The Insolvency Act 1986 priority list
Fixed charge holders
Insolvency practitioner fees and expenses, s 176ZA
Preferential creditors, ss 40, 115, 175, 386 and Sch 6
Ring fenced fund for unsecured creditors, s 176A and SI 2003/2097
Floating charge holders
Unsecured creditors, s 74(2)(f)
Interest on debts proved in winding up, s 189
Money due to a member under a contract to redeem or repurchase shares not completed before winding up, CA 2006 s 735
Debts due to members under s 74(2)(f)
Repayment of residual interests to preference, and then ordinary shareholders.
Sources: Insolvency Act 1986 and Companies Act 2006
Since the
Since
the Bankruptcy Act 1542 a key principle of insolvency law has been that
losses are shared among creditors proportionately. Creditors who fall
into the same class will share proportionally in the losses (e.g. each
creditor gets 50 pence for each £1 she is owed). However, this pari
passu principle only operates among creditors within the strict
categories of priority set by the law:[32]
The law permits
creditors making contracts with a company before insolvency to take a
security interest over a company's property. If the security is refers
to some specific asset, the holder of this "fixed charge" may take the
asset away free from anybody else's interest in order to satisfy the
debt. If two charges are created over the same property, the charge
holder with the first will have the first access.
The Insolvency
Act 1986 section 176ZA gives special priority to all the fees and
expenses of the insolvency practitioner, who carries out an
administration or winding up. The practitioner's expenses will include
the wages due on any employment contract that the practitioner chooses
to adopt.[33] But controversially, the Court of Appeal in Krasner v
McMath held this would not include the statutory requirement to pay
compensation for a management's failure to consult upon collective
redundancies.[34]
Even if they are not retained, employees' wages
up to £800 and sums due into employees' pensions, are to be paid under
section 175.
A certain amount of money must be set aside as a
"ring fenced fund" for all creditors without security under section
176A. This is set by statutory instrument as a maximum of £600,000, or
20 per cent of the remaining value, or 50 per cent of the value of
anything under £10,000. All these preferential categories (for
insolvency practitioners, employees, and a limited amount for unsecured
creditors) come in priority to the holder of a floating charge.
Floating charge holders come next. Like a fixed charge, a floating
charge can be created by a contract with a company before insolvency.
Like with a fixed charge, this is usually done in return for a loan from
a bank. But unlike a fixed charge, a floating charge need not refer to a
specific asset of the company. It can cover the entire business,
including a fluctuating body of assets that is traded with day today, or
assets that a company will receive in future. The preferential
categories were created by statute to prevent secured creditors taking
all assets away. This reflected the view that the power of freedom of
contract should be limited to protect employees, small businesses or
consumers who have unequal bargaining power.[35]
After funds are
taken away to pay all preferential groups and the holder of a floating
charge, the remaining money due to unsecured creditors. In 2001 recovery
rates were found to be 53% of one's debt for secured lenders, 35% for
preferential creditors but only 7% for unsecured creditors on
average.[36]
Any money due for interest on debts proven in the winding up process.
Money due to company members under a share redemption contract.
Debts due to members who hold preferential rights.
Ordinary shareholders, who have the right to residual assets.
Aside
from pari passu or a priority scheme, historical insolvency laws used
many methods for distributing losses. The Talmud (ca 200AD) envisaged
that each remaining penny would be dealt out to each creditor in turn,
until a creditor received all he was owed, or the money ran out. This
meant the small creditors were more likely to be paid in full than large
and powerful creditors.[37]
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