Oury Clark Blog

• Elliot Green

• Position: Insolvency Partner OCA
• Phone: +44 (0) 1753 551111
• Fax: +44 (0) 1753 550544
• Email: Elliot.Green@ouryclark.com
• More information about
  Elliot Green at ouryclark.com

It never ceases to amaze me the number of professional qualified accountants who believe that the files that they create are their own property.

A company accountant is usually employed under a contract for services to enable the directors to comply with their statutory duties, to maintain proper books and records (Section 386 of the Companies Act 2006 – formerly Section 221 of the Companies Act 1985), prepare financial statements, for tax advice and compliance purposes such as for Part III if Schedule 18 of the Finance Act 1998. It may also be the case that a company accountant is also contracted as agent to be the company’s registered office and therefore receive all Companies House documentation and service of any legal documents upon the company.

The [...]

• Elliot Green

• Position: Insolvency Partner OCA
• Phone: +44 (0) 1753 551111
• Fax: +44 (0) 1753 550544
• Email: Elliot.Green@ouryclark.com
• More information about
  Elliot Green at ouryclark.com

This case highlights that the IVA Protocol which applies to the vast majority of consumer orientated IVAs, is a voluntary code of best practice without legal enforceability over creditors.

The IVA Protocol has been widely taken up and endorsed by many organisations, including the British Bankers Association, whose members are usually representative of the largest block of creditors in many consumer IVAs.

In this case the Court declined to exercise its discretion to grant declaratory relief in the terms sought; that MBNA had to give a good reason as to the basis of its rejection of the debtor’s proposed IVA. The Court submitted that creditors who are inclined to be bound by the IVA Protocol might need more guidance from the Protocol itself on what was a [...]

• Elliot Green

• Position: Insolvency Partner OCA
• Phone: +44 (0) 1753 551111
• Fax: +44 (0) 1753 550544
• Email: Elliot.Green@ouryclark.com
• More information about
  Elliot Green at ouryclark.com

Well possession could indeed be said often to be 9/10s of the law because recovery from the possessor is no easy business, notwithstanding any legal remedies that are available, including those in statute such as the Torts (Interference with Goods) Act 1977 and common law.

For example only, professionally I frequently seek files as Liquidator from both solicitors and accountants who have historically been retained by the insolvent company, to assist my investigations into a company’s demise. Such fellow professionals have usually entered into contracts for services with the company and the files in relation to the same (in which they will often have acted as an agent) will usually contain documents to which a liquidator is legally entitled. However, it is not uncommon to meet [...]

• Elliot Green

• Position: Insolvency Partner OCA
• Phone: +44 (0) 1753 551111
• Fax: +44 (0) 1753 550544
• Email: Elliot.Green@ouryclark.com
• More information about
  Elliot Green at ouryclark.com

The new insolvency rules seem to make a few changes to the Insolvency Rules 1986 but I wonder if they really provide value or even will afford creditors the alleged c.£48million in costs savings. I rather think not.

For those practitioners for example who specialise in court work (compulsory liquidations and bankruptcies), costs will rise with having to do annual progress reports which previously were not a requirement.

For example further, Rule 12A.12 is a rule which essentially is unlikely I think to be taken up by many smaller firms in its current construction. This is a pity as a practical construction of such a rule would be hugely beneficial to creditors and save costs.

For those of us who predominantly do court work and wanted to utilise [...]

• Elliot Green

• Position: Insolvency Partner OCA
• Phone: +44 (0) 1753 551111
• Fax: +44 (0) 1753 550544
• Email: Elliot.Green@ouryclark.com
• More information about
  Elliot Green at ouryclark.com

It is a widespread belief, that if you are not listed and registered as a Director at Companies House, that you are not a Director of a UK company.

This is simply wrong. In UK law there are essentially three types of director:

1. Registered Director

2. Shadow Director

3. De facto Director

In the Companies Acts “shadow director”, in relation to a company, means a person in accordance with whose directions or instructions the directors of the company are accustomed to act.

A de facto director is someone who holds themselves out as a director without being registered and who undertakes duties that should be undertaken by a person who is a director.

With any type of director, the question often is [...]

• Elliot Green

• Position: Insolvency Partner OCA
• Phone: +44 (0) 1753 551111
• Fax: +44 (0) 1753 550544
• Email: Elliot.Green@ouryclark.com
• More information about
  Elliot Green at ouryclark.com

Well dependent upon the business within which you are engaged it may be the case as certain industries appear to encounter bad debts more than others. However the extent to which bad debts are a fact of your life will depend upon your attitude to extending credit to your customers.

For many of us we suffer bad debts without much thought until the debt really hurts or when we suspect misconduct by the party who has caused our loss.

However, it does seem that many of us trade with people at some point who appear incapable of distinguishing us from a bank. This is of course notwithstanding that very few of us have a banking licence. So why do some of our customers or clients treat us [...]