Moon Beever Logo

16-06-2014

The Insolvency Service has released Theresa Graham’s recommendations on Pre Packs today (here). No doubt there will be much discussion and debate ensuing but for a quick update from me, she makes six key recommendations in Section 4 of her report and provides some suggested wordings:

Key recommendation 1: Pre-pack Pool. On a voluntary basis, connected parties approach a ‘pre-pack pool’ before the sale and disclose details of the deal, for the pool member to opine on.

Key Recommendation 2: Viability Review. On a voluntary basis, the connected party completes a ‘viability review’ on the new company.

Recommendation 3: SIP 16: that the Joint Insolvency Committee considers, at the earliest opportunity, the redrafted SIP16 in Annex A.

Recommendation 4: Marketing: that all marketing of businesses that pre-pack comply with six principles of good marketing and that any deviation from these principles be brought to creditors’ attention.

Recommendation 5: Valuations: SIP16 be amended to the effect that valuations must be carried out by a valuer who holds professional indemnity insurance.

Recommendation 6: SIP 16: that the Insolvency Service withdraws from monitoring SIP16 statements and that monitoring is picked up by the Recognised Professional Bodies.

Should these measures fail to have the desired impact and they are not adopted as I would hope by the market, then Government should consider legislating.”

Annex A, Ms Graham’s suggested SIP 16 redraft for consideration by JIC, appears on Page 69 of the Graham Review Report. Annexes H and J “Considerations for the Pool” and the suggested drafts for their sign-offs appear on pages 90 and 95 respectively.

Comment
Whilst it is welcome that Ms Graham recognises (as Sandra Frisbee did) the benefits of pre-packs, it seems unnecessary to impose a pool of businessmen over the qualified IP, which businessman is supposed to give a view (without liability) on a business in half a day’s work.

I still favour trusting the IP, who may well also have undertaken the IBR and let them as the courts exercise their professional and commercial judgment.

However, I do still favour the liquidation exit with a new IP in particular for prepacks to connected parties. This gives a check and balance to the freedown to rescue the business and act quickly unfettered.

I also note that the HMRC debt quoted is, as she says, taken from statements of affairs provided by directors, but in the worst cases the HMRC debt can be significantly understated.

I welcome the suggestions for independent and insured valuers and think a requirement for proper instructions and reports would also improve some scenarios. That will be driven by insurer requirements no doubt.

Government Response 
The Government has also published today its response, (here) agreeing with the report and saying that it will seek to implement its recommendations as well as strengthen the regulatory regime in respect of Insolvency Practitioners:

Detail of outcome

When Parliamentary time allows, we will bring forward measures which will:

Introduce regulatory objectives.

Increase the powers of oversight regulator to sanction a regulator.

Provide the oversight regulator with a power, where it is in the public interest, to apply to court for a sanction against an Insolvency Practitioner (IP).

Enable the oversight regulator to require information from the regulators, an IP, or persons connected to the IP, in order to carry out his oversight role.

Reserve power to replace the regulators with a sole regulatory body.

We will be discussing further with interested parties the proposals to restrict the use of time and rate charging in certain circumstances. Our aim remains to ensure that insolvency practitioners receive fair remuneration for work properly carried out but also that creditors are getting the greatest return possible in the circumstances.”

Conclusion 
Pre packs aside, the Regulators now face a challenge to retain their status, and IPs face further challenges to their fees.

It is inevitable that there will be some tightening on fees but the profession should stand up for the broadly good job it does and continue to remind the Government of the huge amounts of write offs it suffers in relation to its true fees.

Will we finally see a single regulator? I still think there should be a choice of two, there are pure insolvency firms who will want a pre insolvency regulator and there are mixed practice firms who will not want to duplicate compliance visits with two regulators. Competition amongst regulators is no bad thing for those they license nor for the public; it probably enhances regulation. 

Frances Coulson (fcoulson@moonbeever.com)

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained here.

OUR TEAM MEMBERS
TESTIMONIALS

Standout firm known for its personal insolvency work for clients including private companies, individuals and governmental institutions. Frequently acts for insolvency practitioners, assisting with the realisation of assets, both in the UK and abroad.

Chambers and Partners

Contact Us

Our office locations can be found here and individual staff profiles here together with full address and contact details. 

For non-urgent enquiries by email, please complete the contact form below and we will respond as soon as possible.

logo-alep-min-min
logo-legal500-min-min
cq-logo-min
logo-rescue-awards-min-min
logo-lexcel-min-min
logo-chambers-and-partners-min-min
stonewall-min
wiq-logo-min