Fixed charge holders

The meaning of insolvency matters for the type of legal rule. In general terms insolvency has, since the earliest legislation, depended upon inability to pay debts.[24] The concept is embodied in the Insolvency Act 1986 section 122(1)(f) which states that a court may grant a petition for a company to be wound-up if "the company is unable to pay its debts". This general phrase is, however, given particular definitions depending on the rules for which insolvency is relevant. First, the "cash flow" test for insolvency represented under section 123(1)(e) is that a company is insolvent if "the company is unable to pay its debts as they fall due". This is the main test used for most rules. It guides a court in granting a winding-up order or appoints an administrator.[25] The cash flow test also guides a court in declaring transactions by a company to be avoided on the ground they were at an undervalue, were an unlawful preference or created a floating charge for insufficient consideration.[26] The cash flow test is said to be based on a "commercial view" of insolvency, as opposed to a rigid legalistic view. In Re Cheyne Finance plc,[27] involving a structured investment vehicle, Briggs J held that a court could take into account debts that would become payable in the near future, and perhaps further ahead, and whether paying those debts was likely. Creditors may, however, find it difficult to prove in the abstract that a company is unable to pay its debts as they fall due. Because of this, section 122(1)(a) contains a specific test for insolvency. If a company owes an undisputed debt to a creditor of more than £750, the creditor sends a written demand, but after three weeks the sum is not forthcoming, this is evidence that a company is insolvent. In Cornhill Insurance plc v Improvement Services Ltd[28] a small business was owed money, the debt undisputed, by Cornhil Insurance. The solicitors had repeatedly requested payment, but none had come. They presented a winding up petition in the Chancery Court for the company. Cornhill Insurance's solicitors rushed to get an injunction, arguing that there was no evidence at all that their multi-million business had any financial difficulties. Harman J refused to continue the injunction noting that, if the insurance company had "chosen" not to pay, a creditor was also entitled to choose to present a winding up petition when a debt is undisputed on substantial grounds.[29]

English law draws a distinction between a "debt", which is relevant for the cash flow test of insolvency under section 123(1)(e), and a "liability", which becomes relevant for the second "balance sheet" test of insolvency under section 123(2). A debt is a sum due, and its quantity is a monetary sum, easily ascertained by drawing up an account. By contrast a liability will need to be quantified, as for instance, with a claim for a breach of contract and unliquidated damages. The balance sheet test asks whether "the value of the company's assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities." This, whether total assets are less than liabilities, may also be taken into account for the purpose of the same rules as the cash flow test (a winding up order, administration, and voidable transactions). But it is also the only test used for the purpose of the wrongful trading rules, and director disqualification.[30] These rules impose potentially impose liability upon directors as a response to creditors being paid. This makes the balance sheet relevant, because if creditors are in fact all paid, the rationale for imposing liability on directors (assuming there is no fraud) drops away. Contingent and prospective liabilities refer to liability of a company that arise when an event takes place (e.g., defined as a contingency under a surety contract) or liabilities that may arise in future (e.g., probable claims by tort victims). The method for computing assets and liabilities depends on accountancy practice. These practices may legitimately vary. However, the law's general requirement is that accounting for assets and liabilities must represent a "true and fair view" of the company's finances.[31] The final approach to insolvency is found under the Employment Rights Act 1996 section 183(3), which gives employees a claim for unpaid wages from the National Insurance fund. Mainly for the purpose of certainty of an objectively observable event, for these claims to arise, a company must have entered winding up, a receiver or manager must be appointed, or a voluntary arrangement must have been approved. The main reason employees have access to the National Insurance fund is that they bear significant risk that their wages will not be paid, given their place in the statutory priority queue.
Priorities
See also: Pari passu, Seniority (financial), and Subordination (finance)

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.