack administration acquisition of the assets and trade of an audio-visual installation company in administration.
Asset Acquisition from Insolvent Telecoms Company
Advising on the acquisition of the assets and trade of an insolvent telecommunications company by its directors immediately prior to it entering into administration, along with obtaining the necessary court authorisations to effect the transaction.
Advised High Net Worth Investor with Winding Up Company
Assisting an investor in assessing its rights in respect of the winding up of the company in which investment was made.
Settlement Agreement Negotiation
Assisting with the negotiation and agreement of multiple settlement agreements in respect of claims by liquidators and administrators against directors of companies in liquidation or administration.
- Advising an international technology company in the creditors’ voluntary liquidation of a sub-contractor: Advising a contractor in relation to its rights as a creditor during a creditors’ voluntary liquidation of one of its sub-contractors, and liaising with the liquidators to protect the client’s position.
- Appointment of administrators for a leading online electric transportation distributor: Assisting in the administration process of a national online electric transportation distributor alongside a national insolvency practitioner firm.
- Acquisition of assets from audio-visual installation company in administration: assisting with the pre-pack administration acquisition of the assets and trade of an audio-visual installation company in administration.
- Acquisition of assets from an insolvent telecommunications company: Advising on the acquisition of the assets and trade of an insolvent telecommunications company by its directors immediately prior to it entering into administration, along with obtaining the necessary court authorisations to effect the transaction.
- Providing advice to a high net worth individual investor in the winding up of the invested company: assisting an investor in assessing its rights in respect of the winding up of the company in which investment was made.
- Settlement agreement negotiation: Assisting with the negotiation and agreement of multiple settlement agreements in respect of claims by liquidators and administrators against directors of companies in liquidation or administration.
Latest news & insights
In the case of WEISS TECHNIK UK LTD v DAVIES, the Court held that four former employees and a company set up by one of them had breached their contractual and equitable confidentiality obligations.
On the 8th December 2022, the Financial Conduct Authority (“FCA”) made changes to Chapter 12 of the Supervision Manual (SUP 12) of the FCA Handbook.
All of the government emergency legislation for COVID that was designed to prevent commercial tenants being wound up or leases forfeited because of rent arrears arising from the pandemic have gone.
Award winning legal advice
We are solicitors in Camberley, Wokingham and London. In 2019, Herrington Carmichael won ‘Property Law Firm of the Year’ at the Thames Valley Business Magazines Property Awards, ‘Best Medium Sized Business’ at the Surrey Heath Business Awards and we were named IR Global’s ‘Member of the Year’. We are ranked as a Leading Firm 2023 by Legal 500 and Alistair McArthur is ranked in Chambers 2022.