Monday, 31 January 2011

Kahn-Freund and Cork proved right - Public Interest Liquidation

The frequency of Public Interest Liquidation (PIL) petitions, which are advertised on the Insolvency Service (IS) website, is quite startling. The frequency goes some way, inter alia, to prove Professor Sir Otto Kahn-Freund QC (pictured) right in relation to the abuse of limited liability. His 1947 contention that the Salomon decision was 'calamitous' for creditors due to irresponsible use of the corporate form and limited liability is surely borne out by the frequency with which the IS have to deploy their powers under s.124A of the Insolvency Act 1986. Here are some examples from the IS, and these only relate to the last two months!

"21 January 2011 19:00
High Court orders boiler room “recovery” service to close
OTC Network Limited, an Oxford based company, that offered to help members of the public who had bought high risk or even worthless shares through so-called “boiler rooms”, has been ordered into liquidation on grounds of public interest following an investigation by Company Investigations, part of the Insolvency Service.

04 January 2011 11:29
Court action taken to shut down three companies involved in the sale of shares and bonds to the public
The Secretary of State for Business, Innovation & Skills has presented petitions in the High Court to wind up in the public interest Viking Mining Resources Limited, Viking Gold Limited and VGRM Limited.

21 December 2010 15:30
Umbrella tax companies taken out of service
Following an investigation by The Insolvency Service, two companies Sunday Solutions Limited and Bradbury & Co Limited, each involved in a tax umbrella scheme called the Sunday Solutions Scheme, for self employed consultants, have been ordered into liquidation in the High Court on grounds of public interest.

21 December 2010 15:00
High Court action to shut down two land banking companies
The Secretary of State for Business, Innovation & Skills has presented petitions in the High Court to wind up in the public interest two companies involved in marketing plots of land as an investment opportunity.

21 December 2010 14:00
Provisional Liquidator appointed to Virtual World Direct online e-lottery business
The Secretary of State for Business, Innovation & Skills has presented petitions in the High Court to wind up in the public interest Virtual World Direct Limited (www.virtualworlddirect.com), a British Virgin Islands registered company, and Information Technology Systems Ltd.

21 December 2010 10:00
38 Records Broken
A music production company, 38 Records Ltd, has been wound up in the High Court following an investigation by Company Investigations of The Insolvency Service.

17 December 2010 13:00
Company offering bogus mobile Phone cash back scheme is closed down
A mobile phone company offering ‘cash back’ incentives has been ordered into liquidation at the High Court. An investigation by The Insolvency Service found that MSols Limited, trading as “Mobile Rainbow”, made no proper provision to make the cash back payments it offered leading to over 1000 customer complaints.

16 December 2010 16:12
Commercially corrupt bankruptcy advice firm shut down by The Insolvency Service
A company that advertised itself as a ‘one stop shop’ for dealing with bankruptcy has been ordered into liquidation today following an investigation by The Insolvency Service

06 December 2010 17:00
Provisional liquidator appointed to Internet directory company
The Secretary of State for Business, Innovation and Skills has presented a petition in the High Court to wind up UK Business Internet Directory Ltd in the public interest.”

The learned professor is not the only one who can be seen to have been foresightful. As Professor Finch notes in her 2002 Insolvency Lawyer article on PIL (Insolv.L 2002, 5 (Aug), 157-165), the Cork Committee thought such petitions could be brought, "where banks concealed the true and highly speculative nature of their activities." The seminal report was published in 1982. Plus ça change plus c'est la même chose! Some commentators have argued that the IS do not bring about sufficient disqualifications of 'unfit' directors. This may be the case, but the IS, and specifically the Companies Investigation Branch (CIB), cannot however be charged with neglect on the PIL side of their investigation function as the above press releases show. 
For Mr Justice Warren's recent judgment in Re Digital Satellite Warranty Cover Ltd & Ors [2011] EWHC 122 (Ch) (31 January 2011), which relates to FSMA led public interest winding up petitions, see here.

Picture Credit: http://farm3.static.flickr.com/2663/3925714753_0ba8e90a41_z.jpg?zz=1

Change is afoot for IPAs and IPOs and the family home

"All change!" is a common enough refrain on the bus. More common than, "I'll get you Butler!" (pictured). Change is also frequent in insolvency law and practice and we have two new movements afoot. The Insolvency Service (IS) have recently announced that they are: 

"Changes to the way Income Payments Agreements (IPAs) and Income Payments Orders (IPOs) are made 

From 1st December, 2010, two main changes came into effect:

the minimum amount that the Official Receiver (OR) seeks to claim under an IPA or IPO reduced to £20 a month.

the bankrupt no longer retains any of the remaining surplus income once all their reasonable household expenditure is accounted for.

Existing IPA/IPOs will continue under the present arrangements as will any subsequent variances throughout their lifetime.


Changes to the way in which the family home is dealt with

From 1st January the following changes came into effect:

The OR, as trustee of the bankruptcy estate, will no longer dispose of a bankrupt’s interest in a family home until two years and three months after the bankruptcy order is made, except if an offer is received which is in the creditors’ interests to accept.

At two years and three months a review will begin. In cases where the bankrupt’s interest in the property is valued at less than £1,000, steps will be taken to re-vest the property interest in the bankrupt.

Otherwise, if there is insufficient equity to attract an insolvency practitioner to act as the trustee of a bankruptcy estate, then enquiries will be made as to whether the bankrupt or a third party would be interested in purchasing the interest, assuming the property interest may be worth more than £1,000. If it is not possible to transfer the interest, and the interest is valued in excess of £1,000, the OR will consider applying for a charging order.

If there is sufficient equity in the property, and if the OR is not aware of any willing purchaser, a Secretary of State appointment of an IP trustee may also be sought.   

The OR has the discretion to effect an early re-vesting of the property back to the bankrupt in specific circumstances."

Picture Credit: http://www.news.com.au/common/imagedata/0,,6352958,00.jpg

Friday, 28 January 2011

Bankruptcy as a Weapon? Howard v Howard-Lawson [2011] EWHC 63 (Ch) (21 January 2011).

Mrs Justice Proudman has handed down a recent judgment that relates to a will dispute. Whilst the facts and outcome of the case have no bearing on insolvency law per se, the case does raise some interesting issues about the use of bankruptcy as a weapon. The combatants in the case are father and son. The case is Howard v Howard-Lawson [2011] EWHC 63 (Ch) (21 January 2011). The dispute revolves around a will dispute which includes issues around a Baronetcy and Corby Castle (pictured).

In terms of bankruptcy as a weapon, here are the salient parts of Mrs Justice Proudman's judgment:

"This is a very sad case in that the claimant and the defendant, son and father, have fallen out in a very bitter dispute. The claimant seeks to recover what he sees as his rightful inheritance, alleging that the defendant incurred a forfeiture under the name and arms clause but that it was hidden from him by the defendant, past trustees and past lawyers. He says he only discovered the true position relatively recently when, with great difficulty, he managed to obtain access to trust files. He says if it had not been concealed from him, there would have been no need for him to enter into an Individual Voluntary Arrangement in 1993 and he would not have been adjudged bankrupt.

The defendant, on the other hand, denies that there was any forfeiture. He says that after a disentail the claimant obtained a large part of the Corby Estate which he then mismanaged with the result that the estate, including the house Corby Castle, in the family since the 17th century, has had to be sold. He alleges that the claimant will take any steps, having squandered one half of the estate, to obtain the other half, notwithstanding that some 50 years have passed since the alleged forfeiture. He also contends that the claimant is now intent on bankrupting the defendant who cannot meet his demands."

As well as featuring the familial destructiveness of  Kramer v. Kramer this case is noteworthy for raising some interesting points about the use of the bankruptcy jurisdiction as a tool of litigation, at least in the sense that bankruptcy may await the legal fee paying defendant. Sir John Howard-Lawson may not have to go down that route (for now) as Mrs Justice Proudman held, "was no forfeiture under the provisions of clause 8 of the Will."


It must be made clear that the judgment says "[the father] also contends that the claimant is now intent on bankrupting the defendant who cannot meet his demands." This is what the father thinks; it is not what the claimant son has said and does not reflect his view of bankruptcy and its use. 

Picture Credit: http://www.antiquemapsandprints.com/SCANSB/b-1236.jpg

Lord Judge's LLD from Kingston Law School

This post has nothing to do with insolvency law and policy but contains a piece of recent happy news from my Law School. I have discussed Kingston Law School (KLS) and Kingston-upon-Thames and their respective long contributions to the administration of justice on the blog before. Developments continue in this regard. The Law School has awarded a number of honorary doctorates in the past, perhaps most notably to insolvency expert Dr Hamish Anderson of Norton Rose LLP. Last week the University gave an honorary doctorate to the Lord Judge, the Lord Chief Justice (pictured). My colleague takes up the story:

"The head of judiciary in England and Wales has attended a ceremony at Kingston University in South West London to become an honorary doctor of laws.

The appropriately-named Igor Judge became Lord Chief Justice in October 2008 since when he has shown a determination to stand up for judicial independence and developed a reputation for taking a close interest in 'grass-roots justice'.

Accepting his award, the Lord Chief Justice told Kingston's graduating students that although times were tough in the job market, passion and perseverance were key to success. "The best advice I can give to anyone who wants a career as a barrister or solicitor is that, if you want it enough, you must do everything you can to achieve it," he said. "Not to have tried for something you really want is a recipe for regret."

Lord Judge is regarded within the judiciary as 'a judge's judge'. "Despite everything he has achieved, Lord Judge has a reputation for being very approachable," the Head of Kingston University's Law School, Professor Matthew Humphreys, commented. "Even when he was Deputy Lord Chief Justice, he was known to attend ordinary Crown Court hearings so he could keep in touch with day-to-day judicial proceedings. I hope that - however successful they prove to be - our students remain similarly level-headed."

The Lord Chief Justice received his award at a ceremony at Kingston's Rose Theatre, alongside more than 400 students collecting degrees and other academic awards from the University's Faculty of Business and Law.

Lord Judge was called to the bar in 1963, became a Queen's Counsel in 1979, a High Court judge in 1988 and an Appeal Court judge in 1996. He served as Senior Presiding Judge for England and Wales from 1998 until 2003, when he was made Deputy Lord Chief Justice.

In 2008, he marked his appointment as Lord Chief Justice with a speech in which he expressed concern about the impact of the internet on the jury system - following a case in which a juror used a smartphone to read a report of the rape case he was hearing. He also said that many of the web-generation lacked the attention span to be effective jurors. In another speech the following year, he criticised the Ministry of Justice for passing "too many laws".

Picture Credit: Kingston University, 2011.

Thursday, 27 January 2011

IPs versus the IS: the effects on the bankruptcy system & vacancy on the IRC.

Accountancy Age has published an interesting article which sees some IPs pitched against the Insolvency Service (IS) in relation to the recently announced job cuts and the effect that these may have on the administration of bankruptcy. Essentially, the quoted IPs are opining that the IS is cutting back too swiftly. This may of course lead to an increase in work for IPs. See here for the full story which is entitled: Insolvency Service optimism could boost the profession.

If IPs, or their advising counsel, are not too busy dealing with a flood of bankruptcy cases they may wish to consider applying for the recently announced vacancy on the Insolvency Rules Committee. The advert notes:

"Insolvency Rules Committee

Barrister Member (IRC2011BAR)
Accountant Member (IRC2011ACC)

The Insolvency Rules Committee is an advisory Non-Departmental Public Body (NDPB) which was established under Section 10 of the Insolvency Act. 
The Insolvency Rules Committee is appointed under section 413 of the Insolvency Act 1986 for the purpose of being consulted by the Lord Chancellor before making any rules under section 411 (company insolvency rules) or section 412 (individual insolvency rules) of the Act. The Committee is comprised of a judge of the High Court attached to the Chancery Divisions and various members of the Judiciary, legal and accountancy professions, including a serving barrister and practicing accountant.
The Committee is an unfunded NDPB whose members provide their services on a voluntary and unremunerated basis, but can claim reasonable expenses. The cost of these expenses and the provision of the secretariat for the Committee is provided by The Insolvency Service.
The appointment of both members will be made by the Justice Secretary in consultation with the Lord Chief Justice. Appointments are regulated by the Office of the Commissioner for Public Appointments (OCPA).

Time Commitment 
The management of the work of the committee is a matter for the chairman of the committee and it does vary according to the volume of work and the nature of the legislative changes made. The role of the committee, in advising the Lord Chancellor, is to ensure that the legislative changes proposed to the rules will effectively deliver the proposed policy.

Meetings of the committee are arranged on the basis of need and not more frequently then 2 or 3 times a year. Those meetings are held in London, usually at the offices of The Insolvency Service.

We welcome applications from candidates regardless of ethnicity, religion or belief, gender, sexual orientation, age, disability, gender identity or any other irrelevant factor. 

For further details and an application form please email [laura.neal@justice.gsi.gov.uk] or telephone 0203 334 4017 quoting reference IRC2011BAR for the Barrister post and IRC2011ACC for the Accountant post. 

Alternatively, you can visit http://publicappointments.cabinetoffice.gov.uk/

The closing date for receipt of applications is 12 noon on Wednesday 16 February 2011."

Picture Credit: http://www.insolvency.gov.uk/

a reportedly strange IVA - why do the creditors not also want the fruits of the racehorses and classic cars?

The London Evening Standard is reporting on a rather large and rather strange IVA that seems to exclude some rather valuable items from creditors. The story notes that Mr  Pierre Rolin, "a former top executive with investment bank Credit Suisse, is trying to reach a settlement with his creditors to avoid bankruptcy. Mr Rolin, 56, allegedly owes the taxman more than £2million while the Clermont Club casino in Berkeley Square, has sued him for £75,000.The biggest claim is from a Gulf property millionaire who alleges Mr Rolin fraudulently issued invoices totalling £30million." The story goes on to note that, "All of Mr Rolin's assets, including racehorses and five classic cars would be ringfenced in an Individual Voluntary Arrangement in case he has to pay the Gulf client."

The fact that the racehorses and classic cars, presumably expensive assets, are reportedly outside the terms of the IVA seems a little incongruous. What is it about the hiving out of these expensive assets that makes the rest of the proposal so attractive? If they were also sold off to placate creditors would they not bring further valuable realisations? This is truly a composition between debtor and forgiving creditors. The legality of creating an IVA so as to put assets beyond the reach of a £30 million creditor also requires closer examination.


Meanwhile, Aston Villa's goalkeeper is fighting off a £5 million bankruptcy action in the United States. The Birmingham Mail notes that, "This is a technical bankruptcy and it is not anticipated that it will be in place for long as an application for an annulment will be submitted in the next few days.”

Picture Credit: http://www.michaeldodsracing.co.uk/imgs/winning-race-horse.jpg (the horse and jockey featured in the picture have nothing to do with the story mentioned above).

Wednesday, 26 January 2011

Insolvency ideas: Pure rescue, recycling rescue, authentic consent model, PIP, MIP, DIP, consensual restructuring, etc

Some disciplines have a relatively easy time coming up with new ideas and discoveries. Evolutionary biologists have new creatures virtually handed to them on a fossil plate. Professors of physics devolving into the smallest parts of our Universe are able to push the boundaries of knowledge on what seems like a fairly regular basis. Nobel laureates abound in these respective fields. Even Tony Stark came up with a new element with relative ease.

For legal scholars the task of enunciating a completely new theory or approach is more difficult. There are famous examples, such as Professor Rawls and his Theory of Justice or the Nobel Prize winning Professor Ronald Coase of the University of Chicago Law School. But away from the fields of jurisprudence and law and economics, black letter law scholars have a harder time of it generally. For insolvency law scholars though the deployment of new theories and the coining of new phrases has not proved such a difficult task, particularly in recent years. New phrases or terms which conveniently encompass pre-existing phenomena, trends, or practices are noteworthy. Such new terms of art are however different to the enunciation of a completely new idea or approach to our subject. Both these practices are considered here. Included below are some of those ideas and their associated new terms of art and the scholars and practitioners who were responsible for them:
  • Dr Sandra Frisby: 'pure rescue' and 'recycling rescue'
  • Professor Riz Mokal: the 'authentic consent model'
  • Professor Vanessa Finch: 'ex ante' and 'pre-insolvency' approaches to corporate rescue and 'passe pari passu'
  • Sir Kenneth Cork: 'rescue culture' and the plethora of new procedures (and associated terms) that his famous committee coined, i.e. CVAs, IVAs, administration, wrongful trading, fraudulent trading, 10% fund, etc.
  • Your faithful correspondent (JP Tribe): 'consensual restructuring' and 'Finchian ex ante' restructuring, 'Corkian objectives' and 'Bankruptcy-lite'
  • Professor Elizabeth Warren: insolvency pluralism or stakeholder insolvency.
  • Professor Thomas Jackson: strict creditor based approaches to insolvency.
So whether you get you inspiration in the bath, whilst walking the dog, whilst sitting under an apple tree, whilst dealing with mundane patent applications, whilst imbibing a dram, or whilst marking tediously boring examination scripts (pictured), good luck with coining the next phrase and idea and I will see you in Stockholm!

Picture Credit: http://tolkiengateway.net/w/images/thumb/3/36/Photograph_of_J.R.R._Tolkien.jpg/250px-Photograph_of_J.R.R._Tolkien.jpg

Tuesday, 25 January 2011

Insolvency Policy and London Transport - St Pancras, trains, and pints


This entry does not relate to the recent Metronet administration. Instead, it relates to the formulation of insolvency policy, specifically in the 1970s, and with reference to the Cork Committee. Some years ago Professor David Graham QC told me that the phrasing and language for the s.214 Insolvency Act 1986 wrongful trading provisions were discussed by him and the late Mr Alfred Goldman whilst they were on a train from Mill Hill Broadway to St Pancras station (pictured). Professor Graham at that period in his career was frequently instructed to appear on behalf of bankrupts in court seeking their discharge. The relevant legislation at the time was s.26 of the Bankruptcy Act 1914 which provided a series of badges of misconduct that the court was required to take into account on such applications. Amongst these were such matters as whether the bankrupt had contributed to his insolvency by rash and hazardous speculations, or by unjustifiable extravagance in living, or by gambling, or by culpable neglect of his business affairs. But the most important badge for this blog entry was "that the bankrupt has continued to trade after knowing himself to be insolvent." The primary test was whether in all the circumstances his conduct ought to be regarded as unreasonable. 

In the course of what must now be regarded as a momentous train journey Professor Graham suggested to Mr Goldman (both working on Cork) that it was anomalous that whereas in winding up matters there was the concept of "fraudulent trading" there was no such concept of unreasonable trading. The burden of proof in fraudulent trading, both a criminal and civil matter under the same section, was regarded at the time as extremely difficult for a liquidator to discharge, requiring even in the winding up a criminal standard of proof. 

The upshot was that Professor Graham came up with the idea that to overcome the anomalous situation with bankruptcy there should be a concept of unreasonable trading in winding up matters. Even then Professor Graham could be prolix and Alfred Goldman retorted, quite bluntly, "why do we not suggest the introduction of a new concept into winding up to be known simply as "wrongful trading."" Professor Graham has always believed that behind Goldman's suggestion was the need for a blunt Anglo-Saxon word rather than the more wooly "reasonable" adjective. 


In another London transport and insolvency law policy development we can turn to the drinking and commuting activities of one of our most learned insolvency professors. As UCL's Professor Robert Stevens notes in his contribution to the 2006 edited collection Company Charges: Spectrum and Beyond (Getzler, J & Payne, J (Eds). Company ChargesSpectrum and Beyond. Oxford University Press, Oxford, 2006,) Professor Sir Roy Goode QC states in his third edition of his Principles of Corporate Insolvency Law that the ten percent fund for unsecured creditors (an arbitrary figure of ten percent according to Professor Stevens) has its genesis in a "conversation over two pints of beer he [Sir Roy] had at St Pancras Station with a member of the committee." In the same collection (at page 13, footnote 7) Sir Roy takes up the story in his own words, "The origin of this recommendation is not generally know - even to members of the Insolvency Law Review Committee itself! It was the present writer, who, while serving on the Legal Panel set up by the Committee, lightheartedly suggested it to a member of the Committee, as a means of taking some heat off the floating charge, whilst passing the time in conversation on the train home after cerebral stimulation in the shape of a couple of pints of beer at St Pancras Station..."



London transport and in particular St Pancras Station, it seems, has had a hitherto unknown influence and impact on the formulation of insolvency policy. If there are any defects in that policy we know who to blame. (London transport not the learned professors!)


Picture Credits: http://dcopfer.voices.wooster.edu/files/2009/10/pint_beer.jpg & http://www.spartacus.schoolnet.co.uk/STpancras.jpg

Monday, 24 January 2011

"Insolvency Practitioners must eat"

The Insolvency Practitioners (IPs) amongst the blog readership (and contributors) will perhaps already be aware that IPs must eat. As the attached picture demonstrates, in opulent style if possible. Why has this culinary related subject come to the fore? In another memorable turn of phrase in his contribution to the 2006 edited collection Company Charges: Spectrum and Beyond (Getzler, J & Payne, J (Eds). Company ChargesSpectrum and Beyond. Oxford University Press, Oxford, 2006) UCL's Professor Robert Stevens notes the following, "Insolvency Practitioners must eat." This is a foresightful comment that foreshadowed the OFT's recent conclusions by four years. He then went on to observe, "Banks are repeat players who will employ those whom they trust. If an insolvency practitioner wishes to continue to eat he will not behave in a way which is contrary to the interest of those who will choose whether he works again." 

Continuing his food related theme Professor Stevens noted that, "there is no such thing as a free lunch" in the context of administration transparency and compliance costs. His final gastronomic turn of phrase relates to administrative receivers' duties. The learned professor notes, "if the secured asset is ice cream or fruit it would seem to go too far to say no duty is owed in relation to the timing of sale." All of the above may teach us one of two things about insolvency, food requirements and IPs life support systems. Perhaps the most important lesson is have something to eat before drafting an article, or perhaps even more importantly (and as one of my friend's sisters once did) enroll on a Masters in Gastronomy in Italy as soon as practicable! 


Picture Credit: http://myveryworstjob.com/wp-content/uploads/2010/07/restaurant-fine-dining-1.jpg

Connock & Anor v Fantozzi, Re Alitalia Linee Aeree Italiane SPA [2011] EWHC 15 (Ch) (18 January 2011)

Mr Justice Newey (pictured) has handed down his judgment in Connock & Anor v Fantozzi, Re Alitalia Linee Aeree Italiane SPA [2011] EWHC 15 (Ch) (18 January 2011). The case concerns the relationship between (a) "secondary proceedings", as defined in the EC Regulation on Insolvency Proceedings 1346/2000 ("the Insolvency Regulation"), opened in this jurisdiction and (b) insolvency proceedings in respect of the same company opened in the member state of the European Union (here, Italy) in which the company's "centre of main interests" (or "COMI") was situated. As the learned judge notes, "The particular point raised by the case is whether assets in this jurisdiction should be applied in discharge of liabilities which are not preferential as a matter of English domestic law but which would be accorded priority under Italian law." Interestingly the administrator in the case is a Professor Fantozzi. Unfortunately I have not been able to locate the institution where he holds a chair. The judge provides an exhaustive exposition of the regulation, the rule in ex parte James, and other issues. 

Picture Credit: http://www.maitlandchambers.com/Files/Member/Photo/Guy_Newey-39584.jpg

Friday, 21 January 2011

Insolvency Research Post - Kingston Law School.

Please see the following link for a research post in insolvency - KLS insolvency research post. The advert notes:
"Researcher

Kingston University - Business and Law

Vacancy Number 11/004

Grade Hours 27.75 hours per week
Closing Date 12.00 noon on 16 February 2011
Interview Date(s) 4 March 2011
Full Time Salary £34,904 - £37,941 inclusive of LW pro rata per annum
FTE (Hours/37) Part-time 0.75 FTE Special Conditions Fixed term contract to July 2011

Applications are invited for 1 researcher position in Kingston Law School. The post-holder will work primarily with academic staff attached to the School's Centre for Insolvency Law and Practice (CILP) on insolvency projects.
Candidates will hold a postgraduate qualification and/or a doctorate, or be near to completing the doctorate, in insolvency, company law or related subject areas. Candidates should also have
  • A keen interest in working with both practitioners and academics in insolvency fields;
  • Enthusiasm for developing insolvency as a subject and a willingness to explore new research areas in insolvency; and
  • Skills relevant to applications for external funding for projects and/or for CILP.
This is a fixed term initially but may be extended.
For informal enquiries please contact Professor Julia Fionda, j.fionda@kingston.ac.uk. Informal queries about CILP can be directed to John Tribe, j.tribe@kingston.ac.uk.
For further information and to apply online, please visit our website at www.kingston.ac.uk/jobs. Alternatively you can email recruitment@kingston.ac.uk for an application pack or call the recruitment line on 020 8417 3153, quoting reference 11/004. If you are a textphone user, please dial 18001 to access the Typetalk service, followed by 020 8417 3153.  A CV on its own without the completed application form will not be considered for shortlisting."

Thursday, 20 January 2011

Is suicide more common than murder in corporate insolvency?

In the 2006 edited collection Company Charges: Spectrum and Beyond (Getzler, J & Payne, J (Eds). Company ChargesSpectrum and Beyond. Oxford University Press, Oxford, 2006) UCL's Professor Robert Stevens provides a memorable turn of phrase on the volume of different corporate insolvency procedures in his contribution (Chapter 7 - Robert Stevens: Security After the Enterprise Act). After commenting that the largest number of insolvency proceedings are creditors' voluntary liquidations brought about at the instigation of management through the company, he observed, "In corporate insolvency, suicide is far more common than murder." 


I have included below the statistics on corporate insolvency since the year 2000 (source: Insolvency Service) so that we might mull on this evocative turn of phrase. As the statistics demonstrate Professor Stevens is correct. Company Voluntary Liquidations (CVLs) far out strip the other corporate rescue procedures and in particular the 'murderous' compulsory liquidation. Why? Is it because directors are getting to grips with insolvency issues at an early stage and causing their companies to select this route, or is it simply because the type of companies that go into compulsory liquidation are less. In other words, is there a conscious choice between murder and suicide in this context. Or are there some other issues at play? Despite the so called 'liquidation substitution' wrought by the Enterprise Act 2002 changes we might still want to undertake a thorough examination of the nature and use of CVLs to see how they are used. 




COMPANY LIQUIDATIONS IN ENGLAND AND WALES













Year Total Compulsory Creditors
Liquidations Voluntary
Liquidations
2000 14,317 4,925 9,392
2001 14,972 4,675 10,297
2002 16,306 6,231 10,075
2003 14,184 5,234 8,950
2004 12,192 4,584 7,608
2005 12,893 5,233 7,660
2006 13,137 5,418 7,719
2007 12,507 5,165 7,342
2008 15,535 5,494 10,041
2009 19,077 5,643 13,434






RECEIVERSHIPS, ADMINISTRATIONS AND COMPANY VOLUNTARY ARRANGEMENTS IN ENGLAND AND WALES REGISTERED AT COMPANIES HOUSE 

Year Receivership Appointments Administrator Appointments In Administration (Enterprise Act 2002) Company Voluntary Arrangements
2000 1,595 438 : 557
2001 1,914 698 : 597
2002 1,541 643 : 651
2003 1,261 497 247 726
2004 864 1 1,601 597
2005 590 4 2,257 604
2006 588 0 3,560 4 534
2007 337 3 2,509 418
2008 867 2 4,820 5 587
2009 1,468 0 4,161 726

Picture Credit: http://www.solarnavigator.net/animal_kingdom/animal_images/suicide_by_edouard_manet_1877.jpg
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