Aziz Rahman

examines some of the issues involved before, during and after a company

collapses.

When a

company collapses, there is often a temptation to look for a scapegoat. But

while others may be looking to cast aspersions and accusations, the authorities

will be more concerned with finding the actual cause of the collapse.

The recent

allegations surrounding the demise of BHS are a classic example: Philip Green’s

financial tactics, Dominic Chappell’s unsuitability for running a company and

BHS’s failure to move with the times are just three of the accusations that

have regularly been made.

The

Parliamentary Work and Pensions Committee has asked the Serious Fraud Office

(SFO) to start a formal inquiry, Green and Chappell seem intent on criticising

each other, meanwhile BHS staff lose their jobs and worry about their pensions.

Problems

Any company

that collapses will face investigation by somebody, whether it be

administrators, liquidators or law enforcement bodies.

If you run a

business and believe that all is not well, appointing a business crime lawyer to

conduct an internal investigation can help identify current or potential

problems, find ways in which they can be resolved or minimised and provide

guidance on how to report any wrongdoing to the authorities.

This puts

you on the front foot if and when the company collapses. As the SFO now has

deferred prosecution agreements as an option – whereby a company reports

wrongdoing, admits its faults, pays a penalty and then adheres to conditions

imposed to prevent it happening again – it is less likely to prosecute

companies self reporting. This is worth remembering if you identify problems in

your company.

Eliminate

It should never be forgotten, however, that the best way to avoid collapse

is to eliminate problems as early as possible. A thorough internal

investigation can lead to strong, anti-corruption procedures being introduced –

procedures tailored to that particular company and the geographical and

commercial sectors that it functions in.

Investigators’ objectivity and acumen can also be of value in tackling

some of the “home truths’’ that those running or working in a company may not

want to recognise. For example, are those in control competent?

It is unlikely that any director will be keen to point the finger of

blame at themselves or even a fellow director. But an internal investigator

called in to identify the problems will have no such reluctance.

Acting on such advice may be a bitter pill to swallow. But if it turns

out to be the advice that prevents a company’s collapse or minimises the damage

when it does become insolvent, then it has been a medicine worth taking.

Accusations

If such advice is not acted on, it could well be the SFO or another

agency making the accusations. These can lead to prosecution, disqualification

as a director and a variety of penalties for the firm or individual.

It is worth noting, however, that the SFO does not always get it right.

Its disastrous raids on the premises of the Tchenguiz brothers five years ago

showed that both its judgement and its application of the law are not always

infallible. Appointing a solicitor the moment you suspect the firm is in

trouble can provide the best defence to any allegations that are eventually

made.

Any company that has had its affairs scrutinised by those with business

crime expertise will be in a strong position to answer questions and challenge

allegations should the SFO start investigating – regardless of whether the

company has collapsed. Those who have carried out the investigation can explain

the “wider picture’’ by showing how certain activities that may look

questionable on paper are actually legitimate practices in such a business.

Lawyers can also negotiate with agencies such as the SFO to challenge

the accusations. This can mean countering the allegations at all possible

stages: before any formal investigation has begun, during interview, prior to charges

being brought and during any trial.

They can also be of great value in defending directors if

disqualification proceedings are brought against them or they face being

expelled from a professional body. The collapse of a company can bring problems

on many fronts. You need to have your affairs handled by someone experienced in

dealing with the various agencies.

Insolvency

If a company is declared insolvent and an insolvency practitioner (IP)

is appointed, this brings its own legal requirements. The IP may need to advise

people within the company that they will require legal representation as

wrongdoing is suspected. At the same time, it is possible that the IP may even

be the subject of a legal action brought by someone within the company who

either genuinely believes that practitioner has not acted correctly or thinks

that such action is the best way to protect their assets in the company.

The Insolvency Practitioners Association’s Ethic Codes for Members

emphasises the need for IP’s to provide a “competent professional service’’

based on the law and their profession. This certainly highlights the need for

IP’s to be fully aware of the law when a company collapses.

But everyone has to know the legal position – and their duties under it

– when a company is at risk of collapse.