Terminating a contract to the insolvency of the other party is no longer permitted, despite an express clause to this effect.
It is typical in commercial contracts to see the right for a supplier to be able to terminate the contract (or suspend its delivery obligations) in the event the customer is subject to an insolvency process (such as administration or liquidation) and historically, English law has been reluctant to interfere with the freedom of both parties to contract as they wish.
In this blog, we consider the now in force provisions of ss.14-15 and Schedule 12 of the Corporate Insolvency and Governance Act 2020 which broadly prevents contracts for the supply of goods and (non-financial) services from being terminated simply because a company enters into a formal insolvency process. These reforms are likely to lead to significant changes to how parties operate their contracts and credit lines. The aim is to allow companies to attempt to trade their way out of insolvency, but it is not good news for suppliers whom face increased risk.
All sectors will potentially be affected but the construction industry could be worst hit, where margins are particularly tight. If a main contractor enters into an insolvency procedure, its subcontractors and suppliers will have to continue working even though they may have many months of unpaid bills and their contract expressly gives a right to terminate or suspend.
The new provisions ensure that supplies are not cut off when a company becomes subject to an insolvency process due to a supplier refusing to supply, terminating the contract or making other unfavourable changes to the terms on which they are prepared to continue supplying. Any clauses within a contract to the contrary are essentially rendered inoperable and this will apply to existing contracts already in force, not just the new ones.
Further, a supplier cannot exercise a contractual termination right in respect of a pre-insolvency breach if the right is not exercised before the commencement of insolvency proceedings. So, for example, where the contract provides that the supplier may terminate for late payment, and the customer fails to pay an invoice on time, it will be too late to rely upon that “past” event once insolvency proceedings have begun.
A supplier cannot make it a condition of continuing to supply that any outstanding payments are paid, or do anything that has this effect. This means that a supplier will need to continue supplying goods or services, even though the supplier may be owed significant sums of money from before the company went into an insolvency procedure. It does not mean, however, that the customer does not continue to owe the amounts outstanding under the supply contract. It is just that the supplier cannot make payment a condition of continuing the supply.
Note that the provisions expressly apply to suppliers only and that customers are not prevented from exercising a contractual right to terminate a supply contract where it is the supplier who enters into an insolvency procedure.
Until 30 September 2020, in England & Wales and in Scotland the prohibitions will not apply where the contractor is a “small entity” at the time when the employer becomes subject to the insolvency procedure. The relevant thresholds are set out in the legislation and relate to the contractor’s turnover, aggregate assets and average number of employees.
The new law expressly allows a supplier to terminate with the consent of the appointed office-holder (e.g. qualified insolvency practitioner) or with the permission of the court, on the ground that continuing the contract would cause the supplier hardship.
Although these provisions were brought in by the government alongside others which deal with the impact of the Covid-19 pandemic, they are not intended to be temporary.
A supplier with grounds to terminate a supply contract with a customer in financial difficulties can still:
Once a customer has entered into a formal insolvency procedure, a supplier can still:
Suppliers would be advised to operate all contracts in a robust manner, so as not to allow any build up of unpaid invoices. Terminating for non-payment earlier many become more common. For all new contracts being negotiated and signed, it appears that it is not possible to contract out of the new legislation. Instead suppliers should consider what other flexibility they can include in contracts, such as a right to terminate for convenience and shorter payment terms.
If you need any further information on this, please contact Emily Sadler.