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Calm before the post-COVID storm is upon us

Sep 11, 2020

The impact of COVID-19 has left many businesses across the Irish economy vulnerable and uncertain about their future. Tom O’Brien and Hilary Larkin say this may be the ‘calm before the storm’.

We are seeing companies who are experiencing a decline in activity levels and have been sustaining themselves through this period by availing of the various supports which have been in place since the onset of the virus, such as the deferral of tax liabilities, bank forbearance measures, wage subsidies and rates freezes.

These measures have greatly assisted many companies, but it is what happens when they are ultimately removed that is worrying. Many businesses are accumulating significant liabilities over this period and when these supports are removed and businesses have to stand on their own feet again, there will be capital difficulties and liquidity issues.

Looking into examinership

Despite the negative outlook, there are options for those in financial distress. Given the prevailing trading conditions and the nature of the liquidity issues which will face many companies, examinership may be an appropriate restructuring option to consider.

There will likely be an increase in the number of examinerships over the coming months and into next year as companies seek to come to terms with the new normal and address pent up liquidity issues. The COVID-19 situation may also have highlighted other areas that can be actioned as part of the examinership process, such as property arrangements that are now onerous or surplus to requirement.

There are many advantages to the examinership process such as the company continuing to trade, jobs being maintained and preserved, and creditors faring better than they would if the company were placed into liquidation. It is, in many cases, a positive outcome for everyone concerned.

Examinership is not only an option for larger companies. Companies that meet the definition of a small company are capable of availing of examinership through the Circuit Court. This process has not been availed of as widely as was expected when it was first introduced – maybe due to lack of awareness or perhaps a perceived stigma around the process – but, given the economic forecast, smaller companies will be more likely to avail of it going forward.

Liquidation

While many eligible companies will go down the examinership route and emerge ‘at the far side’ completely restructured and with appropriate working capital and funding to sustain themselves into the future, there will inevitably be others that are not viable and may have to look at liquidation. 

Examinership is not suitable for all businesses as some will be beyond saving. In these circumstances, it is important that directors and business owners move in a timely manner to protect all stakeholders – employees, creditors, banks, and the directors themselves.

From a governance perspective, directors must be able to demonstrate that they have acted responsibly, showing that they have properly assessed the options open to them including taking independent legal and financial advice, formally recording meetings of directors and management and being careful not to expose creditors to further losses in the period preceding the liquidation. Obviously, great care should be taken with any payments from the business to ensure that issues of preferment do not arise.

This is all very important as in the final analysis, the liquidator is required to review the conduct of the directors over the period leading up to the liquidation and report to the ODCE on this. Directors should be able to demonstrate that their conduct was responsible and appropriate in the circumstances.

Stay positive

Despite all the negativity surrounding financial distress, it is also important to be positive and take the right steps. Banks have been very supportive and are willing to try and assist customers to restructure and get through this period. Companies should be encouraged to seek independent and competent advice as soon as possible. Don’t bury your head in the sand – talk to your bank in a proactive manner, and don’t leave things until you are really under pressure.

Tom O’Brien is a Partner and Head of Advisory Services in Mazars.

Hilary Larkin is a Partner in Financial Advisory in Mazars.