Opposing Winding Up Petitions

23rd May 2019

The Litigation team has recently been successful in supporting a client in the prevention of a winding up petition following service of a Statutory Demand. The debt was disputed.

Within 24 hours of instructions, we received an undertaking that a petition would not be presented. We made it clear that we would seek an injunction restraining the presentation of a winding up petition, as there was a bona fide dispute over the relevant debt.

The High Court set out in ReCompany (No.006685 of 1996)[1997] BCC 830 (§832F) that:

“The true rule, which has existed for many years, is the rule of practice that this court will not allow a winding up petition to be used for the purpose of deciding a substantial dispute raised on bona fide grounds. It will not do so, as a matter of practice, because the effect of presenting a winding-up petition and advertising that petition is to put upon the company a pressure to pay (rather than to litigate) which is quite different in nature from the effect of an ordinary writ action.

The pressure arises from the fact that once the existence of the petition is known amongst those having dealings with the company, they are likely to withdraw credit or refuse to continue to trade with the company on the ground that, if the company is wound up on the petition, their dealings with it will be subject to the provisions in s. 127 of the Insolvency Act 1986. In those circumstances it may well be commercially necessary for the company to pay a debt which is disputed on substantial grounds rather than to run the risk that the whole of the company’s business will be destroyed.”

Our client was delighted with this outcome and the speed of our actions and quality of advice and knowledge.

We can also deal with urgent injunctions in connection with insolvency matters

If you have concerns or issues you can contact our litigation team ph@rogers-norton.co.uk or on 01603 675639.

Free legal advice surgeries for Norfolk Constabulary

Rogers and Norton Solicitors are pleased to provide both serving and retired officers of the Norfolk Constabulary together with the civilian support staff, with free advice through monthly surgeries on all matrimonial and family issues such as separation, divorce, financial matters, police pension issues and children matters.

The monthly surgeries consist of appointments of up to one hour duration and are completely free. Should you engage our services the fees will be at a discounted rate with some fixed fees available. The surgeries are held at the Police Federation Offices, 43, Thorpe Road, Norwich, NR1 1ES. They consist of one hourly appointment slots starting at 10am with last appointment being scheduled for 3pm.

Please contact the federation office to make an appointment, alternatively we can meet with you at our offices in Attleborough or Norwich for a free hour initial meeting.

Our specialist knowledge of family law means we can advise effectively and concisely. We can help deal with the legal and financial issues involved in your separation or divorce. The team also specialises in advising on cohabitation and pre-nuptial agreements, together with children’s issues.

Click here to view dates of future surgeries

Please contact us if you would to set up similar surgeries for your company/organisation.

Focus on Dementia

After attending the local NNUH Dementia Fayre and listening to the specialist speakers it was important to expand on our knowledge of Dementia. It was good to see that this area is being researched in depth and solutions found to assist those living with Dementia.

A very practical step that was discussed by the Norfolk Constabulary was the “Herbert Protocol”. This is a tool designed to keep information on those that have Dementia. This short form can be completed by family members to have key information on their loved one to assist if that person were to go missing. This means that the police can respond in a targeted way to assist in finding that person quickly and safely.

If you wish to complete this form for your family members please find the link below: –

https://www.norfolk.police.uk/advice/personal-safety/missing-people

Rogers & Norton are always eager to support and promote Dementia awareness at every opportunity. As a Dementia Friendly organisation we are actively engaged with Dementia Action Awareness week and aim to use the focus to raise funds for specialist Admiral Dementia nurses in Norfolk, by holding a series of bake sales for staff and clients.

We are also marking Dementia Action week by reducing the cost of a Lasting Power of Attorney by 20%, for any appointments booked between the 20^th and 25^th May.

Should you wish to make an appointment to discuss this essential document you can contacts us at wills@rogers-norton.co.uk.

Success for the Matrimonial and Family team

Rogers and Norton Family & Matrimonial Team have successfully obtained an Order for Sale in respect of land owned by former co-habitants in Cambridgeshire.

The parties separated several years ago and the land has lain dormant since that time. The co-owner of the land refused to consent to a sale and following a period where they likewise refused to engage in resolving matters amicably Rogers & Norton made an application to Court. Whilst this can be a costly exercise, not only did Rogers & Norton succeed in obtaining an order at the first hearing, they also recovered the sum of £2,000 in costs. The court’s decision demonstrates that ex-partners cannot choose to disengage or refuse to co-operate and that if they do then there is a cost to pay. If we can assist you with any of your marital or property disputes then please do not hesitate to contact us on 01603 666001.

Hidden extras in your conveyancing quote

13th May 2019

It’s been reported that the Government is advising home buyers and sellers to check very carefully for 'hidden extras' when choosing a conveyancer, in a series of 'how to' guides published recently.

The guides follow an announcement by the Ministry of Housing, Communities & Local Government last year, as part of its promise to improve the home buying and selling process in England and Wales.

The main advice is for buyers to get multiple quotes from ‘legal professionals’. It’s vital to ensure that the full price is known at the outset and to check that there are no hidden extras in the quote given.

A list of other guidance is offered to help:

• If conveyancers have online reviews, buyers are told to read what customers think of the service they provide
• Do they have the specialist skills to handle leasehold, shared ownership or listed building properties?
• Check if the prospective client would have a named contact
• What communication options are available?
• Has a referral fee been paid to a third party for your custom?
• Do you prefer online or in-person service?
• Do their opening hours suit you?
• Do the company have experience conveying properties in your local area?
• Check if the conveyancer is on the mortgage lender’s panel
• Go to the Legal Choices website to check the conveyancer is regulated by an appropriate body.

The seller’s guidance states that a legal representatives should be chosen shortly before the home is put on the market, or as soon as possible once it is up for sale, so as to reduce delays.

On price, sellers are also told to check for hidden extras and whether the conveyancer will be paid a referral fee.

Buying and selling a home can be a stressful and thought provoking process – so it is vital that you instruct knowledgeable, supportive and efficient legal support. Be very careful regarding the prices quoted because as with many things, the initial price quoted will not necessarily turn out to be what you pay.

We have worked hard to ensure we have complete transparency of costs for our conveyancing work, it is detailed very clearly and visibly on our website, to ensure that any new or existing client is fully appraised at the outset of what they will be paying.

Our experienced Conveyancing team have a broad depth of knowledge in dealing with buying and selling properties; working off plan with new build developers; supporting buy to let investors and dealing with all aspects of equity release and lifetime mortgages.

You can contact the team at sjc@rogers-norton.co.uk or on 01603 675633.

Proposal to reinstate Crown preference

The proposal to reinstate Crown preference was announced as part of the Autumn Budget last year and came as a surprise. HMRC seeks the views of individuals, shareholders, directors, lenders, companies and insolvency practitioners on the proposal to reinstate Crown preference in part.

What is proposed?

Presently, when a company enters into an insolvency process, HMRC’s claim for unpaid taxes is an unsecured claim meaning HMRC stand alongside other unsecured creditors and its claim is dealt with on an equal footing. In simple terms, unsecured creditor claims rank behind fixed charge holders, insolvency practitioner fees and expenses, other preferential creditors and floating charge holders. The order of payment is prescribed by statute.

It is proposed that the statutory order of payments will be altered so that HMRC’s claim will rank ahead of floating charge holders in respect of tax payments due to it for VAT, PAYE, NIC (employee contributions) and CIS being taxes paid by third parties to the insolvent company. In respect of the tax liabilities of the company (income tax, CGT, corporation tax and employer NIC) those unpaid taxes will still rank and be dealt with as unsecured claims.

Therefore, HMRC will become a preferred creditor, although only in part. The preferred element of HMRC’s claim will however include any penalties and interest due and include historic debt “irrespective of how old” that might be.

HMRC’s primary justification for this change is loss of revenue, but the impact on the Exchequer’s pocket was a consideration when Crown preference was abolished. The conclusion reached then was that the benefit to creditors and business rescue outweighed that loss of revenue. So what has changed?

When will the law change?

The change will apply to insolvencies commencing after 6 April 2020 HMRC. The Crown preference was abolished in 2003 following the Enterprise Act because it was considered unfair to other creditors. The change, driven by a desire to encourage enterprise and business rescue, came alongside other changes to the insolvency process including the introduction of an out of court process to appoint administrators and the introduction of the prescribed part with the intention that the package of measures would help support the rescue of viable businesses.

What is the impact of the proposal to reinstate Crown preference?

Lenders and business rescue

At the same time as HMRC’s preferential status was abolished, the prescribed part was introduced to avoid floating charge holders receiving a windfall payment and ring fenced a pot of money for unsecured creditors out of floating charge realisations. If HMRC return to preferential status, creditors will rank behind HMRC as preferred creditor, the balance of floating charge assets will be further reduced by the increase in the prescribed part.

Unsecured creditors

Changes were made with the Insolvency Rules 2016 making it easier for unsecured creditors to engage in the insolvency process and for clearer lines of communication, the addressing of issues with Pre-Pack anf time to declare dividends.

If the Crown’s preference is reintroduced whilst any return to unsecured creditors may currently only be small, reducing recovery in many cases to nil removes any interest that unsecured creditors have in the process – unless they are looking to make personal claims against directors, which is a separate subkect!

HMRC say that this change is necessary because since 2003 losses to the Exchequer have increased and taxes paid to businesses should instead of paying creditors of the insolvent business, be paid to HMRC to fund public services. Monies paid to a business are paid into the company’s bank account and are available to the company for daily use. Monies representing VAT payments or PAYE are used to fund the day to day trading of the company, and most make provision for payment for HMRC. Secured creditors are treated differently because they hold security for monies lent to the company.

HMRC is not a secured creditor and yes, the business may have received a payment from a customer representing tax due to HMRC i.e. VAT, but that payment is not impressed with a trust in favour of HMRC nor does HMRC have any proprietary right to that money.

Whilst we sympathise with HMRC, we are not convinced that a return to the old days is good news for our clients and creditors.

Admiral Walk

9th May 2019

Director Michele Walters and Practice Manager Aidan Tidnam were delighted to be presented with a certificate and rosette by Admiral Walk organiser, Marie Lucas.

The presentation was in recognition of the contribution and support offered by Rogers & Norton to the Admiral Walk & Cycle event at Kimberley Hall at the end of April, that raised over £ 9000 towards funding more specialist Admiral Dementia nurses for Norfolk.

As a Dementia friendly organisation we are eager to help and support raising funds for Admiral Nurses wherever possible – the proceeds from our annual charity foot golf event will be making a contribution towards the target.