What are the risks of wrongful trading and how can you avoid it?
When a company becomes insolvent, its directors must act in the best interests of the company’s creditors and do what they can to help minimise their financial losses.
Continuing to trade an insolvent company when it’s no longer viable and incurring further debts as a result, could see you on the receiving end of wrongful trading allegations.
What is wrongful trading?
Wrongful trading occurs when the directors of an insolvent company continue to trade beyond the point when they knew, or ought to have known, that the company had no realistic prospect of recovery.
If the insolvent company continues to trade, incurring further debts as a result, prior to entering into Liquidation or Administration, the directors could be held personally liable for those losses in certain instances.
Wrongful trading is covered by Section 214 of the Insolvency Act 1986. Although it’s a civil offence rather than a criminal offence like fraudulent trading, it’s still a serious matter that can have far-reaching consequences for directors. If you are trading a company that you know to be insolvent and are worried about claims of wrongful trading, you should get advice from our team of licensed insolvency practitioners immediately.
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What’s the difference between wrongful trading and insolvent trading?
Continuing to trade an insolvent company is not necessarily an unlawful act. As a company director, you may honestly believe that the financial problems the business is experiencing are short-term and that you can turn things around if you continue to trade.
The key here is that you should not make the decision to carry on trading yourself once your company reaches the point of insolvency. When your company is insolvent, you should always follow the recommendations of a licensed insolvency practitioner.
If an insolvency practitioner advises that the company continues to trade then as long as you carry out your legal duties and act in the best interests of the company’s creditors, you’ll typically be free from wrongful trading claims, even if the company subsequently fails.
Insolvent trading becomes wrongful trading when:
You continue to trade when there’s no realistic prospect that the company can recover
You fail to take steps to minimise creditor losses
You do not fulfil your legal duties as a company director
Concerned about National Living Wage and NI increases?
With the rates of both National Living Wage and employer National Insurance Contributions increasing in recent years, this additional cost of employing staff has added more pressure onto already squeezed cash flows. If you are worried about the impact this is having on your company's finances, talk to the experts at UK Liquidators. As licensed insolvency practitioners we can explain your options and help you plot a way forward. Call today on 0808 253 9878.
What counts as wrongful trading?
Wrongful trading is the overall term to describe a variety of offences that directors may be held liable for when trading an insolvent company. Examples include:
Paying yourself an unreasonably high salary when the company cannot afford it
Entering into credit agreements with suppliers despite knowing the company will not be able to repay them
Amassing high debts to your creditors’ detriment
Continuing to take orders from customers despite knowing you will not be able to fulfil them
Building up VAT, National Insurance or PAYE arrears and spending the money deducted or collected for them elsewhere
Taking deliveries of stock, materials, and goods that you cannot pay for
How can I avoid wrongful trading?
There may be situations where directors are legitimately unaware that their business is insolvent. However, ignorance is not a defence for wrongful trading. For this reason, you must monitor the company’s financial situation closely and seek advice from an insolvency practitioner at the first sign that your company is in serious financial difficulty. If you bury your head in the sand and hope the company’s fortunes will change, it will be more difficult to defend yourself against wrongful trading accusations later on.
You must also show that you were reasonable and justified in your decision to continue trading even when you realised your financial situation was declining. You can do that by taking professional advice from a licensed insolvency practitioner and meeting regularly with fellow directors and shareholders. You should minute your meetings to show why you made your decisions.
It’s also good practice to keep in regular communication with your creditors. Make sure they are aware of your situation and keep notes of your correspondence in case questions arise at a later date. You should also be wary of repaying some creditors ahead of others, as so-called ‘preference payments’, which put one creditor in a better position than the creditor group as a whole, can also lead to personal liability issues.
What are the potential consequences of wrongful trading?
Once a company enters insolvent liquidation or administration, an investigation will begin into the conduct of the directors. The liquidator or administrator will scrutinise the directors’ actions in the period leading up to and during the insolvency and look for any evidence of wrongful trading.
If they find evidence of any breaches that give rise to a claim, the liquidator or administrator can pursue the company directors on behalf of the company. They can apply to the court for a declaration that makes one or all of the directors personally liable to contribute to the assets of the company for the benefit of its creditors. The Insolvency Service can also disqualify directors who are found guilty of wrongful trading for a maximum period of 15 years.
Start your online liquidation today
If you have decided liquidation is the right option for your limited company, you can take the first step and begin the process online using our online portal. Starting the process is quick, simple, and can be done at a time that suits you. Your information will be submitted to your local UK Liquidators insolvency practitioner who will be with you every step of the way. Click here to start your company’s liquidation online.
Is my company insolvent?
Being able to identify when your company is insolvent is the first step to protecting yourself from wrongful trading claims. An insolvent company is one that:
Cannot pay its bills when they are due; and/or
Has liabilities that exceed its assets
If your company's financial position meets either of these criteria then it is technically insolvent. In terms of the practical signs that your company is struggling, you might:
Spend more time fighting fires than focusing on the day-to-day running of your business
If you recognise these financial struggles in your company, you should seek immediate professional advice. Insolvency is serious and you have a legal obligation to put your creditors first should the situation arise.
Need someone to speak to?
If your company is struggling financially and you think it might be insolvent, get in touch with our team of licensed insolvency practitioners for a free consultation. We can advise you on the best route forward and help you act in a way that protects you from wrongful trading claims.
Jonathan Munnery
Insolvency & Restructuring Expert | 20+ Years Insolvency Experience
Jonathan is a Partner at Real Business Rescue and member of both the Insolvency Practitioners Association (MIPA) and The Association of Business Recovery Professionals (MABRP). Jonathan has over 20 years’ experience guiding directors through CVL and MVL processes, helping them understand their options and navigate financial distress with clarity and compassion.
IPA Member MABRP Member IPA Regulated
“ Directors often wait too long before seeking advice. The earlier you call, the more options remain available to you — and the better the outcome for everyone involved. ”
Jonathan is a Partner at Real Business Rescue and member of both the Insolvency Practitioners Association (MIPA) and The Association of Business Recovery Professionals (MABRP). Jonathan has over 20 years’ experience guiding directors through CVL and MVL processes, helping them understand their options and navigate financial distress with clarity and compassion.
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