Insolvency specialists are warning directors of struggling businesses they could face tough penalties if they fail to promote the “success” of the company before entering into insolvency procedures.
Under one of the most ambiguous changes to directors’ duties outlined in The Companies Act 2006, directors must act in the way they consider, in good faith, to be most likely to promote the success of the company for the benefit of its members as a whole.
Entering insolvency is an obvious indication that the company has not succeeded and, therefore, presents a raft of potential problems for directors of businesses in financial difficulty. And as “success” is not defined in the act, many SMEs are uncertain of how the duty should be enforced.
Directors may need to demonstrate that they had considered the effects of their decisions on the future of the company by producing board minutes or feasibility studies or showing that they have sought external advice when a company is in danger of insolvency.

