Are creditors and their lawyers using Winding-Up Petitions for debt collection?

using courts for debt collectionI have written previously about short term thinking by businesses and the effect it has been having on their ability to plan ahead for the medium and longer term.

It has been affecting businesses’ ability to invest in capacity, efficiency and R & D as planning for growth. Instead, most SMEs seem to be focused on cash flow and immediate profits, in that order.

In the current uncertain economic climate short term thinking may seem to be a rational response by creditors seeking payment.

However, there is another, perhaps more worrying trend that I am seeing among creditors, many of them suppliers to SMEs. Larger companies owed money and their solicitor advisers are often pursuing debts by early use of a winding-up petition instead of speaking with their SME clients and if necessary helping them. Unlike most reporting which is about large companies delaying payments to SMEs, I am focusing on large companies’ aggressive debt collection from SMEs.

Sometimes it is necessary for creditors to help their clients who are in difficulty such as allowing time to pay or helping them put a restructuring plan in place.

There is rarely a day when the demise of another business is not reported in the media. At the moment, these are consumer-oriented businesses, such as Toys R Us, Maplin, Carpetright, UK Claire’s Accessories and East, not to mention the many struggling restaurant chains.

Again, arguably, uncertainty about the future could be a motivating factor in using insolvency procedures where creditors are owed substantial sums but all too often one creditor uses legal action as leverage, a ransom even, to get to the head of the queue for being paid.

The lack of trust and consequences of such action have a negative impact on both businesses concerned and the wider economy.

How effective is formal insolvency for debt recovery?

Aggressive debt collection by creditors to wind up clients is very short-sighted because if a Winding Up Petition (WUP) is granted they are even less likely to get their money.

Firstly, the WUP process is in itself costly, including the fees charged by the Insolvency Service and the Practitioner as Liquidator are paid ahead of any distribution to creditors. The IP is most likely to look for the quickest option when realising assets despite any obligation to recover as much as possible. This will normally be based on selling the company’s tangible assets, but the question is how much these will fetch and whether it will be enough to cover its liabilities.

Since the debts to secured creditors such as banks, and to preferential creditors such as employees, take precedence will there be anything left to repay unsecured creditors, such as suppliers?

If the supplier creditors’ primary motivation is to recover their money as quickly as possible, they should also remember that the insolvency process can be lengthy, given that a business can petition to delay the WUP to allow for time to set up a restructuring plan such as a CVA.

Surely, therefore, rather than using the courts as a tool for debt recovery it would be preferable for creditors to have the patience to allow a business the chance to be saved with the help of an experienced restructuring adviser where provision is made for debts to be paid in a manageable way over time. That way, while it would be wise for them not to extend further credit to the company in difficulty, they will keep them as a client with the prospect of getting their money back over time.

The key is to not let the debt grow, to have patience and to think for the medium and longer term.

After all, If the restructuring is successful, the creditor will end up with a potentially growing and successful client company from which their own business will ultimately benefit.

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