The Scotsman

Act responsibl­y when faced with insolvency

- Craig Donnelly Craig Donnelly, Commerical Litigation Director, Holmes Mackillop

The number of businesses in Scotland facing financial distress is on the rise. That’s according to recent figures released by the Accountant in Bankruptcy, the Scottish Government agency that oversees individual and business insolvency.

In February 2024, 94 companies went into liquidatio­n, a rise of 9 per cent compared to February 2023. In the last full quarter from 1 October-31 December 2023, 292 companies appointed a liquidator, an increase of 7.4 per cent when compared to the same period in 2022.

Directors of companies have a range of responsibi­lities, some of which are placed upon them by the Companies Act 2006. Prioritisi­ng the success of the company for the benefit of shareholde­rs is one of these responsibi­lities. However, when a business is facing insolvency, the duties of a director changes.

Creditors take precedence in insolvency situations and directors must consider their interests and act in a way which minimises any potential losses they may suffer. Directors must also consider the interests of other key parties, including employees and shareholde­rs.

In my line of work I deal with people who are directors of companies across a whole variety of sectors. All too often I find they have the same thing in common – an unrealisti­c belief that they can trade their company out of financial difficulty. Continuing to operate when there is no reasonable prospect of a company avoiding liquidatio­n is known as wrongful trading.

Directors who continue to trade an insolvent company knowing that it can’t pay its debts could be guilty of the offence of fraudulent trading.

The consequenc­es for directors not complying with their duties can be severe. Individual­s can be found personally liable for the company’s debts. They can also be disqualifi­ed from acting as a director for up to 15 years and may find themselves in court charged with committing a criminal offence. Those convicted of fraudulent trading can be sentenced to up to ten years in prison, given an unlimited fine, or both.

Given these penalties, directors who fear their company is unable to pay its debts should obtain expert advice from a lawyer or accountant with experience in insolvency matters.

It’s important to be able to demonstrat­e that the situation, and the director’s responsibi­lities, are being taken seriously and to take the right steps for everyone involved.

 ?? ?? Creditors take precedence in insolvency situations
Creditors take precedence in insolvency situations

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