Restricting Related Creditor Voting Rights

One of the worst problems caused by the Insolvency Law Reform Act 2016 – the ability to remove an insolvency appointee without Court scrutiny – appears to have been partly addressed by changes to the Insolvency Practice Rules effective from 7 December 2018.

It will no longer be possible for related parties to buy debt cheaply and then vote the full face value to replace an external administrator. Instead, the related parties’ voting rights will be limited to the amount paid to acquire the debt.

This will be similar to the long standing position in personal insolvency – however in personal insolvency the restriction to the amount paid to acquire the debts applies to all debt sales, not just debt acquired by related parties.

Replacement by non- related creditors

There is still no Court scrutiny on liquidator replacement, so those unrelated creditors who work together to replace liquidators seen as too aggressive in pursuing preferences will not be affected by the changes.

Is ‘assignment’ broad enough?

The rules only apply to assignment of debt. In modern financial practice there are a range of ‘sub-participation’ and risk sharing arrangements which may achieve a similar outcome but perhaps be outside the scope of the rules as drafted.

Impact on debt traders

Some active debt traders will take equity positions as well as acquiring debt. In some cases that could mean that they have become a ‘related party,’ with the consequence that their voting rights will be very different under a scheme of arrangement (i.e. intact) compared to a deed of company arrangement (reduced).

Some market participants will recognise the differential treatments, and adjust their strategies to take advantage. The form of restructuring vehicle may become the next battlefield!

What’s next?

It’s pleasing to see an effort made to fix some of the damage done by the ILRA. Hopefully work is now underway to fix the other problems such as the impractical cash handling rules and the odd requirement for registered liquidators to have bankruptcy experience, to name a few.

Banking Royal Commission: SME Lending & Personal Guarantees

The use of personal guarantees to secure SME lending has been the subject of special focus by the Financial Services Royal Commission, especially where the guarantee is provided by an person not directly involved in the business (an ‘Outsider’) – typically a family member who does not receive any real benefit for providing the guarantee.

The Interim Report (available here) raises a number of specific questions around possible changes to the use of guarantees, which are reproduced at the bottom of this post. The main options are:

Better Information for guarantors

If there is concern that some guarantors are blindly taking a greater legal risk than they realise, then better information might be part of the solution. In theory, a document like a Product Disclosure Statement could help, but how likely is it to be read and genuinely understood? A more concrete step might be to make it mandatory for a guarantor to take independent legal advice.

If the concern is that guarantors underestimate a financial risk, then the Royal Commission might recommend that guarantors be given the same financial information that is used by the lender to make its decisions. But not all guarantors will have the skills and training to understand financial information – perhaps there will be a requirement for guarantors to also take independent financial advice?

The argument against such measures is that certificates of independent advice will add to costs, and may not change much in reality: as Commissioner Hayne has already highlighted, a parental desire to help family members can outweigh all other considerations.

Prohibiting enforcement of Outsider guarantees

A far more radical option would be to flatly prohibit the enforcement of guarantees given by Outsiders.

The key issue is whether or not lenders would reduce the availability of credit if Outsider guarantees were no longer enforceable, or whether they would continue to lend as they do now.

The argument that regulatory changes will not impact lenders’ willingness to provide credit was used to support the Code of Banking Practice prohibition against the use of financial covenants in SME lending. Lived experience shows that it was a wildly optimistic argument then, and it should be subject to more scrutiny now.

It is important to recognise that a blanket prohibition would not just be an issue for new lending. Unless there are grandfathering arrangements, it would apply to current loans as they expire, and so the potential impact could be massive if lenders decide that they cannot carefully and prudently extend credit to renew those loans.

Case by case?

The commission asks whether their might be circumstances that might justify the release of an Outsider’s guarantee – even if the lender had met the Code of Banking Practice standard of a ‘diligent and prudent banker.’

It might be simple to quickly answer that question with a ‘yes,’ but it is harder to identify examples of such situations and it will be more difficult to develop a new standard that will not impact the availability of SME finance.

Applicability to non-bank lenders

One of the questions that the Royal Commission will need to deal with is whether any new or higher standards should also be applied to non-bank lenders. If not, many borrowers denied finance by the application of a higher bank standard will turn to non-bank lenders, and take the same loan – but at a higher interest rate.

The Next Phase

The executive summary explains that the next round of public hearings will address the questions raised in the interim report.

The Interim Report of the Financial Services Royal Commission is available here.

7.2 Guarantees

If established principles of judge-made law and statutory provisions about unconscionability would not relieve a guarantor of responsibility under a guarantee, and if, further, a bank’s voluntary undertaking to a potential guarantor to exercise the care and skill of a diligent and prudent banker has not been breached, are there circumstances in which the law should nevertheless hold that the guarantee may not be enforced?
What would those circumstances be?
Would they be defined by reference to what the lender did or did not do, by reference to what the guarantor was or was not told or by reference to some combination of factors of those kinds?
Is there a reason to shift the boundaries of established principles, existing law and the industry code of conduct?
If the guarantor is a volunteer, and if further, the guarantor is aware of the nature and extent of the obligations undertaken by executing the guarantee, is there some additional requirement that must be shown to have been met before the guarantee was given if it is to be an enforceable undertaking?
Should lenders give potential guarantors more information about the borrower or the proposed loan? What information could be given with respect to a new business?

Discussion of how the Interim Report deals with Agricultural Lending is available here.

Financial Services Royal Commission: How the Interim Report deals with Agricultural Lending

The Interim Report of the Financial Services Royal Commission (available here) was tabled in Parliament yesterday.

Section 6 deals with Agricultural Lending, and concludes by identifying a list of ‘key questions’ for further consideration. The full list is reproduced at the bottom of this post, but for me the most important are:

Farm Debt Mediation

Should there be a national system for farm debt mediation?
If so, what model should be adopted?
Should lenders be required to offer farm debt mediation as soon as an agricultural loan is impaired (in the sense of being more than 90 days past due)?

There is mandatory FDM in South Australia, Victoria, Queensland and New South Wales, and a voluntary scheme in Western Australia. There is no legislative scheme in Tasmania, the Northern Territory or the ACT.

To replace the current patchwork coverage with a national scheme would be one of the most widely supported and least-opposed recommendations that the Royal Commission could make. It will be easier for lenders to comply if they do not need to manage up to seven different regimes, but there is more to it than that. Some borrowers will have farms either side of a state boundary, or will cross a State border to sign loan documents, and it will be easier for them too if only one regime applies.

The NSW system is the most well established, and best developed – it is the model that should be adopted. There is one feature of the Victorian scheme which should be applied nationwide however: assistance with the cost of mediation so that farmers can always afford to engage.

A current problem is that FDM regimes are only available where there is a default. It would be helpful if mediation schemes could be accessed prior to that point, but the proposed linkage to the loan being ’90 days past due’ does not go far enough. A better option would be to also allow access to the scheme where a lender has determined that it is not prepared to extend a current loan.

Conduct of valuations

How, and by whom should property offered as security by agricultural businesses be valued?
If prudential standard APS 220 is amended to require internal appraisals to be independent of loan origination, loan processing and loan decision processes, when should that amendment take effect?

To those of us in capital cities the answer seems clear and obvious: a banker originating a loan should never be involved in valuing the security.

A farmer west of Longreach however, might be frustrated to be told that their loan approval will be held up until someone can get out from head office, and that they will need to meet the travel and accommodation costs.

There does need to be some allowance for a local banker with appropriate training in remote locations to conduct valuations for relatively small loans or small increases to existing loans.

Should LVR ratios be capped?

Is the possibility, or probability of external shock sufficiently met by fixing the loan-to-value ratio?

A maximum LVR sounds like a practical way of ensuring that borrowers retain some level of buffer to allow them to cope with external shocks – but it will be a double-edged sword. A hard-coded LVR limit would also stop lenders from providing carry on funding – potentially forcing the sale of farms.

Enforcement only as a last resort

In what circumstances may a lender appoint an external administrator (such as a receiver, receiver and manager or agent of the mortgagee in possession)?
Is appointment of an external administrator to be the enforcement measure of last resort?

Each of the banks that gave evidence would agree that the appointment of an external administrator should be the last resort. The difficulty arises in practice: what does ‘last resort’ actually mean, and when has that point been reached?

It is significant that all but one of the case studies were either from states without mandatory FDM, or pre-dated the current FDM. There is good reason to think that FDM has played an important role in avoiding the need to enforce at all.

Not only does FDM provide an unmistakable signal to all parties that the point of ‘last resort’ may be approaching, at the same time it provides them with an alternative to enforcement.

The Next Phase

The executive summary explains that the next round of public hearings will address the questions raised in the interim report.

The Interim Report of the Financial Services Royal Commission is available here.

5.0 Issues that have emerged

All agricultural enterprises are subject to the effects of events beyond the control of the individual farmer. Occurrence of any of these events, let alone a combination of them, will affect cash flow and profitability and, hence, the ability to service debts. Their occurrence will often have profound personal effects on those who conduct the business.

Four issues emerged: about revaluation of securities; difficulties in obtaining access to banking services and appropriate support; changes to conditions of lending; and, enforcement by appointment of external administrators.

The particular questions can be identified as including:

How are borrowers and lenders in the agricultural sector to deal with the consequences of uncontrollable and unforeseen external events?
Does the 2019 Banking Code of Practice provide adequate protection for agricultural businesses? If not, what changes should be made?
How, and by whom should property offered as security by agricultural businesses be valued?
- Is market value the appropriate basis?
- Should the possibility, or probability of external shocks be taken to account in fixing lending value? How?
- Should the time for realisation of security be taken to account in fixing value? How?
- Is the possibility, or probability of external shock sufficiently met by fixing the loan-to-value ratio?
- If prudential standard APS 220 is amended to require internal appraisals to be independent of loan origination, loan processing and loan decision processes, when should that amendment take effect?

Should distressed agricultural loans be managed only by experienced agricultural bankers?
Do asset management managers need more information (such as the cost to the lender of holding the loan) to make informed commercial decisions about management of distressed agricultural loans?
Are there circumstances in which default interest should not be charged?
- In particular, should default interest be charged to borrowers in drought declared areas?
- If it should not, how, and where, is that policy to be expressed?
- Should the policy apply to other natural disasters?
In what circumstances may a lender appoint an external administrator (such as a receiver, receiver and manager or agent of the mortgagee in possession)? Is appointment of an external administrator to be the enforcement measure of last resort?
Having regard to the answers given to the preceding questions:
- Is any regulatory change necessary or desirable?
- Is any change to the 2019 Code necessary or desirable?
Should there be a national system for farm debt mediation?
- If so, what model should be adopted?
Should lenders be required to offer farm debt mediation as soon as an agricultural loan is impaired (in the sense of being more than 90 days past due)?

The impact of draft anti-phoenix measures on restructuring and corporate turnaround

‘Phoenixing’ – the process by which the assets of an insolvent company are transferred to another company so that creditors miss out – is a significant problem in Australia. On budget night the government announced several headline anti-phoenix measures, with greater detail provided last week through the release of draft legislation for consultation. Although the measures are aimed at those who act unscrupulously, they have a wider ambit, and there is the potential for them to have a broader impact if they do become law.

Overview of the measures

There is more detail here but in summary, the key concept is a ‘Creditor Defeating Disposition’ (‘CDD’). A CDD is a transaction entered into either:

when the company was insolvent; or
in the twelve months prior to the company entering formal insolvency administration;

which prevents, hinders or significantly delays the property of a company from becoming available for the benefit of creditors.

If there is a CDD:

Officers whose conduct resulted in a CDD will commit an offence.
Those involved in ‘procuring, inciting, inducing or encouraging’ a company to engage in a CDD will commit an offence
Both ASIC and the Courts will have power to make orders to reverse the transaction to recover the property.

A CDD will not be voidable if the sale was for market value consideration, or was entered into by a liquidator, under a deed of company arrangement or scheme of arrangement, or as part of a Safe Harbour restructuring plan.

Market value

‘Market value’ sounds like an objective measure but in the absence of a public sale process it will be assessed retrospectively. By comparison, the duty of care imposed upon receivers requires them to conduct an effective sale process but it does not mandate an outcome.

Safe Harbour is a defence

Specific protection for transactions entered into by liquidators and deed administrators is obvious and as expected. A similar exemption for companies in Safe Harbour (more detail here) is a sensible and consistent policy alignment.

Application to transactions with third parties

Many would think of a phoenix transaction as a sale to a related party, but significantly it seems that the draft legislation has the potential to apply to sales to third parties, if the proceeds of sale are ‘diverted.’

The type of transaction described in an extract from hypothetical email from a CFO to a CEO highlights some of the real world issues:

We have a received an unsolicited offer for our New Zealand operations. The offer is less than I think we would get if we took the business to market but that would take another six months, and a sale now would leave us one less headache to manage, so I recommend that we accept….

If those sales proceeds are used to pay the trade creditors of the New Zealand business, and the Australian business collapses a month later with employees unpaid, should that transaction amount to a CDD which can be reversed? Is that email the ‘smoking gun’ which might expose directors and advisers to the transaction to the risk of prosecution?

Potential purchasers who believe a vendor to be under financial pressure may be concerned about whether they can take clear and irreversible title to business assets, or whether there may be a risk of later claw back. Such a purchaser has a theoretical access to the general good faith defence that is available to purchasers without ‘knowledge of insolvency’, but they may need to think carefully about when exactly a suspicion about financial stress might amount to ‘knowledge of insolvency.’ Some potential acquirers may decide they need more information, or details of how the funds will be dispersed, and some may decide that it is safer to walk away and wait for a formal insolvency to deliver clear title.

Conclusion

Measures to address the serious problem of phoenixing are appropriate, and alignment with Safe Harbour measures is commendable. However, phoenixing by its very definition involves transaction with related parties. Extending the ambit of anti-phoenix measures so that they also apply to transactions with third parties risks the ability of stressed companies to promptly execute genuine sales, and should be implemented with great care. If anti-phoenix measures need to be applied beyond those currently defined as ‘related parties,’ perhaps a better approach might be to broaden that definition.

Anti-phoenix measures open for consultation

On 16 August the government released draft legislation intended to implement the anti-phoenix measures that were announced on budget night.

The legislation does not include the widely supported idea of a Directors Identification Number – but that is as expected, the DIN was the subject of an earlier consultation process which ended on 16 August.

The draft legislation does not go beyond the measures announced on budget night so in that sense there are no surprises. but there are some noteworthy aspects of the implementation of those headline measures.

A new type of voidable transaction

The legislation will create a new type of voidable transaction, a ‘Creditor Defeating Disposition’ (‘CDD’), defined as a transaction which has the effect of:

(a) preventing the property from becoming available for the benefit of the company’s creditors in the winding‑up of the company; or

(b) hindering, or significantly delaying, the process of making the property available for the benefit of the company’s creditors in the winding‑up of the company.

which will be potentially voidable if one of the following applies:

(i) the transaction was entered into, or an act was done for the purposes of giving effect to it, when the company was insolvent;

(ii) the company became insolvent because of the transaction or an act done for the purposes of giving effect to the transaction;

(iii) less than 12 months after the transaction or an act done for the purposes of giving effect to the transaction, the start of an external administration (as defined in Schedule 2) of the company occurs as a direct or indirect result of the transaction or act;

The absence of any requirement to prove insolvency in relation to transactions entered into in the twelve months before formal insolvency may assist liquidators – although they may still need to disprove solvency if the other party claims the good faith defence.

Administrative Recovery process

The proposed amendments will create a regime by which a liquidator can ask ASIC to make administrative orders to recovery property that was transferred as a result of a CDD.

Liquidators will welcome a recovery regime which has the potential to avoid the costs and delays of Court processes, but there is little detail here about what ASIC’s own processes will be. For example, the legislation does not seem to require ASIC to allow the other party a ‘hearing’ – but ASIC may form the view that it should.

Also worth noting is that a failure to comply with such an administrative order will expose a party to the civil penalties and offence regimes, which should assist with a more cost-effective and timely recovery.

New Offences

The draft legislation will introduce new offences for:

Officers who engage in conduct that results in a CDD.
Non-compliance with administrative orders.
‘Procuring, inciting, inducing or encouraging’ a company to engage in CDDs. This is a measure specifically targeting those Pre-insolvency Advisers who actively promote phoenixing.

These new offences go part of the way, but ASIC will need to have the resources to investigate potential offences and prosecute where appropriate. Today ASIC is able to act on only a very small proportion of the potential offences that liquidators currently report, and so adding to the already long list of potential offences without an appropriate enforcement budget will have little real impact.

Safe Harbour a defence

Effective 16 September 2016 there is a ‘Safe Harbour’ (discussed here) which protects directors from insolvent trading claims. The CDD recovery regime will exclude transactions which are entered into whilst a company is within that ‘Safe Harbour’ – a commendable policy alignment.

Other changes

The proposals also include:

A 28 day limit on backdating director resignations.
Prohibition on director resignations that would leave the company with no directors.
Related parties who acquire debt can only vote for the amount paid – not the face value of the debt – when voting on resolutions dealing with the appointment, removal or replacement of an external administration.
The current Director Penalty Regime will be extended to cover GST, luxury car tax and wine equalisation tax.

Details of the proposals can be found here. Submissions are due by 27 September 2018.

How do we measure up? Australian treatment of SME borrowers

The first hearings of Australia’s Banking Royal Commission began in March 2018 – only one month after the final conclusion of a long running UK review into the post-GFC handling of problem loans by UK’s Royal Bank of Scotland.

A so-called ‘Skilled Person’ report was commissioned by the UK Financial Conduct Authority in January 2014, and delivered in September 2016. But it was only released to the public in February 2018 when an apparently impatient Parliamentary Committee acted unilaterally by publishing the full report online here.

Whereas the Royal Commission hearings in June 2018 presented a small and carefully curated selection of customer complaints, the RBS review conducted an extremely detailed analysis of more than 200 cases – an unprecedented insight into the working of a workout team.

The background to the report is discussed in detail here.

The report concluded that there was ‘widespread inappropriate treatment of customers’ by GRG – RBS’ workout team. It included recommendations for RBS specifically, and also made recommendations ‘for the wider market.’ Both are reproduced in full below.

How does Australia measure up against the RBS report recommendations?

At a time when there appears to be fierce scrutiny of the treatment of small business borrowers by Australian banks, it is appropriate to measure the current Australian position against the four general recommendations contained in the RBS report:

1. Extension of Unfair Contract Terms protections to SMEs

The UK’s Unfair Contract Terms regime does not apply to SME businesses at all.

The Australian UCT regime does not completely align to the UK regime (for a careful comparison see here) but what is in place does apply to loans of less than $1 million to small business (defined as those with fewer than 20 FTE) made or varied after 12 November 2016.

The ASBFEO and others argue that the $1m limit is too low, but Australia at least has some coverage.

2. Greater access to the Financial Ombudsman Service

In the UK, ‘micro-enterprises’ (an EU definition: businesses with an annual turnover of up to two million euros and fewer than ten employees) can access their FOS scheme, with compensation awards limited to £150,000.

In Australia, the current FOS scheme compensation is limited to $323,500. At present then, the UK and Australian schemes provide broadly similar coverage, however from 1 November 2018 the new Australian Financial Complaints Authority will commence operations. AFCA will have power to award compensation of up to $1m in relation to business credit facilities up to $5m provided to businesses with less than 100 staff.

As of 1 November the Australian scheme will therefore be available to micro, small, and medium businesses, and it will provide significantly larger compensation. Australian businesses will clearly have better protection from 1 November than their UK counterparts.

3. Introduction of a Code for bank support of customers

There is a ‘Lending Code’ in the UK, but it provides limited guidance in the area of bank support, and in any event it only applies to micro-enterprises.

The Australian Code of Banking Practice – approved by ASIC last week, but to apply no later than 1 July 2019 – is available here.

The CoBP is stated to apply to ‘small businesses’ (yet another definition!): those with fewer than 100 staff and annual turnover of less than $10 million in the previous financial year, and less than $3 million total debt.

Part 6 of the CoBP sets out protections for small businesses. Perhaps the most significant development is a limitation on the recovery of loans based on the grounds of non-monetary default. That said, careful explanation is required because some non-monetary defaults will still apply if material: formal insolvency, lapsing of insurance, failure to provide correct and complete information, a loss of license or breach of law, or use of the loan funds for an unauthorised purpose. There also specific types of loans where ‘financial indicator’ non-monetary defaults are ‘ruled in’ : margin lending, SMSF loans, bailments, invoice finance, construction finance, foreign currency loans and tailored cash flow lending.

Other changes include:

A minimum 30 days’ notice of enforcement action (albeit with some exceptions where special risks are evident).
A minimum of 3 months’ notice where a bank decides not to extend a loan beyond its original term.
A blanket prohibition against the use of ‘material adverse change’ clauses.
Clarity around valuation processes: clear explanation around the purpose of the valuation, with copies of property valuations and valuer instructions to be provided to the borrower unless enforcement action has already commenced.
An undertaking to ensure that valuers and investigating accountants are members of professional organisations with appropriate codes of conduct. Banks must apply additional internal oversight if investigating accountants are to be appointed as receivers.

ASBFEO argues that the $3m limit is too low and should be increased to $5m, but again, Australia is clearly ahead of the UK in relation to a formal code of practice.

4. Dealings with third-party providers, especially in relation to secondees.

The RBS report identified issues which it said gave rise to concerns that third-party service providers ‘may be too ready to see the bank’s point of view.’ Most would expect that a service provider would work hard to see things from a clients’ point of view however, so it is not clear at first reading what criticism was intended by the authors of the report.

More clearly, the report identifies the need for controls around distribution of sensitive information to advisers, and the potential for conflicts of interest where secondees are involved.

Most lenders would have their own controls around such issues, but there is no industry standard in either the UK or Australia.

Recommendations do not apply to non-bank lenders

The RBS recommendations refer specifically to ‘banks’ rather than ‘lenders.’

At least in Australia, the market share of non-banks is growing strongly in some sectors. Some part of that growth may be due to a customer preference for Fintech offerings, but it also reflects the lack of alternatives for borrowers who are excluded by the CoBP criteria (for example, those who are ‘asset rich’ but ‘income poor’), or seeking funds in areas where bank portfolio management issues translate to limited appetite (currently: property development).

Some critics of banks may argue that it is appropriate that banks are subject to a higher standard than other lenders. Leaving the merits of that argument to one side, it raises an interesting policy question: is there a need for non-bank borrowers to have a real understanding of which regime applies, or is it acceptable for that to be left to the ‘small print’ of the loan agreement?

Overall

It may not suit the narrative of some bank critics, but protection of small business bank customers is greater than that available to small business non-bank customers, and it is clear that both have significantly better regulatory protection in Australia than their UK counterparts.

Part 7 of RBS Group’s treatment of SME customers referred to the Global Restructuring Group (available online here) is reproduced in full below.

Part 7 – Recommendations

7.1 Throughout this report, we have Identified Issues relating specifically to RBS, but we also believe that there are wider lessons for RBS and for the industry as a whole. In this Part we draw together specific recommendations for RBS and draw out some wider observations in the light of our findings.

7.2 The FCA has instigated a review of its own approach to SMEs as users of financial services and we see our report and its recommendations as a contribution to that work. There are also Important Implications for other lenders, the professionals with whom they work, policy makers, and SME customers.

Recommendations for RBS

7.3 The conclusions we have reached in this report warrant a fundamental rethink by RBS of how it handles Its SME customers in financial distress.

7.4 We recognise that some change was already being made at the end of the Relevant Period. But the terms of reference for Phase One meant that we did not review whether or not the lessons from these events have been learnt by RBS, or whether the wide-ranging changes that we consider to be necessary have been made and are embedded. As we did not review changes made by RBS after the end of the Relevant Period we recognise that some of the recommendations set out below may already have been addressed or their relevance superseded by subsequent events but nonetheless they provide a framework within which future treatment of SME customers can be developed and provide an opportunity to address the weaknesses in governance and oversight, and indicators of poor culture in GRG that we have highlighted In this report.

7.5 We recommend that a review is carried out to ensure that our conclusions and recommendations that remain relevant to RBS have been implemented and in particular, to provide assurance to RBS, customers and the FCA that adequate governance and oversight arrangements are now in place to ensure that similar poor treatment of distressed SME customers could not happen in future.

7.6 Specifically we recommend that in carrying out that review RBS should, in the light of the observations and conclusions in this report:

Improve its governance arrangements and in particular*:
- Review the objectives set for its turnaround division – the revised objectives should be agreed by the RBS Group Board;
- Review the governance of its turnaround division to ensure that it is subject to effective scrutiny, and establishes effective second and third lines of defence;
- Review the content and form of management Information to ensure that customer outcomes and experience are accurately reported:
- Review the staff objectives set for, and culture of, those In Its turnaround unit dealing with SME customers to ensure that these more closely align with the revised objectives the RBS Board has agreed;
Improve the arrangements around transfer into and out of the turnaround unit:
- Revise the criteria for the consideration of referral to the turnaround unit In respect of SME customers;
- Review the governance of the transfer process for SME customers to ensure that It is acting both efficiently and fairly: specifically we recommend that the chair of the group considering transfers should be independent of both B&C and the turnaround division;
Ensure that its arrangements for returning customers to mainstream banking are clearly signposted to SME customers and that where RTS is appropriate this can be expedited promptly;
Provide a greater focus on turnaround options where these are viable:
Review and Improve Its training and guidance for staff handling turnaround issues and ensure that staff have the necessary support and training to deliver good turnaround practice;
- Ensure in future that viability assessments are carried out on all cases following transfer and that where customers are potentially viable, a clear turnaround plan with milestones and targets should be produced and wherever possible shared and agreed with the SME customer;
- Review the role and purpose of the Strategy and Credit Committee (or its successors) to ensure the terms of reference contain a requirement that turnaround options and the fair treatment of customers are reviewed in addition to credit considerations;
Rethink its approach to pricing in respect of distressed SME customers:
- Review the policy and practice of the turnaround unit on pricing to ensure that Relationship Manager pricing decisions and reasoning are fully documented and validated and that turnaround considerations are taken Into account;
- Review the range and form of fees and other charges for SME customers and set out for customers a clear and simple guide to when fees wiII be applied;
- Review the rationale for an additional administrative/management fee being routinely levied on distressed customers;
Ensure any internal valuations are handled more carefully:
- Ensure that internal valuations and the reasoning behind them are fully documented and that this information is shared with the customer if the valuation is to be used in the development of strategy, or in decisions around the level of facilities or pricing;
- Where in-house resources are used to provide valuations upon which significant decisions are made In the context of a turnaround unit, RBS should ensure that there is a clear separation of functions and adequate safeguards to prevent conflicts of Interest;
Review its policies and practices on dealing with customers and on complaints:
- Review its policy and procedures for Relationship Managers’ engagement with SME customers. In particular RBS should consider how Its engagement with SME customers takes appropriate account of the different circumstances of the diverse group of SMEs with which it deals;
- Review and revise its communications with customers to ensure that it is transparent, clear and informative,
- Revise its approach to complaint handling and provide SME customers with clearly signposted routes to escalate their complaint if necessary;
Review its use of third-party firms and in particular the use of secondees’

RBS should ensure that appropriate guidelines and mechanisms are in place to guard against conflicts of interest in these areas;

Fundamentally review its approach to the purchase of distressed assets:

Amend the governance, policies and practices and other arrangements relating to circumstances where it (West Register) acquires or considers the acquisition of assets owned by its distressed SME customers to address the shortcomings in arrangements that we have Identified and ensure effective separation of the function from any turnaround unit;

Review the use of Upside Instruments in the context of SME customers:
- Review the Information provided to SME customers In relation to PPFAs to ensure that the agreements and the associated costs are transparent; and
- Review the role of EPAs In relation to SME customers, in so far as RBS Judges their continued use is justified and helpful to some customers it should further consider customer communication, minimum timescales and notification of buy-back terms, the governance around the arrangements and more widely the Interaction between SIG, the turnaround unit and SME customers

7.7 Addressing these recommendations will help ensure that similar problems to those experienced In RBS’s GRG during the Relevant Period do not occur in future. These recommendations do not, however, address the concerns and Issues of those SMEs that were handled by GRG. We make two recommendations that are intended to address specific unfairness that we observed during the course of our review. These are:

Revisit the cases Identified in our review where it Is clear that GRG failed to respond to a complaint or where Its response was Inadequate, and
Review the position of those SME customers who entered Into an EPA during the Relevant Pernod with a view to ensuring that where a West Register minority holding in their business remains in place that they have a fair means of resolving disputes about the value of that holding.

7.8 But those specific recommendations do not address the central findings of our review. We have identified a number of cases where we conclude that the actions of RBS are likely to have caused material financial distress to the customers affected and there are other cases where it seems clear that the customer will have suffered from some unfairness. It is understandable that there will be calls for RBS to compensate the customers affected.

7.9 As we have noted previously the extent and nature of financial distress vary considerably and are often hard to quantify with any precision. The circumstances of GRG customers often meant that the Bank had considerable discretion under the law, and those Individuals who suffered may not have a straightforward legal position. In any case, for example because the company was the Bank’s customer, and they may no longer be the owners, or the company may have ceased to exist. The inappropriate actions we identify and their wide ranging consequences for customers were not caused by breaches of regulatory rules or principles so the scope for regulatory action is limited

7 10 Responsibility for responding to these Issues and the distress GRG caused many of its customers rests with the Board of the RBS Group. We do not underestimate the challenges of any redress scheme it would likely require independent, lengthy and complex mediation, operating outside the strict legal framework.

7.11 Nevertheless we recommend that RBS should consider the practicalities of providing redress to GRG customers who are likely to have experienced financial distress as a result of its actions.

7.12 There are also some wider Issues for RBS to consider. First the extent to which the Issues we report here In respect of GRG were or In particular remain features of other units handling SME customers. We recommend that RBS reviews the relevance of these findings more widely to its handling of SME customers.

7.13 Second the terms of the Requirement Notice meant that we did not review the extent to which those in RBS outside GRG were aware of the Issues. In any event it appears to us that there are wider lessons for RBS to consider in terms of how the events in GRG could have continued for so long apparently either unnoticed or unchallenged by others in the wider RBS Group.

Lessons for the wider market

7.14 The FCA has, as noted above, Instigated a review of its own approach to SMEs as users of Manual services. Our report and its recommendations can be viewed as a contribution to that work. Our findings highlight the diversity of SMEs and the Inequality of bargaining power between less sophisticated SMEs and banks. They also underline the lack of protection available more widely to SMEs.

7.15 The case for standards – established either by regulation or by agreement – In relation to lending to SMEs Is derived from the special features of the market, as described In the CMA/FCA Market Study and the wider CMA Retail Banking – SME market Investigation: a sector with high concentration in lending, the lack of understanding of many SMEs as to the pricing of banking products Including loans, and the paradox of Simultaneous low levels of satisfaction and of switching among SME bank customers. As our work has shown, SME customers facing hardship may have even more limited choices. They will often have little realistic prospect of changing their banking arrangements – whatever their level of satisfaction or dissatisfaction with the services provided, and whatever the price of those services. This Is particularly the case during periods of economic uncertainty

7.16 The SMEs In our sample illustrate the variety of SMEs that banks have to deal with. They included some SMEs with a reasonable level of financial sophistication who had available to them expert advice; but they also included SMEs without access to Independent advice, and with little financial experience. Even when a SME had some reasonable understanding of financial Issues, this was not necessarily sufficient for the increased complexity of the Issues which often arose once the SME was transferred to GRG, where the situation could be complicated both by general legal issues such as the different protections and treatments offered to limited companies and to sole traders, and by the complexity of the solutions which GRG on occasion brought forward. There were other important differences some were In effect sole traders or owner managers where the sickness of a key individual could have catastrophic consequences for the business for some smaller customers the lending was closely intertwined with personal financial arrangements, so that when things went wrong in the business the consequences were personal as well as professional.

7.17 We have noted that GRG had few arrangements for drawing such distinctions in its customer base and for shaping its services and communications with an eye to these differing levels of capability. Indeed, it is not clear that RBS now accepts the need for this.

7.18 We believe that policies and practices for the SME sector need to be based at least In part on an appreciation of differing customer capabilities, if the SME customer is to be treated fairly. This is not readily defined by arbitrary limits such as amounts of debt or even turnover. But it will be relevant to take account of the stage in the banking relationship reached by the customer, to ensure that products, services and communications are appropriate for the needs of the SME customer.

7.19 The present regulatory protections for SME-related conduct are limited. Given the widespread inappropriate actions Identified in this report in relation to lending activities, we consider that the FCA should work with the government and other relevant parties to extend the protections available to SME customers.

7.20 One option would be to extend the regulatory perimeter to bring SMEs within the scope of FCA’s regulated activities, to ensure that regulatory action can be taken to guard against unfair treatment of customers and that the principles for business and standards of good governance and personal respon5ibility apply to this sector as they do to other parts of retail banking However a higher priority may be to give SMEs avenues to challenge banks where they are treated unfairly For example consideration should be given to extending the unfair contract terms protections to SMEs, and giving them greater access to the F0S.

7.21 Contracts with SMEs for the provision of credit facilities and other services can be markedly more complex than their retail market equivalents. In part this reflects limited protections for SMEs – in particular the Unfair Terms in Consumer Contracts Regulations (UTCCRs).

7 22 As a result, SME contracts can give banks wide discretionary rights to vary terms that would not be compliant with unfair contract terms provisions in a retail setting. The lack of unfair contract terms protections, taken together with the restricted access to redress/dispute mediation for SMEs, can give rise to a risk of unfair treatment of customers. Whilst some discretion may be inevitable given the nature of the products involved, the ability of banks to change lending criteria, or to treat many loans as well as overdrafts as ‘on demand’, means that banks have a wide discretion that SMEs cannot readily plan against or challenge.

7.23 The Law Commission’s recommendation” that Unfair Terms in Consumer Contracts provisions should be extended to at least some SME customers has not been progressed. Coupled with the restrictions on access to dispute resolution services, this can place SMEs at a material disadvantage

7 24 A concern raised by many SME customers in our sample related to the absence of any serious consideration of their complaints while RBS had a policy to respond to complaints in line with its requirements under regulatory rules, many SME customers were not micro-enterprises and as such complaints from them were not covered by DISP. That meant the Bank had no regulatory obligations to handle complaints promptly, to investigate them fairly or to consider the root causes of such complaints. And there was no obligation to record and report on those complaints or to publish information about them.

7.25 For customers other than micro-enterprises there is no access to the F0S. The ability, alternatively, to litigate for most of these customers will be limited, litigation is notoriously slow and costly and detracts from the running of the business. FCA is committed to reviewing the scope of FOS following the report of the Banking Standards Commission. But the micro-enterprise definition is not the only barrier facing SMEs in their dealings with FOS. Even for micro-enterprises, the F0S award limit (£150,000), coupled with the inability to litigate for any additional compensation Following a FOS decision, limits the relevance of FOS as a redress option

7.26 We encourage the FCA to work with the government to ensure that there are adequate protections for the less sophisticated SMEs. This could include the extension of the unfair contract terms protections to SMEs and greater access to the F0S.

7.27 An alternative (or supplementary) approach would be to develop professional standards governing banks’ lending to SMEs. The Lending Code applies to some SMEs, but only micro-enterprises. It includes some provisions on helping micro-enterprises who are experiencing financial difficulties and complaints handling. The Lending Code is monitored by the Lending Standards Board.

7.28 In relation to turnaround divisions the need for additional protection for SME customers is more acute. At present there are no generally recognised professional standards for turnaround or restructuring units in the UK, although various guides and codes exist which are seen as relevant. These include for restructuring the IMF Restructuring Guidelines, the ‘London approach’ and the INSOL Principles. Both the Insolvency Practitioners Association and the Institute for Turnaround publish codes of ethics, and the latter has recently published a ‘Statement of Principles for the UK ‘ Business Support Units’ of Banks’.

7.29 The principles cover Issues we identified as part of our review, including provisions on treating customers sympathetically, communication, appropriate pricing and complaints handling. They have been endorsed by several banks. However, there is little transparency about what banks have done to ensure that they meet the principles, and it seems no independent monitoring of compliance with the principles it is unlikely, therefore, to give customers confidence that this will make a difference to their treatment in future.

7.30 Both the Lending Code and the Institute for Turnaround Statement may have a useful role here. What is Important is that any self-regulatory action has the confidence of both banks and customers and has demonstrably effective independent oversight and monitoring.

7 31 We encourage the industry and customer groups to develop a code on how banks can best support customers in need of business support. Such a code should be subject to independent oversight and monitoring.

7.32 The situation In RBS and GRG was particular to that organisation at that time. Nevertheless the themes raised in this report may have wider resonance as banks consider how they should further develop turnaround units. For example, a concern that was raised with us by some stakeholders was the nature of the relationship between lenders and various professional firms that support the turnaround or Insolvency process.

7.33 Inevitably banks are a major user of accounting/Insolvency, valuation and legal services. Given their scale and scope providers of these services will understandably wish to have strong and constructive relationships with banks. A complex pattern has emerged of links between Individual suppliers and banks which, It Is argued, includes frequent use of secondees from professional firms, complex and sometimes non-transparent fee and revenue agreements between advisers and individual banks, and questions around the control of sensitive information between the banks and their advisers

7.34 Such Issues can give rise to concerns about the availability of qualified third-party support with the relevant experience to support customers (given that most with experience will have extensive conflicts with the banks serving those customers) There is also a perception that customer perspectives will be Ignored because of the commercial significance of meeting wider bank requirements where a bank Is a major client of a specific adviser and that the professionals may be too ready to see the bank’s point of view.

7.35 In the case of GRG we identified weaknesses in the management of potential conflicts of interest, in particular around the use of secondees. It was not surprising that many customers were left with the Impression that third-party providers were too close to the Bank. But a more general comment is that, whether or not such behaviours take place, the absence of agreed standards can create a suspicion of inappropriate practice, particularly where clients are facing economic distress, even If this may not In fact exist.

7.36 We suggest that banks should review how they interact with third-party providers, especially in relation to secondees.

7.37 More generally we suggest that banks should review their own turnaround units with a view to ensuring that the lessons from this report in so far as they are relevant to other institutions are applied more widely.

Subsidiary roman numerals do not reproduce in WordPress format, so they appear here as second-order bullet points

Ipso Facto regulations: now with a ‘mega-project’ exemption

The ipso facto regulations – more technically, the Corporations Amendment (Stay on Enforcing Certain Rights) Regulations 2018 – were released on 22 June 2018.

The regulations represent the last stage of reforms that are intended to limit the availability of so-called ipso facto clauses (aka ‘insolvency event’ or ‘termination for insolvency’ clauses, and discussed in more detail here), providing a list of exemptions: contracts to which the reforms will not apply.

Such clauses allow a party to terminate a contract if the other party becomes insolvent – even if there is no other default – making it harder to restructure a business that enters formal insolvency administration.

Those responsible for updating existing contracts (which disappointingly will remain unaffected by the ipso facto reforms) will say that the eight-day gap between the release of the regulations and their taking effect will leave very little time to make those changes, but perhaps that was intended.

SPV exemption tightened

The draft regulations included a very wide exemption for ‘a contract, agreement or arrangement of which a special purpose vehicle is a party.’ Sensibly this has been narrowed to securitisation, public/ private partnerships and project finance arrangements.

National Security

The final version of the regulations adds an exemption for contracts relating to ‘Australia’s national security, border protection or defence capability.’

Such an exemption suggests that the ipso facto reforms are seen by some as having the potential to threaten Australia’s current security arrangements and capability, when in fact they could equally operate to ensure that current security arrangements are maintained!

‘Mega-Projects’

The final version also adds a five-year exemption for construction contracts where the total payments ‘under all contracts, agreements or arrangements for the project’ is more than $1 billion.

ipso facto racehorse — *Retired racehorse Ipso Facto is unperturbed by the mega-project exemption*

There is no mechanism to ensure that sub-contractors to such mega-projects will know whether the key billion dollar threshold will be reached, and whether the exemption will therefore apply. The consequences of acting in ignorance of such an exemption would seem problematic, but thankfully in practice there will be only a small number of such mega-projects.

The final version of the regulations is available here.

Continuous Disclosure, Class Action Regulation, and Restructuring

The continuous disclosure regime presents additional challenges for directors trying to turn around a listed company. The turnaround itself will probably mean that that there is more to keep the market informed about, but there is more to it than that. A perceived failure to properly disclose may well lead to a class action, adding to the workload of an already busy management team and board, as well as adding to the list of creditors.

Perhaps the most extreme example is that of Surfstitch, where on one analysis the commencement of a class action claim resulted in a majority of directors concluding – incorrectly in the view of the administrator that they appointed – that their company was insolvent. For these reasons, turnaround and restructuring professionals should have a keen interest in the outcome of a recently commenced Australian Law Reform Commission review.

Background

In December 2017, the Attorney-General asked the ALRC to inquire into the regulation of class actions and those who fund them, with a report due by 21 December 2018.

After a series of bilateral consultations with forty-three parties: regulators, funders, lawyers and other industry participants, the ALRC issued a discussion paper (available here) on 31 May 2018.

A ‘standard approach’

The discussion paper identified what it described as a ‘standard approach’ by litigation funders:

Litigation funders and/or plaintiff law firms (or their hired experts) identify a significant drop in the value of securities. This is analysed to determine whether it is likely that the relevant drop had been occasioned by the late revelation of material information.

Typically, the analysis determines whether or not it is likely that there is a sufficient basis for assuming the existence of contravening conduct during a period prior to the eventual announcement of the material information. The litigation funders and/or plaintiff law firms then determine the size of the potential loss that may have been occasioned by the suspected period of contravening conduct. The duration of that period may extend back for a considerable period, as in the recently announced class actions against AMP where a period of five years has been identified.

Once the funders and/or lawyers are satisfied that there is a sufficient basis for assuming the existence of contravening conduct, funding terms are discussed and (at least prior to the advent of the common fund order) there is an effort to sign up institutional and other group members (complex questions relating to issues of privacy and data sets are likely to arise in this context). During this developmental stage, an announcement might be made of a potential class action, attracting media attention which may augment the number of affected shareholders who wish to participate in the proposed class action

To address the problems it identifies, the discussion paper has recommended:

The Australian Government should commission a review of the legal and economic impact of the continuous disclosure obligations of entities listed on public stock exchanges and those relating to misleading and deceptive conduct contained in the Corporations Act 2001 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) with regards to:

the propensity for corporate entities to be the target of funded shareholder class actions in Australia;

the value of the investments of shareholders of the corporate entity at the time when that entity is the target of the class action; and

the availability and cost of directors and officers liability cover within the Australian market.

The impact of the continuous disclosure regime is is arguably outside the terms of reference so perhaps it is difficult for the ALRC to do more than it has, but the recommendation of a further review will not quickly take us closer to a solution.

Those with practical suggestions should make a submission, due before 30 July.

A fix for construction industry insolvency? The Murray Report

Last month the government released the Murray Report: A Review of Security of Payment Laws. It is a welcome – if low profile – step towards a national scheme, although the lack of fanfare, and the delay between delivery of the report in December 2017 and its release in May this year, do not reflect the sense of urgency that many would be hoping for.

The review was intended to identify ‘legislative best practice’ to improve ‘consistency in security of payment legislation’ and the better protection of subcontractors: the question is clearly not whether there should be a national scheme, but rather, what a national scheme should look like.

East Coast v West Coast

One of the major issues addressed by the 382 page report (available here) is the type of model to be used – essentially a choice between the ‘East Coast Model’ – deployed in NSW, Victoria, Queensland, South Australia, Tasmania and the ACT – and the ‘West Coast Model’ used in Western Australia and the Northern Territory.

There are variations even between the states that use the same model, but in broad outline the key differences are:

The East Coast model provides a statutory payment scheme that can override contractual provisions whereas the West Coast model provides ‘legislative assistance’ to supplement the existing contractual arrangements.
The East Coast model only allows claims ‘up the line’ i.e. to a head contractor but not to a sub-contractor – compared to the West Coast Model allows claims in both ‘directions.’
Under the East Coast Model a failure to provide a ‘payment schedule’ in reply to a payment claim and to pay by the due date creates a statutory debt for the claimed amount, capable of enforcement.
The West Coast model allows the parties in dispute to select the adjudicator that they believe is best suited to resolve the dispute, an adjudicator is independently allocated under the East Coast Model.

The report recommends a modified East Coast Approach.

Statutory Trusts

Murray recommends that a deemed statutory trust model should apply to all parts of the contractual payment chain, in preference to any expansion of the limited Project Bank Account regimes currently in place in WA and Queensland.

There is extensive discussion of the administration burden imposed by PBAs, and it seems clear that some of those who welcome the protection that a PBA provides would prefer to avoid the paperwork involved in providing similar protection to their own sub-contractors!

The report states:

“…the concept of a deemed statutory trust has not only been operating in large parts of North America for many years without inhibiting the smooth functioning of the industry, but it has also (unlike the case of the various security of payment laws in Australia) not been the subject of significant critical reviews.”

Surprisingly, it seems that the review was undertaken without any input from ARITA, or any individual insolvency practitioner. Perhaps that is why the report has not identified any of the practical problems that arise from creating the type of trust arrangements that it proposes, or explained whether and how such problems have been solved in those overseas jurisdictions.

Next steps?

The website of the Department of Jobs and Small Business explains that the Government is using the Building Ministers’ Forum (BMF) – the group of Federal, State and Territory Ministers with responsibility for building and construction – to consider and respond to the review, and that Federal Government responsibility has been transferred to the Department of Industry, Innovation and Science.

For comment on the Queensland regime, introduced whilst the Murray review was under way – and recently delayed until 17 December 2018 – see here.

Cozy relationships? Not much uncovering required!

Last week the Australian Financial Review reported the Small Business Ombudsman Kate Carnell as having said that the Banking Royal Commission had missed an opportunity to uncover ‘a cozy relationship’ between banks and the administrators and receivers who work for them.

Most service providers and suppliers work very hard to have a good relationship with their customers, and restructuring and turnaround professionals are no different – but presumably the ASBFEO is concerned with something improper.

Significantly, the ASBFEO Act requires (section 69, here) the Ombudsman to transfer matters to another agency if:

‘the request could be more conveniently or effectively dealt with by the other agency’

ASIC has both the legal powers of compulsion and the technical expertise to investigate the Ombudsman’s concerns. More importantly however, ASIC already receives copies of the Declaration of relevant relationships and declaration of indemnities (DIRRI)* which a registered liquidator must prepare on each occasion he or she is appointed as liquidator or voluntary administrator. The DIRRI – which is also given to creditors – provides considerable detail about an appointee’s relationship with those who appointed him or her, as well as relationships with significant creditors.

That wealth of public disclosure means that neither ASIC nor the Royal Commission would need to do a great deal of ‘uncovering’ to understand the nature and extent of the relationships between banks and the restructuring professionals they appoint, were either to decide that an investigation was warranted.

All of which stands in marked contrast to the situation as regards pre-insolvency advisers: no licensing, no regulation, no regulator, no standards, and no disclosure about their relationships!

*The DIRRI is now an online form accessible via a portal available to registered liquidators, but for those interested the ARITA Code of Practice includes a template (at page 100).