Construction insolvency—how to spot problems and how to protect yourself—contractors

Produced in partnership with CMS
Practice notes

Construction insolvency—how to spot problems and how to protect yourself—contractors

Produced in partnership with CMS

Practice notes
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Spotting the early symptoms of employer Insolvency

  1. most importantly, a contractor needs to keep alert to the employer's financial status

  2. the contractor should take heed of ongoing rumours about the employer's financial position (either in the press or by word of mouth)

  3. look out for official announcements to shareholders/the Stock market (for example, profit warnings)

  4. note any surprising or uncommercial omissions from the project made by the employer

  5. keep aware of the employer's non-payment or late payment of other parties on this project, or on other projects being carried out by the employer

  6. clearly, if the employer suspends work on the scheme without any adequate explanation or without commercial rationale, this may be a sign that the employer is unwilling to finance further work

  7. confirm suspicions by carrying out a Dun & Bradstreet search/report, which should disclose, for example, any unsatisfied court judgments against the employer

If the employer is insolvent, see Checklist: Contractor steps to take if employer becomes insolvent—checklist.

Contractor methods of protecting itself

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Jurisdiction(s):
United Kingdom
Key definition:
Insolvency definition
What does Insolvency mean?

This can be defined by two alternative tests (Insolvency Act 1986, s 123):

cash flow test: a company is solvent if it can pay its debts as they fall due, no matter what the state of its balance sheet (Re Patrick & Lyon Ltd [1933] Ch 786);

• balance sheet test: a company which can pay its debts as they fall due may be insolvent if, according to its balance sheet, liabilities (including contingent liabilities) exceed assets.

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