B037765_CompanyLaw_Q1

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TABLE OF CONTENTS
Word Count:5995
INTRODUCTION 2
WRONGFUL TRADING PROVISIONS IN UNITED KINGDOM 3
CONTRIBUTIONS MADE PURSUANT TO A SECTION 214 CLAIM NOT ASSETS OF THE
COMPANY 4
DO UNSECURED CREDITORS BENEFIT UNDER OASIS MERCHANDISING LIMITED & RE M.C. BACON LTD 5
CONDITIONAL FEE ARRANGEMENTS (CFA) & AFTER-THE-EVENT INSURANCE (ATE) 7
ABOLITION 9
LEGISLATIVE RESPONSE TO AID TRANSITION AWAY FROM CFA UPLIFT & ATE
RECOVERABILITY 9
REVERSAL OF OASIS MERCHANDISING LIMITED 9
ASSIGNATION OF WRONGFUL TRADING ACTION 10
ASSIGNATION OF THE FRUITS OF THE LITIGATION 11
EXPENSES OF THE LIQUIDATION CLAIMS OVER ASSETS SUBJECT TO A FLOATING CHARGE
12
ENGLAND 12
SCOTLAND 14
REVERSAL OF BUCHLER V TALBOT IN ENGLAND 14
ISSUES WITH SECTION 176ZA: WHY WOULD A ‘SPECIFIED CREDITOR’ GIVE
AUTHORIZATION? 15
PROSPECT THEORY: SPECIFIED CREDITORS SHOULD BE RISK LOVING 16
DOES THE SPECIFIED CREDITOR AVOID LOSSES? 17
LESSONS FROM AUSTRALIA 18
RESOLVING FUNDING AND RISK CONSIDERATIONS PRODUCES TANGIBLE BENEFITS EX
ANTE 19
RECOMMENDATIONS TO PROTECT UNSECURED CREDITORS IN THE INSOLVENCY 20
ALL IN VEIN? 20
SECTION 176ZA & 564 21
ASSIGNATION 22
ATE & CFA 23
SPILLOVER EFFECTS 23
CONCLUSION 24
BIBLIOGRAPHY 25

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INTRODUCTION
This essay will answer whether the law relating to wrongful trading effectively
protects the interests of unsecured creditors (creditors hereafter) in the insolvency,
focusing on legislation that allows office holders to fund, and pursue wrongful trading
actions.
First there will be a brief discussion on the substance and aims of section 214.
Then discussing judicial precedent in Re M.C. Bacon Ltd (No.2)1 & Oasis
Merchandising Services Ltd,2 and it implications for creditor protection in the
insolvency. It is accepted that new legislation is needed to strengthen the current
law.
Examination of CFA uplifts and ATE premium recoverability from defenders
after litigation to counter funding issues will follow, concluding that they are
immensely important in the area of insolvency. The planned abolition of these
instruments within the Legal Aid, Sentencing and Punishment of Offenders Act 2012
is a worrying development for creditor protection.
Sections 256ZD and 176ZA of the Insolvency Act will be appraised on their
abilities to mitigate the funding problem. The ultimate aim is to deduce whether they
offer a viable alternative to insurance instruments when LASPO 2012 is given effect.
It is submitted that this is unlikely.
Fixing the funding gap is of critical importance in protecting creditor interests
ex ante, as it creates a credible threat, and through time inconsistency, alters
director behaviour to induce less risky actions.
In concluding, it is argued that current legislation suffers from critical flaws in
protecting creditor interests, however, Scottish law may be strengthened importing
Australian and English Jurisprudence.
*
1 [1991] Ch. 127
2 [1998] Ch. 170

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Wrongful Trading Provisions In United Kingdom
In 1984 the Cork committee3 recommended that unlimited civil liability should
extend to directors who escalate losses to creditors through negligent or reckless
trading, whilst knowing the company had little prospect of avoiding failure.4 Market
failure existed as directors were insulated from the downside of ﬁnancial risks flowing
from limited liability, and were increasingly likely to take risks with corporate funds in
times of financial distress,5 increasing risk to creditors.6 Wrongful trading would be a
compensatory and a deterrent mechanism for the benefit of the unsecured
creditors.7 Most of the recommendations made by the Cork Report where enacted,
presently situated in section 214 of the Insolvency act 1986.
To bring an action for wrongful trading the company must be in insolvent
liquidation or administration.8 At some time before the commencement of winding up
the director knew or ought to have known that there was no reasonable prospect of
the company avoiding insolvent liquidation9 or entering insolvent administration.10 A
defence is provided under section 214(3), when the director can show that he ‘took
every step with a view to minimising the potential loss to the company’s creditors.11
Its application has been largely considered ineffective12, described as a ‘paper
tiger’,13 primarily because of funding restrictions for bringing litigation.
3 Chairman, Sir Kenneth Cork. 1982.“Insolvency Law and Practice: Report of the Review Committee
Cmnd 8558”
4 Ibid [1782]
5 Daigle, K, and M Maloney. 1994. “Residual Claims in Bankruptcy : An Agency Theory Explanation.”
37 Journal of Law and Economics 157; Adler, B. 1995. “A Re-Examination of Near-
Bankruptcy Investment Incentives.” 62 University of Chicago Law Review. 590-598.at [590]
6 Freedman, J. 2000. “Limited Liability: Large Company Theory and Small Firms.” 63 Modern Law
Review 3
7 Chairman, Sir Kenneth Cork. 1982. “Insolvency Law and Practice: Report of the Review Committee
Cmnd 8558 at [1741]
8 Section 214(2)(a), Insolvency Act 1986
9 Section 214(2)(b), Insolvency Act 1986
10 s.117(3)(a), Small Business, Enterprise and Employment Act 2015
11 s.117(3)(b), Small Business, Enterprise and Employment Act 2015
12 Williams, Christina, and Andrew McGee. 1993. “Curbing Unfit Directors-Is Personal Liability an
Empty Threat?” Insolvency Lawyer, February
13 Cook, Carol. 1999. “Wrongful trading - is it a real threat to directors or a paper tiger?” Insolvency
Lawyer

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CONTRIBUTIONS MADE PURSUANT TO A SECTION 214 CLAIM NOT ASSETS
OF THE COMPANY
Re M.C. Bacon Ltd (No.2) concerned whether wrongful trading claims were
‘expenses of the liquidation’ and therefore payable out of the company’s assets in
priority to all other claims. The liquidator argued that the litigation expenses in
bringing the action fell within the meaning of expenses of the liquidation under rule
4.218(1),14 primarily that it was ““preserving, realising or getting in the assets of the
company”. Millet J. disagreed, and held that wrongful trading claims did not involve
preserving, realising or getting in the assets of the company. Until the order is made
and complied with, there is “no such asset” in existence, and the statutory
interpretation of rule 4.218 is of “existing assets”15 Therefore wrongful trading claims
are not expenses of the liquidation for the purpose of 4.218.
This case sets the precedent that assets recovered pursuant to a section 214
claim are not assets of the company, firmly approving Re Yagerphone Ltd16 that
contributions were “impressed in [the office holders hands] with a trust for those
creditors amongst whom they had to distribute the assets of the company.”17
In Re Oasis Merchandising Services Ltd the liquidator sought to argue s/he
was entitled to sell the fruits of a wrongful trading action under paragraph 6 of
Schedule 418 as s/he was afforded the right to “sell any of the company’s property”.
“Property” included “things in action.”19 Although the liquidator conceded that selling
the fruits of the section 214 action was champertous, and thus illegal,20 the statutory
authority made the assignment valid.21
The Court rejected this argument, approving Re M.C. Bacon Ltd (No.2),
specifically that contributions pursuant to a wrongful trading action, and also the right
to bring the action, were not to be considered assets of the company:
14 Insolvency Rules Act 1986
15 Re M.C. Bacon Ltd (No.2) [1991] Ch. 127 at para [138]
16 Re Yagerphone Ltd [1935] Ch. 392
17 Ibid [396]
18 paragraph 6 of Schedule 4, Insolvency Act 1986
19 Section 436, Insolvency Act 1986.
20 Factortame v Secretary of State for Transport, Local Government and the Regions (No 2
21 Guy v. Churchill (1888) 40 Ch.D

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“A right of action by a liquidator, and the fruits of such an action for… wrongful
trading… are not the property of the company”22
The court reasoned that section 214 actions are not vested in the company,
and cannot form part of its property. The action can only arise out of a liquidation,
invoked by a liquidator, consequently it vests in him/her alone. The action is
therefore not property of the company within the meaning of paragraph 6 of
Schedule 4, and is not assignable.
Cumulatively the case law23 is conclusive in affirming that the right to a
wrongful trading action, and also the fruits of the action, do not form part of the
company’s assets.
Do Unsecured Creditors Benefit Under Oasis Merchandising Limited & Re M.C.
Bacon Ltd
Section 119 of the Small Business, Enterprise and Employment Act 2015,
codifies the common law by inserting section 176ZB(2)(b):
‘The proceeds of the claim or assignment (or, in Scotland, assignation) are
not to be treated as part of the company's net property…”
The key point is the legislature’s intention to avoid the encompassing effect of a
floating charge in attaching to current and future assets of the company, as the
section further confirms:
“… that is to say the amount of its property which would be available for
satisfaction of claims of holders of debentures secured by, or holders of, any
floating charge”
The legislation protects unsecured creditor interests by making that creditor
the main beneficiary of assets gained from section 214 actions. This was the clear
intention of the Cork Committee.
22 Oasis Merchandising Limited at [181]
23 Oasis Merchandising Limited, Re M.C. Bacon Ltd (No.2), Re Yagerphone Ltd [1935] Ch. 392

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Precedent by defining section 214 actions and proceeds thereof as not assets
of the company created problems as it made it difficult for liquidators to fund
litigation. After charged creditors have been satisfied, there is usually very little, if
nothing, for the general body of creditors to use for bringing a section 214 action,24
as Lord Hoffman acknowledged in Norglen Ltd v Reeds Rains Prudential Ltd25 when
he stated “The courts have recognised that they often have no assets with which to
fund litigation.”26 Consequently a funding issue has developed for liquidators in
bringing wrongful trading actions, which is what Prentice coined the “Insufficiency of
enforcement”, primarily an “insufficiency attributable to lack of resources on part of
the liquidators to fund section 214 claims.”27
Assigning the fruits of the litigation could have remedied the problem,
however the precedent from Re Oasis Merchandising Services Ltd precluded this,
thus allowing the funding issue to persist.
Re M.C. Bacon Ltd (No.2) produced risks for a liquidator when bringing
claims, as it precluded litigation fees from being recouped from the company’s
assets, because they did not fall within the meaning of expenses of the liquidation.28
Therefore the threat of an adverse costs order greatly increased the risks to the
liquidator, as s/he would be personally liable. The legislature overruled this result by
including litigation expenses within the meaning of expenses of the liquidation,29
currently contained r.4.218(3)(a)(ii) Insolvency Rules Act 1986. However, an adverse
costs order will have priority over general expenses of the liquidation,30 therefore
were the company’s assets are insufficient to meet the liquidator’s expenses and the
adverse cost order, the liquidator will bear the short fall personally. When the
liquidator brings proceedings, he does so at “at his own risk” and cannot “limit his
liability to the assets held by the company”31. Additionally, although the liquidator has
24 Hicks “Wrongful Trading – Has it been a failure?” (1993) 8 Insolvency Law & Practice 134, 134
25 Norglen Ltd. (In Liquidation) Respondent v Reeds Rains Prudential Ltd. and Others Appellants
26 Ibid. [8]
27 D. Prentice, ‘Corporate Personality, Limited Liability and the Protection of Creditors’ in R. Grantham
and C. Rickett (eds), Corporate Personality in the 20th Century (Oxford: Hart, 1998). [124]
28 Lewis v Inland Revenue Commissioners [2002] B.C.C. 198 &.Mond v Hammond Suddards (No.2)
[2000] Ch. 40 and MC Bacon Ltd (No.2), Re [1991] Ch. 127
29Insolvency (Amendment) (No. 2) Rules 2002/2712 Sch.1(2) para.23(a)
30 Re London Metallurgical Co [1895] 1 Ch 758
31 Re Wilson Lovatt & Sons Ltd [1977] 1 All ER 274

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recourse to the company’s estate for payment of litigation costs, often the company’s
estate is comprised of too few assets to bring litigation.32
The case law reduced the likelihood that a liquidator may bring an action.33
Defining contributions as ‘not assets of the company’ has constrained the
compensatory element of the wrongful trading sanction because of funding
considerations, inevitably curtailing its effectiveness for protecting the interests of the
unsecured creditors in the insolvency.
*
CONDITIONAL FEE ARRANGEMENTS (CFA) & AFTER-THE-EVENT
INSURANCE (ATE)
In light of funding and risk considerations, insolvency practitioners (IP) in
England have resorted to using insurance instruments such as CFA’s and ATE
premiums.34 The CFA allows a solicitor to share the risk of litigation. The IP is liable
to pay a base fee plus a success fee uplift if the case is won. ATE insurance covers
the IP for an adverse costs order. The director is liable to pay the CFA uplift and ATE
premium if s/he loses the case.35 The insurance instruments allow a cash strapped
IP to bring litigation were s/he was previously unable. Walton finds evidence that the
threat of being liable for uplifts and ATE premiums was “extremely persuasive in
encouraging defenders to settle.”36
Milman and Parry37 argue that although it is possible to insure against an
adverse costs order, the insolvent estate must still have enough assets to find
money to pay the premium. The premium may be quite large as was the case in Re
32 Keay, A. 1997. “ Company Directors Responsibility to Creditors.” Routledge-Cavendish. 131–36.
33 Parry. 1998. “Funding Litigation in Insolvency.” CfiLR 121
34 BIS. June 2014. “Small Business, Enterprise and Employment Bill: Enabling Liquidators Impact
Assessment .” at [8]
35 Section 27 & 29, Access To Justice Act 1999
36 Walton, Peter. “The Likely Effect Of The Jackson Reforms On Insolvency Litigation – An Empirical
Investigation.” R3, April 2014. [32] & [15]
37 Milman, and Parry. July 1997. A Study of the Operation of Transactional Avoidance Mechanisms in
Corporate Insolvency Practice. ILA Research Report.

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Robin Hood Centre plc,38 at approximately £106,000. This may still create funding
problems.
The insurance tools, by allowing IP’s of cash strapped estates to bring
litigation, and mitigate personal risks, can only encourage more litigation with the
result of holding delinquent directors to account. As such “the vast majority of
insolvency litigation actions are taken forward on this basis.”39 The threat of paying
the adverse costs order, encouraged defendants to settle earlier, resulting in more
assets remaining within the insolvent estate. The insurance tools have boosted the
effectiveness and credibility of the wrongful trading action, benefiting creditors.
In Scotland it is not possible to recover ATE premiums and CFA uplifts form
defendants.40 Williams41 finds only 16 reported cases under wrongful trading,
42notably none have come from Scotland. It is submitted that this is linked to the
inability to use these insurance instruments. Legally endorsing the recoverability of
CFA uplifts and ETA premiums from defenders, as was done in England through the
Access to Justice Act 1999, would protect to unsecured creditors.
38 Brooks and another v Armstrong and another; Re Robin Hood Centre plc (in liquidation) (in the
matter of costs) [2015] EWHC 2289 (Ch)_2, [2015] All ER (D)
39 BIS. June 2014. “Small Business, Enterprise and Employment Bill: Enabling Liquidators Impact
Assessment at [5]
40 Walton, Peter. 2014. “The Likely Effect Of The Jackson Reforms On Insolvency Litigation – An
Empirical Investigation.” R3, April. at [8]
41 Ibid [60]
42 Between 1986 & 2013; Re Bangla Television Ltd . [2009]. 1632 (Ch) (EWHC 1632 (Ch)); Re
Continental Assurance Company of London plc . [2007] . 2 BCLC 287; Re Sherborne
Associates Ltd . [1995]. BCC 40; Liquidator of Marini Ltd v Dickenson . [2003] . EWHC 334
(Ch); Re Langreen Ltd (unreported); Re Hawkes Hill Publishing Co Ltd. [2007]. BCC 937;
Singla v Hedman. [2010). EWHC 902 (Ch); Rubin v Gunner . [2004] . EWHC 315 (Ch);
Roberts v Frohlich . [2011] . EWHC 257 (Ch); Re Purpoint Ltd [1991] B.C.C. 121; Re Produce
Marketing Consortium . [1989]. 5 BCC 569; Ofﬁcial Receiver v Doshi [2001] . [2001] . 235 (2
BCLC ). Re Kudos Business Solutions Ltd . [2011] . 1436 (EWHC ); Re Idessa Ltd . [2011].
804 (Ch) (EWHC ); Re DKG Contractors Ltd [1990] BCC 903; Re Brian D Pierson
(Contractors) Ltd [1999] BCC 26, 52.

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Abolition
Pursuant to recommendations made by the Jackson Committee,43 the
government has abolished the ability to recover ATE premiums44 and the CFA uplifts
from defenders.45 Insolvency proceedings have received a temporary relief to cope
with the transition46 until April 2016.
When government finally removes the relief there will be an immediate
reduction in funds available to the unsecured creditors. Anecdotal evidence derived
from several case studies in Walton’s report, indicated that precluding the
recoverability of the CFA uplift may lead to the situation were “actions would not
have been taken as counsel would not have agreed to take on the case.”47
LEGISLATIVE RESPONSE TO AID TRANSITION AWAY FROM CFA UPLIFT &
ATE RECOVERABILITY
It is argued that the primary motive of recent legislative changes in England
and Scotland has been to fill the funding gap. The following section will examine
sections 256ZD and 176ZA (distinct to England) of the Insolvency Act 1986 in their
ability to achieve this aim.
Reversal of Oasis Merchandising Limited
Section 118 of the Small Business, Enterprise and Employment Act 2015
inserted section 256ZD into the Insolvency Act 1986, conferring upon ‘office holders’,
administrators and liquidators48, the power to assign wrongful trading actions or the
43 Review of Civil Litigation Costs: Final Report TSO (December 2009)
44 Legal Aid, Sentencing and Punishment of Offenders Act 2012.section 46
45 Legal Aid, Sentencing and Punishment of Offenders Act 2012. Section 44
46 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 5 and Saving
Provision) Order 2013, SI 2013/77 (the 2013 Order)
Empirical Investigation.” R3, April at [34].
48 Section 256ZD(1), Insolvency Act 1986

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proceeds pursuant to that action.49 The aim is to increase the pool of assets
available to unsecured creditors through assignation when there are no available
funds for litigation. This gives effect to the original proposal within the Cork Report.50
Assignation of wrongful trading action
Under previous legislation, it was only possible for a liquidator to bring a
section 214 action. It was argued that this was a primary reason for the actions
“insufficiency of enforcement”.51 Section 256ZD, by allowing wrongful trading actions
to be assigned, seeks to remedy this problem.
However, there is a ‘fundamental difference between company causes of
action and office holder actions’.52 The office holder’s powers of investigation, to
acquire evidence, and thus the ability to make the decision of whether to pursue a
claim, is conferred via legislation.53 ‘There can be no suggestion of the office holder’s
powers being delegated to the assignee’54 The restriction on not conferring the office
holders powers of investigation to potential assignees is a public policy imperative,
as ‘office holders are given the necessary powers because they can be relied on to
pursue an investigation in the correct manner.’ The confidential and sensitive
information that the office holder deals with could be used improperly by assignees,
who may potentially be competitors. Access of information by such persons would be
detrimental to the long term success of a company that is in administration,
contradicting the very purpose of the administration process.55 In Hansard the Rt.
Hon. Toby Perkins stated:
49
Section 256ZD(2)(b), Insolvency Act 1986
50 50
Chairman, Sir Kenneth Cork. 1982. “Insolvency Law and Practice: Report of the Review Committee Cmnd
8558 at para [1086]
51
Prentice, D. 1998. “Corporate Personality, Limited Liability and the Protection of Creditors.” Corporate
Personality in the 20th Century. Edited by R. Grantham and Rickett C. Oxford: Hart.
52
Committee Debate. 2015. “Small Business, Enterprise and Employment Bill [2014-15] [13th Sitting, HC].” 4
November. at [9.30 am]
53
Section 235 Insolvency Act 1986
54
Committee Debate. 2015. “Small Business, Enterprise and Employment Bill [2014-15] [13th Sitting, HC].” 4
November. at [9.30 am]
55
Section 8(3)(a), Insolvency Act 1986

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“An insolvency office holder has extensive powers of investigation as well as
control of all the company’s records, including confidential and sensitive
material… When the office holder obtains information under their powers of
investigation, they are imbued with a duty of confidence to use that
information only in the interests of the administration or liquidation.”
It is difficult to see how a prospective assignee could dispose of the evidential
burden and require the necessary information to bring the section 214 claim, without
the office holder’s powers of investigation. It is concluded that the assignation of
actions, outright, will have little uptake, and thus not prove very effective in filling the
funding gap.
Assignation of the fruits of the litigation
This legislation provides the statutory authority that was missing in Oasis
Merchandising Ltd. The action is brought by the office holder were s/he may exercise
the statutory powers of investigation conferred by the court. Therefore it does not
suffer from problems of disposing the evidential burden. Consequently there could
be real merit in its application when there are insufficient assets available to the IP to
bring a claim. Assigning the fruits of the litigation will allow extra funds to flow to
unsecured creditors, increasing their dividends.
It is believed however that third party funders take on a very small proportion
of cases put before them, “cherry picking” actions with high value, often in excess of
£3 million.56 It is not likely that the assets available to directors will approach these
sorts of figures, raising questions of whether there may be any market interest in
wrongful trading claims. It is agreed with Williams that “any market that will develop
in wrongful trading claims is therefore likely to concentrate on high-value claims,”57
Empirical Investigation.” R3, April. At [40]
57 Williams, R. (2015), “What Can We Expect to Gain from Reforming the Insolvent Trading Remedy?”
The Modern Law Review, 78: 55–84. doi: 10.1111/1468-2230.12106 at [68]

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and as consequence assigning the fruits of an action may not prove to be an
effective remedy for protecting the interests of unsecured creditors in wrongful
trading disputes.
EXPENSES OF THE LIQUIDATION CLAIMS OVER ASSETS SUBJECT TO A
FLOATING CHARGE
England
In England, prior to the case of Buchler v Talbot,58 when a company was both
in administrative receivership and liquidation, a liquidator could recoup expenses
from the liquidation from assets subject to a floating charge.59
In Re Barleycorn Enterprises Ltd 60 the court employed the principle of
transitivity. The statute stated, at the time, that ‘preferential debts rank equally
among themselves after the expenses of the winding up’61 and preferential claims
(where assets of the company available for payment of general creditors are
insufficient to meet them) rank ahead of floating charge holder claims. Hence
expenses of the liquidation rank ahead of floating charge claims.
The House of Lords in Buchler v Talbot stipulated that it would not find a
priority for expenses of the liquidation over property comprised in a floating charge
by implication, simply because expenses of the liquidation enjoy priority over
preferential creditor claims.62 Barleycorn was overruled. Lord Millet stated that:
"The fact that liquidation expenses enjoy priority over the claims of preferential
creditors in a winding up is not of itself a reason for according to liquidation
expenses the like priority in respect of charged assets.”63
58 Buchler v Talbot. [2004] . UKHL 9
59 Re Barleycorn Enterprises Ltd [1970] Ch. 465]
60 [1970] Ch. 465
61 Section 175(2)(a), Insolvency Act 1986
62 Buchler v Talbot. [2004] . UKHL 9 at para [16]
63 Ibid [16]

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On crystallising the floating charge becomes a fixed security, and the assets
subject to it are no longer assets of the company. The Company’s former assets are
then comprised within two separate funds, namely the ‘company fund’ and the
‘debenture holder fund’.64The ‘debenture holder’s fund’ contains assets which are
subject to the floating charge, of which the debenture holder has a proprietary
interest.65 The company, as against this fund, only has an ‘equity of redemption’
right, which is a ‘right to retransfer of the assets when the debt secured by the
floating charge has been paid off.’66 The retransfer of property, if any remain, will
flow into the second fund, ‘the company fund’, which is not subject to a floating
charge, and contains assets held on trust for the unsecured creditors.67 Therefore
the statutory construction of section 175(2)(a), in stating that preferential debts are to
be paid ‘out of the assets’ after the expenses of the winding up, can only refer to
‘non-charged assets’, or ‘assets available to the general body of creditors’. Section
175(2)(b) states that if the assets of the company or assets within the company’s
funds are insufficient to extinguish the preferential debts, then they may be recouped
from assets subject to a floating charge, comprised within the debenture holders
fund. Barleycorn erred on the point that it assumed only one fund, the company’s
fund. The court concluded by stating, subject to exceptions68 that:
“Each fund bears its own costs. The expenses of the administrative
receivership are borne by the debenture holder's fund. The expenses of
winding up are borne by the company's fund. The debenture holder has no
interest in the winding up69 and the unsecured creditors have no interest in the
administrative receivership. So there is no reason why either group should
contribute to the expenses of the other” 70
64 Ibid at [30]
65 Ibid at [29]
66 Ibid at [29]
67 Re Yagerphone Ltd . 1935. Ch. 392
68 Re Regent's Canal Ironworks Co; Ex p Grissell . [1875]. 3 Ch D 411
69 (Emphasis) This point will be returned to.
70 Buchler v Talbot. [2004] . UKHL 9 at [31]

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Scotland
Where a receiver and liquidator are appointed in tandem, it has always
been the accepted practice in Scotland that a debenture holder would receive priority
over expenses of the liquidation. Section 60(2) provides that ‘any balance of moneys
remaining’ after the receiver has satisfied the debenture holders debts will be
‘transferred to the company or its liquidator.’ The decision in Buchler v Talbot, which
brought English law in line with Scottish, is likely to be persuasive in Scotland.
Reversal of Buchler v Talbot In England
Section 1282 (1) of the Companies Act 2006 reversed the decision in Buchler
in England by inserting section 176ZA, which states that:
“The expenses of winding up… so far as the assets of the company available
for payment of general creditors are insufficient… have priority over any
claims to property comprised in or subject to any floating charge…”
The legislature was conscious that ‘expenses of the liquidation’ in r. 4.218, as
amended,71 included litigation expenses,72 encompassing wrongful trading actions. It
sought to create exceptions with respect to what expenses of the liquidation may be
recouped from charged assets. Section 176ZA(3) restricts the application of
subsection 176ZA(1), in prescribed circumstances, to expenses ‘approved’ or
‘authorised’ by holders of “floating charges or preferential creditors”73. Litigation costs
are prescribed expenses requiring authorisation. This may occur only if the liquidator
is of the opinion that ‘assets of the company available for payment of general
creditors are or will be insufficient to pay ‘litigation expenses.’74 Litigation expenses
are ‘incurred in the preparation or conduct of any legal proceedings’75 ‘legal
proceedings’ includes an action for wrongful trading.’76 The rules only apply to
71 Insolvency (Amendment) (No. 2) Rules 2002/2712 Sch.1(2) para.23(a)
72 R. 4.218(3)(a)(ii), Insolvency Rules Act 1986
73 R. 4.218(1)(b)(i) & (ii), Insolvency Rules Act 1986
74 R. 4.218B(c)(i), Insolvency Rules Act 1986
75 R. 4.218A(1)(d), Insolvency Rules Act 1986
76 R. 4.218A(C)(i), Insolvency Rules Act 1986

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‘specified creditors’ which r. 4.218B (2)(b) defined as a creditor with a claim to
property comprised in or subject to a floating charge77 who
‘appears to the liquidator to be the creditor most immediately likely of any
persons having such claims to receive some payment in respect of his claim
but whose claim would not be paid in full.’
Prima facie the legislature has recognised that the specified creditor, whose
claim would not be paid in full, may have an interest in the liquidation in his/her
capacity as an unsecured creditor for the balance, contrary to the assertion in
Buchler v Talbot, that ‘the debenture holder has no interest in the winding up’. The
aim of 176ZA(3) and r. 4.218A(2) is to facilitate dialogue between the specified
creditor and liquidator, at the beginning, or during a wrongful trading action. The
objective is to find a solution to the funding issue, utilising the specified creditor who
may have an interest in a potential action. If the section is effective in creating
dialogue, acting as a channel for providing charged funds to finance litigation, the
interests of the unsecured creditors may be protected further.
ISSUES WITH SECTION 176ZA : WHY WOULD A ‘SPECIFIED CREDITOR’ GIVE
AUTHORIZATION?
A fairly simple argument worth consideration is why would the ‘specified’
creditor give authorization? There is no guarantee the litigation will be successful. If
the specified creditor is risk averse surely s/he would refrain from throwing good
money after bad, and thus “be unwilling to fund the action as they have already lost
monies due to the insolvency of the company”78 If this is true then section 176ZA(3)
is of no use in protecting the interests of the unsecured creditors.
However, it is submitted that in the context of liquidation, the specified
creditor, according to prospect theory, should be risk loving not risk averse, and
77 R. 4.218B(2)(a), Insolvency Rules Act 1986
78 BIS. June 2014. “Small Business, Enterprise and Employment Bill: Enabling Liquidators Impact at
[4]

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therefore more inclined to give authorisation for use of his/her charged assets to be
used for the litigation.
Prospect Theory: Specified Creditors Should Be Risk Loving
Kahnman and Tversky79 created an experiment where participants were
asked to choose between two lotteries, A and B, in two separate scenarios. In the
first scenario, lottery A gave an 80% chance of winning $4,000 and a 20% chance of
winning nothing, and lottery B gave a 100% chance of receiving $3,000. 80% of
Participants chose B, even though A, the risky option, had a higher expected value,
$3,200.80 This is risk averse behaviour. In the second scenario, lottery A gave an
80% probability of losing $4,000, and a 20% probability of breaking even, whilst
lottery B gave a 100% probability of losing $3,000. 92% Participants took the risky
option, and chose A, even though the expected return for A was lower than B, at -
$3200.81 This is an indication of risk loving behaviour, and thus a strong signal that
people will resort to risk seeking behaviour so as to avoid losses.82
It is submitted that in the context of insolvency, the ‘specified creditor whose
claim, as already stated, would not be paid in full, is a creditor who is facing scenario
two, confronted with a certain loss. Prospect theory strongly indicates that the
specified creditor is likely to take risks though litigation to avoid a certain loss. .
Does The Specified Creditor Avoid Losses?
There is no guarantee that if the litigation is successful the creditor will avoid a
loss. It is paramount the legislation allows the specified creditor to do this. The fruits
of a wrongful trading action are to be distributed pari passu to the general creditors,
as the court is unable to prefer one creditor, or one class of creditor, with respect to
contributions made pursuant to a section 214 action83. This creates a perverse
79 Kahnmen, Daniel, and AMOS Tversky. 1979. “Prospect Theory: Analysis Of Decision Under Risk
Econometrica (pre-1986); Mar 1979; 47,2;ABI/INFORM Global pg. 263.” March. 263 Global
80 (4000)(0.8) + (0)(0.2) = $3,200
81 (-4000)(0.8) + (0)(0.2) = $-3,200
82 Breaking Even Is Comparable To Avoiding A Loss.
83 Re Purpoint Ltd [1991] B.C.C. 121; [1991] B.C.L.C. 491 at [129]; Re Western Welsh International
System Buildings Ltd (1985) 1 BCC 99,296

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situation whereby the specified creditor, assuming the lion share of risk in devoting
his charged assets for the litigation, only receives the benefits ranking pari passu
with other creditors. In addition to ranking as an unsecured creditor for the initial
balance, the specified creditor will have to rank as an unsecured for the additional
amount they have contributed towards the litigation. As Keay writes:
“There is little incentive for creditors to provide indemnities [or assets to the
office holder] when any fruits obtained from the action will be divided amongst
all creditors. If one creditor provides the funding then all of the other creditors
will be free-riding on the former’s risk and efforts.”84
It is submitted that because the proceeds of a wrongful trading action must be
divided so as to satisfy the debts of many, there is no guarantee that the specified
creditor will avoid a loss, which will not encourage risk seeking behaviour.
The law relating to wrongful trading in England and Scotland, by applying the
pari passu rule indiscriminately, without consideration of personal risks assumed by
creditors in enabling actions to be brought for the benefit of the entire body of
general creditors, is a major flaw by inhibiting risk seeking behaviour, which would
bolster the effectiveness of section 176ZA(3). It is a missed opportunity to protect the
interests of the unsecured creditor.
Lessons from Australia
‘There is no clear power to reward the indemnifying creditors for their
assistance by awarding them the major share of the amount recovered by the office
holder.’85 If the court were to have such a power, which would give a return that
better reflects the risks borne by a creditor, there may be an incentive to devote
charged assets for the wrongful trading litigation.
84 Keay, AR (2014) “Wrongful trading: problems and proposals.” Northern Ireland Legal Quarterly, 65
(1). 63 - 79 (17). ISSN 0029-3105 at [9]
85 O’Donovan, James. 2005. “Lender Liability.” Sweet & Maxwell.at [15]

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Section 564(a) of the Corporations Act 2001 in Australia confers a power
upon the court to make orders in favour of certain creditors: Section 564(a) provides
that:
Where in any winding up (a) property has been…protected or preserved by
the payment of money or the giving of indemnity by creditors… the court may
make such orders, as it deems just with respect to the distribution of that
property and the amount of those expenses so recovered with a view to giving
those creditors an advantage over others in consideration of the risk assumed
by them.
The legislation would act as an exception to the pari passu doctrine, by
‘authorising the court to confer a special advantage on creditors who, by incurring
financial risk, have enabled the assets of the company to be recovered.’
In Tolcher v National Autralia Bank86 the court stated that:
‘Implicit in section 564 is a concept of reward to those creditors who are seen
to have taken a financial risk a view to enhancing the fund available for
application by the liquidator for the benefit of all creditors’
In Waterman Collections Pty Ltd87 an unsecured creditor was able to gain a
better financial return by actively partaking in the liquidation process, by aiding the
liquidator in bringing a number of claims. The company had insufficient funds, of
approximately $1,000, for the liquidator to finance the litigation. The liquidator was
able to recover $716,455 with the financial assistance of the unsecured creditor ‘IAL’.
The court held that IAL should be afforded priority over all other unsecured creditors
with respect the monies provided for funding the litigation, and for the amount that it
was originally owed.
Adoption of section 564 would provide a stronger incentive to the risk
loving specified creditor who wishes to avoid a loss, and induce him/her to take an
active role in the liquidation. The current legislation fails to pander to the creditors
86 [2004] NSWSC 6
87 (in liq) [2013] FCA 706

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risk seeking preferences. It is argued that this will better address the funding issue,
and thus protect unsecured creditor interests, as more claims will be brought.
FIXING FUNDING & RISK ISSUE PRODUCES TANGIBLE BENEFITS EX ANTE
Wrongful trading claims should be brought in the interest of the unsecured
creditors, not dependent on considerations of risk and funding, but on whether a
director has engaged the legislation. It is only when the action is engaged
indiscriminately in this way, will legislation become a credible threat to directors.
Strengthening the compensatory limb of wrongful trading will have positive effects on
its deterrent capability. As Williams writes88:
“Although liability for wrongful trading is ex post in nature (ie compensation
can only be ordered in the insolvency proceedings after the wrongful trading
has taken place), the Cork Report saw the rules as bringing clear ex ante
benefits in encouraging greater care of the assets of financially troubled
companies”
There has been few cases brought under wrongful trading,89 which elides
from severe funding and risk considerations. The effect of so few cases would seem
to diminish wrongful trading’s potency as a credible threat. Without this credibility, ex
ante behaviour will not adjust so as to protect creditors.90 Creating a stronger
legislative framework around wrongful trading to mitigate these considerations ex
post, and increasing the ability of office holder to bring section 214 claims, should
have instant benefits ex ante, which is what Walton believes when he writes that
“The increased ability to bring such actions clearly has a deterrent effect on
preventing culpable behaviour.”91
88 Williams, R. (2015), What Can We Expect to Gain from Reforming the Insolvent Trading Remedy?.
89 See above n. 43
Investigation.” R3, April 2014 at [10]

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RECOMMENDATIONS TO PROTECT UNSECURED CREDITORS IN THE
INSOLVENCY
All In Vein?
There remains a fundamental problem of whether a director has sufficient
assets to pay any order made against him,92 ‘a successful action is worthless if the
defendant cannot pay.’93 Director solvency is a purely exogenous factor that can be
difficult to resolve with legislation. Various authors claim that for this reason the
scope of wrongful trading in creditor protection is inherently flawed.94 There would be
no merit in enabling more cases to be brought, when they have no prospect of
recovering anything for creditors.
Lenders are increasingly ‘basing their underwriting decisions on the
creditworthiness of business owners rather that of the business themselves.’95 About
50% of incorporated owner-managers gave personal guarantees over the debts of
the company.96 The reality of commercial financing has not recognised the
separateness of the owner and company.
Limited liability transfers risk to creditors, creating a moral hazard problem,
incentivising directors to take risky decisions as they are insulated from any losses
as consequence of limited liability. Wrongful trading was envisaged as a remedy
against directors who insulate themselves from the risks of insolvent trading through
limited liability.97 However, if a director’s solvency is tied to the solvency of the
company (by virtue of personal guarantees over debts), then he is not insulated.
There is no moral hazard problem, as he has an incentive to preserve the company’s
assets, so as to limit is own liability. His incentives are perfectly aligned with the
92 Chefﬁns, B. 1997. “Company Law: Theory, Structure and Operation .” Oxford: OUP, 545, [81]–[82]
Empirical Investigation.” R3, April. At [11]
Investigation.” R3, April 2014; Williams, R. (2015), What Can We Expect to Gain from Reforming the
Insolvent Trading Remedy?. The Modern Law Review, 78: 55–84. doi: 10.1111/1468-2230.12106
95 R. Avery, R. Bostic and K. Samolyuk, ‘The Role of Personal Wealth in Small Business Finance’
(1998) 22 Journal of Banking and Finance at [1019]
96 J. Freedman and M. Godwin, ‘incorporating the Micro business: Perceptions and Misperceptions’ in
A. Hughes and D. Story, Finance and the Small Firm (London: Routledge, 1994).*
97 Chairman, Sir Kenneth Cork. 1982.“Insolvency Law and Practice: Report of the Review Committee
Cmnd 8558” para [1741]

of 29
creditors. Wrongful trading was envisaged to tackle instances of misaligned
incentives leading to market failure, which does not occur in these instances.
Therefore a director’s solvency is not an impediment to protecting creditors
through wrongful trading. It is simply evidence of cases that the action was never
created to tackle. All that can be said is its scope of application is narrower, applying
to directors who do use the shield of limited liability. The glut in cases may therefore
have no bearing on the effectiveness of wrongful trading in protecting the unsecured
creditor, as it may be the case that as a result of underwriting practices, the cases
that wrongful trading was designed to tackle are rare.
Section 176ZA & 564
Section 176ZA has potential, but in its present form it is of little use for creditor
protection. It was envisaged to mitigate funding problems and increase the incidence
of wrongful trading cases, however, since its inception in 2008 there has only been
five substantive wrongful trading cases brought, with none in the period 2012-13,
confirming suspicions that its effect would be weak.98 Its flaw is its inability to appeal
to individual risk preferences allowing specified creditors avoid losses. Therefore it is
unlikely the specified creditor will devote his assets and mitigate the funding
problem.
There is value in creating dialogue between a cash strapped IP and cash rich
specified creditor, if the creditor can avoid a loss through creating an exception to the
pari passu doctrine. This may still facilitate net gains to the general body of creditors.
It is submitted that Scotland should adopt section 176ZA in tandem with section 564
of the Australian Corporations Act 2001.
98 Williams, R. (2015), What Can We Expect to Gain from Reforming the Insolvent Trading Remedy?

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Assignation
Only assignation of the proceeds of a litigation has merit under section
256ZD, and may plug the funding gap in cases with high value claims. It may be the
best way to finance high value, high cost litigation as solicitors offering CFA may not
wish to “deal with such risk taking and… generally reluctant or unable to take on
cases which require large amounts of work-in-progress if the outcome is
uncertain.”99However, there may be a problem that wrongful trading claims are not
high value enough to incentivise third party funding. This remains to be seen.
Therefore there is a lacuna in the law, at one end of the spectrum, a claim
may not be of high enough value to warrant interest from potential third party
funder’s buyers. At the other end the IP may be unable to gain access to charged
assets, by virtue of section 176ZA not being engaged because the debenture
holders debt is satisfied, or where the specified creditor has simply refused to give
approval.
ATE Insurance & CFA Uplift
In response, Scotland should replicate a system presently operated in
England by allowing recovery of ATE and CFA uplift success fees from the defender
only in insolvency cases. Therefore it is not believed that the recent legislative
changes will fill the funding gap. 100
It is speculated that approximately 90% of wrongful trading actions have been
taken through these arrangements. They are indispensable in alleviating the funding
Investigation.” R3, April 2014. [41]
Investigation.” R3, April 2014. [47]

of 29
concerns.101 Additionally not one reported wrongful trading case was found within the
Scottish jurisdiction, which may serve as an indicator of their importance.102
There may be problems in allowing ATE premiums recoverable in Scotland,
as there is some doubt whether they warrant adequate Caution. The court in
Monarch Energy Ltd v Powergen Retail Ltd103 found that ATE insurance was not
sufficient caution as the insurer can “legitimately and contractually avoid liability to
pay out for the defendant’s costs,”104because of a breach of contract by the insured.
This represented a “particularly significant risk” placing a “substantial limitation on
the extent to which an ATE policy can be used to provide security for expenses.”105
This could represent a fundamental problem for the cash strapped IP who will could
be precluded in bringing actions. Further legislative intervention may be needed.
Spillover Effects
Currently in England & Scotland, the only valuable weapon the IP has to fill
the funding gap is assignation, which is only likely be useful in high value claims. The
IP will have no bargaining power when assigning the fruits of a claim. If a reinforced
section 176ZA were to operate in tandem with an Australian styled section 564,
whilst being complemented by an insurance backed system, the IP will have many
more options, and thus his/her bargaining power will greatly increase, inevitably
leading to a higher price obtained from assigning the fruits of the litigation. The
interests of the unsecured creditors are better protected under such a regime.
101Small Business, Enterprise and Employment Bill: Enabling Liquidators Impact Assessment (BIS
14/931) 8, available
102 See above at n. 44
103 Monarch Energy Ltd v Powergen Retail Ltd 2006 S.L.T. 743
104 Michael Phillips Architects Ltd v Rilkin ([2010] EWHC 834)
105 Monarch Energy Ltd v Powergen Retail Ltd 2006 S.L.T. 743 at [28]

of 29
CONCLUSION
It is believed that a system employing a wide variety of options at the disposal
of the office holder, in enabling him/her to seek funding will make the threat of a
wrongful trading action truly credible. The surge in credibility, will thus lead to a
larger volume of successful settlements and litigations, whilst adjusting director
behaviour ex ante. The effect is to increase the assets available to the unsecured
creditors in insolvency ex post.
It is clear that the present system is not fit for purpose in protecting creditors
under wrongful trading, as “a signiﬁcant upswing in recovery from the new rules
seems unlikely.”106 Assignation will only be useful for high value claims, which
wrongful trading actions are unlikely to be. Section 176ZA has potential, however it
will fail to achieve its aims, as it does not entice creditors to devote charged assets
for the litigation. The law relating to wrongful trading, in allowing such actions to be
financed, is weak. The battle for protecting the unsecured creditor in the insolvency
is not being waged in the court rooms. On the contrary, the issue is first getting them
there.
106 Williams, R. (2015), What Can We Expect to Gain from Reforming the Insolvent Trading Remedy?.

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Bibliography
Books
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Creditors.” Corporate Personality in the 20th Century. Edited by R. Grantham
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liquidation) (in the matter of costs). [2015]. EWHC 2289 (Ch)_2
Guy v Churchill . [1888]. 40 Ch.D
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Monarch Energy Ltd v Powergen Retail Ltd. [2006]. S.L.T. 743
Mond v Hammond Suddards . [2000] . Ch. 40
O’Donovan, James. 2005. “Lender Liability.” Sweet & Maxwell.
Ofﬁcial Receiver v Doshi [2001] . [2001] . 235 (2 BCLC ).
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Re Bangla Television Ltd . [2009]. 1632 (Ch) (EWHC 1632 (Ch)).
Re Barleycorn Enterprises Ltd . [1970]. Ch. 465
Re Barleycorn Enterprises Ltd . [1970]. Ch. 465
Re Brian D Pierson(Contractors)Ltd . [1999]. (BCC 26).
Re Continental Assurance Company of London plc . [2007] . 2 BCLC 287
Re Hawkes Hill Publishing Co Ltd. [2007]. BCC 937
Re Hydrodan (Corby) Ltd . [1994]. BCC 161, 162.
Re Idessa Ltd . [2011]. 804 (Ch) (EWHC ).
Re Kudos Business Solutions Ltd . [2011] . 1436 (EWHC ).
Re London Metallurgical Co . [1895]. 1 Ch 758
Re MC Bacon Ltd (No.2). [1991]. Ch. 127
Re Produce Marketing Consortium . [1989]. 5 BCC 569
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of 29
Re Regent's Canal Ironworks Co; Ex p Grissell . [1875]. 3 Ch D 411
Re Sherborne Associates Ltd . [1995]. BCC 40
Re Western Welsh International System Buildings Ltd . [1985]. 1 BCC 99, 296
Re Wilson Lovatt & Sons Ltd . [1977]. 1 All ER 274
Re Yagerphone Ltd . 1935. Ch. 392
Roberts v Frohlich . [2011] . EWHC 257 (Ch)
Rubin v Gunner . [2004] . EWHC 315 (Ch)
Singla v Hedman. [2010). EWHC 902 (Ch)
Tolcher v National Autralia Bank. [2004] . (NSWSC 6).
Waterman Collections Pty Ltd (in liq). [2013]. (FCA 706).
Legislation
United Kingdom
Access to Justice Act 1999
Insolvency (Amendment) (No. 2) Rules 2002/2712
Insolvency Rules Act 1986
Legal Aid, Sentencing and Punishment of Offenders Act 2012
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No 5
and Saving Provision) Order 2013, SI 2013/77 (the 2013 Order)
Small Business, Enterprise and Employment Act 2015
Australia
Corporations Act 2001

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