Fiduciary duties owed by trustees: An introduction

Many trustees appointed under wills by the testator are lay trustees, not fully appreciating what the role involves. Here, Leanne Millhouse and Audrey Serrano of law firm Kennedys provide an introduction to the fiduciary duties of a trustee.

What is a fiduciary duty?

The relationship between trustees and beneficiaries is known as a fiduciary relationship, and has at its core an obligation of loyalty, trust and confidence, with no conflict and no profit rules on the part of the trustee. There is also a general duty of good faith (to act openly and honestly).

The beneficiary is entitled to the trustee’s single-minded loyalty. The overarching theme is that trustees are not permitted to use their positions for their own private advantage and are required to act unselfishly in what they perceive to be the best interests of the beneficiaries.

The obligation to exercise reasonable care and skill, whether under the common law or statute, is not a fiduciary duty, but a separate and additional duty for the trustees.

The fiduciary duty continues for as long as the relationship continues. So, as long as the trustee remains a trustee, they owe the duties.

How does one comply with the fiduciary duties?

Trustees must ensure they abide with the following basic rules:

  • Only act in the interests of the beneficiaries as a whole.
  • To not put themselves in a position where their personal interest conflicts, or where there is a real possibility of conflict, with their fiduciary duties, or the beneficiaries interests.
  • To not adversely affect the beneficiaries’ interests.
  • To subordinate any personal interests they have to that of the beneficiaries.
  • To not favour one beneficiary (or class of beneficiaries) over another.
  • To not, without authority, make a profit from the use (whether directly or indirectly) of property subject to the trust. If they do, they must account for that profit to the trust. The beneficiary does not have to show any bad faith on the part of the trustee.
  • To not make a profit from their role (as distinct from authorised remuneration under the trust document or as agreed with the beneficiaries).

Can trustees be paid for their role?

If trustees are seeking remuneration for their work, they must ensure that this falls within the remit of the trust instrument, or is agreed by the beneficiaries.

How can I exclude or limit my fiduciary duty?

The following are commonly used to in an attempt to mitigate exposure to personal liability for breach of duty:

  • The use of exclusion clauses and duty-defining provisions: a well drafted clause should set out the scope and content of the fiduciary duty, and may seek to limit or exclude this duty. The court may uphold such a clause if it is clear, unambiguous and reasonable, but each case is very much determined on its own facts
  • Disclosure and consent: the beneficiaries may, up to a point, agree to relax, or forego, the requirement to fulfil fiduciary duties. If a beneficiary is to do this, their consent must be fully informed. The burden of proof is on the trustee
  • The court can approve a transaction that would otherwise have been a breach of fiduciary duty.

We also recommend that trustees enquire about appropriate insurance cover in the event of any claim. A specialist broker will be able to assist you.

What happens if one is in breach of their fiduciary duties?

Trustees can leave themselves open to the following actions:

  • A claim for damages.
  • Order to account for any profits the trustee has made.
  • Rescission – The decision made by the trustee may be overturned and set aside.
  • Injunction to either prevent the trustee from taking a course of action, or requiring the trustee to take a course of action.
  • Removal as a trustee.

A complex area of law

Fiduciary duties are a complex area of law, with several leading cases setting out the scope of the duties. However, each case is very much determined on its own facts.

We recommend that a trustee always seeks legal advice on any issues they are not familiar with, or where there is discord between the beneficiaries as a whole or a class of beneficiaries.

First published on the Kennedys website.

Advice and support from ESA Risk

For advice and support in areas from risk management and security to corporate investigations and digital forensics, contact us at advice@esarisk.com, on +44 (0)343 515 8686 or via our contact form.

Economic Crime Plan 2 announced by UK government

The Economic Crime Plan 2 promises the addition of “475 new highly trained financial crime investigators” with the aim of recovering “an additional £1 billion in criminal assets over the next ten years.”

The three-year plan is linked to the Economic Crime and Corporate Transparency Bill currently making its way through parliament and looks to “maximise the new powers” included in that Bill.

New levy funding

The government is making an investment of £400 million to deliver the plan, with half of the funds raised from the private sector through the Economic Crime (Anti-Money Laundering) Levy. The levy applies to anti-money laundering (AML) regulated business – such as financial institutions, estate agents and crypto exchanges – from July 2023, with the amount paid determined by an organisation’s UK revenue.

Treasury Lords Minister Baroness Penn said: “Economic crime harms our economy and destroys lives. More funding from government and the new contribution from industry through the new levy will allow us to deliver a step change in our response.”

£100 million of the investment has been earmarked for “cutting edge technology, including data analytics” for law enforcement.

A “system-wide response”

The plan aims to produce a “system-wide response to economic crime”, bringing together law enforcement, government, supervisory agencies and the private sector. Home Secretary Suella Braverman said: “Backed by our partnership with the private sector, we have the resources and expertise we need to identify criminal networks and confiscate the proceeds of their illicit activities.”

Response to criminals’ use of crypto

The Economic Crime Plan 2 recognises that criminals are utilising “new ways to launder their profits” and, as such, the plan includes the creation of “a new multi-agency crypto cell” aimed at the identification, seizure and storage of illicit cryptoassets.

This follows the government’s announcement last month on its plans to regulate cryptoasset activities.

The role of accountants

Responding to the role to be played by the private sector, which the government has described as “critical”, Michael Izza, Chief Executive of ICAEW, said: “A key success of the first Economic Crime Plan was developing the partnership between accountancy and the public sector to crack down on money-laundering.

“Tackling economic crime and driving dirty money out of the UK’s financial systems will be best achieved by government working closely with professional body supervisors, and we look forward to collaborating on the actions outlined in the second Economic Crime Plan.”

Similarly, accountants have been asked by the government to play a greater role in tackling fraud (through the Joint Fraud Taskforce).

Criticism of the new economic crime plan

However, the plan has drawn some criticism from the government’s political opponents (as may be expected) with Labour MP Dame Margaret Hodge claiming that “no additional funding has been allocated to the fight against dirty money.”

The full plan with supporting data is available to download from the government website.

Advice and support from ESA Risk

For advice and support on economic crime issues, please contact us at advice@esarisk.com, on +44 (0)343 515 8686 or via our contact form.

Bounce Back Loans: March 2023 news roundup

After February’s relative lull in Bounce Back Loan-related announcements, March saw a return to form with five stories shared by the Insolvency Service.

As in previous months, we’ve put together a summary of those announcements:

Company dissolutions after obtaining loans

March 2023’s roundup starts with two directors who dissolved their companies soon after acquiring Bounce Back Loans, without notifying their creditors.

Simon Gorgin, from Kings Langley in Hertfordshire, obtained a £45,000 Bounce Back Loan in May 2021 through his company P3 Estates Ltd. He had applied to dissolve the company a month earlier, in April 2021. Gorgin did not inform the Bounce Back lender that he had applied to dissolve P3 Estates.

Despite the company having been incorporated in April 2010, investigators revealed that P3 Estates had never traded and was therefore not entitled to support through the Bounce Back Loan Scheme (BBLS).

Gorgin fabricated a 2019 turnover of £180,000 in order to acquire the loan. Furthermore, he transferred the full amount of the loan from P3 Estate’s business bank account to his personal bank account three days after receiving the funds.

Gorgin has received a twelve-year director disqualification.

Rukia Begum ran a takeaway in Oldham from September 2018. She obtained a £35,000 loan through the BBLS for her company New Polash Oldham Ltd in May 2020.

In July 2020, only two months later, Begum applied to dissolve the company and failed to tell her creditors about the application.

In addition, Begum had continued to trade in the three months before applying for the company’s dissolution – also an offence under the Companies Act 2006.

And, Insolvency Service investigators found that New Polash’s turnover had been inflated by Begum in her BBLS application. The director stated that the company’s turnover was £154,000 when it was, in fact, less than £44,000. As a result, Begum had been able to obtain a loan at more than three times the value New Polash was entitled to within the scheme.

Begum has been banned from holding directorships for ten years.

Peter Smith, Deputy Head of Dissolved Company Investigations at the Insolvency Service, said about the cases:

“Bounce Back Loans were designed to help businesses to survive the pandemic. Rukia Begum and Simon Gorgin abused the scheme and took taxpayers’ money at a time when many businesses were in genuine need.”

The money is yet to be recovered from either director.

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Abuse of multiple Covid support schemes

James Ireri successfully applied for the maximum £50,000 allowed under the Bounce Back Loan Scheme (BBLS) through his Surrey-based recruitment business Safi Care Ltd in May 2020.

A lack of company account keeping by Ireri meant that Insolvency Service “investigators were unable to determine whether Safi Care Ltd had ever been eligible to apply” for the loan based on the company’s turnover.

During the Covid pandemic, companies were able to apply for either a Bounce Back Loan or a Coronavirus Business Interruption Loan. Despite having secured a loan through the BBLS, Ireri applied for and obtained a £100,000 loan (from a different lender) through the Coronavirus Business Interruption Loan Scheme, three months after Safi Care was given its Bounce Back Loan.

Businesses were allowed to “obtain a second loan if the money was used to repay the first in full.” However, Safi Care went into liquidation a year later (in August 2021) owing around £231,000 including the full amount of both loans.

In the fifteen months between obtaining the first loan and Safi Care’s liquidation, nearly £500,000 was withdrawn from the company’s bank account, with over £80,000 used by Ireri “for personal spending” and nearly £94,000 transferred into his personal bank accounts.

Ireri has received a seven-year director disqualification.

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False turnovers used to obtain loans

Michael Higgins, from Sheffield, ran Steel Rigging Ltd – a company working on outside TV broadcasts providing driving services – from March 2015. Higgins obtained a £20,000 Bounce Back Loan in November 2020 by claiming his company’s turnover in 2019 was £80,000.

In fact, Steel Rigging’s 2019 turnover was around half the figure stated by Higgins. The company was therefore entitled to only half of the acquired loan (at most).

Steel Rigging went into liquidation just over a year later in December 2021, owing the full amount of the Bounce Back Loan.

Higgins has been banned for eight years.

Dean Miller, also from Sheffield, incorporated his company IBODYTALKS Ltd in April 2019.

Companies incorporated after 1st January 2019 were told to use an estimated turnover in their Bounce Back Loan applications. Miller claimed that IBODYTALKS had been dormant until April 2020 when he applied for a £42,000 loan in May 2020. However, investigators found that the company has been trading since December 2019 and Miller had exaggerated the turnover estimation in comparison to money received by the company during its trading period.

In addition, “Miller transferred £41,000 to a connected company, and did not provide any evidence to show the money was used for the benefit of IBODYTALKS”, one month after receiving the £42,000 loan.

Miller has been disqualified for nine years.

Director disqualifications prevent individuals from directly or indirectly becoming involved in the promotion, formation or management of a company without the permission of the court.

Insolvency and debt investigations

Seeing the whole picture in insolvency and debt cases is key to maximising returns to creditors. For more information on how ESA Risk can help to identify hidden assets or locate targets who have gone to ground, contact Mike Wright, Investigations and Risk Management Consultant, at mike.wright@esarisk.com, on +44 (0)343 515 8686 or via our contact form.

You can also learn more from our Insolvency & Debt Investigations brochure:

 

What happens during an Insolvency Service investigation?

If there are findings of misconduct, this will be taken up by the Insolvency Service to seek action against the company director.

The insolvency practitioner appointed to liquidate the business will lead the investigation, or an Official Receiver, which is a liquidator appointed by the Insolvency Service when a business is forced to liquidate as a result of a winding up petition, also known as compulsory liquidation.

The investigation sets out to uncover wrongdoing that spans back over the years with a view to protecting the best interests of stakeholders, including company creditors. Guest author Sharon McDougall of Scotland Debt Solutions, a Scottish debt advice specialist, shares what happens during a company investigation during liquidation or administration.

What events take place during a company investigation?

The office-holder – either the insolvency practitioner or Official Receiver – will set out to establish the series of events that unfolded in the run-up to the decline of the business. They will seek to interview the company director(s) in person or issue a written questionnaire to capture their view on the matter and ask what action was taken to remedy the problems that inflicted the business.

They may also turn to company stakeholders to corroborate the director’s claims.

The company records will be investigated, in addition to the financial trail, such as transactions to back up the claims put forward by the director.

Once a report has been compiled, any findings of misconduct will be reported to the Insolvency Service. The consequences of unfit conduct can lead to director disqualification which means that the director can be disqualified from acting as a company director for up to fifteen years. If they break the terms of the disqualification, they could be fined or imprisoned for up to two years.

‘Unfit conduct’ includes to:

  • allow a company to continue trading when it can’t pay its debts
  • fail to keep proper company accounting records
  • fail to send accounts and returns to Companies House
  • fail to pay tax owed by the company
  • use company money or assets for personal benefit.

The Insolvency Service will confirm in writing why they believe that the individual is unfit to be a director and whether they intend to proceed with the disqualification process or see the individual in court if they wish to defend the case.

What is investigated during the process?

The investigators will look for evidence of director misconduct which may involve any of the following:

  • Transactions at undervalue – Company assets are sold for lower than their market value.
  • Preferential payments – Selected creditors are paid due to preference, rather than according to the order prescribed by the Insolvency Act 1986.
  • Fraudulent trading – When the director acts in a fraudulent manner, such as intentionally accepting payments when the business is in no position to continue.
  • Wrongful trading – When the director continues to operate the business while it is knowingly insolvent as this worsens the financial position of company creditors.

An Insolvency Service investigation is serious because if company directors are found guilty of wrongdoing, the consequences can be detrimental. Along with director disqualification, the director could be forced to compensate the company which will then be fed to creditors, not to mention the reputational damage.

Insolvency and debt investigations

Seeing the whole picture in insolvency and debt cases is key to maximising returns to creditors. For more information on how ESA Risk can help to identify hidden assets or locate targets who have gone to ground, contact Mike Wright, Investigations and Risk Management Consultant, at mike.wright@esarisk.com, on +44 (0)343 515 8686 or via our contact form.

You can also learn more from our Insolvency & Debt Investigations brochure:

 

This article was written by guest author Sharon McDougall of Scotland Debt Solutions.

Bounce Back Loans: February 2023 news roundup

February has been unusually quiet for news and announcements related to the Bounce Back Loan Scheme (BBLS), compared to recent months (as we’ve been reporting).

The Insolvency Service published only two press releases on the topic, announcing the jailing of a BBLS fraudster on 15th February and a director disqualification a couple of days before.

Bounce Back Loans were also mentioned in the latest issue of the Insolvency Service’s Dear Insolvency Practitioner (‘Dear IP’) released on 7th February (although dated January 2023).

All three updates are covered below.

Prison sentence for Bounce Back Loan fraudster

Middlesex-based Kulwinder Singh Sidhu has been handed a twelve-month prison sentence for his abuse of the Bounce Back Loan Scheme in June 2020.

Sidhu obtained the maximum £50,000 loan under the scheme after applying on 9th June 2020, through his haulage company Wavylane Ltd. Less than three weeks later, Sidhu filed to dissolve the business, “having transferred the funds to his personal bank account within two days of receipt.”

In dissolving Wavylane Ltd, based in Stanwell, Sidhu failed to notify the Bounce Back Loan lender – a criminal offence.

In October 2020, when the company was dissolved, the Insolvency Service discovered that Sidhu had exaggerated his company’s turnover in order to acquire the maximum loan amount, along with the transfer of the funds – first to Sidhu’s personal account and then “to his son and another company.”

Sidhu was sentenced to twelve months in prison on 13th February at Guildford Crown Court, having pleaded guilty to charges under the Fraud Act 2006 and the Companies Act 2006 on 19th December 2022.

About the case, Julie Barnes, Chief Investigator at the Insolvency Service said:

“Any other company directors who might be tempted into dissolving their business to try to keep public money they are not entitled to, should be aware they are risking a lengthy prison term.”

The fifty-eight-year-old also received a six-year director disqualification and a confiscation order for the full value of the loan, which he has paid in full.

Barnes added: “Our action has ensured repayment of the loan money and taxpayers have not been left out of pocket.”

Seventy-six-year-old given ten-year ban

Thomas Whyte also obtained a £50,000 Bounce Back Loan, stating that his company Fortress Restructuring Ltd had an annual turnover of £250,000.

Fortress Restructuring was liquidated and it was revealed that the company “had no trading address [and] had never traded”. In the year before Whyte made the loan application, “less than £1,000 had been received into” the business’s bank account.

Additionally, once Whyte was informed that the Secretary of State for Business had petitioned for the company to be wound up, “the balance on the company bank account reduced from £28,150 to a little over £1,590” in the space of twelve days, with payments made to Whyte among others.

The fact that Fortress had filed dormant accounts, and only £949 had passed through its bank account should have made it abundantly clear to Thomas Whyte that his company was not entitled to a £50,000 loan, yet he took it anyway and used the majority of that money for his own benefit.

The company’s liquidator – Bill Cleghorn of Aver Chartered Accountants – has recovered £37,500 of the £50,000 owed.

Rob Clarke, Chief Investigator at the Insolvency Service, said:

“The fact that Fortress had filed dormant accounts, and only £949 had passed through its bank account should have made it abundantly clear to Thomas Whyte that his company was not entitled to a £50,000 loan, yet he took it anyway and used the majority of that money for his own benefit.

“We thank the liquidator for their efforts which have seen £37,500 recovered, and repeat that we will not hesitate to take action against directors who have abused Covid-19 financial support in this manner.”

Whyte has been disqualified as a director for ten years, effective from today (28th February 2023).

Update and guidance from the Insolvency Service

The Insolvency Service has published an update on Bounce Back Loans and advice to insolvency practitioners related to the reporting of BBLS misconduct in issue 157 of Dear IP (pdf).

Firstly, the Insolvency Service has started to share information about organisations that received loans and other support as part of Covid-19 schemes, with the expectation that this will “be useful in instances where this information has been difficult to obtain, or where it has been deliberately concealed from the office holder.”

Secondly, guidance has been issued to insolvency practitioners on reporting misconduct in relation to Covid-19 support schemes, with the Insolvency Service stating that “there needs to be clear evidence indicating that the corporate entity may have either made a false application, for instance inflated turnover figures for the purpose of a loan, or that the funds have not been used for a legitimate business purpose.”

The guidance continues: “When reporting suspected misconduct in respect of a Covid support scheme, office holders should do this using section 13 of the Director Conduct Report form (Finance Support Schemes) which has an option to include Covid support schemes.” This, essentially, further embeds Covid-19 support scheme misconduct as a standard part of the reporting process, as such suspected misconduct was previously reported under a more catch-all heading of ‘Other Investigations’ (section 12).

Insolvency and debt investigations

Seeing the whole picture in insolvency and debt cases is key to maximising returns to creditors. For more information on how ESA Risk can help to identify hidden assets or locate targets who have gone to ground, contact Mike Wright, Investigations and Risk Management Consultant, at mike.wright@esarisk.com, on +44 (0)343 515 8686 or via our contact form.

You can also learn more from our Insolvency & Debt Investigations brochure:

 

The state of director disqualifications and misconduct

Guest author Paul Williamson of Selling My Business – a renowned business sale specialist – explains why, when you’re caught between right and wrong, it’s always best to return to the question: what’s the best decision for creditors?

What is director disqualification?

A director that is disqualified is effectively banned from acting as a company director for up to fifteen years. A disqualification order is issued by the court, and anyone can report a company director for unfit conduct and failing to fulfil their legal responsibilities. Director disqualification aims to deter company directors from taking advantage of the benefits that limited liability presents.

When is a director deemed unfit?

A director is deemed unfit if they trade while insolvent, intentionally defraud company creditors or commit any of the following offences:

  • Continue trading while aware that the business is insolvent and, therefore, unable to pay its debts.
  • Fail to pay taxes, prepare accounting records, and submit accounts and records to Companies House as is their directorial duty.
  • Use company funds for a personal benefit.
  • Commit fraudulent behaviour that deprives creditors of assets.

How can a director be disqualified?

The Company Directors Disqualification Act 1986 establishes the circumstances under which a company director can be banned from performing their duties. This may likely be the result of an Insolvency Service investigation that is conducted when a company goes into liquidation or administration. If the business does not undergo an insolvency procedure, the director can still be reported as unfit to the Insolvency Service.

If a company director wishes to voluntarily disqualify themselves as a director to avoid court proceedings and to put the matter behind them, they may wish to give a disqualification undertaking. The Disqualification Undertaking procedure was introduced as a result of the Insolvency Act 2000 to give company directors the ability to issue voluntary disqualification and swiftly end enquiries, subject to agreement from the Insolvency Service.

What are the implications of director disqualification?

If you’re disqualified as a company director, you are unable to act as the director of a company or participate in the forming, marketing, or operating of a company without permission from the court.

If the director fails to comply, here are the repercussions:

  • Disqualified director may be fined.
  • Disqualified director may be imprisoned for up to two years.
  • Disqualified director may be held personally liable for company debts.

The consequences of director disqualification are serious as they can stop you from operating a company or acting in any capacity to manage a business.

What is the current state of director disqualifications?

According to the Insolvency Service, during 2021/22, 802 directors were disqualified under the Company Directors Disqualification Act 1986 as a result of their work. The number of director disqualifications in 2021/22 and 2020/21 was lower than in financial years between 2013/14 and 2019/20 – before the coronavirus pandemic. This coincided with a historically low number of company insolvencies as a result of the pandemic, during which there was a moratorium on winding up petitions.

The increase in company insolvencies has not yet resulted in a surge in director disqualifications due to the time gap between insolvencies and investigation proceedings. The average length of director disqualifications has been between five years and five months, and six years in each of the past ten financial years.

For director disqualification outcomes in 2021/22, the most common allegation made was ‘Unfair treatment of the Crown’ (meaning HMRC), which was an allegation in 297 cases, accounting for 37% of all allegations. The second most common was the 141 allegations (17%) relating to Covid-19 financial support scheme abuse, such as the Bounce Back Loan Scheme. Covid-19 support schemes were provided to help deliver an economic benefit, although a small number of company directors used funds for their personal benefit.

If as a director you are suspected of misconduct, you could be investigated by the Insolvency Service which is part and parcel of entering company administration or liquidation. If deemed unfit as a director, you’re no longer able to run a company which can be detrimental if you have career plans that involve managing your own business.

Insolvency and debt investigations

Seeing the whole picture in insolvency and debt cases is key to maximising returns to creditors. For more information on how ESA Risk can help to identify hidden assets or locate targets who have gone to ground, contact Mike Wright, Investigations and Risk Management Consultant, at mike.wright@esarisk.com, on +44 (0)343 515 8686 or via our contact form.

You can also learn more from our Insolvency & Debt Investigations brochure:

 

 

This article was written by guest author Paul Williamson of Selling My Business.

How to track the financial health rating of suppliers

Although, what about external risks posed to the business that are out of your control?

The financial health of your supply chain is interlinked with the health of your own business, as if you’re highly dependent on a small number of contracts and any of these businesses run into financial difficulty, your business could be at risk. Therefore, it’s crucial to spread the risk, rather than concentrate the risk on a small number of clients.

Guest author Karl Hodson of UK Business Finance, a commercial finance specialist, runs through how to track the financial health of businesses in your supply chain through a combination of methods, including assessing data available in the public domain, analysing behaviour, and using specialist software.

Credit risk management software

Specialist software designed for credit risk managers supplies data on thousands of UK businesses. From financial health ratings, red flags, and detailed analysis of risk levels, it’s worth investing in credit risk intelligence software to mitigate risk and protect your business.

Red Flag Alert is an example of industry-standard credit risk software that provides key financial indicators to forecast potential insolvency. You can connect real-time alerts straight to your inbox so you can be notified of any changes to ratings.

Companies House

Companies House is a public register which means that the information is publicly available. It’s the central database that houses information on all UK companies, most information is free, such as company information, details of active officers, previous company names and insolvency information.

If there’s an incoherent pattern of events, such as a wave of officer resignations and overdue documentation, this may raise a red flag. The Companies House profile will also show the company status, including whether there’s an active proposal to strike off which means that the company is set to close. If the business is due to strike off, raise any claims that you may have with the liquidator.

The Gazette

The Gazette is the UK’s official public record that holds information on companies, including insolvency notices. It provides a complete notice timeline, from the date the petition to wind up the company was issued and the winding up order was granted. You can track businesses in your supply chain to check that they’re not exposed to any legal action from creditors, such as a winding up petition. Keep a close eye on the businesses in your supply chain so you can track any potential insolvencies.

Creditors commonly issue a winding up petition as a final resort if they believe that the company is out of cash. If this is the case, you’ll want to reach out to the liquidator and submit any claims.

Behaviours

If there’s a change in behaviour, such as inconsistent payments, payment delays or requests to extend terms, this may indicate that the business is experiencing cash flow problems. If it’s temporary teething problems, they may turn to a cash injection or formal restructuring to remedy the problem, but if it’s a deep rooting issue, they may need to seek professional help from a licensed insolvency practitioner and enter an insolvency procedure.

It’s paramount to track the financial health of your supply chain as if one business collapses, this could jeopardise the way you deliver your service which could have a detrimental impact financially. There’s also a risk of bad debt which is when money owed to your business is unlikely to be paid, and therefore written off.

Supply chain risk management support from ESA Risk

For advice and support on supply chain risk management, contact us at advice@esarisk.com, on +44 (0)343 515 8686 or via our contact form.

 

This article was written by guest author Karl Hodson of UK Business Finance.

Bounce Back Loans: January 2023 news roundup

As we’ve been reporting, the Insolvency Service’s recent press releases have been awash with director disqualifications and bankruptcy restrictions related to misuse of the Bounce Back Loan Scheme (BBLS).

January 2023 was another busy month for such news. Here’s a roundup of what was announced:

Barclays actively looking to recover Bounce Back Loan funds

In early January, City A.M. reported that “Barclays is chasing down Covid-19 business loan cash“, backed by the litigation funder Manolete Partners.

Barclays paid out nearly £11bn in Bounce Back Loans, making it the biggest lender in the scheme. Despite the loans being government-backed, Barclays is now actively pursuing “more than 100 companies that have defaulted on” repayments.

While this is the first such programme from a major lender to hit the headlines, there are other similar projects underway elsewhere in the market. Steve Cooklin, Manolete’s chief executive, “told City A.M. that outside of the Barclays project…[Manolete] has worked on a series of projects to recover ‘misappropriated Bounce Back monies’ over the last 18 months.”

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Company dissolutions

A man, from London, and Antonia Parkes, from Conwy, have been handed suspended prison sentences for their abuse of the Bounce Back Loan Scheme (BBLS).

The man obtained a £50,000 loan for his company, Digital Business Box Ltd, by overstating the business’s turnover. Only two weeks later, he applied to dissolve the company.

In what was described as “an aggravating aspect”, he also tried to secure a £50,000 Bounce Back Loan for his other company, The Home Wills Ltd, despite it being established after the cut-off point for BBLS eligibility. His application was unsuccessful.

He pleaded guilty to four offences under the Companies Act and Fraud Act, and was sentenced to 20 months imprisonment, suspended for 18 months, as well as 300 hours of unpaid work.

In a separate case, Parkes was sentenced to six months in prison, suspended for 12 months, and 120 hours of unpaid work, for an offence under the Companies Act.

Parkes secured a £20,000 loan through the BBLS, “immediately before she applied to dissolve the company.”

When dissolving her company, Conwy Valley Lodge Ltd, Parkes did not notify the Bounce Back Loan lender, despite the notification of interested parties and creditors within seven days being a legal requirement.

In a similar case that has resulted in an eleven-year disqualification for the director, David McGuinness, from Birmingham, obtained a £50,000 loan for his company, MC-Dalt Scaffolding Services Ltd, by overstating the business’s turnover. McGuinness “stated the company’s turnover as nearly £300,000 when its accounts for 2019 showed turnover of less than £20,000.”

The use of the loan funds by McGuinness is questionable, with £15,000 transferred out of his business account the day after receiving the loan with the bank reference ‘Dave’, and “[a] further £35,000…transferred to various third-parties.”

McGuinness applied to dissolve MC-Dalt Scaffolding Services Ltd only two months after securing the Bounce Back Loan. He did not notify interested parties and creditors, including the lending bank.

Peter Smith, Deputy Head of Insolvent Investigations at the Insolvency Service, said: “David McGuinness clearly abused it by making false declarations to his company’s bank.”

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Exaggerated turnovers

Directors inflating their company’s turnover in order to secure more money through the Bounce Back Loan Scheme is a common theme of these monthly news roundups.

Mathius Thompson, from Birmingham, took out a Bounce Back Loan worth £50,000 through his company, West Midz Cars Ltd, in May 2020. In his application, Thompson stated that the business’s turnover for the relevant year (2019) was £287,500. In the Insolvency Service investigation which followed the used car salesroom company’s liquidation in August 2021, investigators found that the company’s actual turnover for the period was £2,500 more than 100 times less than Thompson had claimed. Thompson has been banned from holding directorships for eleven years from 30th January 2023.

Muhammad Arif, from Uxbridge in London, ran a clothing business for nearly ten years, trading as Ayesha Boutique. He applied for the maximum Bounce Back Loan amount of £50,000 in June 2020, based on a stated turnover of £219,000. In reality, his turnover was “around ten times less than he had claimed in the application.”

In addition, the Official Receiver has been “unable to verify the explanation [Arif] gave to account for…payments” made using the loan monies.

Arif applied for his own bankruptcy and was made bankrupt in December 2021 owing more than £50,000. He has been made the subject of bankruptcy restrictions lasting ten years for his abuse of the Bounce Back Loan Scheme.

Vasile Matcas, from Haverhill in Suffolk, also claimed the full £50,000 available under the scheme for his business, Matcas Ltd. Matcas stated a company turnover of £280,000. However, investigators found that Matcas Ltd’s actual turnover was under five times less than that, at only £49,200.

When Matcas Ltd went into liquidation in July 2021 – at that time trading as a carwash it owed “the full amount of the loan”.

Matcas was disqualified as a director for ten years.

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Misuse of Bounce Back Loan funds

Under the terms of the Bounce Back Loan Scheme, loan funds had to be used for the economic benefit of the company.

Ioan Mociar made payments of nearly £40,000 from his business’s bank account during a three-week period in 2020, after securing a £41,000 Bounce Back Loan, “without any evidence to show that they were for the economic benefit of the company.” Additionally, Mociar’s business, Midi Construction Ltd, had claimed more money than it was entitled to under the scheme, as Mociar’s estimated turnover for the building company and the actual turnover at the end of the first year of trading (to the end of May 2020) were wildly different. Mociar has been disqualified for eleven years.

Moira Wood has been banned for eight years for her misuse of Bounce Back Loan funds obtained through her IT consultancy, Clockwork Compliance Services Ltd. Wood secured a £24,000 loan in September 2020, then “transferred £23,400 to herself between October 2020 and January 2022, just before the company folded, with no evidence that the money had been used for the benefit of Clockwork Compliance Services.”

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A charity case

And finally, Darren Baker has been banned from becoming a director for seven years, effective from 15th December 2022 (first reported in January).

Baker secured £50,000 from the Bounce Back Loan Scheme an initial loan of £45,000 and a £5,000 top-up through his charity, The Leanne Baker Trust. Baker claimed the charity’s 2019 turnover was £200,000. In reality, it was around £26,000, meaning the charity was not eligible for funding under the scheme.

Baker then put around £38,000 of the loan to personal use, including “over £25,000 to pay off personal legal fees”.

“Despite the humanitarian purpose of the trust as established, Darren Baker took advantage of the support available during this difficult time for his own personal gain”, said Rob Clarke, Chief Investigator at the Insolvency Service.

On a rare positive note in these announcements, the charity’s liquidator “has subsequently recovered the full amount” of the Bounce Back Loan.

Insolvency and debt investigations

Seeing the whole picture in insolvency and debt cases is key to maximising returns to creditors. For more information on how ESA Risk can help to identify hidden assets or locate targets who have gone to ground, contact Mike Wright, Investigations and Risk Management Consultant, at mike.wright@esarisk.com, on +44 (0)343 515 8686 or via our contact form.

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Bounce Back Loans: December 2022 news roundup

As we’ve been reporting, the Insolvency Service’s recent press releases have been awash with director disqualifications and bankruptcy restrictions related to misuse of the Bounce Back Loan Scheme (BBLS).

December 2022 was another busy month for such news. Here’s a roundup of what was announced:

A repeat offender

A London letting agent who made four applications to the Bounce Back Loan Scheme has been handed an eleven-year director disqualification.

Laszlo Szabo obtained £100,000 from the scheme through three successful applications to two different banks. Szabo was only rejected during his fourth attempted application.

In October 2020, Szabo first applied for a £38,000 Bounce Back Loan for his Holloway Road-based Letting Base Ltd, and the loan was made available to the company almost immediately. Against the terms of the scheme, Szabo then applied for a second loan from a different bank, only five days after his first application. He obtained the maximum £50,000 loan available under the BBLS.

Ten days later, Szabo returned to the first bank and successfully requested a top-up of £12,000 to the initial loan (in itself allowable under the terms of the scheme, but taking his company’s borrowing further above the overall Bounce Back Loan limit).

With £100,000 banked so far, the next day, Szabo applied for another top-up – this time from the second bank and for the maximum £50,000 again. This was not permissible under the terms of the scheme and was rightly rejected by the lender, presumably because they could see that Letting Base Ltd had already been given a £50,000 loan from their own records.

The Insolvency Service started to investigate Letting Base Ltd in 2022, when the company went into liquidation “owing more than £243,000, including the full £100,000 of the Bounce Back Loan money”.

Deputy Head of Investigations at the Insolvency Service, Nina Cassar, said:

“Laszlo Szabo made false declarations to his company’s banks, and then entered liquidation having made no repayments towards its Bounce Back Loans, which resulted in a loss of £100,000 of public funds.

“His blatant and repeat abuse of taxpayer’s money has resulted in a lengthy disqualification, which will serve to safeguard the economy from traders who exploit financial support packages designed to help UK businesses.”

As is implied by Cassar’s statement, it is “unlikely” that the loans will be repaid.

Szabo’s ban began on 12th December 2022 and last for eleven years.

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False details from bankrupts

Two cases now of bankrupts who have been made subject to additional bankruptcy restrictions due to their abuse of the Bounce Back Loan Scheme. While both cases were finalised earlier in 2022, they were first reported in December.

Nadia Butt, from Birmingham, obtained a £50,000 Bounce Back Loan by stating that her business had been trading on 1st March 2020 and that “her anticipated turnover was £220,00” – neither of which were true.

Despite stating that she wished to “start an online consultancy”, Butt paid out the loan money to family members and a friend, with no evidence that the payments were for the benefit of the business.

She was made bankrupt in August 2021 and the Official Receiver discovered details of the loan when they were appointed as her trustee.

Butt is now subject to an eleven-year bankruptcy restrictions undertaking.

Dorota Suchocka, of Barnes in London, secured three Bounce Back Loans in October 2019 worth a total of £75,000. In the applications, “Suchocka used a fake employer and inflated her income as being four times higher than what she earned as a mini cab driver.” In fact, her average monthly income was lower than the combined monthly repayments across the three loans.

Suchocka was made bankrupt in October 2021 and has been subject to a ten-year bankruptcy restrictions undertaking since 30th May 2022, following an investigation by the Official Receiver while appointed as her trustee.

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Abuse through two companies

Forty-three-year-old Shahzad Arshad, from Glasgow, ran two companies until January 2022, by which point both had entered liquidation.

Through Town Discount Ltd and Naz Accessories Ltd, Arshad successfully applied for £100,000’s worth of Bounce Back Loans – the maximum £50,000 for each company.

Insolvency Service investigators found that Town Discount Ltd was ineligible for the scheme, as it had not started trading until February 2020. Arshad stated that Naz Accessories Ltd’s turnover was more than twice the actual figure of £98,300, meaning the company was only eligible for up to £24,500 under the scheme and not the £50,000 secured by Arshad.

The director was banned for eleven years from 21st November 2022.

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Exaggerated turnover

Savio Pereira, of Market Harborough, has been disqualified for eleven years for exaggerating his company’s turnover in a Bounce Back Loan application and seemingly using the loan funds for activity unrelated to the “economic support” of his business.

Pereira secured a £50,000 Bounce Back Loan for his company Himalayan Zest Takeaway Limited which traded in Lutterworth until November 2021 when it went into liquidation.

The director paid £10,000 of the loan to himself, withdrew £16,800 in cash and paid £28,000 to an unknown recipient.

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A lack of record-keeping

Sajid Valimohammed, of Leicester, has been disqualified for eight years for misconduct including abuse of the Bounce Back Loan Scheme.

Valimohammed’s company, J Dee Designs Ltd, went into liquidation in December 2020, triggering an Insolvency Service investigation. The investigation showed that the director failed to keep sufficient records, including company accounts. As a result, Valimohammed was unable to prove that withdrawals of around £315,300 from the company’s account – including 199 transfers totalling £286,000 to Valimohammed’s personal account – were transactions “for legitimate trading activity”.

£30,000 of this total came from a Bounce Back Loan. The director’s lack of record-keeping meant he was unable to show “whether the loan money had been used for the benefit of the company.”

Furthermore, investigators could not “verify whether J Dee Designs had paid the correct amount of tax it owed, or to ascertain the true financial position of the company when it went into liquidation, including whether liquidators would be able to make any recovery of debts.”

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A full house of BBLS offences

John McGarvey’s abuse of the Bounce Back Loan Scheme ticked so many of the boxes we see in different BBLS announcements, that we published a full article about his case when it was first reported on 8th December 2022.

McGarvey obtained more than the maximum allowable total, across more than one loan, by overstating his company’s turnover and he then used the money “for personal gain”.

Read the full article.

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Repaid in full

And to end on some relatively good news – a £50,000 Bounce Back Loan which was falsely obtained by Alexander Cooper, from Glasgow, for his company Traprain Homes Ltd in June 2020 has been paid back in full “following recovery action by the company’s liquidator.”

Cooper stated the company’s turnover as £1,014,930 in his application, leading to him obtaining the maximum loan amount. However, Traprain Homes Ltd was insolvent at the time of the application, having lost more than £113,000 in the preceding period. The company had stopped trading some four months before Cooper applied for the Bounce Back Loan.

The director paid himself the full amount of the loan he acquired for Traprain Homes Ltd – the majority of it after moving it between the company’s various bank accounts.

Cooper was banned for ten years from 14th November 2022.

Insolvency and debt investigations

Seeing the whole picture in insolvency and debt cases is key to maximising returns to creditors. For more information on how ESA Risk can help to identify hidden assets or locate targets who have gone to ground, contact Mike Wright, Investigations and Risk Management Consultant, at mike.wright@esarisk.com, on +44 (0)343 515 8686 or via our contact form.

You can also learn more from our Insolvency & Debt Investigations brochure:

 

£100k Bounce Back Loan abuse leads to disqualification

The sole director of a surveyor’s firm, CKO Civil Engineering and Surveying Limited (CKO), has been disqualified for eleven years for his abuse of the Bounce Back Loan Scheme (BBLS).

John McGarvey, from Rutherglen (a town on the outskirts of the centre of Glasgow), falsely claimed two Bounce Back Loans worth a total of £100,000 and used the money “for personal gain.”

In addition to claiming two loans each at the maximum amount allowed under the scheme (companies were limited to one £50,000 loan or multiple loans totalling no more than £50,000) and using the funds for his own use (instead of “for the economic benefit of the business”), McGarvey also exaggerated his company’s turnover in order to obtain the loans.

The BBLS allowed companies to apply for loans of up to a quarter of their 2019 turnover to a maximum of £50k. McGarvey’s applications through CKO stated the company’s 2019 turnover as £225,000 (in a July 2020 application) and £218,000 (in an application the following month). In reality, CKO’s “most recent accounts showed a turnover of only around £46,400.” Therefore, CKO was given loans worth more than eight times the amount it was eligible for.

CKO, based in Kirkinitlloch (also near Glasgow), entered a creditors voluntary liquidation (CVL) owing around £183,000 in November 2021. The liquidation process triggered an Insolvency Service investigation, which revealed the Bounce Back Loan Scheme abuse.

McGarvey’s disqualification started on 28th October 2022 – the details of the case have only been announced by the Insolvency Service today (8th December 2022) – and lasts for eleven years.

Of the case, Steven McGinty, Insolvency Service Investigation Manager, said:

“Not only did John McGarvey grossly exaggerate the company’s turnover to secure an initial loan, he also applied to a second bank for another loan his company wasn’t entitled to. To compound his actions, he used the money for his personal gain.

“His eleven-year ban should serve as a warning that if you abuse government support, we will use our full powers to bring you to account.”

McGarvey’s case was settled through a disqualification undertaking, which was accepted by the Secretary of State. Disqualification undertakings are the administrative equivalent of a disqualification order but do not involve court proceedings.

Insolvency and debt investigations

Seeing the whole picture in insolvency and debt cases is key to maximising returns to creditors. For more information on how ESA Risk can help to identify hidden assets or locate targets who have gone to ground, contact Mike Wright, Investigations and Risk Management Consultant, at mike.wright@esarisk.com, on +44 (0)343 515 8686 or via our contact form.

You can also learn more from our Insolvency & Debt Investigations brochure:

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