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Insolvent Trading and Wrongful Trading?

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.

What Is Insolvent Trading and Wrongful Trading in Business?

My company is insolvent but I believe it can be turned around. If I continue trading the company until we get the finances sorted out will I be guilty of wrongful trading?

There appears to be a bit of confusion as to what insolvent trading and wrongful trading are and the two terms are often used inaccurately. To put it simply, a company accused of wrongful trading will always be insolvent, but trading whilst insolvent doesn’t necessarily mean that the directors are acting incorrectly.

Wrongful trading is indeed a serious matter. If you are the director of a company and fear that you may be in breach of the Insolvency Act in terms of wrongful trading, the best advice would be to seek help from a qualified licensed insolvency practice such as our own immediately. In the meantime, the following information should work to clarify the difference between insolvent trading and wrongful trading in business. 

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A Brief Overview of Insolvent Trading 

An insolvent company is loosely defined as one that has not been able to meet its financial obligations for a period of time. According to the Insolvency Act of 1986, there are two main areas which must be analysed. If the company has a problem with cash flow and the books are in arrears, UK law defines this as insolvent trading. 

What Exactly Is Wrongful Trading? 

However, an insolvent company doesn’t need to be indefinitely insolvent and there are times when problems stem from customers not paying up their own debts on time.

If money owed to the company exceeds its creditors, then an investigation would show that there was no intent to act irresponsibly on the other hand a company that simple cannot and will never be able to pay its creditors in a timely manner may well be guilty of wrongful trading. Wrongful trading then is a serious offence because the directors know their company is insolvent and have no plans of how they will pay thier creditors.  It is even worse if the directors allow the level of creditors to increase during this period. 

Is Insolvent Trading Unlawful? 

Here again, there may be a fine line between wrongful trading and insolvent trading. If the financial difficulties can be determined as temporary, or temporary in the eyes of the director, then it is probably not unlawful. Wrongful trading, on the other hand, has statutory rules and regulations and it is indeed unlawful to trade if there is no hope of recovery. This is where Real Business Rescue provide the support and advance you so desperately need.  However be aware there is legislation which governs wrongful trading and the penalties can be harsh.

Can Directors Be Liable for Losses Stemming from Wrongful Trading? 

We are often asked this question and the answer is always a resounding YES! Directors can be penalised and held accountable for losses sustained if  wrongful trading is proved.   

Legal Classification of ‘Director’ 

Unfortunately, whether or not you have the job title of ‘Director,’ you can still be held liable for wrongful trading. If you are acting in the capacity of director, even without the title, pay and benefits, you are legally considered to be a director. According to law, the ‘test’ is: 

  • Are you registered at Companies House as director? (official)
  • Acting as director without being registered as such. (shadow or de facto) 

So to sum it up, only those acting as directors of limited companies will be investigated for wrongful trading.

If a director is found to be acting on behalf of a shadow director who has previously been disqualified or is bankrupt then the penalties which can include imprisonment are severe.

Solvency Test as Defined by the Insolvency Act 1986 

Remember, insolvency is not always considered permanent but it is important to recognise the signs of an insolvent company. According to the Insolvency Act 1986, insolvency can be identified by answering the following questions: 

  • Do the liabilities of your company exceed your assets?
  • Can you not afford to pay your company debts as and when they fall due?

If the answer to those questions is yes, then it is reasonable to consider your company could be insolvent. If in doubt seek advice.  Nonetheless, it may be a temporary problem brought about by customers not paying their invoices on time or perhaps the inability to get orders fulfilled for any number of reasons. The point to remember in all this is that insolvency is serious, but not as bad as wrongful trading. 

Real Business Rescue can provide a free consultation to help you better understand the difference. If you, as director, are wrongfully trading – cease trading immediately and get help. Directors can be held personally responsible for debts sustained during wrongful trading so it is in your best interest to act NOW! We can help, but only if you ask for it. There may be a solution even when it appears that all hope is lost. Call us before that debt piles up any higher. You will be happy you did.

It was not reasonably practicable to rescue the company as a going concern as it was concluded in the pre-appointment period that the company could not avoid formal insolvency given the issue with one of the customers and their claim of £428,000 against Harley for disputed work.
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