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James Rea-Palmer of Squire Patton Boggs LLP, considers the decision in Re Newtons Coaches Limited, a case concerning the applicability of section 216 of the Insolvency Act 1986 (IA 1986) to partnerships.
Re Newtons Coaches  EWHC 3068 (Ch),  All ER (D) 109 (Dec)
The recent case of Re Newtons Coaches considered whether a partnership falls within the remit of IA 1986, s 216. The case looked at what IA 1986, s 216 is designed to prevent and the nature of partnerships in the context of both the Insolvent Partnerships Order 1994 (IPO 1994) and the IA 1986. The Registrar held that IA 1986, s 216 does not apply to partners of a partnership that has been wound up.
IA 1986, s 216 imposes restrictions on the use of certain company names by persons who have been previously involved with a company that has entered insolvent liquidation (failed company). The section was enacted to restrict and prevent the ‘phoenix phenomenon’, by which former controllers of a failed company set up a newco with the same or a similar name to the failed company in order to obtain its goodwill while jettisoning its creditors.
Under IA 1986, s 216, a person who has been a director or shadow director of a failed company is prohibited from acting as a director of or be concerned or take part in directly or indirectly the management of another company or business (successor company) with the same or a similar name (a prohibited name) for a period of five years following the liquidation without permission of the court.
There are both criminal and civil penalties for a breach of IA 1986, s 216: criminal sanctions are up to two years’ imprisonment and/or an unlimited fine on indictment or six months’ imprisonment and/or the statutory maximum fine of £5,000 on a summary basis; in a civil case the individual can be made personally liable for the debts of the successor company.
There are three exceptions to the general prohibition under IA 1986, s 216 (see rules 4.228–4.230 of the Insolvency Rules 1986, SI 1986/1925 (IR 1986)):
The Applicants in this case carried on a partnership under the name 'Newtons of Guildford' (the Partnership). The Partnership was wound up on 14 October 2016. The Applicants wished to be involved in a company called Newtons Coaches Limited (NCL), which at the time of the application was being run by the Applicants’ wives. NCL had purchased for value the goodwill of the Partnership and the Partnership’s liquidators did not have any objection to the purchase or the Applicants being involved in NCL.
Given the similarity of the names of the Partnership and NCL, the Applicants were concerned that IA 1986, s 216 would apply to them and they made an application seeking the court’s permission under IR 1986, r 4.229. The Secretary of State for Business Energy and Industrial Strategy contended that IA 1986, s 216 applied to the Partnership and made written submissions to the court to this effect. The Applicants submitted that IA 1986, s 216 did not apply to them but sought the court’s view in any event.
Partnerships are ordinarily wound up under Article 7 of the Insolvent Partnerships Order 1994 (IPO 1994) which states that the provisions of IA 1986, Pt V shall apply in relation to the winding up of a partnership as an unregistered company.
The Registrar considered what mischief IA 1986, s 216 was designed to prevent and whether the Applicants could potentially be engaged in a breach of the provisions. He concluded that the scenario was different in relation to partnerships because they were not limited liability businesses. The Applicants therefore would remain personally liable for the debts of the Partnership and its failure could not be hidden; NCL was not the same business as it was a limited liability company.
The Registrar also considered the definition of 'company' under IA 1986, s 216(6) IA 86 and whether this would include a partnership. IA 1986, s 216(6) states as follows:
'In this section "company" includes a company which may be wound up under Part V of this Act'.
The Registrar found that whilst a partnership could be wound up as an unregistered company under IA 1986, Pt V, that does not make a partnership 'a company' for the purposes of IA 1986, s 216. Having analysed the natural meaning of the words used in and the intention of IA 1986, s 216(6), the Registrar concluded that IA 1986, s 216 does not apply to a partnership but only 'a company' which may be wound up under IA 1986, Pt V.
While the IPO 1994 applies certain provisions of IA 1986 to insolvent partnerships, there are some important distinctions in relation to how a partnership as opposed to a company is treated in an insolvency context. Re Newtons Coaches makes it clear that the application of IA 1986, s 216 is one of those distinctions.
This article was produced in partnership with James Rea-Palmer of Squire Patton Boggs LLP.
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Prohibited names under section 216 of the Insolvency Act 1986
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