Insights

I am indebted to Kevin La Croix for his excellent blog on a High Court judgment handed down in January 2020 in Re Systems Building Services Group Limited (Systems) the transcript of which can be found here. As Kevin writes, the case is interesting in that it confirms that a director’s fiduciary duties (codified under sections 171 – 175 Companies Act 2006) survive and continue post liquidation even if his or her powers do not. This disparity creates the potential for claims against directors based on wrongful acts committed after a company goes into liquidation and, in extreme cases such as this one, even after the company ceases to exist following termination of the liquidation process. As Kevin also comments, this case prompts us to re-evaluate whether D&O policies are apt to capture this exposure. It is true that the scope for directors to commit wrongful acts after their powers have been removed or suspended is significantly reduced. The most obvious surviving arena for incurring fresh liabilities is in dealings between the directors and the insolvency practitioners themselves. This was indeed the case here where (among other things) the director was accused of buying company property from the administrator at an undervalue.

The Facts of the Case

The facts of this case were unusual in that the original administrator of Systems was herself found liable for misfeasance in her capacity as office holder for an unrelated company. This prompted the insolvency practitioner who took over from her to apply for an unusual order to restore Systems to the Companies Registry https://www.gov.uk/government/organisations/companies-house expressly to allow him to bring this case. Since some of the allegations concerned dealings over company property between the original insolvency practitioner and the director post administration, the question arose as to the nature of the director’s duties which survived insolvency. Having conducted a review of the few English law authorities on the subject the judge had no difficulty in concluding that:

“The fact that, on a company’s entry into administration or creditors voluntary liquidation, the Insolvency Act 1986 is engaged, imposing a series of additional specific duties on the part of a director and limiting his managerial powers to those authorised under or in accordance with the Act, does not, in my judgment, operate so as to extinguish the fundamental duties owed by a director of a company to the company as reflected in ss.171 to 177 CA 2006.”

So there will be instances such as occurred in Systems where the legal duties of directors which survive post insolvency give rise to fresh liabilities. This potential risk is unlikely to be confined to English law since the basic principles of fair dealing which underpin the fiduciary duties codified in the Companies Act are common to insolvency proceedings in many jurisdictions perhaps even including the US itself as Kevin suggests in his blog.   

The D&O Implications

The first point to make is that even in the absence of facts such as in the Systems case, there is a fundamental tension between the annually renewable “claims made” principle under which D&O policies operate and the fact that it may take months or years before claims against directors are formulated and brought by insolvency office holders. While a company is solvent and continues to buy D&O insurance the “claims made” principle works well enough. If a director commits a wrongful act in year one but this does not give rise to a claim against him or her until year three, generally it will be the policy in year three which responds to the claim and not that in year one. A problem arises if the company has become insolvent in year two since the overwhelming likelihood is that there won’t in this situation be a policy in year three to respond to the claim because the company can neither afford nor are insurers keen to offer such cover once insolvency has occurred or is imminent.

A Dangerous Gap in Cover?

There are only two ways of avoiding this potentially dangerous gap in cover.

1. The first is to notify “circumstances which may give rise to a future claim” before the expiry of the policy which is in force at the time of the insolvent event. A valid notification will “attach” any future claim to the expiring policy. Making a valid notification may be challenging especially if the insolvency occurs towards the end of the policy period for the simple reason that there may be insufficient time in which (and evidence on which) to identify and articulate the particular circumstances which may give rise to a claim. (The mere fact of insolvency alone is almost certainly not an adequate basis on which to make a valid notification).
2. The second alternative is to use a so called “run off” option if the expiring D&O policy provides for this or (more unusually) if insurers can be persuaded to offer (and the company can afford to buy) a separate policy when the insolvency is imminent. The concept is simple enough. Under a run off policy, insurers agree to cover directors for a specific period of time often six or ten years in respect of claims arising from wrongful acts which occur before a specified date. The option can be tailored to individual directors personally who leave the company during the policy period and/or to the company as Policyholder on the expiry of the policy period or on the occurrence of an insolvency event or some other event. The terms on which this extension of cover is offered (if at all) and the premiums charged (if any) vary tremendously and are coming under close scrutiny by insurers in challenging D&O market conditions.

The Systems case summarised above throws a further variable into this mix with the potential to create an even wider coverage gap. Run off cover (or extended reporting periods as they are sometimes referred to) only apply to claims in respect of wrongful acts which occur before the expiry of the policy period or other trigger event. Such extensions would not cover directors in respect of fresh wrongful acts committed after the trigger date for the run off cover. To this extent, even if the Systems director benefitted from cover in respect of wrongful acts committed pre insolvency, the policy would not respond to claims based on unrelated wrongful acts occurring during the insolvency.

Conclusion

For good reason, the risk of company insolvency is one of the main drivers behind any decision to purchase D&O insurance. Not only is it the time at which the threat of claims or investigations against directors is at its height but it is also the point at which the directors lose the benefit of any company indemnity. For this reason close scrutiny (perhaps with the benefit of scenario testing with expert advisers) of what happens to the D&O cover on insolvency is a worthwhile exercise. Cases such as the Systems show that this is an area which should be kept under constant review and may indeed result in the need for additional enhancements of cover.

The contents of this publication, current at the date of publication set out above, are for reference purposes only and set out the views of the author. They do not constitute legal advice and should not be relied upon as such. Specific advice about your particular circumstances should always be sought separately before taking any action based on this publication.

The UK Government has just announced a three month retrospective suspension of the Wrongful Trading legislation from 1st March 2020. This unprecedented measure is designed to ease the pressure on company directors fearful of being held personally liable for continuing to trade in a period of heightened uncertainty created by the steps taken to combat Coronavirus. How far will it go in alleviating directors’ legitimate concerns? (The legislation which will be needed to effect this change to the law has yet to be drafted let alone passed into law). In trying to answer this question, it’s worth reminding ourselves about the range of powers available to insolvency practitioners to hold directors to account for their conduct in the period leading up to an insolvency of which the wrongful trading legislation forms part. 

Wrongful trading

Section 214 of the Insolvency Act provides that a claim may be brought against company directors when a company has continued to trade past the point at which the directors knew or ought to have concluded that there was no reasonable prospect of avoiding insolvent liquidation and they did not take “every step with a view to minimising the potential loss to the companies’ creditors.” This is a high standard but the courts have a wide discretion as to the amount of any award against the directors and are alive to the risks of exercising hindsight. That said, there is no doubt that the suspension of the legislation for this short period will give directors a measure of comfort that this particular form of personal liability will not be visited on them.

Nevertheless, in insolvencies threshold questions which liquidators (and sometimes courts) will wish to examine are (i) the extent to which the directors gave proper consideration to the relevant dangers and (ii) whether they had access to appropriate management information and professional advice in reaching their judgments. This type of investigation will still be necessary in relation to a range of other issues and the suspension of the wrongful trading laws is therefore unlikely to make much difference to the nature and extent of the fact gathering exercise which insolvency practitioners are still bound to carry out. The starting point here is that liquidators remain under a statutory duty to investigate the reasons for the insolvency. Wrongful trading is simply one of several activities which they will wish to satisfy themselves the directors have not engaged in. These include:

Misfeasance

During the twilight zone when directors are required to apply their minds to the interests of creditors, they remain under a duty to exercise skill and care and to promote the success of the company. Some of the common claims against them for misfeasance which are often brought alongside wrongful trading claims might include:

• Concealing or removing company assets – This is when a director has tried to conceal particular assets from an impending liquidation.
• Preferential Payments – Here a director might transfer money to one creditor in particular, perhaps one to whom there is an existing personal guarantee.
• Transactions at Undervalue – Here a director may sell at an asset for less than it is worth, perhaps to a family member or friend, again to keep it out of the scope of the liquidator.

Fraudulent trading

Fraudulent trading as the name suggests requires the company to have suffered loss caused by continuation of the business with the intent to defraud. The key difference between wrongful and fraudulent trading is that liability requires intent to defraud creditors. This test for dishonesty as clarified by the Supreme Court in Ivey and Genting Casinos is an objective one: was the director dishonest by the standards of an ordinary, reasonable individual (having the same knowledge as that individual)?

Directors Disqualification

There are a range of reasons why directors can fall foul of the Company Directors’ Disqualification Act (CDDA) but being in breach of any of the Companies Act duties in respect of a company which subsequently becomes insolvent (i.e. misfeasance) is one of the most common. Periods of disqualification can be up to 15 years. While the suspension of the Wrongful Trading legislation temporarily removes this link between it and the CDDA it does not remove the threat of prosecution altogether. It remains an issue which liquidators will have to consider in each case.

Conclusion

The suspension of the wrongful trading legislation on its own does nothing to relieve directors either of their continuing fiduciary duties or the duty to exercise due skill, care and diligence imposed by the Companies Act . What this means in practice is that the costs associated with answering the questions posed by insolvency practitioners and participating in the post insolvency investigation process are not likely to be significantly reduced. The task of forensically examining what actions and decisions the directors took during the twilight zone will still need to be carried out. The need for D&O insurance to provide directors with the funds to pay for legal advice is likely to be just as acute. It that context it may be worth reviewing my earlier blog addressing some of the potential coverage issues to which this may give rise.

The contents of this publication, current at the date of publication set out above, are for reference purposes only and set out the views of the author. They do not constitute legal advice and should not be relied upon as such. Specific advice about your particular circumstances should always be sought separately before taking any action based on this publication.

Navigating uncertainty 

When undertaking a strategic sale or purchase, it is always wise to have the experts in each field beside you. In volatile and uncertain times, the need to have experienced, creative and dedicated advisors to help navigate the obstacles becomes even more critical. Although there are some similarities to previous crises, COVID-19 presents many novel challenges that advisors need to be alert to and which require creative solutions. At McGill and Partners, our M&A team has been advising clients and helping them to navigate some of these challenges as underwriters adjust their approach in the current climate. 

Creating opportunity from uncertainty 

We have also been looking at how M&A insurance can be used to help create opportunity from the current uncertainty. While M&A plans may have been put on hold, many of our clients have found that now is a good time to think about the opportunities created by the crisis. There are many creative ways we develop bespoke insurance solutions to facilitate these opportunities, helping clients to transfer risks from their transactions to insurers. Here are some of the solutions you may wish to consider as you position yourself to take advantage of a change in the market:

Buying from a distressed seller 

Corporates looking to sell non-core assets to bolster cash reserves to weather the storm or indebted sellers looking to reduce debt burdens present opportunities for buyers. Sometimes these sellers will not be willing to give recourse for a breach of the warranties they are giving buyers. In other cases, buyers may not be willing to rely on the seller being in a financial position to pay a claim. Our M&A team has extensive experience working on transactions where there is no recourse to a seller or where management are not fully engaged in the sale process; these transactions are often conducted in compressed timetables and it is essential to consider the approach to disclosure and the scope of diligence that can reasonably be carried out when assessing the insurance options that might be available to provide buyers with protection. Careful consideration must also be given to a distressed asset’s valuation and how this affects a buyer’s losses and available recovery. 

Buying from an insolvency practitioner 

The acquisition of a company or business from an insolvency practitioner can often present an attractive opportunity but carries its own difficulties. Insolvency practitioners will seek to obtain the best price on a sale in the circumstances but will not be willing to incur personal liability, limiting the protection a buyer might be offered. It is possible to structure solutions that provide protection for the breach of a set of ‘synthetic’ warranties in situations in which the seller is not willing or able to give such warranties, affording the buyer greater certainty of the asset they are buying with the comfort of insurance capital to back the warranties. 

Acquiring a public company 

The equity markets have fallen significantly in recent months. Combined with the volatility in currency markets, many clients are scanning for opportunities to acquire public companies at a significant discount to the prevailing price just months ago. In many jurisdictions, the protection a buyer can obtain is influenced by the regulatory regime in force. We may be able structure a solution that gives a buyer protection:  

Where a sale process has been conducted, it may be possible to obtain insurance protection that gives greater certainty by insuring against the inaccuracy of information provided by the target. 

_Where there has been little or no disclosure from the target, it may be possible to structure a solution that provides protection for a synthetic set of core warranties covering the business of the target. 

Preparing a portfolio company for sale 

Naturally, many of our clients are turning to their portfolio companies and supporting them through these challenging times. In doing so, some are starting to consider preparing these companies for sale and addressing issues in those businesses that might inhibit a sale or for which buyers might discount the target’s valuation. Our experienced M&A team has worked with clients over the years to develop creative solutions to use insurance capital to optimise proceeds on a sale: 

_ Hard and soft staples are becoming increasingly common as sellers seek to take control of the insurance process to maximise its efficiency and present a sale package that gives buyers a high level of protection. Where sellers are using any delays due to the current environment to conduct vendor due diligence, we have found that hard staples can be a particularly effective way to facilitate the sale, maintain control of the process and deliver superior cover for bidders. 

_Our M&A team has structured contingent risk insurance solutions to isolate risks in portfolio companies that allow sellers to address issues before commencing a sale process and present buyers with a solution, giving comfort and avoiding costly price-chips, extensive negotiations or avoidable indemnities. 

Taking a minority stake 

As companies move to shore up their balance sheets, there will be opportunities to take equity positions in companies in exchange for minority stakes at attractive valuations. The warranties given to new investors can be insured to provide protection for the investment in the event of a breach, but it is important to structure the solution to ensure it is practicable, including that information an investor needs to make a claim reflects the information they will receive as an investor; that any involvement the insurer needs in any third party claims made against the company or in any settlements is suitable; whether subrogation rights can be exercised; and how loss is calculated. 

The bolder your ambition, the better we become 

Combining true expertise with a fresh perspective to deliver market defining risk solutions, our experienced M&A team is committed to helping clients to navigate the current uncertainty and to capitalise on the opportunities presented. There are many other creative bespoke solutions our M&A team has developed to address deal issues, each tailored to the situation and the needs and objectives of the client. If you would like more information on the solutions outlined, or to find out if we can use our expertise and creativity to help you to resolve any other deal issue, please contact james.swan@mcgillpartners.com. 

The risk of corporate insolvency is clearly one of the greatest overhang threats from the COVID-19 crisis for small and large companies alike.

I have already written about some of the practical steps which directors can take in order to avoid personal liability in the event of this unfortunate outcome for the companies on whose boards they sit. I have also examined some of the potential structural dangers of being left without cover which are associated with the fact that directors and officers liability insurance (“D&O”) is an annually renewable form of insurance protection. The good news is that safeguards can be built into many D&O programmes to minimise these risks.

But what should policyholders do if insurers seek to mount a full frontal attack on coverage by imposing express COVID-19 related exclusions in D&O policies as they come up for renewal?  

Exclusionary Language

This is the text of a specimen London Market Association exclusion which first appeared in early March 2020:

“This Insurance does not cover any claim in any way caused by or resulting from: 

a)      Coronavirus disease (COVID-19);
b)      Severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2);
c)      any mutation or variation of SARS-CoV-2;
d)      any fear or threat of a), b) or c) above.

LMA5391”

The Risks

On the face of it this may not seem unreasonable. After all, why should insurers pick up what they might characterise as a known risk? Surely insurance is only designed to cover unforeseen events? Whereas that reasoning might apply for example to medical, health or travel insurance in respect of which COVID-19 is indeed a known risk, does the same justification exist in liability policies where the trigger for cover is not the disease itself but negligence or other breach of duty? Here and in particular in D&O policies, there are a number of potential coverage concerns both for policyholders and for individual insureds.

• The introductory language for the exclusion is dangerously broad. The scope for argument as to whether a particular set of facts was in anyway caused by COVID-19 is considerable. If, for example, a company is already encountering entirely unrelated issues with profitability before the onset of COVID-19 but is tipped into a solvency crisis because of the economic fallout, would insurers deny the claim on the basis there was at least some causal connection? That risk cannot be ignored.
• Sub paragraph d) takes this concept even further and broadens out the exclusion so that it is limited not simply to COVID-19 itself but also to any fear or threat of it. On one view this could capture any action taken by a board in response to the fear or threat of COVID-19 which ends up in litigation. It is open to claimants, with the benefit of hindsight, to allege that the directors made any one of a number of wrong decisions in breach of their fiduciary duties. Why should D&O insurers not be willing to cover this risk?
• The extension of the exclusion under sub paragraph c) to any mutation or variation has the potential to extend the scope of the exclusion into uncharted and unforeseen areas and indefinitely.

Conclusion

It is a perhaps wrong to single out any particular form of COVID-19 exclusionary language. After all, the LMA version is only intended as a specimen and it is quite possible that insurers would be willing to negotiate variations. Equally, individual carriers may either come up with their own entirely different language or decide that no specific exclusionary language is necessary in relation to D&O insurance (while perhaps applying it to other lines). At this relatively early stage in the crisis it is too early to know how widespread the practice of imposing COVID-19 exclusions into D&O policies may become. That said given that the D&O insurance market was already challenged before this crisis, policyholders’ ability to reject the imposition of exclusions may be limited. If that turns out to be the case, it is really important that professional advisers ensure that their clients have a proper understanding of the impact of such restrictions. Armed with this knowledge, it may be possible to engineer alternative coverage solutions through the use of captives and/or by other means.

The contents of this publication, current at the date of publication set out above, are for reference purposes only and set out the views of the author. They do not constitute legal advice and should not be relied upon as such. Specific advice about your particular circumstances should always be sought separately before taking any action based on this publication.

I posted a blog recently on the subject of the potential impact of COVID-19 related exclusions on D&O policies. One thing to be said in favour of that type of full frontal attack on coverage is that it is easy enough to spot, although negotiating it away may be quite another matter. Of perhaps equal concern for other reasons may be the more standard D&O exclusions which could be employed to deny coverage depending on the nature of the underlying claim. In this article I focus on three such exclusions two of which are almost universally to be found in D&O policies.

The conduct exclusion

This is typically drafted in two parts. The first part applies to conduct which is driven by dishonesty or fraudulent practice . The second typically states that the carrier will not cover loss arising from, relating to or connected with “the gaining of profit or advantage by any Insured” . It is this latter part with which we are concerned here. To explain why we need to make a short detour first.

In his excellent D&O Diary Kevin La Croix drew attention in an article he wrote about a year ago to the dangers of antitrust exclusions in D&O policies especially for private companies. (As things stand, such exclusions are not standard in non US D&O policies but that also may also change.) In a more recent piece also re-published in The D&O Diary Lawrence J. Bracken, Geffrey B. Fehling and Lorelie S. Masters highlight the increased danger of antitrust claims in the aftermath of the COVID-19 crisis. They say this:

In the COVID-19 context, there are several potential avenues toward antitrust investigations and claims. First, both regulators and the public are increasingly sensitized to apparently opportunistic pricing, and enforcement agencies are pursuing companies for alleged price-gouging. A related risk is that of price-fixing through coordination with one’s competitors to provide products in short supply and, in some instances, to coordinate manufacturing and distribution. Again, these are classic anticompetitive activities.”

The question is to what extent might the second limb of the conduct exclusion be applied to such activities? The reference to “..any Insured” in this exclusion is almost invariably defined to cover not simply the individual directors and officers and other insured persons but also the policyholder and all the companies within the insured group. Since the very aim of anti-competitive trade practices is to gain “a profit or advantage”, the exclusion would on the face of it seem to engaged.

It is quite true that the effect of the exclusion is usually suspended unless and until there is a formal admission or final adjudication against an insured. That being said, the risk of follow on actions against individual insured persons consequent upon such findings is a far from remote. Such actions would be caught by the broad introductory language to the exclusion on the basis that they arose from or related to the offending activity. (Nor is it the case that the so called severability clause designed to separate out the coverage consequences of an individual’s knowledge or conduct would necessarily rescue the directors from this outcome because this is usually expressed only to apply to the conduct of individual insured persons and not that of the entity.)

Pending and Prior Claim Exclusions

The reality is that there are almost as many versions of this type of exclusion as there are D&O policies. It is well beyond the scope of this piece to try to describe all the different permutations and their subtly different but highly significant potential consequences. The broad point is that D&O policies are all “claims made” policies. Therefore to a greater or lesser extent, the insurers rely on these types of exclusion to ensure so far as possible that all claims made against the insured in any one policy year attach to that year alone. It is a potentially career limiting outcome for an underwriter to expose his or her employer to multiple policy limit payments in respect of the same claim. The problem is that over-exuberant exclusionary language combined with the fact-sensitive nature of the enquiry as to what constitutes “the same claim” as well as issues concerning the breadth of permissible circumstance notification to expiring policies can lead to dangerous gaps in cover for an insured.

As Greig Anderson a partner in law firm Herbert Smith Freehills puts it in an article focusing on the implications of COVID-19 for D&O:

“…if a notification of a claim, loss or circumstance is made to the expiring year, then it is important to gauge in advance what impact that might have on coverage under the new policy in light of any “prior notice” exclusion, particularly if there is any risk that the exclusion under the new policy might have broader application than the language under the expiring policy which attaches the notified matter (and often causally related matters) to that policy. Otherwise, gaps in coverage could result..”

Pressures of the type identified above are not new. The COVID-19 crisis is likely to serve as a catalyst for these types of dispute while both insurers and policyholders scramble to maximise their respective protections. The danger is that individual insured persons could be left without protection and this risk is especially acute in the context of insolvencies about which I have blogged before.

The Pollution Exclusion

Whereas the conduct and pending and prior litigation exclusions are commonplace in all D&O policies, pollution exclusions largely died out of most sectors of the non US D&O market, at least during soft market conditions. They were usually replaced by language to be found within the definition of “Loss” making it clear that insurers did not intend to cover clean-up costs. There are though some early indications that this (among other) exclusions may be coming back. In that event there could be issues and arguments around the definition of the term “pollutants” which is itself normally the subject of extensive language. It would not be beyond the bounds of possibility for example, that among a long list of items falling within this defined term are found words such as: “germs, viruses and biological irritants”. Could these be applied to COVID-19 to deny a D&O claim relating to or arising from the current crisis? As usual the answer will depend almost entirely on the language used in the particular contract but the risk plainly exists.

Conclusion

The context in which the applicability of these (and other) exclusions will be played out is already one of extreme challenge for the D&O industry. The likelihood is that terms offered by insurers on renewal will be more restrictive than on the expiring policy. Insurers may well seek to restrict cover and/or ring fence their exposure to COVID-19 related claims on the new policy either overtly or otherwise. For this reason it is critically important that policyholders undertake, long before the renewal, the process of assessing the nature type and extent of D&O related litigation they might reasonably be expected to face. This is important not simply in order to make a fair presentation of the risk for the new policy but significantly also to put themselves in the best possible position to attach future claims arising out of COVID-19 to the expiring policy which is likely to contain fewer coverage restrictions. Again, much will depend on the language in each policy permitting companies to notify circumstances which may give rise to a claim and of course also on the relevant known facts. But early internal engagement of all the relevant internal stakeholders including the general counsel’s office and the involvement of appropriate external input from experienced lawyers and brokers is highly desirable.

The contents of this publication, current at the date of publication set out above, are for reference purposes only and set out the views of the author. They do not constitute legal advice and should not be relied upon as such. Specific advice about your particular circumstances should always be sought separately before taking any action based on this publication.

It feels to me sometimes as if I am living in a B movie right now but I settled for a less racy title than I might have done. “Twilight” is in fact a technical insolvency expression (see below) and these are certainly uncharted times. In my last blog, I considered the balancing act directors must perform under Section 172 of the Companies Act in respect of a variety of competing interests and how that can become even more difficult in challenging times. Given the speed at which the crisis sparked by Covid-19 is developing, it is perhaps worth examining separately what Section 172 has to tell us about directors’ duties in an insolvency context. Section 172 (3) provides that “The duty imposed by this section has effect subject to any enactment or rule of law requiring directors, in certain circumstances, to consider or act in the interests of creditors of the company.”

These “circumstances” broadly speaking exist where a company either is insolvent or is likely to become insolvent. This point is also known as the twilight zone and is when the nature of a director’s duties change with the focus shifting to the need to act in the best interests of the company’s creditors and to maximise the value of the assets of the company in the interests of those creditors. There is a well-established and comprehensive insolvency regime in the UK governed by the Insolvency Act 1986 and a host of associated legislation. I don’t intend to summarise that here but set out below instead some practical tips with a focus on directors’ duties.

• The first challenge can be in knowing precisely when a company is likely to become insolvent. While courts are likely to be sympathetic to directors who make good faith judgments about the competing interests of creditors, they are much less likely to look favourably on board decisions based on incomplete or inaccurate management information. It is essential that accurate books and records including up to date management accounts exist and are maintained and updated.
• Secondly, accurate management information must be considered appropriately by the board. Much will depend on the nature and size of the company and the seriousness of any cash flow issues which may exist. It may for example be sensible to appoint a sub-committee of the board to meet even on a daily basis with regular updates to the board as a whole. Such an approach would be consistent with the well-recognised English law principle that although directors may delegate executive functions they cannot delegate their supervisory duties.
• Thirdly, an understanding of the various different insolvency mechanisms and their potential effect would be highly desirable. For example the consequences for creditors of administration may be very different from a voluntary arrangement or voluntary winding up let alone compulsory liquidation. Seeking professional advice on this issue from lawyers and accountants may be prudent even before the point at which insolvency is likely since it will allow for better informed decision making.
• Fourthly, the duty on directors may involve weighing up a series of competing interest among creditors. Most typically, the interests of secured creditors may not be aligned with those of the company’s unsecured creditors but even individual creditors’ interests may diverge. Timing here is also key. The usual advantages of administration which enable a business or part of it to be sold off or rescued may be less applicable if no market or potential buyers exist in a crisis such as this.
• Fifthly, directors need to be wary of taking steps aimed at avoiding or delaying insolvency which, though successful, attract potential liability. There is a duty under section 239 of the Insolvency Act to avoid allowing the company to enter into any transactions outside the ordinary course of business if they would either have the effect of preferring any particular creditor over others or diminish the net assets of the company available to its creditors. The question as to what constitutes the “ordinary course of business” is an open one in the current crisis.
• Finally, directors should carefully document and/or minute their decision-making process. It is worth remembering that if a company is unfortunate enough to go insolvent the liquidator is under a statutory duty to investigate the causes of the insolvency and in that context they are almost certain to want to examine and understand the board’s decision making process. 

Conclusion

Following the practical steps identified above may help directors to mount a robust defence in the event that they face a post insolvency claim or investigation. The importance, in that event, of having access to good Directors’ and Officers’ insurance to fund such a defence is a subject about which I have written before here. In a subsequent blog I will consider some of the weapons in the insolvency practitioner’s arsenal of which directors would also do well to be aware. To finish on a brighter note, I think in the future when courts are inevitably asked to examine how competently directors performed their duties in these extraordinary times they will be careful not to apply hindsight and will judge based on what was known or could reasonably have been found out now rather than by reference to outcomes.

The contents of this publication, current at the date of publication set out above, are for reference purposes only and set out the views of the author. They do not constitute legal advice and should not be relied upon as such. Specific advice about your particular circumstances should always be sought separately before taking any action based on this publication.

It feels to me sometimes as if I am living in a B movie right now but I settled for a less racy title than I might have done. “Twilight” is in fact a technical insolvency expression (see below) and these are certainly uncharted times.

In my last blog, I considered the balancing act directors must perform under Section 172 of the Companies Act in respect of a variety of competing interests and how that can become even more difficult in challenging times. Given the speed at which the crisis sparked by Covid-19 is developing, it is perhaps worth examining separately what Section 172 has to tell us about directors’ duties in an insolvency context. Section 172 (3) provides that “The duty imposed by this section has effect subject to any enactment or rule of law requiring directors, in certain circumstances, to consider or act in the interests of creditors of the company.”

These “circumstances” broadly speaking exist where a company either is insolvent or is likely to become insolvent. This point is also known as the twilight zone and is when the nature of a director’s duties change with the focus shifting to the need to act in the best interests of the company’s creditors and to maximise the value of the assets of the company in the interests of those creditors. There is a well-established and comprehensive insolvency regime in the UK governed by the Insolvency Act 1986 and a host of associated legislation. I don’t intend to summarise that here but set out below instead some practical tips with a focus on directors’ duties.

The first challenge can be in knowing precisely when a company is likely to become insolvent. While courts are likely to be sympathetic to directors who make good faith judgments about the competing interests of creditors, they are much less likely to look favourably on board decisions based on incomplete or inaccurate management information. It is essential that accurate books and records including up to date management accounts exist and are maintained and updated.

Secondly, accurate management information must be considered appropriately by the board. Much will depend on the nature and size of the company and the seriousness of any cash flow issues which may exist. It may for example be sensible to appoint a sub-committee of the board to meet even on a daily basis with regular updates to the board as a whole. Such an approach would be consistent with the well-recognised English law principle that although directors may delegate executive functions they cannot delegate their supervisory duties.

Thirdly, an understanding of the various different insolvency mechanisms and their potential effect would be highly desirable. For example the consequences for creditors of administration may be very different from a voluntary arrangement or voluntary winding up let alone compulsory liquidation. Seeking professional advice on this issue from lawyers and accountants may be prudent even before the point at which insolvency is likely since it will allow for better informed decision making.

Fourthly, the duty on directors may involve weighing up a series of competing interest among creditors. Most typically, the interests of secured creditors may not be aligned with those of the company’s unsecured creditors but even individual creditors’ interests may diverge. Timing here is also key. The usual advantages of administration which enable a business or part of it to be sold off or rescued may be less applicable if no market or potential buyers exist in a crisis such as this.

Fifthly, directors need to be wary of taking steps aimed at avoiding or delaying insolvency which, though successful, attract potential liability. There is a duty under section 239 of the Insolvency Act to avoid allowing the company to enter into any transactions outside the ordinary course of business if they would either have the effect of preferring any particular creditor over others or diminish the net assets of the company available to its creditors. The question as to what constitutes the “ordinary course of business” is an open one in the current crisis.

Finally, directors should carefully document and/or minute their decision-making process. It is worth remembering that if a company is unfortunate enough to go insolvent the liquidator is under a statutory duty to investigate the causes of the insolvency and in that context they are almost certain to want to examine and understand the board’s decision making process. 

Conclusion

Following the practical steps identified above may help directors to mount a robust defence in the event that they face a post insolvency claim or investigation. The importance, in that event, of having access to good Directors’ and Officers’ insurance to fund such a defence is a subject about which I have written before here. In a subsequent blog I will consider some of the weapons in the insolvency practitioner’s arsenal of which directors would also do well to be aware. To finish on a brighter note, I think in the future when courts are inevitably asked to examine how competently directors performed their duties in these extraordinary times they will be careful not to apply hindsight and will judge based on what was known or could reasonably have been found out now rather than by reference to outcomes.

COVID-19 has significantly disrupted the aviation industry with most countries introducing travel restrictions and, in many cases, entire bans in an effort to limit the spread of the virus. Perhaps more than any other industry, the aviation sector is currently faced with unprecedented challenges which could potentially result in losses to the industry in excess of hundreds of billions of dollars. Routes are being closed, passenger numbers are dwindling, and fleets are being grounded. The implications to the businesses of the airlines, lease companies, manufacturers, airports and all service companies are enormous. The human and economic impact is potentially devastating.

With regards to the Aviation Insurance market, now is time to demonstrate true leadership and work collaboratively with clients to provide solutions, no matter how small, to help ensure the future viability of the aviation infrastructure, to support the global economy and to enable those companies and individuals who are part of the industry.

Faced with such challenges, companies should be engaging with insurers and discussing the impact COVID-19 has had on their operations, as well as any changes in risk profile and their interim plans. Exposures are materially different from those declared when policies were last rated and the majority of clients throughout the aviation sector will now be paying premium for exposures that simply are not there – and are unlikely to be there in the foreseeable future.

At present there is a view among many insurers that they are prepared to consider extending “premium instalment due dates” by 30 or more days however, our view is that it is not strategic or impactful enough and only serves to “kick the can” down the road.

Reflecting on the immediate aftermath of 9/11 there was an immediate need to “recapitalise” the aviation insurance market. At that time, insurers were faced with devastating losses and the airline risk management community responded and paid an additional $1.25 per passenger levy in order to assist insurers “reflate” their businesses. Considering the current environment, the insurance market is undoubtedly witnessing its customer base go through the most challenging conditions ever experienced on a worldwide basis and now is the time collectively act, step up and to do whatever we can to assist.

In order to have a strategic and informed conversation with insurers, clients and their brokers should be collecting data to present a compelling reason for premium alleviation or policy re-rating. Such detailed information would clearly be client-specific depending on individual circumstances but amongst other fundamentals could include: 

• Claims activity
• Profitability or profit balance over 5 and 10 years
• Original and revised estimated exposure forecast
• Rating basis – some policies lend themselves to adjustments more than others
• The clients balance sheet disposition
• Cash flow
• What are the anticipated operating plans going forward?
• What is the risk profile given their revised operating plans?
• Status of prior year policy adjustments
• What is the interaction with the fleet whilst aircraft are grounded?

As clients choose to approach insurers requesting a solution it may be sensible to create a new structure that more accurately reflects exposures. Data and technology in today’s world provides an opportunity to far more accurately assess real exposure and charge accordingly. 

At McGill and Partners we have some creative and innovative ideas that we would be delighted to confidentially share with you that address how we feel insurers should be proactively responding to the current unprecedented environment. 

For a confidential discussion please feel free to contact:

Contact Details
Joe Trotti	joe.trotti@mcgillpartners.com +44(0)7503 630506
Jeremy Kinsey	jeremy.kinsey@mcgillpartners.com +44(0)7901 233064
James Camps-Harris	james.camps-harris@mcgillpartners.com +44(0)7810 455415
Giles Wilkinson	giles.wilkinson@mcgillpartners.com +44(0)7901 232301
Ian Fisher	ian.fisher@mcgillpartners.com +44(0)7503 629945

It is true that the Aviation Insurance market has been through (and continues to suffer) some incredibly difficult times in recent years. The market is still faced with some highly challenging losses but now is the time to show true leadership and work collaboratively with our aviation customers. Just like the world needs a thriving aviation industry, the aviation industry needs a viable insurance market. Now, similarly to the aftermath of 9/11 is time for all stakeholders to do their bit, step up, be creative, lead and find meaningful solutions that will truly help our customers navigate through these challenging times. 

The contents of this publication, current at the date of publication set out above, are for reference purposes only and set out the views of the author. They do not constitute legal advice and should not be relied upon as such. Specific advice about your