Safe Harbour protection measures from insolvency finished on 31 December 2020 – so what are your options now?

Current as of 28th January 2021

 

Safe Harbour protection measures from insolvency finished on 31 December 2020 – so what are your options now?

The Covid-19 pandemic has seen an unprecedented amount of legislation rushed through parliament to help stimulate, support and protect businesses.

One piece of that legislation provided temporary protection for directors by relieving them of liability for insolvent trading during the “Covid- 19 Safe Harbour” period (25 March 2020 to 31 December 2020).

It is important now that this temporary protection has lapsed and that you look at your business to confirm the plan going forward. While no one wants to be negative about their business’s prospects, it is prudent to protect your position as directors should trading not be going as hoped.

The important things to be aware of from the original legislation were:

  • To qualify for the Covid Safe Harbour protection, the debts must have been incurred:
  • In the ordinary course of the company’s business.
  • During the relief period from 25 March 2020 to 31 December 2020.
  • Before any appointment (during this period) of an administrator or liquidator. The words “during this period” were causing some interpretation issues about the timing of the required appointment of the administrator or liquidator, but as we are now past 31 December 2020 this interpretation is now irrelevant.

Now the Safe Harbour period is finished directors should act now and determine whether:

  • There are reasonable expectations that their company can continue to trade in the ordinary course of business and meet its debts as and when they fall due, or…
  • Determine whether one of the other more limited forms of Safe Harbour protection available after 1 January 2021 are required. These include:
  • Commence the development of a plan for traditional Safe Harbour protection. This only protects a director in a subsequent insolvency from the date that the plan is implemented, not from any debts incurred before that time.
  • Appoint an administrator or liquidator now to avoid potential personal liability for company debts incurred during the Covid-19 Safe Harbour protection period.

Directors should review the financial position of the company and consider what the best way forward is. Directors should be closely reviewing:

  • Future viability
  • Cash needs
  • A post Covid-19 business recovery plan
  • Financiers, creditors, landlords and other stakeholders support
  • The “right size” for the business
  • Ongoing Government stimulus and support

Whilst the Covid-19 Safe Harbour period expired on 31 December 2020 the Small Business Insolvency Reform commenced on 1 January 2021.  We will discuss these measures in our next newsletter.

If you are in any doubt about the viability and solvency of your company, you should contact us as soon as possible to discuss. With the end of the Covid-19 Safe Harbour period and the start of the Small Business Insolvency Reform – there are options available to limit your personal exposure if you act in a timely fashion.

 

 

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