An official ‘hierarchy’ laid down by the Insolvency Act, 1986, determines which group of creditors is paid first during an insolvent liquidation. When a company goes bankrupt, each class of creditors is paid in full before funds are allocated to the next.
This is why unsecured creditors often fare badly in liquidation procedures. Creditors are ranked as follows:
The liquidator’s remuneration, and fees for administering the process, are first to be paid. Administrative costs and expenses can be incurred when holding meetings, realising assets, distributing funds, providing accounts and reports, and investigating the conduct of directors.
Fixed charge holders are often banks and other asset-based lenders who hold title over a business asset. When a fixed charge is provided to the lender your company loses the right to sell or trade the item, which might include property, plant, machinery and vehicles.
Assets used in this way are often fundamental to a business, and unlikely to be sold in the normal course of events. Depending on the original agreement, however, in liquidation the asset can be sold by the charge-holder or liquidator.
Preferential creditors include employees entitled to arrears of wages, holiday pay, redundancy pay, and other statutory payments up to a certain limit.
The ‘prescribed part’ refers to an amount set aside from the sale of assets with a floating charge taken out after 15th September 2003. This sum is used to provide unsecured creditors with a greater chance of recovering some of their debt.
Fifty percent of the first £10,000 realised from the sale of floating charge assets is set aside in this way, and then 20% of any realisations between £10,000 and £600,000. The remainder goes into the ‘pot’ to repay floating charge-holders.
Assets subject to a floating charge often include stock, raw materials, work-in-progress, fixtures and fittings – basically any other assets not subject to a fixed charge. Assets of this type can be traded in the normal course of business.
Terms and conditions relating to fixed and floating charges are laid out in a debenture - a document which is signed by the directors and registered by the lender at Companies House.
These include trade creditors, suppliers, customers, contractors, some staff claims, plus HM Revenue and Customs. Prior to 2002, HMRC was ranked as a preferential creditor, but the introduction of the Enterprise Act reduced their status to that of unsecured creditor for all forms of tax.
Once distributions have been paid equally between unsecured creditors, they are entitled to be paid interest on their debt before ‘connected’ unsecured creditors and shareholders receive a distribution.
Any unsecured creditors associated with the company rank next. This might include spouses or other family members of the directors, or perhaps a member of staff who has lent money to the company on an unsecured basis. The term ‘associate creditors’ also describes this group.
Shareholders are the final group to be paid. Because they have taken a business risk in providing money to the company, they are not entitled to a distribution until all other creditor groups have been paid.
Each class of creditor must be paid in full before the liquidator can distribute funds to the next group. It’s important to maximise the interests of creditors once you enter insolvency, otherwise you may be open to accusations of wrongful or unlawful trading.
Fixed and floating charges are a complex area to understand, particularly if more than one charge has been taken on an asset. Begbies Traynor can clarify your company’s financial position, and identify who takes priority in cases where more than one charge-holder is in place.
We’ll also ensure you meet your legal obligations as a director, and help to reduce your risk of allegations.