Call 0800 644 6080 (From Mobile 0333 009 0010)
Call 0800 644 6080 (From Mobile 0333 009 0010)

Director Duties and Responsibilities If You Are Trading Insolvent

Licensed UK Insolvency Practitioners FREE Meeting for Company Directors We can help with serious company debts, HMRC and creditor pressure, VAT/PAYE/Tax arrears, cashflow problems and raising finance.

Director Duties and Responsibilities If You Are Trading Insolvent


If your company is consistently unable to meet financial obligations and/or its liabilities exceed its assets, it is currently operating in a state of insolvency. As the director of a company that is trading insolvent you have certain duties and responsibilities, as required by legal regulations.

If you fail to uphold these responsibilities you could be accused of wrongful trading and held personally liable for the repayment of certain company debts. After a company has been deemed legally insolvent in a court procedure the director is required to act on the best interest of the creditors, which means they must immediately take action to begin a formal or informal procedure that will result in the repayment of outstanding debts.

Who Is Considered a Director?

Contrary to popular misconception, you do not have to be a registered director in order to be held responsible for acting in the best interest of creditors. If you actively participate in controlling the direction of company affairs, or you give instruction to directors (commonly known as “shadow directing”) you are legally responsible for ensuring that the company takes the steps necessary to repay outstanding debts. For example, if you’re the owner of the company and you take part in most of the important decision-making, you would be considered a director from the perspective of the court.

The Obligation to Take Action

If a creditor has served an official notice requesting payment of a debt that totals more than £750 and you fail to make payment within 21 days the creditor can take you to court and have your company wound up legally insolvent. At that point you could be subject to administration (if the creditor holds a legal charge on your debenture), liquidation, or your company could be in danger of being wound up. However, if you take action to show that you are making an attempt to satisfy creditors (i.e. – by pursuing a voluntary arrangement or pre-pack administration) you can postpone or completely avoid the demise of your company and facilitate a better outcome. If, however, you cannot show that you are acting in the best interest of the creditors you could face penalties that require you to pay company debts.

Open Quote
At anytime you can speak to one of our many clients to gain first hand experience of how we helped and supported them through the financial difficulties they encountered. Keith Tully Partner

What are Directors Not Allowed To Do While Trading Insolvent?

A director who controls the affairs of an insolvent company may be held personally liable for company debts if they engage in any of the following practices:

Carrying On With No Intention of Repaying

- If you continue to enter into new contracts and trade with no intention of repaying creditors you may be found guilty of wrongful trading– a finding that could result in you being banned as a director of any company for fifteen years.

Attempting to Repay Debts Through Fraudulent Means

– If you try to gather up funds to repay debts by conducting dishonest transactions that you cannot fulfil, entering into new contracts without sufficient funding, or using misleading/inaccurate information to obtain loans, you could be convicted of fraudulent trading. This is a serious crime that could result in a penalty of up to 7 years in prison, as well as personal liability for company debts. 

Selling Assets for a Price Considerably Lower Than Market Value

– if you try to sell the company’s assets at a low price in order to raise funds to repay debts the court may reverse such transactions by ordering you to refund the proceeds of the undervalued sales. Although it is possible to sell assets at a discounted price, as a rule of thumb it should not be lower than the market value.

Repaying Some Creditors But Not Others

– The directors of a company, and any administrator that they appoint, is obliged to act in the best interests of all creditors as a whole. This means that you’re not allowed to repay certain debts in favour of others. For example, if you choose to repay a personally gauranteed debt, but make no effort to make payments on other debts, you could be accused of treating creditors with preference. If the court finds you guilty of this they may reverse the repayments by ordering the repaid creditor to refund the payment to the insolvent company.

Although adhering to your responsibilities as the director of an insolvent company may seem difficult, with the right guidance and advisory you can avoid personal liabilities and facilitate the best possible outcome rather easily. 

 

Join over 30,000 Accountants, Bankers and Law Firms Receiving Our Monthly Newsletter

and also receive your FREE guide to 'Dealing with Insolvent Clients'

 
 
No Thanks, I am a Company Director and Need Advice
Your privacy is guaranteed
just like you we do not like SPAM

Contact our team

Jonathan Munnery
Andrew MacKenzie
Julie Palmer
Thomas Mckay
Keith Tully
Processing...
or find your nearest office

If You've Enjoyed This Article or Found it Interesting, 'Please Share it' With the Rest of the World!

Related News


What is a Seized Goods Letter?

Friday 2nd December, 2016 Written by Keith Tully

If your business goods have been seized by a government agency such as HMRC or Border Force, read our guide on seized goods letters for company directors.

Learn More…

Construction sector insolvencies: help and advice for firms in financial distress

Thursday 25th August, 2016 Written by Keith Tully

The construction industry remains in crisis this summer as the number of insolvencies continues at the highest level of all UK sectors.

Learn More…

Which UK industry sectors are experiencing the most insolvency appointments?

Thursday 25th August, 2016 Written by Keith Tully

Figures from the Insolvency Service show that in 2015 the construction industry suffered the highest number of insolvencies in England and Wales, with the wholesale and retail trade coming a close second.

Learn More…
Every day we help companies just like yours turn things around against seemingly impossible odds, regardless of your situation we can help. Find your nearest office today.
Menu