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This question requires candidates to consider fraudulent trading both under s.993 of the Companies Act 2006 and s.213 of the Insolvency Act 1986, and wrongful trading under s.214 of the Insolvency Act 1986.
(a) There has long been civil liability for any activity amounting to fraudulent trading. Thus, s.213 of the Insolvency Act (IA) 1986 governs situations where, in the course of a winding up, it appears that the business of a company has been carried on with intent to defraud creditors, or for any fraudulent purpose. In such cases, the court, on the application of the liquidator, may declare that any persons who were knowingly parties to such carrying on of the business are liable to make such contributions (if any) to the company’s assets as the court thinks proper. There is a major problem in making use of s.213, however, and that lies in meeting the very high burden of proof involved in proving dishonesty on the part of the person against whom it is alleged. It should be noted that there is also a criminal offence of fraudulent trading under s.993 of the Companies Act 2006, which applies to anyone who has been party to the carrying on of the business of a company with intent to defraud creditors or any other person, or for any other fraudulent purpose.
Given that it is stated that Gram and Hen hid the fact that Ire Ltd was insolvent it is possible that they might be liable under the fraudulent trading provisions both civil and criminal. As a consequence they may well be liable for a maximum prison sentence of 10 years and may have to contribute to the assets of the company to cover any loss sustained by creditors as a result of their actions. There is no evidence to support either action against Fran.