The definitions of debts and liabilities are to be found in UK Insolvency Act 1986. According to it,
“ ’debt’ is to be construed in accordance with following: the bankrupt is deemed to become a subject to that liability [a bankruptcy debt] by reason of an obligation incurred at the time when the cause of action accrued”[9].
“ ’liability’ means a liability to pay money or money’s worth, including any liability to under an enactment, any liability for breach of trust, any liability in contract, tort or bailment and any liability arising out of an obligation to make restitution”[10].
In the Insolvency Rules 1986 we can find following:
“’debt’ means any of the following –
(a) any debt or liability to which the company is subject at the date on which it goes into liquidation;
(b) any debts or liability to which the company may become subject after that date by reason of any obligation incurred before that date”[11].
The very important provision is the rule 13.12 (3). It states that –
“ for the purposes of references in any provision of the Act [Insolvency Act 1986] or the Rules, it is immaterial whether the debt or liability is present or future, whether it is certain or contingent, or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion”.
The term “liability” is wider than term “debt”. Under the alternative tests debts and liabilities are treated differently.
Under cash flow test, the company is unable to pay its debts if it can not pay them as they fall due out of cash or very liquid assets, and it can not pay all its debts over a lengthy period of time by a steady realization of all its assets. But on the other hand, cash flow test does not deal at all with the debts and other liabilities of the company which have not been accrued due, or which are liabilities for not liquidated damages.
In Re Capital Annuities Ltd [12], it was held that inability to pay debts occurs where company’s present, contingent and prospective liabilities exceed the present value of its assets. So, under balance sheet test, the company is unable to pay its debts if the value of its assets is less that the amount of its liabilities. Before 1871 the court could not take account of prospective and contingent liabilities in making this assessment. Since those liabilities are very important for the insurance companies, in that year it was provided that account should be taken of such liabilities of determining the solvency of those companies[13]. Later on, in 1907 these liabilities were made applicable to assessing the solvency of all other companies[14] Maltese law fails to define what contingent and prospective liabilities are. That is why we have to refer to UK case law. One of the most important cases in insolvency is Byblos Bank SAL v Al-Khudhairy [1987]. Here the court outlines certain guidelines which will be considered when assuming whether or not balance sheet has been satisfied. Firstly, the court will take into consideration the fact that the company has ceased to carry out its business. If it definitely happens, than court can apply balance sheet test as possible technique. Secondly, the court has to draw the distinction between accrued liabilities and those which may accrue in future connected to transactions already entered to. It should be done because accrued liabilities are definite debts. The liabilities which may accrue are dispute debts: if it takes very long period of time to repay these liabilities that they can be taken into consideration when applying balance sheet test. Also court held that no assets should be taken into consideration in balance sheet test if they may accrue in future. As to contingent and prospective liabilities, in the Byblos Bank case express provision were maid to include those liabilities in determining the company’s solvency.
In the other case, Taylor’s Industrial Flooring Ltd v Malta & H Plant Hire (Manchester) Ltd [15] court held that the proof by a creditor that his debts has not being paid is the prima facie evidence that the company is insolvent if the company gives no reason for not paying it.
In Malta the judgment concerning balance sheet test is Axel Johnson International AB vs. Aluminum Extrusions Ltd (28/05/2003). In this case the court:
1) held considerable discretion and determined the dissolution and winding up of the company;
2) summed up its role within this context as debts inquiring to the general situation of the company: either determines that the winding order should be issued, or that the company will be able to operate in the future and will be in position to pay its debts;
3) took into consideration contingent and prospective liabilities when applying balance sheet test;
4) declared the defendant company to be insolvent as its liabilities are far exceed its assets, and ordered the dissolution and winding up of the company on the basis of Article 214 (2) (a) (ii) – inability to pay debts.
In conclusion, I would like to make it clear one more time. Cash flow tests deals only with debts that have already become due. Balance sheet test deals with future liabilities and future payments as well as available now assets. Balance sheet test take into consideration prospective and contingent liabilities.
Bibliography
1. Company Act 1995, cap. 386 Laws of Malta.
2. Gower, L.C.B. “Gower’s Principles of Modern Company Law ”. – 6th ed. /by Paul L. Davies, Sweet and Maxwell, 1997.
3. Leonard Sedgwick Sealy, David Milman “Annotated Guide to the 1986 Insolvency Legislation”, CCH Editions Limited, 1991 – 3rd ed.
4. Michael Forde “ The Law of Company Insolvency ”, The Round Hall Press, Dublin, 1993.
5. Prof. Goode “ Principles of Corporate Insolvency Law ”
6. Pennington, Robert R. “ Pennington’s Corporate Insolvency Law ”, Butterworth, 1991.
7. UK law on line – www.opsi.gov.uk
8. UK legislation – www.infolaw.co.uk/lawfinder
References
1. Re Catholic Publishing and Bookselling Co Ltd (1864).
2. Re Fitness Centre (South East) Ltd [1986].
3. Cornhill Insurance plc v Improvement Services Ltd [1986].
4. Re Capital Annuities Ltd [1979].
5. Byblos Bank SAL v Al-Khudhairy [1987].
6. Taylor’s Industrial Flooring Ltd v Malta & H Plant Hire (Manchester) Ltd [1990].
7. Axel Johnson International AB vs. Aluminum Extrusions Ltd (28/05/2003).
[1] Section 123 (1) (e) is about cash flow test; section 123 (2) describes balance sheet test.
[2] Executive title also can be public deed and judicial bills of L.L.D.
[3] An executive warrant may be a judicial sale, a warrant of seizure, a judicial warrant, a warrant in factum or a warrant of ejection.
[4] Section 123 (1) (a) of Insolvency Act 1986.
[5] Re Catholic Publishing and Bookselling Co Ltd (1864) 2 De GJ & Sm 116.
[6] Re Fitness Centre (South East) Ltd [1986] BCLC 518.
[7] Schedule 6, para 27 (1) (u).
[8] Cornhill Insurance plc v Improvement Services Ltd [1986] 1 WLR 114.
[9] Sections 385 (1), 382 (2) of Insolvency Act 1986.
[10] Section 382 (4) of Insolvency Act 1986.
[11] Rule 13.12 (1) of the Insolvency Rules 1986.
[12] [1979] 1 WLR 170.
[13] Section 21 of the Life Assurance Companies Act 1871.
[14] Section 28 of the Companies Act 1907.
[15] [1990] BCLC 216, [1990] BCC 44.