Creditors: Do You Want Better Recoveries?
Creditors: Do You Want Better Recoveries? Well, of course you do…who as a creditor would ever be likely to say that they would not want better recoveries?
The REAL question is – how do you get better recoveries?
There are countless strategies and options out there, so where do you start?
Where do you focus your time?
The starting point is what returns do you currently get, what do you aspire to get out of the insolvency process and how can we help you get better recoveries?
For starters, if as a creditor in insolvency proceedings you believe that the die is cast, then you appear to have accepted that you cannot get better recoveries. That arguably is self-defeating and likely to hinder rather than help you improve your returns.
The less involved in the insolvency process you are; the less you will know about it, the less you are likely to be in a position to spot when you can help yourself by helping the Insolvency Practitioner to seek to get you better recoveries.
The reality is that you can NEVER guarantee that you will get 100 pence in the pound from insolvency proceedings. However, that does not mean you cannot get 100 pence in the pound as a creditor of an insolvency process. It does happen. Just ask the creditors of Corporate Jet Realisations Limited or Freetown Developments Limited.
Even so we are not saying you should anticipate 100 pence in the pound but you may wish to see if you can improve your chances of getting closer to 100 pence in the pound.
Let’s have a look at one or two of the key things that you as a creditor can do to improve those returns to give you better recoveries.
You can share your information with the Insolvency Practitioner that is handling your case. An Insolvency Practitioner enters the Office of Liquidator, Administrator or Trustee in Bankruptcy as a stranger to the affairs of the insolvent person or company. The Insolvency Practitoner needs information. Creditors may assume that the Insolvency Practitioner has far more information at their disposal than is the case. In a great many instances the Insolvency Practitoner has relatively few and in some cases no records. They might be unavailable for a range of reasons.
Insolvency Practitioners may encouter resistance when calling upon Directors and their agents to provide information about an insolvent company. It is perhaps understandable that many people do not welcome the prospect of being under investigation which may lead to a cautious approach towards disclosure of information to the Insolvency Practitioner.
The Insolvency Practitoner needs to reconstruct the records. It is therefore essential for creditors to submit details of all monies that they are owed and the documentation which evidences that position.
That is just the tip of the iceberg because creditors can really assist in the process of reconstructing records by providing the emails, WhatApp messages and SMS messages that you had with the insolvent company or individual once your debt started going unpaid. That is potentially very useful because it may enable the Insolvency Practitioner to discover and pinpoint with precision the date or period at which the company or individual became insolvent. In all likelihood you may at some point have emailed the insolvent entity and enquired as why payment had not been made on time. You may have had responses to explain why there was a problem and there might even have been some repetition of this as time went on. That will be very important information for the Insolvency Practitioner to see because successfully prosecuting potential causes of action such as Wrongful Trading and Misfeasance may be hugely dependent upon such information. This is information which might be at your fingertips and readily available.
Why is that point of insolvency so important? The point of insolvency is so important in insolvency proceedings because the transactions that for instance Directors cause or permit an insolvent company to enter into after that point in time can no longer be approved by the shareholders if they were not undertaken for a proper purpose and in the best interests of the company. Those transactions may well be recoverable by the Insolvency Practitioner to get better recoveries for creditors.
Insolvency is a class action so the more creditors come together to share their information with the office-holder the better. Your getting other creditors to also share their information on the insolvent entity will therefore also be particularly helpful.
Why are the email and similar messages so important? The email messages are so important because they are likely to show someone’s actions and intentions at the relevant time. This enables subsequent explanations provided by those responsible for the demise of the insolvent entity to be properly scrutinised and where applicable challenged. If the Insolvency Practitioner is provided with verbal explanations by say the Directors that do not accord with their earlier email messages, then claims against the delinquent Directors may be materially assisted.
It is not uncommon for creditors to write at length about their experiences of having worked with the insolvent entity, setting out their grievances. However, although a useful starting point to enabling the Insolvency Practitoner get an understanding, such correspondence without the historical emails and messages, risks being confined to no more than mere assertion. The ability to support such assertion with reference to direct evidence that proves what happened at the time is potentially invaluable.
Through sharing information, working together with the Insolvency Practitoiner, getting a better understanding of the process and remedies, identifying the key issues, questioining discrepancies and adopting an enquiring mind, creditors can greatly improve their prospects of getting better recoveries.
For further information on how to get better recoveries please contact us and we will be happy to assist you.