Wrongful Trading was introduced by The Insolvency Act of 1986 to build on the notion of fraudulent trading. It’s a much more common offence, as it’s not considered a criminal act and is often done unwittingly.
Wrongful trading, or ‘trading irresponsibly’, is a civil offence and is covered by section 214 of the Insolvency Act 1986. It occurs when company directors have continued to trade when:
- “They knew, or ought to have concluded that there was no reasonable prospect of avoiding insolvent liquidation”
or
- They did not take “every step with a view to minimising the potential loss to the company’s creditors.”
Directors must be found to have acted reasonably and responsibly in the time preceding the company’s insolvency, to avoid wrongful trading proceedings. They must always put creditors’ interests first and not work for their own benefit.
If directors are found guilty of wrongful trading, they can be held personally liable for the company’s debts, from the point they knew the company was insolvent. In some extreme cases, they can also be disqualified from being a director, fined or even imprisoned.
What constitutes wrongful trading?
The liquidator determines if wrongful trading has occurred, which is during their assessment of the director’s conduct. There is a six-year limitation period. Examples of wrongful trading that the liquidator will look for include:
- Not filing annual returns at Companies House
- Failing to file annual or audited accounts at Companies House
- Not operating the PAYE scheme correctly, failing to pay PAYE and NIC when due and building up arrears
- Failing to operate the VAT scheme correctly and building up arrears
- Taking excessive salaries that the company cannot afford
- Repaying a director loan made to the company while other creditors were not paid
- Trading while insolvent
- Taking credit from suppliers when there was ‘no reasonable prospect’ of paying the creditor on time
- Wilfully increasing debt
- Taking deposits from customers when you know the product or service will not be delivered.
A company will be at risk of being accused of wrongful trading if it has engaged in any of the above. It must always act in the creditors’ best interest to avoid this. This means prioritising their payments over personal payments and bank guarantees.
It’s important to note that wrongful trading can only apply in terminal insolvency, which means it can only apply when the business is no longer viable. It will only begin after formal insolvency proceedings, such as liquidation or administration.
How Beeston Shenton Can Help
We have a wealth of knowledge and expertise in debt recovery steps to aid your business. We provide a considered approach to speed up debt recovery collections whilst minimising customer conflict and reducing the risk to your business.
Our service is tailored to match the individual needs of your business and we pride ourselves in offering bespoke, cost-effective solutions to your debt recovery needs – from simply chasing late payers to legal proceedings including all county court and insolvency processes.
We are dedicated to helping our clients improve cash flow and increase the profitability of their businesses and we use the latest in Debt Recovery software enabling us to process both prelegal and legal collections promptly and efficiently.
Wrongful Trading Advice from Beeston Shenton
If you need any advice or further information regarding this article, please contact us. As discussed above we offer a free initial consultation and if clients have a viable claim, we offer a variety of retainer options. Every case or potential case will be assessed, on its own merits.
If you have found this article interesting and would like to learn more about how Beeston Shenton can help you, please contact the writer, Iain Bould, at iain.bould@beestonshenton.co.uk or via the contact page on the website.
