Legal Notice 373 of 2020 The Companies Act (Suspension of Filing for Dissolution and Winding Up) Regulations (the “Regulations”) was published on the 15th of September 2020. Back in March, the Conference of European Restructuring and Insolvency Law (CERIL) published an Executive Statement highlighting the importance of countries across Europe to adapt their insolvency legislation in light of the “current extraordinary economic situation” the world has found itself in as a result of COVID-19.
These Regulations are a response to CERIL’s concerns and seek to temporarily relax insolvency legislation in light of the financial difficulties brought about by the COVID-19 pandemic. The Regulations have:
- Suspended the right of creditor/s or debenture holders from filing a winding up application against a company with immediate effect until 40 days after publication of an order by the minister to lift the suspension;
- Stayed any pending winding up proceedings in court filed by creditors or debenture holders after the 16th March 2020 for the same term mentioned above;
- Provided for the “crystallisation” of the deemed date of dissolution of a company which would have been put into dissolution before if the suspension orders were not in effect; and
- Temporarily and retroactively suspended the wrongful trading provision from the 16th of March 2020 until 40 days after an order to lift such suspension.
Despite the suspensions, appropriate limits and safeguards have been imposed. In terms of 1) & 2) above, the court will still have the power to allow for the filing or hearing of winding up applications by creditors or debenture holders when it is prima facie satisfied that the circumstances referred to in the winding up application pre-dated 16th March 2020 (i.e. existed despite the pandemic).
In terms of the suspension for the wrongful trading provision, this has only been suspended to the extent that during the term of the suspension, a director accused of wrongful trading will not be in breach if he failed to file a winding up application in court for the company of which he sits as director or if he continues to incur debts in good faith on behalf of the company during its ordinary course of business unless, in both cases it is shown that such actions or omissions were deliberately intended to prejudice the pari passu ranking of creditors of the company which existed prior to the act or omission.
The Regulations intend to strike the appropriate balance between adapting insolvency legislation to aid companies which would have otherwise avoided insolvency and the rights of creditors and debenture holders to protect their interests.