Trading When Insolvent – Is it Allowed?

No-one goes into business thinking that one day their company will struggle to pay its debts and become insolvent and face being wound-up, but unfortunately it is a stark reality for many companies in today’s difficult trading and economic environment. Those who plan ahead thoroughly will at least be aware of the challenges of insolvency and what closure of their business could mean, but if those situations arise they can still spell the beginning of very troubling times.

It is important that any director whose business begins to struggle takes professional advice. Speaking to an insolvency or CVA expert early can ease a lot of the stress and explain much of the confusion surrounding what can and can’t be done. Approaching someone who knows the laws inside and out can put minds at ease and help to make a difficult situation much more positive. In short, it’s important not to bury your head in the sand.

So what does happen when a company is unable to pay its debts and can it continue to trade?

The short answer is that trading must cease when a company becomes insolvent. This means that as soon as a director has any indication that the company is insolvent he should stop trading immediately. If he continues to run the business knowing that the company is insolvent, even if he is not 100% sure, he will risk becoming personally liable for any debts from that point onwards. This puts not only the business at risk but also his personal financial situation, his home, and so on.

“As soon as there are any worries that the company is insolvent we strongly urge directors to get professional advice,” says Lyndon Ogden, Director of CVA-specialists.

“Typical indications of insolvency are struggling to pay bills in full and on time and receiving harassing phone calls from creditors chasing debts. If you are in this situation there is no need to panic, but you must act straightaway to ensure that the situation can be handled as efficiently and positively as possible.”

If the company continues to trade while insolvent the directors may become personally liable for its new debts and it is likely that the Insolvency Service will become involved and investigate the management team. Directors can be disqualified for allowing their company to trade when insolvent, and this can have a massive impact on their future as businessmen.

The truth is that insolvency is not necessarily an automatic start to long-term financial or business problems. Directors of limited companies (as well as staff and shareholders) are not liable for company debts, so they are free to move on and start again, however they choose to do so. But only if they follow the correct procedures. A Director who acts quickly and puts his company into a CVA is exempt from investigation by the Insolvency Service and disqualification action and he continues to run the business whilst CVA-specialists deal with his debts. But he must act quickly to qualify for this.

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