A Company Voluntary Arrangement (CVA) is a statutory agreement between a limited company and its creditors. While it is not defined in law that a company must be insolvent to utilise a CVA, it is generally used in this way, or when insolvency is a serious risk.
In recent years, the CVA has become a popular process, especially in the retail and leisure sectors, where it facilitates the restructure of leases.
If you think a CVA could be right for your company, please do get in contact with us. We provide expert advice and services and specialise in helping small business clients. Our fees are competitive.
What is a Company Voluntary Arrangement?
A CVA is a process outlined in Part I of the Insolvency Act 1986 (the Act) and the Insolvency (England and Wales) Rules 2016 (the Rules). The proposal could allow your company to:
- come to a formal arrangement with company creditors over debt repayment terms
- allow you to pay a proportion of the debts, rather than the full amount
The CVA is legally binding and allows the insolvent company to repay a proportion of its debts over a period of 1 to 5 years.
For the proposal to be approved, at least 75% of the creditors (by value of debt) need to agree to the proposal’s terms.
While the proposal is made by an insolvency practitioner, the existing management must remain in place during the period of the CVA.
Company Voluntary Arrangement procedures have been a part of UK law since 1986 and is one of the Governments’ preferred rescue options for companies.
Why Use a CVA?
- CVA’s are a flexible tool that can be used by themselves or in conjunction with other processes, such as administration.
- CVA’s can be used early, as they don’t require the company to be officially insolvent
- CVA’s do not require the involvement of the court, unless there is a legal challenge
- CVA’s require a majority rather than unanimity
- CVA’s don’t compromise the claims of secured creditors without their consent. Secured creditors can vote but only in regard to the part of their claim which is unsecured.
Who is Eligible for a CVA?
A company may be eligible for a Company Voluntary Arrangement when:
- The company is insolvent or at risk of insolvency;
- The company has engaged an insolvency practitioner and can prove that the business is still viable as a going concern. This means that the company must be able to show that it will have enough capital in the future to repay the debts, whilst remaining profitable and continuing to pay ongoing taxes like VAT/PAYE, etc.
How Does a CVA Work?
A CVA can be proposed by company directors, an administration (where the company is in administration) or a liquidator (insolvency practitioner)
Typically, once an Insolvency Practitioner has been contacted they will begin to create the arrangement and draft a written proposal after gathering the necessary information about the company’s affairs. This is put into a statement of affairs document.
Once the proposal has been reviewed by the directors the IP will then write to creditors and invite them to vote at a creditors’ meeting
(2) Statutory Moratorium
A Moratorium can be applied for ‘breathing space’ by preventing suppliers and other creditors from taking any further action against the company whilst the proposal is negotiated. These last 28 and the criteria for application is as follows:
- a turnover no greater than £10.2m;
- balance sheet assets no greater than £5.1m; and
- no more than 50 employees.
(3) Creditors Meeting
The Creditors’ meeting is an opportunity for creditors to voice any concerns about the proposal and its viability. The creditors can either be at the meeting in person, or they can vote by proxy (email or post). Directors are not obligated to attend the meeting of creditors;
If at least 75% of the creditors agree (by value of debt) to the proposal then the CVA is approved;
There will also be a separate meeting held for the connected creditors such as employees or directors. At least 50% of the connected creditors (by value of debt) need to agree to the proposal for it to be successful;
(4) Insolvency Practitioner’s Report
Once the CVA has been approved and the Insolvency Practitioner has been appointed as the Supervisor or Nominee, they will distribute a report to the court and the creditors detailing the information of the meetings that were held and the votes that were cast.
(5) CVA Commences
The CVA then begins once the successful voting has taken place from the meeting of creditors. Your company will then make scheduled payments to the creditors via the Insolvency Practitioner as part of the arrangement, to repay the debt. The company is protected by the arrangement providing all scheduled payments are made. If the company defaults on a payment it is likely that the it will be wound up via compulsory liquidation.
Does a CVA Affect all Creditors?
Yes, a CVA is legally binding for all creditors. Once approval has been reported to the court, there is a 28 day period during which creditors can offer a challenge.
On What Grounds Can a CVA be Challenged?
The Insolvency Act offers 2 grounds for challenge:
- material irregularity – that correct procedure was not followed
- unfair prejudice – i.e. that the CVA is not equally fair to all creditors
Assuming no challenge occurs, all creditors are bound by the terms of the CVA, including those who voted against it. Creditors are also prevented from taking any action against the company which is prohibited by the CVA’s terms.
How Long does a CVA take?
CVA’s typically take around 8 weeks from appointing the insolvency practitioner to a successful creditor vote, on average.
Advantages of a Company Voluntary Arrangement (CVA)
- The directors retain control of the company and it can continue trading;
- CVA’s have lower costs than alternative insolvency rescue procedures like administration;
- Less public than other insolvency processes (i.e. there’s no need to tell clients);
- Creates a legal ring-fence, similar to what is used in company administration called a moratorium and so helps to alleviate any creditor pressure, or legal action during the CVA period;
- Can freeze interest and charges;
- It may be possible to terminate onerous contracts as part of the CVA proposal, including supply contracts, lease and employment contracts;
- The Insolvency Practitioners’ fees are included within the agreed fixed repayment amount each month;
- Since the company has avoided liquidation, there’s no requirement for directors conduct to be investigated;
- Seen as a better alternative to liquidation as the return must be better in order for a CVA to be proposed;
- It can be a viable option to help stop a winding up petition.
- At the end of the CVA period, if there are debts remaining, they may be written-off. Sometimes, it is also possible to extend the CVA to address any remaining debts, depending on the circumstances.
Disadvantages of a Company Voluntary Arrangement (CVA)
- Whilst the CVA will not affect your personal credit rating, it will affect the company’s credit rating for 6 years;
- Obtaining agreement from the bank may be challenging;
- Some creditors may dislike the length of time that a CVA takes;
- Secured creditors are not bound by the terms, which means either HMRC or the bank, for example, could still withdraw their funding or push for liquidation;
- If the proposal is unsuccessful the directors may have to consider voluntary liquidation, or the creditors may select to wind the company up via compulsory liquidation.
What is Included Within a CVA Proposal?
Some of the key elements that are included within a Company Voluntary Arrangement proposal are listed below:
- How the company has got to this stage;
- The value of assets, third party properties, liabilities and the companies financial position;
- A cash-flow forecast and the likely amounts that the company is going to be able to pay each month;
- The reasons why the creditors should agree to the CVA;
- Duration of the CVA, the Nominee’s expenses/remuneration and the Supervisor’s duties;
- Any guarantees that the directors (or anyone else) will offer;
- How funds are to be banked/invested/dealt with;
- Proof that the return will be better for the creditors than liquidation.
Is a CVA the Same as Administration?
While the process has similarities, it is a different thing to administration. A company would go into administration if it was officially insolvent but remained viable. CVA’s are usually done before the point of insolvency, as a means of avoiding that state of affairs being reached.
Companies in administration are under the control of insolvency practitioners whereas those under a CVA continue to be managed by directors.
Role of Directors
In most cases, directors continue to run the company as normal during a company voluntary arrangement.
In rare situations, company creditors may press for a change of management as part of the CVA process, in order to protect their own interests.
Unlike other insolvency procedures such as liquidation, CVA’s do not bring with them investigations into director’s conduct.
Directors Personal Guarantees
Any personal guarantees given by directors remain in place during a CVA.
In most cases, those creditors who hold the guarantee will abide by the terms of the CVA as it proceeds since this is the best chance of them recouping their money. It is not impossible, however, for a creditor to grow impatient, even as the CVA unfolds, and call in the guarantee.
This is a situation you would be wise to discuss with an insolvency practitioner such as ourselves, as the consequences can be serious.
Will HMRC Accept a CVA?
If HMRC are the main creditor, many directors wrongfully assume CVA’s are no longer an option. But HMRC do consider CVA’s if they can see they’ve been well thought through and make sense.
Their conditions for accepting a proposal are here, with figures suggesting they approve about 70%.
How Does a CVA Affect Employees?
Since the purpose of the CVA is to allow the company to survive and continue trading, it ideally won’t affect employees at all.
However, in some cases company voluntary arrangement’s mean there is restructuring, in which case redundancies may follow as the company seeks a more profitable situation.
In these situations, employees would be eligible for government redundancy payments, for which you can read more details here.