Procedure7 Mar 2016 17:27
The principal legal test for the appointment of an examiner is whether or not there is a reasonable prospect of the survival of the company and the whole or any part of its undertaking as a going concern.
Accordingly, not only must there be a reasonable prospect of the survival of the company, there must also be a reasonable prospect of the survival of the whole or any part of its undertaking as a going concern.
It is also necessary to demonstrate that the company is or is likely to be unable to pay its debts.
A company is deemed to be unable to pay its debts if: it is unable to pay its debts as they fall due; the value of its assets is less than the amount of its liabilities taking into account both contingent and prospective liabilities; or where section 214b) of the Companies Act 1963[13] applies to the company.[14]
A company does not have to be insolvent at the time of the presentation of the petition; the court can take account of a future event which is likely to have an adverse effect on the company's ability to discharge its debts. However, an examiner cannot be appointed to a company which is already in liquidation. The existence of a winding up petition does not, in itself, prevent the appointment of an examiner. Where a receiver stands appointed for a continuous period of three days or more, an examiner cannot be appointed.The period of three days runs from the appointment of the receiver and it is not open ot a peitioner to argue that the period has not started to run based on an alleged infirmity in the appointment.
Where an examiner is appointed to a company, the court may also appoint him as examiner of related companies and in a group situation this often arises though each group company should meet the test of having a reasonable prospect of survival of all or part of its enterprise.
The Petition
The petitioner has a duty of utmost good faith, so all relevant information should be made available to the court. Failure to disclose any material issue relevant to the application may, depending on the circumstances, result in the application being dismissed.
The petition should contain a full history and background to the company, together with an overview of its initial trading history.
It should contain a comprehensive explanation of the reasons for the company's current financial difficulties and, where applicable, the measures the directors have taken to remedy the situation. The petition should conclude with an analysis of the reasons the petitioner believes the company and the whole or any part of its undertaking has a reasonable prospect of survival as a going concern and of the changes in conditions necessary to ensure its survival. These will also be reflected in the independent accountant's report.
Lastly, the petition must nominate an individual (who has given his prior consent to act) to be appointed as examiner and interim examiner,