Insolvent trading is different to wrongful trading. Both can lead to an Insolvency Service investigation but one can be done in good faith. If you are concerned about wrongful trading or trading insolvent, the following article will help to explain the differences between them, when they might occur, and the ramifications if you are found to have traded when you knowingly shouldn't have.
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.
We explain what business rescue options are available to you as the business owner, and it is you as the director who stays in control and decides what route to take. It makes no sense for our client directors to feel pressured into something that they believe does not favour them.
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.
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, an investigation would show that there was no intent to act irresponsibly. On the other hand, a company that simply cannot and will never be able to pay its creditors in a timely manner may well be found guilty of wrongful trading. Wrongful trading is a serious offence because the directors know their company is insolvent and have no plans of how they will pay their creditors. It is unacceptable for directors to continue trading knowing they are worsening the position of their creditors - and building further debt - and this situation will not be well received in any investigation.
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.
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.
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:
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:
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.
Our extensive office network comprises 75 offices across the UK with a partner-led service offering immediate director advice and support.