重组综述（英国）-薪酬特别

Usually, the creditors of the insolvent company are the ones that will agree the basis uponwhich a liquidator or administrator (referred to in this note as “IP”) will be paid, whether that isa percentage of realisations, on time-costs basis or a fixed amount. It is only where creditors do In this special edition of Restructuring Roundup, we explore some key lessons from recent cases concerning the remuneration •Carefully consider who the creditors are when seeking fee approval.•Provide the court with sufficient information to make a decision when making an application tocourt seeking to fix the basis or quantum of remuneration.•Office holders do not need to be in office to make an application under Part 18 of the Insolvency Agreeing the Basis Upon Which Fees Are To Be Paid An IP has 18 months to fix the basis of their remuneration. This time limit can lead to difficulties where the requisitecreditors will not engage in the approval process, particularly where the company is in administration and the creditorscommittee fails to determine the basis of remuneration, or there is no such committee. In that case, depending on whether •Each secured creditor; or•If the administrator has made or intends to make a distribution to preferential creditors, each secured creditor and the Identifying which creditors need to approve fees and how, is therefore important. Thankfully Dear IP 168 (released last year) gives IPs some discretion when deciding which creditors need to approvefees, by allowing them to apply their professional judgment to decide who is a creditor for the purposes of any specificinsolvency provision. This is particularly helpful in the case of secured creditors, who are often paid in full early on in the However, despite the flexibility that Dear IP 168 provides, there are still some unanswered questions. For example, do youjust ask preferential creditors for consent under Rule 18.18 if all secured creditors have been paid? Rule 18.18 also states that where a Paragraph 52(1)(b) statement has been given, the consent of preferential creditors isrequired where there has been a distribution to preferential creditors. This creates its own difficulties. Firstly, Rule 15.11says that IPs do not need to send notices to creditors who have subsequently been paid in full, and in light of Dear IP 168,it would seem reasonable not to seek a decision from paid preferential creditors, and reasonable for them not to engage. What if a Paragraph 52(1)(b) statement was made at the start of the administration but there will no longer be anydistribution to preferential creditors at the time fee approval is sought? It is not unusual to find that the position assumed on appointment changes. Creditors who were thought to be creditors arenot; creditors might get paid earlier or not at all if realisations are not as expected. This issue was recently considered by the court in the context of preferential creditor consent required to extend an InCDI Realisations Ltd, the court considered whether the consent of preferential creditors was required to anadministration extension in circumstances where the administrators had given a Paragraph 52(1)(b) statement and thought there would be a distribution to preferential creditors. However, at the time of extending the administration, that was nolonger the case, and they therefore extended the administration based on the consent of secured creditors only. See ourblog for the reasons why. The court considered Paragraph 78(2)(b) and concluded that the consent of preferential creditors was only required wherethe administrator “thinks” that a distribution will be made. The court placed emphasis on the present-tense wording. In reaching this decision, the court drew a distinction between the wording in Paragraph 78(2)(b), and that in Paragraph52(1)(b), which is framed in the past tense. The language in Rule 18.18 is similar to Paragraph 78(2) but not the same. It is Plainly, it would make sense for an IP to consider the position at the point of seeking fee approval, rather than being bound If the answer to the questions – “Has the administrator made a distribution to preferential creditors?”, and “Do they intendto make a distribution to preferential creditors?” is “No” (e.g. because the factual position has changed since making theParagraph 52(1)(b) statement) it would seem reasonable, applying the logic fromCDI, for an IP to rely on the consent of There are now a number of cases where the courts have advocated looking only to those creditors that have an existingeconomic interest to make decisions. While this approach aligns with Dear IP 168, none of those cases specifically concern Key Takeaway Carefully consider who are the creditors when seeking fee approval Remuneration Applications Fixing the Basis When creditors decline or fail to fix the basis of an IP’s remuneration, Rule 18.23 allows an IP to make an application to the InPoxon and another v. Wejo Ltd (in admin