Richard Cole

Specialist Insolvency Solicitor

Richard is primarily an insolvency, litigation and director disqualification defence solicitor who qualified in October 2006.

He started his career with the SOS (that is the Insolvency Service) where he investigated failed companies to ascertain misconduct with a view to applying to disqualify the directors from acting again for a period of time. Richard now has (but does not always like to admit) circa 23 years of insolvency law and practice experience (to include the director disqualification defence work).

Experience

Richard has worked in niche insolvency law firms as well as setting up an insolvency offering in a law firm based in the home counties.

For all of his career Richard has undertaken and specialises in director disqualification defence work (as gamekeeper turned poacher (the Directors Friend)). Richard has also carried out a wide range of contentious and non-contentious corporate and personal insolvency as well as commercial and Companies Act litigation.

Richard has been described by his clients’ and work referrers as pragmatic and straightforward in his approach. Looking after the client is priority number one. Richard is a full member of the Association of Business Recovery Professionals (R3) and full member of the Insolvency Lawyers Association as well.

Examples of instructions

A selection of outcomes that I have recently achieved include :-

• Advising the board upon the insolvency (and other) risks involved in a restructuring of a national chain of high street hair salons. Included a detailed review of the sale purchase documentation and where necessary challenging the same.

• Advising suppliers (and their directors) to Mothercare, Wright Bus and Bathstore as to their options as creditors.

• Leading on and driving the response to a hard fought £0.72m Statutory Demand and Bankruptcy Petition. Successfully annulling the bankruptcy order in the face of robust opposition.

• Unusually, persuading the Secretary of State for Business (the ‘SOS’) to discontinue a Director Disqualification investigation into a company where preferential payments were alleged. To also include successfully persuading the SOS to discontinue an investigation into alleged bounce back loan and similar misuse.

• Defending director disqualification cases.

• Successful application for client for permission to act as a director whilst disqualified (section 17 of the Company Directors Disqualification Act 1986 (Application for leave under an order or undertaking).

• Successful application for client for permission to re-use a prohibited company name (section 216(3) of the Insolvency Act 1986 (the ‘IA86’) (Restriction on re-use of company names)).

• Settling a circa £1.56M wide ranging antecedent transactions (‘AT’) * claim brought robustly by liquidators along with a supporting freezing injunction. A different circa £1.44M claim was settled for £475,000. Another claim of £1M was settled for £55,000.

• Advising upon and attending numerous directors interviews further to section 235 of the IA86 (duty to co-operate with office-holder) to include on the following AT claims of in excess of £5M.

• Advising upon and responding to an application under section 236 of the IA86 (inquiry into company dealings) to include personally preparing for and conducting re-examination at a day long examination hearing before a specialist Insolvency and Companies Court Judge.

• Advising on an equity of exoneration claim. This was settled. Circa £85,000 was secured for the client that without the claim they may not have received.

• Advising upon and preparing the sale documentation for liquidators of a fireworks manufacturing company and a following security validity advice.

• Advising upon and successfully making an application to Court order for rectification of a number of companies registers of members under section 125 of the Companies Act 2006 (the ‘CA2006’) (Power of court to rectify register). That was in circumstances where the sole director and shareholder had died. Also, preparing all of the supporting CA2006 minutes, notices and resolutions.

• Bringing (on behalf of office holders and creditors) and defending Winding up and Bankruptcy Petitions.

• Preparing and advising upon insolvency sale documentation (including also filing the usual notices to appoint Administrators at Court) to include for a subsidiary of an multi-national motor manufacturer.

• Defending claims for unlawful means conspiracy (subsequently settled).

• Advising Administrators of a large construction company on and negotiating their property obligations as well as preparing deeds of release.

• Advising a Trustee in Bankruptcy on a substantial cross-border bankruptcy in relation to asset recovery.

• Advising company directors on their risks in insolvency both pre and post liquidation.

• Successfully resolving for a director an investigation by H M Revenue & Customs with a view to a NIC Personal Liability Notice (section 121(C) of the Social Security Administration Act 1992 (Liability of directors etc for company contributions). That was in respect of unpaid company National Insurance Contributions (in this case attributed to neglect rather than fraud).

*Antecedent Transactions claims in Richard’s experience typically include under the Insolvency Act 1986: Sections 212 (Misfeasance / breach of duty – a summary remedy against delinquent directors), 213 (Fraudulent Trading), 214 (Wrongful Trading), 238 (Transactions at an undervalue) 239 (Preferences), and 423 (Transactions defrauding creditors). Breaches of the general directors duties under the Companies Act 2006 (sections 171 to 177 (inclusive)) are also usually alleged including reference to section 172(3) where the directors duty to promote the success of the company is modified around knowledge of insolvency ‘… to consider or act in the interests of creditors of the company’. In Richard’s experience claims against directors here are always wide ranging, but fact sensitive.