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Further provisions of the Small Business, Enterprise and Employment Act (SBEEA) in force

Following our updates in March and May 2015, further provisions of SBEEA have come into force from 1 October 2015.

1. Administrators can now bring claims for Fraudulent Trading and Wrongful Trading.

2. Administrators and Liquidators will now be able to assign certain insolvency claims, including claims for Wrongful Trading, Fraudulent Trading and Transactions at an Undervalue and Preferences, to third parties.

3. The proceeds of any claims set out in 2, whether assigned or brought by the IP, are not to be treated as part of the company's net property i.e. that it is not available in relation to any floating charges over the company's assets.

4. The period of applying for disqualification of a director has also been extended from 2 years to 3 years from the date the company entered Administration/Liquidation.

5. Court now has the power to make compensation orders against directors of an insolvent company who are disqualified for misconduct, to compensate creditors who have suffered a loss as a result of the directors' misconduct. The limitation period for this is 2 years from the disqualification order/undertaking.

6. Directors may now be disqualified in relation to certain convictions abroad in connection with:
(a) the promotion, formation, management, liquidation or striking off of a company;
(b) the receivership of a company's property; or
(c) a person being an administrative receiver of a company;
which corresponds to an indictable offence in the UK. The maximum period of disqualification under this section is 15 years.

7. The court may now make disqualification orders against/accept disqualification undertakings from persons instructing unfit directors i.e. people exercising the requisite amount of influence over a director who has been disqualified/given a disqualification undertaking, and their conduct was the result of acting in accordance with that person's directions or instructions. The minimum period of disqualification is 2 years and the maximum period is 15 years. Limitation for bringing this claim is 3 years from the date the company entered Administration/Liquidation.

8. New provisions on determining unfitness and disqualifications and what matters should be taken into account regarding conduct, including conduct overseas.