R3's Response to Mr Darling's CVA announcement - "R3 welcomes Budget's support of business rescue culture"
R3 have sent out a press release (helpfully including their entire press release distribution list?!) responding to Mr Darling's budget statement on CVAs. For a more in-depth analysis of the benefits of CVAs to the rescue culture see my articles (one and two). Here is the substance of the press release from R3. I have made a number of notes throughout IN BOLD and in [square brackets]:
"R3 welcomes Budget’s support of business rescue culture
R3, the insolvency trade body welcomed yesterdays Budget announcement that the Government’s insolvency service will be consulting on company rescue procedures, and introducing a new report on pre-pack administrations.
Company Voluntary Arrangements
The proposed consultation shows a commitment to supporting business rescue by considering giving ‘absolute priority status’ to funding lent to companies in a Company Voluntary Arrangement (CVA) or administration.
R3 president Nick O’Reilly said: “Lack of available credit is the biggest barrier to rescue procedures in the current economic climate so considering ways of encouraging funding is a step in the right direction. In particular, CVAs are often jeopardised by lack of funding after the agreement has been made.
“We will wait with interest to see what the Insolvency Service envisage doing, as it sounds as though they are considering a super-priority funding system which they currently use in the US. The US system means that the priority funding is available to struggling companies, but that this fund is then first in the hierarchy of creditors, ahead of secured creditors such as banks. This system is unlikely to work without being adapted, as the UK system of corporate lending is very different, however it could be that they are looking into a ‘watered down’ version. We welcome the public debate on this matter that the consultation will bring.”
The consultation also went further to encourage CVAs by extending the moratorium against creditor action for those to medium and large companies. “One of the major advantages for medium and larger companies of administration is that it involves the granting of an instant protection against creditors, which gives them breathing space to reach an agreement with creditors. If introduced for CVAs, this will mean that the moratorium affects both procedures. [AND THE OBJECTION TO THAT IS? AGAIN SEE MY RESPONSE TO THE CONSERVATIVE PARTY PAPER ON THE BENEFITS OF THE PROPOSAL. SEE MY JBL PAPER FOR THE COUNTERARGUMENT]
“CVAs are an excellent rescue tool, helping companies which are profitable in the long-term overcome a period of financial difficulty. Once the CVA has been agreed and the company's liabilities restructured, more of money [SIC] generated by the company can be used as working capital rather than paying old debt. However, at this stage, CVAs are not widely utilised with around 500 being completely annually” [SEE MY PAPERS - CITED ABOVE - ON WHY THIS IS THE CASE]
The budget also included an announcement that the insolvency service will be seeking to prevent creditors from being treated unfairly through abuse of pre-pack sales, and will publish a report in June 2009 on the operation of the first six months of the regime monitoring pre-pack sales and will then publish further follow-up reports on an annual basis.
“R3 welcomes more reporting on the work that our members do with pre-pack administrations to give more public confidence in the procedure. We believe that pre-packs are a valuable rescue tool, helping to rescue companies for which the only alternative might be liquidation. We do not believe that the system is open to systematic abuse.”
"BPIR is an excellent series, of interest to both corporate and personal insolvency lawyers,...