Company voluntary agreements (CVAs) are becoming increasingly common in insolvency cases, writes Jamie Constable, a partner at Robert James Partnership.
When a company goes into administration, there are really three options available – the business is sold as soon as administrators are appointed to a prearranged buyer (sometimes known as a pre-pack), the assets are sold by the insolvency practitioners if no buyer is found, or a legally binding CVA is reached between the company and its creditors.
The first two cases result in the cessation of the old business, are far more disruptive and will usually result in much lower levels of return for creditors than with a CVA, in which the business and any contracts it has remain intact. For smaller creditors in particular, the opportunity to recoup as much of the outstanding payment as possible is greatest with a CVA and in some cases, it can be as much as the full amount, albeit deferred over a fixed period of say three years.
In order to secure a formal CVA, 75 per cent of creditors must agree to the terms of the CVA, which will normally follow intense negotiations between stakeholders over monies due. In practice, it is relatively common for a more informal restructuring to occur before this stage whereby a group of creditors would collectively agree to CVA-type payment terms to protect their interests and prevent their customer becoming officially insolvent.
Figures from KPMG show that the number of CVAs in the wholesale and retail sectors increased from 75 to 100 this year, while the construction industry saw the agreements rise to 147 from last year’s 124 during the same period. Certain sectors have always been more predisposed to CVA arrangements because their business trades from costly leased premises and long-term agreements are in place with landlords. Retailers, restaurants or health clubs fall into this category for instance and the most recent high profile cases in which CVAs were used successfully as turnaround vehicles can be seen with Miss Sixty, JD Sports and Discover Leisure.
Greater use of CVAs across different sectors is an interesting development to observe since they are notoriously difficult to agree. This is because such a high level of consensus between creditors and the business management is needed. However as the number of insolvencies has risen in recent years due to the economic climate, companies have begun to understand that this route represents the best option to limit losses and recoup at least some of the monies owed.
Obviously it is never a good situation to be in, but when a customer is facing financial difficulties, a compromise agreement such as this could be best all round. In practice it is very similar to HMRC’s own Time to Pay scheme which so many businesses have taken advantage of.
If as a business owner you are facing a situation such as this, where either you are having severe difficulties with cashflow or you have creditors potentially facing insolvency you should take advice on your best options and don’t dismiss the CVA. From our experience, if the customer does end up in administration, once insolvency practitioners are appointed, your overall returns will be lower than if you are able to reach a compromise deal with the business owner directly. It may also be possible for you or the firm to receive rescue funding through a turnaround specialist, during which time the business could also remain intact and continue trading.
Jamie Constable is a partner at Robert James Partnership and runs turnaround investment company RCapital, which has provided rescue funding and turnaround management to businesses including Little Chef, Helena Leisure and Morses Club.