Another happy client

Conveyancing – I just wanted to say a huge thank you for your wonderful service in getting my house to completion so smoothly.

Even friends in same house buying process commented on how smoothly the solicitors side of thing was and went for me – I felt reassured with all the constant updates, never had to chase you for anything and because of the way you managed the admin process, I only had to fill in forms once and your reassured me along the way the status of everything. If I had a question it was answered and I didn’t have to wait for a reply! So Thankyou… Buying a house, especially your first one is nerve racking, but your team took the edge off that!

You have set the standard ! Thank you.

Mrs W – West Sussex

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Conveyancing Testimonials

Conveyancing – Sherri really has been fantastic from start to finish. As first time buyers, this is such a big step for us and it made the whole thing so much smoother having Sherri support us through the whole process. From offering us advice, to keeping us up to date and informed with how our purchase was progressing – I can certainly recommend the whole team at Breeze and Wyles without hesitation and will definitely use them again.

Please pass on my thanks again to Sherri and the team.

Mr R

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Conveyancing Testimonial

Thank you for all your hard work and your professional manner in helping us to complete the purchase of our home.

I will be using you again and will also pass on details to family and friends.

Once again thank you 

Mr E – Manchester

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Facing Personal Liability for ‘Smelting the Assets Transactions’

This is the next in my series of blogs for The Directors Friend.

SUMMARY:

In respect of a risk under Section 423 of The Insolvency Act 1986 (the “Act”) a Director must be very mindful where their own interests in respect of a company take precedence over those of the company or perhaps creditors as a risk of personal liability (amongst other risks that may follow).  In this particular case, we focus upon where the company assets are moved with the objective of putting assets beyond the reach of or otherwise prejudicing the interests of persons making or who may make a claim against the company.

BACKGROUND:

This case (Henry George Dickinson and NAL Realisations (Staffordshire) Limited and others [2017] EWHC 28(Ch)) concerned a company Norton Aluminium Limited (“Norton”) which operated an aluminium smelting foundry in Staffordshire. Norton went into Administration following the circulation of a draft judgment that upheld in part claims of nuisance brought by a group of local residence against Norton.  The Managing Director and controlling shareholder of Norton Mr Dickinson brought the claim to recover in the liquidation various sums totalling just over £1M which he alleged were due to him and secured by debenture over Norton’s assets.

Materially for this article the liquidators brought various counterclaims to include setting aside or recovering compensation for transactions entered into in 2010 to include that Norton bought back most of its shares from Mr Dickinson and connected parties for £2.5M, which was left outstanding as a secured loan and again materially Norton sold a subsidiary (North Castings Limited) to Mr Dickinson for £1, which was alleged to be at an undervalue.

Section 423 of the Act is concerned with transactions that defraud creditors that the Court has jurisdiction to review.

NOTABLE COMMENTS BY THE JUDGE:

His Honour Judge David Cook made various findings in respect of Section 423 from paragraph 95 onwards to include as follows:

In respect of the share buyback:

(1) At paragraph 105 the Judge commented that he was satisfied that Mr Dickinson had embarked on the various transactions now challenged in order to ensure that if the worst came to the worst he would be able to retain control of the business and its future profit potential and little would be available in the terms realisable assets from which an adverse judgment could be satisfied. This, the Judge found, was not merely a substantial purpose but the dominant one in Mr Dickinson’s mind.

(2) At paragraphs 109 and 110 the Judge found that net assets in the accounts of circa £2.7M did not disprove the Section 423 purpose as there was nothing in the evidence to disprove that.  In fact, the Judge found that there was evidence to the contrary.

(3) At paragraph 111 the Judge found that the converting of the rights of shareholders into claims for secured debt both prejudiced the interests of the environmental claimants and put assets beyond their reach by ensuring that shareholder debt had prior claim on the assets.  Thereby the pool of liabilities was increased and therefore Mr Dickinson’s dominant intention and therefore the buyback fell within Section 423 and that the Court may order relief.

THE NORTON SHARES

In respect of the Norton shares at paragraph 145 onwards the Judge found that he could also exercise the jurisdiction under Section 423.

Interestingly relief was not available under section 1157 of the Companies Act 2006 and the reason for that (as set out at paragraph 154) was that Mr Dickinson’s …”liability arises because he was party to the transaction that is to unwound, not because he was a director.  It would be illogical to have a power to grant relief in favour of a beneficiary of a transaction who happens to be an officer of the company where no such power will exist in favour of an equally honest outsider”.

COMMENTS:

Be aware that there is no requirement for the application of Section 423 that the company be insolvent, in liquidation or in administration.

Following this decision it can be seen that a director who is found to have had a dominant intention to put assets beyond reach of persons bringing a claim or prejudicing the interests of persons bringing a claim in these particular circumstances is at risk of being found liable for these transactions and it shows the risks of that director.  However, with the early and right advice the well-advised director could mitigate or perhaps avoid this outcome.

WHAT TO DO NOW:

If you are faced with insolvency issues with your company, a claim for transactions defrauding creditors or a transaction at under value claim for personal liability please talk to me today.  That is in order to protect your position without delay.  The earlier that you speak with me the more that I can help.  Why not call me today on 01992 558411 and speak to me without obligation, protect your costs.

If you are happy to instruct me my firm and I are happy to talk to you about fixed fees or staged fees that are agreed with you in advance of any work being carried out or we can liaise with your insurers. Your work will be carried out by me or others under my close supervision. I am happy to come to you to take instructions. My firm is based in London and Hertfordshire, here in the UK.

YOUR ADVISER

Finally, is you advisor a practising solicitor (and thus insured to advise you – check with the SRA) and if so is your solicitor a full member of the Insolvency Lawyers Association (‘ILA’) (ask them). Membership of the ILA is a public mark from insolvency peers that your representative has the requisite knowledge, skill and experience to advise you. I am both. Accept no substitutes.

Until the next time…

THE DIRECTORS FRIEND

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Taking time to take stock pays off in inheritance tax planning

bankingAs the end of the tax year approaches, it’s a good time to make sure you’re maximising your opportunities for inheritance tax reliefs. This year, as well as taking advantage of exempt lifetime gifts and transfers, property owners should also look at how the new transferable residence nil rate band fits their profile.

The Residential Property Nil Rate Band

Under the new rules, when a person leaves a residential property to direct descendants there will be an additional nil-rate band for inheritance tax purposes – the transferable Residence Nil-Rate Band allowance (RNRB).

To qualify, the property must have been a residence of the taxpayer and be left to direct descendants, so that excludes brothers and sisters, nieces and nephews. It will include natural, adopted, step and foster children, grandchildren and remoter descendants.  The spouse or civil partner of a living or dead direct descendant may also be the beneficiary, unless they have remarried.

The RNRB will be available from April 2017, in a phased introduction over the next four years, starting at £100,000 per person. This additional IHT nil-rate band for residential property will be on top of the £325,000 per person nil-rate band, which continues to apply to all assets in your estate, regardless of their nature and without restriction on who inherits the assets.

Like the existing nil-rate band, the RNRB will be transferable to a surviving spouse or civil partner, if unused on the death of the first to die, as long as the first to die owned the property or a share in it. A transferable RNRB will be available even where a spouse has died before April 2017 and in this case, the property does not have to have been held in joint names.  By 2020, the RNRB will be £175,000 per person, giving a potential total IHT nil-rate allowance of £500,000 for a single person or £1m for a couple who satisfy the criteria. These RNRB figures are maximum figures: if the value of your house, or your share in a house, is less, then that lesser value will be your RNRB.

The potential savings are significant – by 2020, the estate of a couple could see a saving of £140,000 in inheritance tax where all criteria are satisfied and the maximum RNRB allowance is utilised. So, in tax planning terms it’s high priority and it is worth making sure your estate doesn’t miss out on the allowance if you are a potential match on the criteria.

What may not qualify for the allowance

The additional residential property relief will taper away once an estate is valued at £2m, and estates worth over £2.35m will not benefit, and neither will certain types of trusts. The treatment of trusts has been subject to review since the original announcement of RNRB, as it was not clear initially how they would be treated.  Trusts are frequently used to protect assets, for example when children are young or otherwise not fully capable of handling their affairs, or to provide for a new spouse after re-marriage while still making sure assets pass to children of an earlier relationship.   It’s now been clarified that the RNRB will be available where beneficiaries of a trust are direct descendants and the trusts provide an absolute right to benefit, or where a disabled person is the main beneficiary, but will not be available for so-called discretionary trusts.  As the position is complex, anyone who has any form of trust in their will should make sure that it is still the best arrangement.

People will be allowed to sell a larger house and still retain the relief from inheritance tax, as the Government are keen to encourage older owners to down-size to free up larger properties. Only one downsizing move may be taken into account, so if there are several downsizing moves between 8 July 2015 and the date of death the executors can choose which is to be used for the purpose of the RNRB.  Downsizing can include disposing of part of a property, for example part of your garden.

However, to hold on to the relief after downsizing, the proceeds of the downsizing cannot be passed to a direct descendant during a person’s lifetime, as the relief will not apply to reduce the tax payable on lifetime transfers that are chargeable on death within seven years of the gift. Again, this is rather complicated and requires specialist advice.

Gifts and exemptions

More straightforward is the opportunity to mitigate inheritance tax by making smaller gifts or out of surplus income.

Everyone can make use of the £3000 per annum annual exemption which can be used to make gifts up to the total each year, and if the allowance is not used fully in any year, it can be carried forward one year.

On top of the annual exemption, the rules on small gifts allow individuals to gift up to £250 per recipient per year with no limit to the number of recipients.   However, if you give more than £250 to any individual, you lose the exemption completely, even on the first £250.   And you can’t use your small gifts allowance together with any other exemption when giving to the same person.

Looking at these two allowances together, if you had three children, ten grandchildren and four godchildren, you could make gifts of £1000 to each of your three children by using the annual exemption of £3,000 for all such gifts.  Then you could give up to £250 per year to each of your grandchildren and godchildren using the small gift exemption.  You cannot make an exempt small gift to your children as you have already used the annual exemption to make a gift to them.   These allowances are automatic, but it’s a good idea to log and track the gifts as it makes it easier for your executors and simplifies dealing with HMRC.

Another opportunity is relief on gifts made out of surplus income, but the exemption for these gifts must be claimed by your executors after your death. Here, good record-keeping is vital, because to qualify as normal expenditure out of income it must:

  • Be part of a regular pattern of giving
  • Taking one year with another, be made out of income
  • After the gifts and other usual expenditure, you must be able to maintain your normal standard of living

So, to make such payments, you need to record in writing that you intend to make the gifts regularly and then keep a record of income and outgoings so that your executors will be able to demonstrate that you had surplus income from which the payments were made. Examples of the sorts of payments range from regular monthly payments to a grandchild’s savings account or payment of school fees through to regular gifts on special occasions.

Any other lifetime gifts you make, other than gifts into a trust, are known as potentially exempt transfers (PETs).  A PET becomes an exempt gift if you survive the making of the gift by seven years.  However, if you die within seven years of making the gift, the value must be brought into account when calculating inheritance tax due from the estate.  Tapering relief may be available on the tax attributable to PETS if you die more than three years after the gift, but only if the total value of the lifetime gifts made in the seven years before your death exceeds the nil rate band in force at your death.

+++

If you’re concerned about inheritance tax and hope to mitigate it through gifting, asset transfer or the new residential property allowances, it’s important to check the position regularly. Getting it right, and reviewing any existing will, is key to making sure reliefs are maximised. Give or Private Client Team a call on 01992 558411 to discuss it further.

Check list for the new inheritance tax residential nil rate band

 

  • You have direct descendants and intend to leave your residential property to one or more of them on your death
  •  You have a total estate worth more than the current £325,000 IHT nil rate band per person threshold, but less than £2.35m overall
  • You have downsized or sold your residential property, or intend to, where the sale took place after 8 July 2015 and you have retained the proceeds

 

ENDS
Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Reference:

Clause 9 of the Finance Bill (2) 2015

https://www.gov.uk/government/publications/finance-bill-2015-public-bill-committee

http://www.publications.parliament.uk/pa/bills/cbill/2015-2016/0057/16057.pdf

https://www.gov.uk/government/publications/inheritance-tax-on-main-residence-nil-rate-band-and-downsizing-proposals-technical-note/inheritance-tax-on-main-residence-nil-rate-band-and-downsizing-proposals-technical-note

https://www.gov.uk/inheritance-tax

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Sexting – Flirty Gertie or Dirty Bertie?

horny devil

Sexting – harmless fun or adultery?! Depends who you ask and its not just confined to stars of our favourite soaps! Whether you are the sextor or the sextee this can be a deal breaker in a marriage. Perhaps it is just harmless fun but to your spouse it may be the ultimate betrayal! What then if you decide the marriage is over and you want to divorce; is it adultery? The answer is no unless it is accompanied by sexual intercourse with a person of the opposite sex. What then is the recourse to the spouse who feels betrayed? – they are able to proceed with a divorce citing the behaviour of the other as unreasonable. Everyone’s tolerance is different but the majority may find that sexting someone other than your spouse is unreasonable.

If you have found yourself in Dyer circumstances then our specialist team of solicitors are able to offer you sympathetic and straight forward advice in relation to your options. Contact us by calling 01992 558411 or alternatively complete our online enquiry form.

Olive McCarthy MCIArb–(Director and Head of Family Department) – Olive joined the firm in 2000 and was appointed as a Partner and Head of the Family Law Department in the old firm in 2004. Olive has had panel accreditation with the Law Society as a Family Law Specialist since 2003 and has been a Collaborative Lawyer since early 2009.  She is also accredited with the Chartered Institute of Arbitrators as a Family Law Arbitrator since early 2013, a prestigious accolade that few have achieved in the UK.

Olive specialises in dealing with complex finance cases, particularly high net worth cases.

 

 

 

 

 

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The Directors’ Friend: – Facing Personal Liability for ‘Wrongful Trading’ – Call for ‘Robin Hood’

This is the next in my series of blogs for the Director’s Friend.

SUMMARY

In order to obtain an order from the court that a director is personally liable for wrongful trading under section 214 of the Insolvency Act 1986 (the ‘Act’) the Liquidator or Administrator have to not only prove the elements of wrongful trading, but they must demonstrate how the wrongful trading caused an increase in the company’s net deficiency. That is its losses.

That is the company should objectively have been placed into Liquidation at X date. It was not. The net deficiency has increased as a consequence – by how much? No evidence = no personal liability.

SECTION 214

In summary, this is claim for personal liability against a director of a company. The claim is made up of the following:

  • The company is insolvent and is in Liquidation or Administration;
  • A person has been a director of that company at any time; and
  • At some time before the commencement of the winding up of the company, that person knew or ought to have concluded that there was no reasonable prospect that the company would avoid going into insolvent liquidation or entering insolvent administration.

The court, on the application of the Liquidator, may declare that that person is to be liable to make such contribution (if any) to the company’s assets as the court thinks proper.

The court shall not make a declaration if that person took every step with a view to minimising the potential loss to the company’s creditors as they ought to have taken.

That takes into account:

  1. the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by that director in relation to the company, and
  2. the general knowledge, skill and experience that that director has.

BACKGROUND

A recent appeal case heard by David Foxton QC on appeal from Registrar Jones (Brooks and another (Joint Liquidators of Robin Hood Centre plc (In Liquidation) v Armstrong and another [2016] EWHC 2893 (Ch)) the directors successfully appealed the amount of compensation payable by them.

The Registrar in the earlier decision had held that the directors had been guilty of wrongful trading; that the net deficiency of the company had on the evidence increased and that as a consequence the directors had to contribute £35,000.00 to the company’s assets.

That was in circumstances where the directors were facing a claim in a sum in excess of £700,000.00.

The directors were faced with a number of dates on which it was claimed that they knew or ought to have known that the company was facing insolvent liquidation. The Registrar found that the directors had that knowledge on one date, but were not wrong to continue to trade until a later date. That was because up to that later date the directors were taking steps to minimise further losses to creditors.

FINDINGS

Essentially, the Liquidators were found on the facts to have failed to make out their case that there had been an increase in the net deficiency (losses) of the company during the period of wrongful trading. This is fundamental irrespective of losses caused to individual creditors.

No increase in the net deficiency = no case.

COMMENT

Following this decision, it shows that a Liquidator or Administrator must show that the wrongful trading alleged actually caused losses to creditors of the company.

From a director’s perspective, it shows that there are risks when you are a director of a company that is or maybe trading insolvently to you personally. However, with the early and right advice this can be mitigated or even perhaps with the assistance of Robin Hood defeated…

I understand, however, that the Liquidators have applied for permission to appeal this decision – watch this space.

WRONGFUL TRADING AND DIRECTOR DISQUALIFICATION

The well-advised director will also be mindful of the risk in section 10 of the Company Directors Disqualification Act 1986 that states:

‘(1)       Where the court makes a declaration under section 213 or 214 of the Insolvency Act 1986 that a person is liable to make a contribution to a company’s assets, then, whether or not an application for such an order is made by any person (emphasis added), the court may, if it thinks fit, also make a disqualification order against the person to whom the declaration relates.

(2)        The maximum period of disqualification under this section is 15 years.’

The directors of the company were perhaps fortunate that the Registrar chose not to also exercise the jurisdiction to disqualify the directors from acting for a period of time.

WHAT TO DO NOW

If you are faced with insolvency issues with your company, a wrongful trading claim for personal liability or director disqualification proceedings please talk to me today. That is in order to protect your position without delay. The earlier that you speak with me the more that I can help. Why not call me today on 01992 558 411 and speak to me without obligation, pressure or cost.

If you are happy to instruct me my firm and I are happy to talk to you about fixed fees or staged fees that are agreed with you in advance of any work being carried out or we can liaise with your insurers. Your work will be carried out by me or others under my close supervision. I am happy to come to you to take instructions. My firm is based in London and Hertfordshire, here in the UK.

YOUR ADVISER

Finally, is you advisor a practising solicitor (and thus insured to advise you – check with the SRA) and if so is your solicitor a full member of the Insolvency Lawyers Association (‘ILA’) (ask them). Membership of the ILA is a public mark from insolvency peers that your representative has the requisite knowledge, skill and experience to advise you. I am both. Accept no substitutes.

Until the next time…

THE DIRECTORS FRIEND

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New Telephone System

In order to improve the service that we provide to clients and callers, a new telephone system is due to be installed at Breeze and Wyles during the week commencing 20th February 2017.

There is likely to be a short interruption to telephone services at some stage early that week whilst the work is completed to change over to the new system. Please be patient with us whilst the new system is being installed. The new system will enable us to greatly enhance our call handling services to all our clients so we hope you will bear with us while the installation takes place,

Thank You

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Government Consultation suggests that you should review your Debt Procedures!!

On 23rd December last year, the government announced that they will discuss new measures to protect consumers from unknown debt claims. The upcoming consultation will consider how to  protect consumers against unsuspected debts or unknown claims, but also allowing appropriate redress for companies that are owed money. The government has highlighted that both consumers and companies should take steps to ensure that the information they have is up to date to help circumvent this issue. The government has also advised that a public advice campaign will be launched sometime this year to provide straightforward guidance to consumers on ‘how to communicate accurate address information, find out about outstanding claims and how to challenge erroneous claims.’

The government website states that the consultation will look at ways to:

  • better protect consumers who are sent mail to inaccurate addresses
  • verify addresses again before a claim is sent
  • protect people’s credit scores from being damaged if they resolve outstanding debts quickly
  • consider how modern communication could notify people of outstanding debts
  • assess the role of parking companies and examine how drivers are informed of fines

Although this is a positive step by the government, as it aims to improve the current system and ensure consumers are more knowledgeable surrounding their debts, it can mean more responsibility on our commercial clients when chasing after bad debts. Sharon Matchwick, from our business services team, comments that:

‘more diligence is required on the part of commercial companies to ensure that they are sure they are sending their Letters before Action (LBA) and issuing claims against the right people’.

In the first instance, this can mean more chance of your debts being repaid and more quickly by LBA, claims being issued correctly first time round and less chance of them being challenged for being erroneously brought. However, this also effectively means companies having to set aside more time to satisfy themselves of who their debtor is in the first place. Breeze and Wyles has the expertise to advise you and the systems in place to carry out initial checks against debtors which can save you valuable time and money in the long run.

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Reuse of a Prohibited Company Name by a Director leaves the Director caught in an expensive web!!

This is the next in my series of blogs for the Director’s Friend.

SUMMARY

Following a prosecution for breach of section 216 of the Insolvency Act 1986 (the ‘Act’) (re-use of a prohibited company name by a director) with confiscation proceedings following the Court of Appeal recently concluded that:

  • a confiscation order can be made against an individual who is convicted for trading under a prohibited name / style; and
  • the court is entitled to hold that the total turnover (not just the net profit) for the entire period of trading under that name is recoverable.

SECTION 216

In summary, this is where a director of a company reuses the same or a similar name to a company that has entered into insolvent liquidation, so as to suggest an association.  This name is known as a “prohibited name”. This can include any name registered at Companies House, a trading or other name.

BACKGROUND

A recent Court of Appeal decision R v Neuberg [2016] EWCA Crim 1927 handed down by Lord Thomas of Cwmgiedd, CJ considered the law of confiscation following a successful prosecution against an individual for breach of section 216.

The appeal was as a result of a reference by the Criminal Cases Review Commission (‘CCRC’).

The Appellant was a director of company Watergate Services Limited trading as ‘Neuberg Metal Spinners’ (the ‘Company’) which went into liquidation on 19 November 2001.

By the time that the Company was placed into liquidation the Appellant was trading in her own name as ‘Neuberg Metal Spinners’.

After 19 November 2001, it was not lawful for the Appellant to use the name of “Neuberg Metal Spinners” but she continued to use that style until 14 June 2002.

The Appellant was charged with trading under a prohibited style, namely “Neuberg Metal Spinners“, without the leave of the court, between 19 November 2001 and 14 June 2002 contrary to section 216 of the Act.  She pleaded guilty to that offence on 12 November 2004.

She was given a community sentence and disqualified from being a company director for five years.

Further, a formal Order for confiscation was made on 12 April 2006. The benefit was the turnover of the Appellants trading in the sum of £288,948. The realisable assets were £100,000.  The Order was made in the amount of £100,000.  The judge fixed the term of imprisonment in default at two years and ordered the appellant to pay £7,500 towards the cost of the prosecution.

The Appellant paid £100,000 as ordered.

FINDINGS

It was found by the Court of Appeal that:

  • the criminal activity was carrying on the business in the prohibited name;
  • it was clear that the Appellant carried on the business under a prohibited name;
  • it was the carrying on of that business under that name that gave her a significant benefit;
  • For present purposes, it was sufficient to say that, as the court held in 2007, the judge was unquestionably correct in calculating the benefit by reference to the turnover; and
  • On the basis of the information (a lack of financial analysis of the accounts) put before the Court, that there was nothing from which the Court could infer that the amount of the confiscation order in the sum of £100,000 was in any way disproportionate.

The Court observed that attempting to conduct an exercise in ascertaining the financial position of this business more than 14 years previously was one that would have been fraught with difficulty.

The Court therefore rejected the appeal and stated that it was a matter of some regret that the reference was made to the Court (by the CCRC) without a more careful analysis of the basis on which the reference was to proceed.

COMMENT

Following this decision, any director or other convicted of this offence could be ordered to pay a sum equal to the total turnover for the entire period of illegal trading. This would be in addition to any fine or prison sentence handed down as a punitive element.

The director could also be disqualified from acting as a company for a period of time.

In addition, again that director / individual could also find themselves personally liable to repay the creditors of the business under section 217 of the Act, although possibly not in the case under discussion. So, heavy sanctions!

WHAT TO DO NOW

If you are faced with a claim for personal liability or a prosecution under these sections please talk to me today. That is in order to protect your position without delay. The earlier that you speak with me the more that I can help. Why not call me today on 01992 558 411 and speak to me without obligation, pressure or cost.

There are options that are outside the scope of this article to avoid the draconian consequences under this law, but the well-advised director must move swiftly to protect their position.

If you are happy to instruct me my firm and I are happy to talk to you about fixed fees or staged fees that are agreed with you in advance of any work being carried out or we can liaise with your insurers. Your work will be carried out by me or others under my close supervision. I am happy to come to you to take instructions. My firm is based in London and Hertfordshire, here in the UK.

YOUR ADVISER

Finally, is you advisor a practising solicitor (and thus insured to advise you – check with the SRA) and if so is your solicitor a full member of the Insolvency Lawyers Association (‘ILA’) (ask them). Membership of the ILA is a public mark from insolvency peers that your representative has the requisite knowledge, skill and experience to advise you. I am both. Accept no substitutes.

Until the next time…

THE DIRECTORS FRIEND

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