If you’re a limited company director whose business is in financial difficulty, you might be concerned that you could be made personally liable for your business debts .
One of the main reasons people form a private limited company or an LLP is to limit liability for business debt.
However, there are some circumstances in which you can be held personally liable, meaning liability for the debt falls to you personally.
Potential liabilities for UK directors can include not just being held financially responsible for corporate debt, but in some cases criminal liability, if your actions are deemed fraudulent.
If you are worried about your potential personal liability for company debts, we can help. We specialise in advising directors in your situation. In many cases we can help you fully understand your position, negotiate on any director liabilities you may have and help you avoid making your situation worse. Please do get in contact.
|6 Ways a Director Could be Held Personally Liable|
|(1) If you’ve signed a personal guarantee|
|(2) If, knowing the company is insolvent, you’ve continued to prioritise shareholders over creditors|
|(3) If you’ve disposed of company assets below their market value or for free|
|(4) If you’ve paid one creditor in preference to another|
|(5) If you’ve committed fraud|
|(6) Ifyou’ve re-used an insolvent company name in a new venture (‘phoenixing’)|
Directors Personal Liability for Limited Company Debts
The issue of personal liability generally arises for directors at the point of insolvency. As the company enters insolvent liquidation, directors wonder if they will be held accountable for any of the losses.
Directors Personal Guarantees
The most common cause of personal liability comes from when a director has signed a ‘personal guarantee’ document with a bank or lender, putting up a personal asset as security for finance. These documents are specifically designed to pierce the corporate veil and are very difficult to get out of.
Beyond, personal guarantee documents, the key piece of legislation outlining potential liabilities is the Insolvency Act 1986.
Here are the key sections within that pertaining to liability:
Section 214 Trusted Source – Legislation – Insolvency Act 1986, Section 214 of the Insolvency Act refers to ‘Wrongful Trading’ which is the term used to describe the actions of a company director who, knowing the business was insolvent, failed to put the interests of creditors first.
Wrongful trading is not something conducted out of connivance or wilful desire to defraud. Rather it is about ignorance of due procedure, and a failure to understand the rules.
For example, a director who understands that the company is insolvent might pay himself out of the last money in the account simply because he needs to pay his mortgage on time. That action qualifies as wrongful trading because it’s putting his own interests before those of company creditors.
Section 213 of the Insolvency ActTrusted Source – Legislation – Section 213 of the Insolvency Act refers to the more serious charge of ‘Fraudulent Trading’, which means that any actions taken by the director were done ‘knowingly.’ Fraudulent trading may result in civil and/or criminal liability.
Defrauding creditors may result in personal liability to contribute to the assets of the business and/or criminal prosecution..
Section 212 of the Insolvency ActTrusted Source – Legislation – Section 212 of the Insolvency Act covers ‘misfeasance’ which, in plain English, is improper activity or a breach of fiduciary duty. Essentially this covers activities surrounding use of money such as when dividends are issued inappropriately, or unauthorised remuneration to directors.
Transactions at an Undervalue
Section 238 of the Insolvency ActTrusted Source – Legislation – Section 238 of the Insolvency Act covers the situation where an officer of the company sells an asset at less than market value in a way that results in less return for creditors.
For example, if a company is insolvent and a director sells a company property to a family member for a less-than-market rate, it could result in personal liability for the amount missing.
Section 239 of the Insolvency ActTrusted Source – Legislation – Section 239 of the Insolvency Act refers to the situation of one creditor receiving preferential treatment over others.
For example, if a director pays one supplier and not others, on the basis of a long and trusted relationship, after becoming aware of the company’s insolvency, he/she could find themselves personally liable as, overall, the creditors find themselves worse off.
Section 239 of the Insolvency Act refers to the situation of one creditor receiving preference over another.
For example, should the director pay one supplier – on the basis of long and trusted relationship – post become aware of the company’s insolvency, he/she could find themselves personally liable as, overall, the creditors find themselves worse off.
Fraud, Misrepresentations and Insufficient Record Keeping
If you lied or misrepresented any of the facts while applying for a credit or loan agreement on behalf of your business, you could be held personally liable for the debt.
You are also obliged to preserve and maintain accurate company accounts. If you fail to do so, you could be made personally liable for some of the company’s debts.
Reducing the Risk of Personal Liability if Your Company is Insolvent
When a company becomes officially insolvent, the appointed insolvency practitioner will look at the directors conduct in the period leading up to insolvency.
If you suspect your company is insolvent, or close to it, our suggestion is that you behave with the utmost diligence, and make contact with us as soon as possible for advice. It’s also worth checking to see whether there is an overdrawn directors’ loan account as this can be quite serious.
Generally, on liquidation,. the insolvency practitioner will want to see evidence that you :
- Placed creditors interests first once you understood the company’s financial position
- Kept clear lines of communication with both creditors and shareholders
- Took Professional Advice
You can read a full article here on Wrongful Trading.
Get Free Advice Now on Personal Liability
If you’re worried about being made personally liable for your business’ debts, contact us today. We can help you meet your obligations as a company director and avoid any personal liability for your debts while undergoing a company insolvency, company liquidation or company rescue procedure.