Pre‐packin' in the UK

Abstract

AbstractA pre‐pack administration is one where a deal has already been agreed prior to the company entering administration. The company's business will commonly be sold to the incumbent management team immediately the company is placed into administration. The business survives relatively intact but will have managed to jettison its unsecured debt. The business is saved and jobs are saved. The pre‐pack will usually require the support of the company's bankers. Recent research suggests that pre‐packs may constitute between 50% and 80% of all insolvent going concern sales. The UK version of a pre‐packaged administration appears to have been rare until the administration process under the Insolvency Act 1986 was significantly amended in 2002, permitting a company to be placed into administration without a court order. The UK version of pre‐packaged administration does not involve any plan being approved by different classes of creditor nor for the court to be involved in approving activities of the administrator before or after the plan is put into effect. The paper considers whether or not pre‐pack administrations fit into the statutory framework of the Insolvency Act, the professional ethics requirements of being an insolvency practitioner and the equitable rules governing fiduciaries. Some aspects of the policy underpinning pre‐packs are also considered in particular the decision to allow insolvency practitioners to claim pre‐appointment fees as an expense of the administration. This decision appears to herald a change in government policy. This policy change is also considered. Copyright © 2009 John Wiley & Sons, Ltd.