A Company Voluntary Arrangement (CVA): a term not necessarily high on the agenda for many businesses, but one that has risen in prominence over the last two years or so, and particularly since March 2020. Most notably on the high street, where retailers have sought to use the arrangement as a means to continue trading in the toughest of conditions.

Increasingly a point of debate and discussion, CVAs were once again thrown into the spotlight earlier this month, when the British Property Federation (BPF) urged the government to overhaul UK insolvency rules.

In a letter to corporate responsibility minister Lord Callanan, the industry group representing landlords questioned the manner in which CVAs have been used more recently. It argued that commercial landlords were being disproportionately impacted by arrangements that can be voted through by other less-affected creditors.

The increased use of CVAs to manage obligations to landlords, in particular, is clearly divisive – driven by a global pandemic that is accelerating the fortunes and misfortunes of many businesses, particularly those on the high street. There are companies that have suffered irreparable damage due to COVID-19; those that have weathered the storm, but have been left with a balance sheet in need of repair; and those that have benefited and seen revenues grow through diversification, or simply by being in the right place at the right time. CVAs have increasingly become an option for those businesses finding themselves in the former two categories.

Whatever your view on the current framework, it’s hard to deny that CVAs have played, and continue to play, a vital role in enabling businesses to continue to operate. Without such arrangements, more retailers would have disappeared from the high street in 2020, with repeated national lockdowns adding even more pressure to cash-stretched and under-capitalised businesses.

COVID-19 has blighted seemingly secure companies and placed them in a position of fragility – a prospect that seemed unfathomable for many 18 months ago. The ongoing restrictions imposed by the government will only make it harder for businesses to gain the kind of financial footing they need in which to attract suitable funding and ultimately recover – whether that’s from lenders or stakeholders. What’s more, there are several issues sitting on the horizon that will only make that recovery more difficult. The furlough scheme has, of course, been extended, but it cannot continue indefinitely.

There are countless deadlines that have been kicked into the long grass – quite rightly, some would say, to provide much-needed respite for struggling companies. These include deferred VAT and PAYE and, more informally in many instances, supplier costs, rental payments and obligations to lenders. Added to that is the ban on commercial landlords evicting tenants. The eviction moratorium has been extended once again until the end of March, together with restrictions on the use of statutory demands and presentation of winding up petitions. Given the current state of affairs, there’s nothing to say that these deadlines won’t be extended further. However, when all of these issues do finally crystallise, it could be particularly difficult for cash-poor businesses with little working capital and growing liabilities.

It’s clear that banks and lenders will be keeping a watchful eye on businesses over the course of 2021, reviewing their financial position and deciding whether further support is justified. The reintroduction of the preferential status enjoyed by HM Revenue and Customs in insolvency is a change that may well force lenders to reassess their position as to financial risk. Under the changes, which came into force at the beginning of December 2020, ‘crown preference’ places the UK tax authority ahead of banks, lenders and other holders of floating charges. This is in respect of certain tax liabilities when it comes to the priority of payments in insolvency proceedings. This potentially significantly weakens the position of lenders in insolvency scenarios.

With so many unknowns and factors outside of the control of businesses, the key is to be prepared, flexible and open to opportunities for restructuring and re-organisation. It’s important for businesses to take a proactive approach, to keep their financial position under ongoing review and consider all of the possibilities potentially available in a timely manner. Waiting in hope will only minimise the options available and force businesses into increasingly difficult choices.

If you would like to discuss business restructuring and re-organisation further, please speak to our insolvency team.

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