What do Credit Managers want from Insolvency Practitioners – better information, better dividends and for less fees?

In a significant proportion of cases save for the large insolvencies, although creditors technically appoint the IP, in voluntary liquidations and administrations the appointment of the IP often results via the directors and their initiation. The personal interests of directors and those of creditors may conflict. For example only the directors may often be worried about their personal exposure to claims and the creditors may want those claims pursued.

Fielding v Seery [2004] BCC 315 set out a number of principles that governed the choice of liquidator. Among those principles were that the liquidator should not be the nominee of a person against whom the company has hostile or conflicting claims and also that it is not an objection to a liquidator that he is allied to or the choice of a person who is concerned to pursue the claims of the company through the liquidator.

The Directors can attempt to control what information is made available to the IP and this is capable of influencing the outcome for creditors. Information is the lifeblood of the IP in an insolvency, without the relevant information the IP cannot function properly.

In my experience as an IP, I have encountered few instances in my view where directors have handed over to me a complete and proper set of company records. This often therefore hinders the investigation process. Without that process, the task of working out what is available to realise or what could be realised is all the more difficult. I regularly pursue accountants and other professionals for their files to seek to overcome this difficulty.

However, reconstruction of records although necessary given an IP enters office as a stranger is itself not necessarily straightforward, as can be seen from the result in Green v BDO [2005] EWHC 2413 (Ch), when I attempted to obtain audit/accountancy papers. It is also not without potential cost either.

If creditors want to see better information, better dividend results and for less fees, then in my view I am afraid they will have to get more involved in the insolvencies. By that I mean scrutinise the IP when the information from the directors appears unreliable, serve (remotely) on Creditors Committees, appoint IPs with a forensic focus and those IPs who are willing take personal risks (such as those involved in litigation) to identify, discover and recover all property that is available, including but not limited to claims against directors, professional advisers and other parties.

Credit managers are used to being proactive in the management of debt prior to insolvency. A proactive approach is still required for debt after insolvency.

Few IPs will do a poor job realising physical, obvious and disclosed assets. However, many IPs will not put themselves at personal risk to address higher risk realisations, such as those resulting from litigation. In my view no criticism should be levied against them for that but creditors can then take matters into their own hands and appoint an IP who will take on those risks, if necessary by replacing the existing IP who might not – it is more common than people sometimes think.

If I can offer a glimmer of hope here to address the question posed by this discussion, the good news for creditors, is that there are IPs out there who will take on cases speculatively (even on a no recovery no fee type basis), reconstruct company records, take on the personal risk to pursue claims against rogue Directors. Creditors do not have to put their hands in their pocket to fund such matters. Like with seeking out many professional service providers, it is a process that may require some research to find the right IP for you.

The aforesaid is not legal advice and is not to be relied upon as such. No liability is accepted by the writer for any reliance placed on the same.

If you have a specific query then you should seek independent legal advice on the same.

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