England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
AND IN THE MATTER OF THE INSOLVENCY ACT 1986

		Birmingham Civil Justice Centre The Priory Courts 33-35 Bull Street Birmingham B4 6DS
		8 November 2012

HHJ SIMON BARKER QC :

1. By an application issued on 22^nd October this year, Mr. Ronald Alexander Graham, Mr. Nicholas John Ellis, Mr. Paul Howard Mason, and Mr. Alfred Howard Moseley, who comprise the majority of the board of directors of Bowen Travel Limited (referred to in this judgment as Bowen Travel / the Company), sought an administration order and an order that Mr. Dominic Wong and Mr. Matthew Collishaw, both of Deloitte LLP, Birmingham, be appointed as joint administrators. Bowen Travel is a wholly owned subsidiary of Moseley Group PSV PLC which is itself owned as to 72% by Mr. Alfred Moseley, and as to 28% by the Alfred Moseley Charitable Trust. The Company has five subsidiaries, two direct subsidiaries (Bowen Travel Transportation Limited, and York Bros (Northampton) Limited) and three indirect subsidiaries which are all dormant companies (Frensub Limited, Bay Holidays Limited, and Wesley's Tours (Northampton) Limited).
2. The Company also has two sister companies, which are also subsidiaries of Moseley Group PSV, namely Wootten Luxury Travel Limited and LF Bowen Limited. LF Bowen has a trading subsidiary, Jeff's Coaches Limited, and a dormant subsidiary, NCC Leasing Limited. I shall return to LF Bowen later in this judgment.
3. The application was made on the basis that it is urgent and the orders sought included abridgment of time. The pressing urgency was said to have been caused by : (1) the existence of a winding-up petition presented by a creditor, TUI, coming to the Company's attention on 17^th October; (2) an obligation to instruct Barclays Bank plc to effect payment of wages or salaries on 24^th October for settlement on 26^th October; (3) insufficient funds being available within the group's overdraft facility to cover the wages and salaries falling due; and, (4) the freezing of the Company's bank account by Barclays.
4. Prior to the initial hearing on 25^th October, Mr. Wong and Mr. Collishaw had expressed their view that the purpose of administration is reasonably likely to be achieved, and had disclosed prior knowledge of Bowen Travel, Deloitte having prepared a report over the period March to June 2012 for Barclays, a copy of which was also provided to the Company. The present view of Mr Wong and Mr Collishaw, that is their view as they appear in court today, Thursday 8^th November, is that an administration will enable there to be a seamless and swift transition to a winding-up. As between creditors' voluntary liquidation and compulsory winding-up they have no particular preference but consider the creditors' voluntary route to be the more convenient of the two.
5. Notice of this application was given to TUI by email after 9 pm on 22^nd October. TUI is a secured creditor. It is said to be owed some £4.7 million, although in his written evidence, which is the Applicants' evidence in support of the application, Mr. Graham said that the directors have been unable to reconcile TUI's indebtedness with the various group companies. He did not explain that the discrepancy was trivial (that emerged during the course of the hearing), or the fact that £4.7 million is acknowledged as owing to TUI, or that, after realisation of the security, the Company's estimated unsecured liability to TUI is in the region of £3.5 to £3.7 million.
6. Notwithstanding the shortness of notice, on 25^th October TUI appeared by counsel, Mr. Ramel, instructed by Mr. Andrew Taylor of ASB Law LLP. TUI's position then was that it did not oppose the making of an administration order, albeit that it had concerns about the appointment of Deloitte on the grounds of potential conflict, Deloitte having been reporting accountants to Barclays; here I should make clear that Deloitte were neither the auditors nor the accountants of Bowen Travel. In addition, and as is usually, if not always, the case, TUI sought an order that the costs of their petition and of their representation be costs in the administration. Miss Page, who appeared as counsel for the Applicants, instructed by Gateley LLP, acknowledged that that should be so.
7. So far, so good. However, the evidence supporting the application revealed material inconsistencies between what was said by Mr. Graham, on behalf of the Applicants, and what appeared from the underlying documents. In addition, important evidence was omitted. Moreover, the urgency that had befallen the application was entirely self-induced.
8. As to the concerns about reliability of the evidence, Mr. Graham addressed Bowen Travel's financial downfall at paragraph 8.1 of his first statement where he said : "The ending of the Company's relationship with TUI has caused the Company to be insolvent as it is not able to pay the debt due to TUI. In addition, the Company has also suffered a deterioration in its cash position during 2012 as a result of fewer people coming into the retail outlets after the rebranding of the retail shops run by Bowen Travel Retail, from First Choice to Bowen Travel, at the end of the strategic partnership; that is, as from the beginning of January 2012."
9. The relationship with TUI was described in the following sub-paragraph, 8.2, and had been pursuant to a fixed term five year contract which had expired on 31^st December 2011 and had not been renewed. Pursuant to this arrangement, which was described by Mr. Graham as the strategic partnership, the Company had had access to holiday-makers' (that is customers') prepayments for their holidays which it used as working capital. The Company had operated many retail outlets on behalf of TUI, branded, as Mr. Graham said, during the five year term as First Choice. From 1^st January 2012 until after the hearing on 25^th October the Company had an arrangement with another entity, identified by Mr. Graham as 'Hayes', to operate the retail outlets which were branded as Bowen Travel.
10. Mr. Graham also exhibited to his witness statement the Company's most recent audited accounts which had been signed off on behalf of the Company's board by Mr. Graham on 28^th June this year. Although prepared on the going concern basis, and despite reporting a profit, largely achieved by a prior year adjustment, and also containing an expression of the directors' continuing confidence that further progress would be made, it is immediately apparent from a perusal of the accounts that Bowen Travel's solvency depended entirely on the validity of the intra-group indebtedness.
11. The balance owed to Bowen Travel at 31^st December 2011 was stated at more than £7.7 million, an increase of more than £1 million over the figure at the 2010 year end. Trade creditors, including TUI, were stated at £9.1 million, an increase of £3 million over the 2010 total. Current assets just exceeded current liabilities, by some £287,000, hence the vital importance of intra-group indebtedness to the solvency of Bowen Travel and the validity of the accounts as being properly prepared on the going concern basis.
12. It is to be remembered that at all times while making use of the holiday-makers' advance payments as working capital, Bowen Travel was aware that the arrangement with TUI was expressly agreed from the outset for a fixed five year period, and was therefore to come to an end on 31^st December 2011 unless renewed. As the contract period drew to a close, such negotiations as there were with TUI concerned time to pay rather than an extension of the arrangement.
13. In the estimated outcome statement exhibited to Mr. Graham's first witness statement, intra-group indebtedness was estimated to realise £2.03 million on a winding-up or administration, and £1.65 million on a pre-pack, which evidently was under negotiation on 22^nd October but had fallen by the wayside by the time the matter came to court. In Mr Graham's second witness statement, dated 24^th October, these figures were further reduced so that the estimated realisable total of the intra-group indebtedness due to Bowen was reduced from £2.03 million on a winding-up to £1.1 million, and to £877,000 on an administration. The prospect of a pre-pack had by then receded. Thus, if Mr. Graham's evidence in his witness statement was correct and the immediate cause of the insolvency had been the termination of the TUI agreement and a downturn in the Company's retail business, some catastrophe must nevertheless have befallen other group companies causing £7 million worth of good intra-group indebtedness as at 28^th June 2012, because the signing of the directors' report and the 2011 accounts was a warranty as to their reliability as at that date, to turn bad as to £6 million over the four months to 22^nd October 2012, and as to a further £1 million over the two days from 22^nd October to 24^th October.
14. This last £1 million has been explained to an extent in Mr. Graham's second statement. It seems that one of the subsidiary companies owing money to Bowen Travel owned the coaches, or a number of the coaches, used by the group on its tours and that those coaches were sold on Monday 22^nd October for much less than had been expected. Even so, and even if the values attributed to the coaches, which totalled £1 million more than the sum for which they were sold, were reasonably and responsibly given by that company's directors, as to which I have seen no evidence and make no comment, the sudden and catastrophic decline in the other intra-group indebtedness to the order of £6 million was not explained or even addressed by Mr. Graham in his evidence.
15. This was by no means the only matter of concern arising from a read through of the Company's accounts. Another feature was that the return to profitability was secured by a prior year adjustment carrying forward from earlier years commissions which had been recognised in those years to a total value of £2 million. It is also to be noted that Deloitte LLP investigated Bowen Travel, and possibly other group companies, between March and June 2012 and recommended restructuring and the sale of assets. It seems, as Miss Page informed me on instructions from Mr. Collishaw of Deloitte who was present in court, that Deloitte was not asked by Barclays to, and therefore did not, look into the Company's intra-group debtor balances.
16. What all of this meant was that money received by Bowen Travel as advance holiday payments was not retained for that purpose and some, at least, of that money had passed through Bowen Travel's hands into the hands of other Moseley group companies, or had been applied for the purposes or benefit of other group companies, and had been lost. The failure to explain, or even refer to, these circumstances and the attempt to explain the cause of insolvency as in some way attributable to the end of a fixed term contractual arrangement appears to me, on the information available, to be improbable. The Applicant directors, including Mr. Graham, have not had an opportunity to give a considered response to these points; for that reason it is important at this stage to do no more than observe that these matters cry out for an answer.
17. A further point of concern was that, in his first statement on behalf of the Applicants, Mr. Graham referred to the freezing of the bank account but was wholly unspecific as to detail. In his second statement, he stated that the bank had been informed of the winding-up petition on 19^th October, that is two working days after the existence of the petition came to the Company's attention. Surprisingly, at the start of the hearing on 25^th October there was no evidence as to what, if any, payments had been transacted, either since the presentation of the petition (29^th September) or over the period from 17^th October onwards (i.e. during the period after the Company became aware of the existence of the petition). Indeed, it seemed to me that no thought at all had been given by the directors to the effect of section 127 of the Insolvency Act 1986 on dispositions of the Company's property since 29^th September. That lack of information was remedied during the hearing, and it appeared from a further, third, statement of Mr. Graham, who produced copies of the Company's bank statements, that payments had been made out of the Company's bank account over this period of time, including after 17^th October.
18. It also appeared from the evidence that HMRC had been pressing for overdue payments in respect of National Insurance and PAYE in the order of £192,000, of which £136,000 was admitted to be overdue. It seems that a VAT refund was thought to be due, and for this purpose the estimated statement of affairs or outcome statement as at 24^th October prepared by the Applicants had offset against the overdue debt to HMRC the VAT refund purportedly due, thereby producing and acknowledging only a net liability of £15,000. It is not necessary in this judgment to do more than observe these matters.
19. When the court is asked to exercise its powers under paragraph 13 of Schedule B.1 to the Insolvency Act 1986 by making an administration order, it is, in my judgment, essential that the evidence presented to the court is reliable. Implicit in the noun "reliable" in this context is not only that it is accurate evidence and true insofar as it is factual, but also that (1) a clear account is given of all potentially relevant facts and circumstances, and (2) where explanations are given or judgments, estimates or opinions are stated (a) they should be supported by the underlying material, and not contradicted by it, and (b) they should also be credible in the sense of being realistically likely to be true. Such a requirement should be neither onerous nor unreasonable. It requires no more than that an applicant, who, as a director, should know what has been going on at the company, tells the court the informed truth and does not attempt to mislead, including by omission.
20. When the court is asked to make an administration order the first question to be answered is : Is there a real prospect that an administration will produce a better result for the creditors than a winding-up? That question, when answered, does not lead to an automatic order one way or the other because the court is given a discretionary power to make such order as is just in all the circumstances of the case. It is important not to lose sight of the further question : In all the circumstances of the case, what order is appropriate?
21. Where, as was the case on 25^th October, the evidence appears to be contradicted by underlying documents in material respects, and where, as also occurred in this case, important matters were not addressed in the evidence, one likely consequence is a want of confidence in the evidence; this, in turn, is likely to cast a shadow over reliance on the Applicants' witness evidence as the basis for determining the outcome of the application. That the Applicants' evidence is unreliable would not of itself cast doubt on the genuineness of expression of opinion by the proposed administrators, but it may well diminish or negate the weight to be attached to such opinions. In the particular circumstances of this case, the state of the evidence is a reflection on the Applicants but not the two professionals who expressed their view as to the prospects of the outcome of an administration; however, it does have a very material impact on the weight to attach to their stated opinion.
22. It appeared to me on 25^th October that in this case the writing (that the Company was insolvent) had been on the wall in large graffiti for months, if not years. As to months, the Company's bankers did not accede to a request made in late 2011 to extend the Company's bank facilities, the First Choice branding was lost at the end of 2011, and the termination or ending of the TUI contract caused a foreseeable and material decline in retail business. But, over and above all of this, for years the Company's solvency had been propped up by the existence of intra-group debtors which, absent an explanation of catastrophe between 28^th June and 22^nd October 2012 -- and there has been none -- did not appear to have been subjected to anything approaching adequate scrutiny by those responsible for the accounts; that is by the directors, the majority of whom are also the Applicants in this application.
23. In this context, it is relevant to return to the evidence of Mr. Graham contained in his third statement, prepared, it is only right to acknowledge, under pressure of time during an adjournment on 25^th October. Mr. Graham there drew attention to the indebtedness from LF Bowen, a sister company of Bowen Travel, and observed that when signing off the Company's accounts the directors of Bowen were aware that LF Bowen was looking at reorganisation and would be solvent. He said : "We did not write the loans off or reduce them because we believed that on a going concern basis the sums were recoverable; i.e. that over time, LF Bowen would be able to pay them off." As to this, first, the application of the going concern basis begs rather than answers the question. Secondly, the inclusion of the LF Bowen debt in the Company's year end accounts under current assets as a debtor is a statement to the world at large that this sum is collectable in full and within twelve months, not over time. Thirdly, moreover, some at least of Bowen Travel's directors, including Mr. Graham, were also directors of LF Bowen.
24. At this point I should pause and make clear that although I have referred several times by name to Mr. Graham, the administration application is also made by his fellow directors, Mr. Moseley, Mr. Ellis and, although only a director from 19^th December 2011, also Mr. Mason. Thus, although Mr. Graham is the author of the evidence, he also speaks on behalf of his fellow Applicants.
25. Before leaving intra-group indebtedness, I should bring the state of affairs up to date in so far as possible. Over the past week, and since the appointment of Mr. Wong and Mr. Collishaw of Deloitte as managers (with all the powers of, and in replacement for, the directors of Bowen Travel) pursuant to an interim order made on 26^th October, the total indebtedness to Bowen Travel has been updated from the end of December 2011 to June 2012, i.e. by six months to a date some three-plus months ago. That update reveals a further increase, in the order of £2 million, of indebtedness from other group companies; and, as at June 2012, intra-group indebtedness to Bowen Travel had increased from £7.7 million to £9.7 million, of which £8.5 million was owed by LF Bowen. On the information available to me, it appears that when signing off the accounts of Bowen Travel on 28^th June 2012 the directors should have known, or should be taken to have known, that far from the indebtedness to the Company being repaid over time, group indebtedness, and in particular the indebtedness of LF Bowen, to the Company had materially increased.
26. TUI's solicitor, Mr. Taylor, who is a specialist insolvency practitioner, was present in court on 25^th October, and on TUI's instructions and behalf has filed evidence in the form of a witness statement dated 7^th November 2012. TUI's interest as a creditor is, as has already been noted, that it is owed some £4.7 million in respect of which there is security over real property which is thought to be likely to realise a sum in excess of £1 million, but to leave £3.5 million or more ranking as an unsecured creditor. TUI expects to be the largest creditor, being owed in excess of 40% of Bowen Travel's overall unsecured liabilities.
27. Since the hearing on 25 October 2012, Mr. Taylor has researched Bowen Travel's and LF Bowen's intra-group balances over the past five years and has set out the information he was able to ascertain in his witness statement. It appears from this evidence that Bowen Travel's dependence upon the solvency of fellow group companies, and in particular LF Bowen, increased from £2.3 million worth of indebtedness at the end of December 2006 to £7.73 million indebtedness at 31^st December 2011, and more recently to £9.7 million. Over this same period of time, LF Bowen's liability to other group companies (including the Company) has also increased materially from £2.9 million in 2006 to £8 million at 31^st December 2011, and to some £8.5 million to Bowen Travel alone by the end of June 2012.
28. At the hearing on 25^th October, which was resumed by a telephone hearing on 26^th October, I made clear that I was not willing to make an administration order for a number of reasons which included, first, that TUI's petition would have to be dismissed and questions about dealings with Bowen Travel's bank account and other property after the presentation of the winding-up petition would evaporate; and, secondly, that the credibility of the application appeared fundamentally undermined by the quality of the Applicants' evidence. TUI was neutral on the outcome of the application. During the hearing, Mr. Collishaw of Deloitte explained, through Miss Page of counsel, that a window of approximately a week or so was crucial (1) to enable ongoing negotiations for the sale of parts of the business or assets to come to fruition or fail, and (2) to maximise protection of holidaymakers, particularly those who were then on holiday, and customers who had booked and made payments towards holidays.
29. Had it been possible, I would have made an interim order pursuant to which Mr. Wong and Mr. Collishaw would have been administrators for an eight day period but without there being a formal administration order. That was not possible and, as a solution, Miss Page, the Applicants' counsel, assisted the court by suggesting that an interim order could be made appointing Mr. Wong and Mr. Collishaw as managers with all the powers of administrators. That is the order I made and, in consequence, I was also able to relieve Bowen Travel's directors of their powers. That order will expire at four o'clock today.
30. Although, by reason of TUI's petition, the directors of Bowen Travel had had to apply to the court for an administration order, the other group companies, including Moseley Group PSV (Bowen Travel's immediate parent) and the sister companies (including LF Bowen), have all been placed in administration by the directors without recourse to the court. Save possibly for Moseley Group PSV, this had occurred on 22^nd October. I do not know the details of those administrations other than that Mr. Wong and Mr. Collishaw are the administrators. This, of course, has a bearing on who should be responsible for the conduct of whatever insolvency process is ordered in respect of Bowen Travel.
31. The other material circumstance that has occurred since 25^th October is that TUI has, on 2^nd November, withdrawn its winding-up petition. TUI's views, which as a 40+% representative of the unsecured creditors are not insignificant, were set out by Mr. Taylor in his witness statement and those views, together with my observations, are as follows :

(1) TUI contends that Bowen should go into liquidation quickly so that investigations into the failure of Bowen and the conduct of its directors can be started without delay. In addition to concerns about the intra-group indebtedness, Mr. Taylor raised other recent transactions which were said to involve land and vehicles being transferred, in part by Bowen Travel, at suspected undervalues to or for the benefit of Mr. Alfred Moseley. I have been informed in court today that in fact the particular transfers at potential undervalues were by Moseley PSV and by Bowen Travel to Mr. Alfred Moseley. In my view, these are important considerations;

(2) TUI has expressed concern as to Deloitte's position because of its previous appointment and conduct as author of an independent business report prepared with a view to restructuring. TUI recognised that this poses a problem of continuity; Mr. Wong and Mr. Collishaw are administrators of the other group companies; as I see it, the work that they have done over the past fortnight is amply evidenced as very thorough by the second witness statement of Mr. Collishaw and the extensive exhibit thereto. TUI's concerns appear to be more directed to form and risk, or nagging doubt, than any actual allegation, and more perhaps to apparent conflict than actual conflict. TUI itself has suggested a solution which is that another insolvency practitioner from another firm be appointed as a joint liquidator, and to that end TUI has proposed Mr. John Ariel of Baker Tilley, and this is supported by another creditor, Linton Fuel Oils, which is said to be owed some £33,000;

(3) as to the species of liquidation, TUI has expressed concern that a compulsory liquidation could cause delay in the appointment of liquidators and that this could have a detrimental effect on the prospect of mitigating holiday bond claims. All of this would be ameliorated to TUI's satisfaction if the Official Receiver was to be in a position to indicate that an early appointment would be made of Deloitte, that is Mr. Wong and Mr. Collishaw, and Baker Tilley, that is Mr. Ariel, as joint liquidators. In this regard, the Official Receiver is present in court today by Miss Lisa Ellis, and I have been told that communications with the Official Receiver were opened by Mr. Collishaw yesterday, if not before, and that, subject to conditions which have been met (including approval by more than half in value of the creditors and, of course, consents to act), the Official Receiver is in a position to effect an appointment today of Mr. Wong, Mr. Collishaw and Mr. Ariel as liquidators in the event that a compulsory winding-up order is made;

(4) finally, TUI has expressed concerns about the level of the Applicants' costs as at 25^th October and the costs order they seek, but that is a matter to be dealt with after the substantive determination has been made.

32. In a detailed and thorough second witness statement, Mr. Collishaw has given a clear account of what has been done over the past fortnight and has produced a revised estimated outcome statement. As to the work done as managers, Mr. Wong and Mr. Collishaw and their staff have worked hard to gather in and preserve the available assets and to close down operations. Sales leads have been followed up and sales achieved where possible. Mr. Collishaw noted, and Miss Page submits, that there are benefits of an administration which include a likely better outcome than on a compulsory winding-up. That likely better outcome is based upon the saving of some £80,000 in Secretary of State's fees. On present figures this represents something of the order of 1p in £1 for creditors, the present estimated outcomes producing on an administration a potential dividend to creditors of 13.3p as opposed to 12.3p on a compulsory winding-up. Of course, other costs, including those of investigations, are likely to change that, and possibly for the better if recoveries are made from other group companies or officers. In addition, Miss Page submits, an administration will give rise to a moratorium.
33. In relation to the court's discretion, Miss Page draws attention to the withdrawal of TUI's petition and the knock-on effect of that in relation to the operation of section 127 of the Insolvency Act 1986; she also emphasises the seamless transfers that would occur if Mr. Wong and Mr. Collishaw move from being managers with the powers of administrators to becoming administrators and they then move the Company to a winding-up process at an appropriate stage in what is anticipated to be the near future.
34. As an alternative, if not at a stage following administration, there is the possibility of an extension of the interim order pending a creditors' voluntary winding-up. The monetary advantage to the creditors is the saving of the Secretary of State's fees. However, there would have to be a notice of a meeting given to creditors, who include some 11,000-odd holiday makers who are customers of and who have made payments to the Company but have not yet taken their holidays or received refunds. This will add to the cost of the process and, more importantly, cause delays, including a further delay to the making of redundancy payments to former employees.
35. The further alternative of a compulsory winding-up potentially may, but in this case will not, cause any delay in the process or a gap between seams because the Official Receiver has already become appraised of the circumstances and is minded to make an appointment of Mr. Wong, Mr. Collishaw and Mr. Ariel today.
36. In my view, the Secretary of State fees are a relatively minor consideration in this case. An administration order is, in my view, not an appropriate order to make on this application. In my Judgment, TUI's contentions, that a professional coming afresh to Bowen Travel should be involved in the insolvency process and that that insolvency process should be or very quickly become the process of liquidating the Company, are reasonable and reflect the interests of the creditors as a whole.
37. In this case liquidation is inevitable. Further, this is a case in which the sooner the voice of the creditors is heard the better. That is not to be construed in as a criticism of Deloitte, but it is a reason why an administration order is inappropriate.
38. As between the two winding-up processes, it is not important that the creditors as a body vote upon the liquidator, or the liquidation process, provided that the Official Receiver is in a position (which is the case) to act promptly, thereby ensuring that any creditors' meeting may be called without delay and that the voice of the creditors may be heard.
39. A particular advantage of a compulsory winding-up canvassed during Miss Page's submissions, which have been extremely helpful, is that the Official Receiver (1) has a statutory duty to investigate the Company's failure and its business and dealings and affairs, and (2) may make such report to the court as the Official Receiver thinks fit. This is provided for at section 132 of the Insolvency Act 1986. In an appropriate case an investigation may provide a very important service to the creditors and, a report to the court may benefit the creditors and the wider public interest. In my judgment, for reasons that have been gone into when reviewing the facts, this is such a case and this consideration is relevant to the decision as to the appropriate order. In my judgment the appropriate order to make is that there be a compulsory winding-up order.
40. That is my judgment. It is, as I directed at the conclusion of the hearing, a judgment which is to be transcribed at public expense; a copy will be provided to the Official Receiver and copies will be available to anyone else who wants it in the usual way.
_____________________