United Kingdom insolvency law

Overview

United Kingdom insolvency law regulates companies in the United Kingdom which are unable to repay their debts. While UK bankruptcy law concerns the rules for natural persons, the term insolvency is generally used for companies formed under the Companies Act 2006. Insolvency means being unable to pay debts. Since the Cork Report of 1982, the modern policy of UK insolvency law has been to attempt to rescue a company that is in difficulty, to minimise losses and fairly distribute the burdens between the community, employees, creditors and other stakeholders that result from enterprise failure. If a company cannot be saved it is liquidated, meaning that the assets are sold off to repay creditors according to their priority. The main sources of law include the Insolvency Act 1986, the Insolvency Rules 1986 (SI 1986/1925, replaced in England and Wales from 6 April 2017 by the Insolvency Rules (England and Wales) 2016 (SI 2016/1024) – see below), the Company Directors Disqualification Act 1986, the Employment Rights Act 1996 Part XII, the EU Insolvency Regulation, and case law. Numerous other acts, statutory instruments and cases relating to labour, banking, property and conflicts of laws also shape the subject. UK law grants the greatest protection to banks or other parties that contract for a security interest. If a security is "fixed" over a particular asset, this gives priority in being paid over other creditors, including employees and most small businesses that have traded with the insolvent company. A "floating charge", which is not permitted in many countries and remains controversial in the UK, can sweep up all future assets, but the holder is subordinated in statute to a limited sum of employees' wage and pension claims, and around 20 per cent for other unsecured creditors. Security interests have to be publicly registered, on the theory that transparency will assist commercial creditors in understanding a company's financial position before they contract. However the law still allows "title retention clauses" and "Quistclose trusts" which function just like security but do not have to be registered. Secured creditors generally dominate insolvency procedures, because a floating charge holder can select the administrator of its choice. In law, administrators are meant to prioritise rescuing a company, and owe a duty to all creditors. In practice, these duties are seldom found to be broken, and the most typical outcome is that an insolvent company's assets are sold as a going concern to a new buyer, which can often include the former management: but free from creditors' claims and potentially with many job losses. Other possible procedures include a "voluntary arrangement", if three-quarters of creditors can voluntarily agree to give the company a debt haircut, receivership in a limited number of enterprise types, and liquidation where a company's assets are finally sold off. Enforcement rates by insolvency practitioners remain low, but in theory an administrator or liquidator can apply for transactions at an undervalue to be cancelled, or unfair preferences to some creditors be revoked. Directors can be sued for breach of duty, or disqualified, including negligently trading a company when it could not have avoided insolvency. Insolvency law's basic principles still remain significantly contested, and its rules show a compromise of conflicting views.

History

The modern history of corporate insolvency law in the UK began with the first companies legislation in 1844. However, many principles of insolvency are rooted in bankruptcy laws that trace back to ancient times. Regulation of bankruptcy was a necessary part of every legal system, and is found in the Code of Hammurabi (18th century BC), the Twelve Tables of the Roman Republic (450 BC), the Talmud (200 AD), and the Corpus Juris Civilis (534 AD). Ancient laws used a variety of methods for distributing losses among creditors, and satisfaction of debts usually came from a debtor's own body. A debtor might be imprisoned, enslaved or killed or all three. In England, Magna Carta (1215) clause 9 set out rules that people's land would not be seized if they had chattels or money to repay debts. The Bankruptcy Act 1542 introduced the modern principle of pari passu (i.e. proportional) distribution of losses among creditors. However, the 1542 Act still reflected the ancient notion that people who could not pay their debts were criminals, and required debtors to be imprisoned. The Fraudulent Conveyances Act 1571 ensured that any transactions by the debtor with "intent to delay, hinder or defraud creditors and others of their just and lawful actions" would be "clearly and utterly void". The view of bankrupts as subject to the total will of creditors, well represented by Shylock demanding his "pound of flesh" in Shakespeare's The Merchant of Venice, began to wane around the 17th century. In the Bankruptcy Act 1705, the Lord Chancellor was given power to discharge bankrupts from having to repay all debts, once disclosure of all assets and various procedures had been fulfilled. Nevertheless, debtors' prison was a common end. Prisoners were frequently required to pay fees to the prison guards, making them further indebted; they could be bound in manacles and chains; and the sanitary conditions were foul. An early 18th century scandal broke after the friend of a Tory MP died in debtors' prison, and in February 1729 a Gaols Committee reported on the pestilent conditions. Nevertheless, the basic legislative scheme and moral sentiment remained the same. In 1769, William Blackstone's Commentaries on the Laws of England remarked it was not justifiable for any person other than a trader to "encumber himself with debts of any considerable value". At the end of the century, Lord Kenyon in Fowler v Padget reasserted the old sentiment that "Bankruptcy is considered a crime and a bankrupt in the old laws is called an offender."

Since the South Sea Company and stock market disaster in 1720, limited liability corporations had been formally prohibited by law. This meant people who traded for a living ran severe risks to their life and health if their business turned bad, and they could not repay their debts. However, with the Industrial Revolution the view that companies were inefficient and dangerous, was changing. Corporations became more and more common as ventures for building canals, water companies, and railways. The incorporators needed, however, to petition Parliament for a Local Act. In practice, the privilege of an investor to limit their liability upon insolvency was not accessible to the general business public. Moreover, the astonishing depravity of conditions in debtors' prison made insolvency law reform one of the most intensively debated issues on the 19th century legislative agenda. Nearly 100 bills were introduced to Parliament between 1831 and 1914. The long reform process began with the Insolvent Debtors (England) Act 1813. This established a specialist Court for the Relief of Insolvent Debtors. If their assets did not exceed £20, they might secure release from prison. For people who traded for a living, the Bankruptcy Act 1825 (6 Geo. 4. c. 16) allowed the indebted to bring proceedings to have their debts discharged, without permission from the creditors. The Gaols Act 1823 saw priests sent in, and put the debtors' prison jailors on the state's payroll, so they did not claim fees from inmates. Under the Prisons Act 1835 five inspectors of prisons were employed.

The Insolvent Debtors Act 1842 (5 & 6 Vict. c. 116) allowed non-traders to begin bankruptcy proceedings for relief from debts. Any person who was not a trader, or was a trader but owed less than £300, could obtain a protection order from the Court of Bankruptcy or a district court of bankruptcy halting all proceedings against him on condition that he vested all his property in an official assignee. However, conditions remained an object of social disapprobation. The novelist Charles Dickens, whose own father had been imprisoned at Marshalsea while he was a child, pilloried the complexity and injustice through his books, especially David Copperfield (1850), Hard Times (1854) and Little Dorrit (1857). Around this very time reform began. The difficulties for individuals to be discharged from debt in bankruptcy proceedings and the awfulness of debtors' prison made the introduction of modern companies legislation, and general availability of limited liability, all the more urgent. The first step was the Joint Stock Companies Act 1844, which allowed companies to be created through registration rather than a royal charter. It was accompanied by the Joint Stock Companies Winding-Up Act 1844, which envisaged a separate procedure to bring a company to an end and liquidate the assets. Companies had a legal personality separate from its incorporators, but only with the Limited Liability Act 1855 would a company's investors be generally protected from extra debts upon a company's insolvency. The 1855 Act limited investors' liability to the amount they had invested, so if someone bought shares in a company that ran up massive debts in insolvency, the shareholder could not be asked for more than he had already paid in. Thus, the risk of debtors' prison was reduced. Soon after, reforms were made for all indebted people. The Bankruptcy Act 1861 was passed allowing all people, not just traders, to file for bankruptcy. The Debtors Act 1869 finally abolished imprisonment for debt altogether. So the legislative scheme of this period came to roughly resemble the modern law. While the general principle remained pari passu among the insolvent company's creditors, the claims of liquidators expenses and wages of workers were given statutory priority over other unsecured creditors. However, any creditor who had contracted for a security interest would be first in the priority queue. Completion of insolvency protection followed UK company law's leading case, Salomon v A Salomon & Co Ltd. Here a Whitechapel bootmaker had incorporated his business, but because of economic struggles, he had been forced into insolvency. The Companies Act 1862 required a minimum of seven shareholders, so he had registered his wife and children as nominal shareholders, even though they played little or no part in the business. The liquidator of Mr Salomon's company sued him to personally pay the outstanding debts of his company, arguing that he should lose the protection of limited liability given that the other shareholders were not genuine investors. Salomon's creditors were particularly aggrieved because Salomon himself had taken a floating charge over all the company's present and future assets, and so his claims for debt against the company had ranked in priority to theirs. The House of Lords held that, even though the company was a one-man venture in substance, anybody who duly registered would have the protection of the Companies Acts in the event of insolvency. Salomon's case effectively completed the process 19th century reforms because any person, even the smallest business, could have protection from destitution following business insolvency.

Over the 20th century, reform efforts focused on three main issues. The first concerned setting a fair system of priority among claims of different creditors. This primarily centred upon the ability of powerful contractual creditors, particularly banks, to agree to take a security interest over a company's property, leaving unsecured creditors without any remaining assets to satisfy their claims. Immediately after Salomon's case and the controversy created over the use of floating charges, the Preferential Payments in Bankruptcy Amendment Act 1897 mandated that preferential creditors (employees, liquidator expenses and taxes at the time) also had priority over the holder of a floating charge (now Insolvency Act 1986 section 175). In the Enterprise Act 2002 a further major change was to create a ring-fenced fund for all unsecured creditors out of around 20 per cent of the assets subject to a floating charge. At the same time, the priority for taxpayers' claims was abolished. Since then, debate for further reform has shifted to whether the floating charge should be abolished altogether and whether a ring-fenced fund should be taken from fixed security interests. The second major area for reform was to facilitate the rescue of businesses that could still be viable. Following the Cork Report in 1982, the Insolvency Act 1986 created the administration procedure, requiring (on paper) that the managers of insolvent businesses would attempt to rescue the company, and would act in all creditors' interests. After the Enterprise Act 2002 this almost wholly replaced the receivership rules by which secured creditors, with a floating charge over all assets, could run an insolvent company without regard to the claims of unsecured creditors. The third area of reform concerned accountability for people who worsened or benefited from insolvencies. As recommended by the Cork Report, the Company Directors' Disqualification Act 1986 meant directors who breached company law duties or committed fraud could be prevented from working as directors for up to 15 years. The Insolvency Act 1986 section 214 created liability for wrongful trading. If directors failed to start the insolvency procedures when they ought to have known insolvency was inevitable, they would have to pay for the additional debts run up through prolonged trading. Furthermore, the provisions on fraudulent conveyances were extended, so that any transaction at an undervalue or other preference (without any bad intent) could be avoided, and unwound by an insolvent company. The 2008 financial crisis – which resulted from insufficient consumer financial protection in the United States, conflicts of interest in the credit rating agency industry, and defective transparency requirements in derivatives markets – triggered a massive rise in corporate insolvencies. Contemporary debate, particularly in the banking sector, has shifted to prevention of insolvencies, by scrutinising excessive pay, conflicts of interest among financial services institutions, capital adequacy, and the causes of excessive risk-taking. The Banking Act 2009 created a special insolvency regime for banks, called the special resolution regime, envisaging that banks will be taken over by the government in extreme circumstances.

Corporate insolvency

Corporate insolvencies happen because companies become excessively indebted. Under UK company law, a company is a separate legal person from the people who have invested money and labour into it, and it mediates a series of interest groups. Invariably the shareholders, directors and employees' liability is limited to the amount of their investment, so against commercial creditors they can lose no more than the money they paid for shares, or their jobs. Insolvencies become intrinsically possible whenever a relationship of credit and debt is created, as frequently happens through contracts or other obligations. In the section of an economy where competitive markets operate, wherever excesses are possible, insolvencies are likely to happen. The meaning of insolvency is simply an inability to repay debts, although the law isolates two main further meanings. First, for a court to order a company be wound up (and its assets sold off) or for an administrator to be appointed (to try to turn the business around), or for avoiding various transactions, the cash flow test is usually applied: a company must be unable to pay its debts as they fall due. Second, for the purpose of suing directors to compensate creditors, or for directors to be disqualified, a company must be shown to have fewer overall assets than liabilities on its balance sheet. If debts cannot be paid back to everybody in full, creditors necessarily stand in competition with one another for a share of the remaining assets. For this reason, a statutory system of priorities fixes the order among different kinds of creditor for payment.

Companies and credit

Companies are legal persons, created by registering a constitution and paying a fee, at Companies House. Like a natural person, a company can incur legal duties and can hold rights. During its life, a company must have a board of directors, which usually hires employees. These people represent the company, and act on its behalf. They can use and deal with property, make contracts, settle trusts, or maybe through some misfortune commission torts. A company regularly becomes indebted through all of these events. Three main kinds of debts in commerce are, first, those arising through a specific debt instrument issued on a market (e.g. a corporate bond or credit note), second, through loan credit advanced to a company on terms for repayment (e.g. a bank loan or mortgage) and, third, sale credit (e.g. when a company receives goods or services but has not yet paid for them. However, the principle of separate legal personality means that in general, the company is the first "person" to have the liabilities. The agents of a company (directors and employees) are not usually liable for obligations, unless specifically assumed. Most companies also have limited liability for investors. Under the Insolvency Act 1986 section 74(2)(d) this means shareholders cannot be generally sued for obligations a company creates. This principle generally holds wherever the debt arises because of a commercial contract. The House of Lords confirmed the "corporate veil" will not be "lifted" in Salomon v A Salomon & Co Ltd. Here, a bootmaker was not liable for his company's debts even though he was effectively the only person who ran the business and owned the shares. In cases where a debt arises upon a tort against a non-commercial creditor, limited liability ceases to be an issue, because a duty of care can be owed regardless. This was held to be the case in Chandler v Cape plc, where a former employee of an insolvent subsidiary company successfully sued the (solvent) parent company for personal injury. When the company has no money left, and nobody else can be sued, the creditors may take over the company's management. Creditors usually appoint an insolvency practitioner to carry out an administration procedure (to rescue the company and pay creditors) or else enter liquidation (to sell off the assets and pay creditors). A moratorium takes effect to prevent any individual creditor enforcing a claim against the company. so only the insolvency practitioner, under the supervision of the court, can make distributions to creditors. The causes of corporate failure, at least in the market segment of the economy, all begin of the creation of credit and debt. Occasionally excessive debts are run up through outright embezzlement of the company's assets or fraud by the people who run the business. Negligent mismanagement, which is found to breach the duty of care, is also sometimes found. More frequently, companies go insolvent because of late payments. Another business on which the company relied for credit or supplies could also be in financial distress, and a string of failures could be part of a broader macroeconomic depression. Periodically, insolvencies occur because technology changes which outdates lines of business. Most frequently, however, businesses are forced into insolvency simply because they are out-competed. In an economy organised around market competition, and where competition presupposes losers or contemplates excess, insolvencies necessarily happen. The variety of causes for corporate failure means that the law requires different responses to the particular issues, and this is reflected in the legal meaning of insolvency.

Meaning of insolvency

The meaning of insolvency matters for the type of legal rule. In general terms insolvency has, since the earliest legislation, depended upon inability to pay debts. The concept is embodied in the Insolvency Act 1986 section 122(1)(f) which states that a court may grant a petition for a company to be wound-up if "the company is unable to pay its debts". This general phrase is, however, given particular definitions depending on the rules for which insolvency is relevant. First, the "cash flow" test for insolvency represented under section 123(1)(e) is that a company is insolvent if "the company is unable to pay its debts as they fall due". This is the main test used for most rules. It guides a court in granting a winding-up order or appoints an administrator. The cash flow test also guides a court in declaring transactions by a company to be avoided on the ground they were at an undervalue, were an unlawful preference or created a floating charge for insufficient consideration. The cash flow test is said to be based on a "commercial view" of insolvency, as opposed to a rigid legalistic view. In Re Cheyne Finance plc, involving a structured investment vehicle, Briggs J held that a court could take into account debts that would become payable in the near future, and perhaps further ahead, and whether paying those debts was likely. Creditors may, however, find it difficult to prove in the abstract that a company is unable to pay its debts as they fall due. Because of this, section 122(1)(a) contains a specific test for insolvency. If a company owes an undisputed debt to a creditor of more than £750, the creditor sends a written demand, but after three weeks the sum is not forthcoming, this is evidence that a company is insolvent. In Cornhill Insurance plc v Improvement Services Ltd a small business was owed money, the debt undisputed, by Cornhill Insurance. The solicitors had repeatedly requested payment, but none had come. They presented a winding up petition in the Chancery Court for the company. Cornhill Insurance's solicitors rushed to get an injunction, arguing that there was no evidence at all that their multi-million business had any financial difficulties. Harman J refused to continue the injunction noting that, if the insurance company had "chosen" not to pay, a creditor was also entitled to choose to present a winding up petition when a debt is undisputed on substantial grounds. English law draws a distinction between a "debt", which is relevant for the cash flow test of insolvency under section 123(1)(e), and a "liability", which becomes relevant for the second "balance sheet" test of insolvency under section 123(2). A debt is a sum due, and its quantity is a monetary sum, easily ascertained by drawing up an account. By contrast a liability will need to be quantified, as for instance, with a claim for a breach of contract and unliquidated damages. The balance sheet test asks whether "the value of the company's assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities." This, whether total assets are less than liabilities, may also be taken into account for the purpose of the same rules as the cash flow test (a winding up order, administration, and voidable transactions). But it is also the only test used for the purpose of the wrongful trading rules, and director disqualification. These rules potentially impose liability upon directors as a response to creditors being paid. This makes the balance sheet relevant, because if creditors are in fact all paid, the rationale for imposing liability on directors (assuming there is no fraud) drops away. Contingent and prospective liabilities refer to liability of a company that arise when an event takes place (e.g., defined as a contingency under a surety contract) or liabilities that may arise in future (e.g., probable claims by tort victims). The method for computing assets and liabilities depends on accountancy practice. These practices may legitimately vary. However, the law's general requirement is that accounting for assets and liabilities must represent a "true and fair view" of the company's finances. The final approach to insolvency is found under the Employment Rights Act 1996 section 183(3), which gives employees a claim for unpaid wages from the National Insurance fund. Mainly for the purpose of certainty of an objectively observable event, for these claims to arise, a company must have entered winding up, a receiver or manager must be appointed, or a voluntary arrangement must have been approved. The main reason employees have access to the National Insurance fund is that they bear significant risk that their wages will not be paid, given their place in the statutory priority queue.

Priorities

Since the Bankruptcy Act 1542 a key principle of insolvency law has been that losses are shared among creditors proportionately. Creditors who fall into the same class will share proportionally in the losses (e.g. each creditor gets 50 pence for each £1 she is owed). However, this pari passu principle only operates among creditors within the strict categories of priority set by the law. First, the law permits creditors making contracts with a company before insolvency to take a security interest over a company's property. If the security refers to some specific asset, the holder of this "fixed charge" may take the asset away free from anybody else's interest to satisfy the debt. If two charges are created over the same property, the charge holder with the first will have the first access. Second, the Insolvency Act 1986 section 176ZA gives special priority to all the fees and expenses of the insolvency practitioner, who carries out an administration or winding up. The practitioner's expenses will include the wages due on any employment contract that the practitioner chooses to adopt. But controversially, the Court of Appeal in Krasner v McMath held this would not include the statutory requirement to pay compensation for a management's failure to consult upon collective redundancies. Third, even if they are not retained, employees' wages up to £800 and sums due into employees' pensions, are to be paid under section 175. Fourth, a certain amount of money must be set aside as a "ring fenced fund" for all creditors without security under section 176A. This is set by statutory instrument as a maximum of £600,000, or 20 per cent of the remaining value, or 50 per cent of the value of anything under £10,000. All these preferential categories (for insolvency practitioners, employees, and a limited amount for unsecured creditors) come in priority to the holder of a floating charge. Fifth, the holders of a floating charge holders must be paid. Like a fixed charge, a floating charge can be created by a contract with a company before insolvency. Like with a fixed charge, this is usually done in return for a loan from a bank. But unlike a fixed charge, a floating charge need not refer to a specific asset of the company. It can cover the entire business, including a fluctuating body of assets that is traded with day today, or assets that a company will receive in future. The preferential categories were created by statute to prevent secured creditors taking all assets away. This reflected the view that the power of freedom of contract should be limited to protect employees, small businesses or consumers who have unequal bargaining power. After funds are taken away to pay all preferential groups and the holder of a floating charge, the remaining money due to unsecured creditors. In 2001 recovery rates were found to be 53% of one's debt for secured lenders, 35% for preferential creditors but only 7% for unsecured creditors on average. Seventh comes any money due for interest on debts proven in the winding up process. In eighth place is money due to company members under a share redemption contract. Ninth are debts due to members who hold preferential rights. And tenth, ordinary shareholders, have the right to residual assets.

The priority system is reinforced by a line of case law, whose principle is to ensure that creditors cannot contract out of the statutory regime. This is sometimes referred to as the "anti-deprivation rule". The general principle, according to the Mellish LJ in Re Jeavons, ex parte Mackay is that "a person cannot make it a part of his contract that, in the event of bankruptcy, he is then to get some additional advantage which prevents the property being distributed under the bankruptcy laws." So in that case, Jeavons made a contract to give Brown & Co an armour plates patent, and in return Jeavons would get royalties. Jeavons also got a loan from Brown & Co. They agreed half the royalties would pay off the loan, but if Jeavons went insolvent, Brown & Co would not have to pay any royalties. The Court of Appeal held half the royalties would still need to be paid, because this was a special right for Brown & Co that only arose upon insolvency. In a case where a creditor is owed money by an insolvent company, but also the creditor itself owes a sum to the company, Forster v Wilson held that the creditor may set-off the debt, and only needs to pay the difference. The creditor does not have to pay all its debts to the company, and then wait with other unsecured creditors for an unlikely repayment. However, this depends on the sums for set-off actually being in the creditors' possession. In British Eagle International Air Lines Ltd v Compaigne Nationale Air France, a group of airlines, through the International Air Transport Association had a netting system to deal with all the expenses they incurred to one another efficiently. All paid into a common fund, and then at the end of each month, the sums were settled at once. British Eagle went insolvent and was a debtor overall to the scheme, but Air France owed it money. Air France claimed it should not have to pay British Eagle, was bound to pay into the netting scheme, and have the sums cleared there. The House of Lords said this would have the effect of evading the insolvency regime. It did not matter that the dominant purpose of the IATA scheme was for good business reasons. It was nevertheless void. Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Lehman Brothers Special Financing Inc observed that the general principle consists of two subrules — the anti-deprivation rule (formerly known as "fraud upon the bankruptcy law") and the pari passu rule, which are addressed to different mischiefs — and held that, in borderline cases, a commercially sensible transaction entered into in good faith should not be held to infringe the first rule. All these anti-avoidance rules are, however, subject to the very large exception that creditors remain able to jump up the priority queue, through the creation of a security interest.

Secured lending

While UK insolvency law fixes a priority regime, and within each class of creditor distribution of assets is proportional or pari passu, creditors can "jump up" the priority ladder through contracts. A contract for a security interest, which is traditionally conceptualised as creating a proprietary right that is enforceable against third parties, will generally allow the secured creditor to take assets away, free from competing claims of other creditors if the company cannot service its debts. This is the first and foremost function of a security interest: to elevate the creditor's place in the insolvency queue. A second function of security is to allow the creditor to trace the value in an asset through different people, should the property be wrongfully disposed of. Third, security assists independent, out-of-court enforcement for debt repayment (subject to the statutory moratorium on insolvency), and so provides a lever against which the secured lender can push for control's over the company's management. However, given the adverse distributional impact between creditors, the economic effect of secured lending is a negative externality against non-adjusting creditors. With an ostensibly private contract between a secured lender and a company, assets that would be available to other creditors are diminished without their consent and without them being privy to the bargain. Nevertheless, security interests are commonly argued to facilitate the raising of capital and hence economic development, which is argued to indirectly benefits all creditors. UK law has, so far, struck a compromise approach of enforcing all "fixed" or "specific" security interests, but only partially enforcing floating charges that cover a range of assets that a company trades with. The holders of a floating charge take subject to preferential creditors and a "ring fenced fund" for up to a maximum of £600,000 reserved for paying unsecured creditors. The law requires that details of most kinds of security interests are filed on the register of charges kept by Companies House. However, this does not include transactions with the same effect of elevating creditors in the priority queue, such as a retention of title clause or a Quistclose trust.

Debentures

In commercial practice the term "debenture" typically refers to the document that evidences a secured debt, although in law the definition may also cover unsecured debts (like any "IOU"). The legal definition is relevant for certain tax statutes, so for instance in British India Steam Navigation Co v IRC Lindley J held that a simple "acknowledgement of indebtedness" was a debenture, which meant that a paper on which directors promised to pay the holder £100 in 1882 and 5% interest each half-year was enough, and as a result subject to pay duty under the Stamp Act 1870. The definition depends on the purpose of the statutory provision for which it is used. It matters because debenture holders have the right to company accounts and the director's report, because debenture holders must be recorded on a company register which other debenture holders may inspect, and when issued by a company, debentures are not subject to the rule against "clogs on the equity of redemption". This old equitable rule was a form of common law consumer protection, which held that if a person contracted for a mortgage, they must always have the right to pay off the debt and get full title to their property back. The mortgage agreement could not be turned into a sale to the lender, and one could not contract for a perpetual period for interest repayments. However, because the rule limited on contractual freedom to protect borrowers with weaker bargaining power, it was thought to be inappropriate for companies. In Kreglinger v New Patagonia Meat and Cold Storage Co Ltd the House of Lords held that an agreement by New Patagonia to sell sheepskins exclusively to Kreglinger in return for a £10,000 loan secured by a floating charge would persist for five years even after the principal sum was repaid. The contract to keep buying exclusively was construed to not be a clog on redeeming autonomy from the loan because the rule's purpose was to preclude unconscionable bargains. Subsequently, the clog on the equity of redemption rule as a whole was abolished by what is now section 739 of the Companies Act 2006. In Knightsbridge Estates Trust Ltd v Byrne the House of Lords applied this so that when Knightsbridge took a secured loan of £310,000 from Mr Byrne and contracted to repay interest over 40 years, Knightsbridge could not then argue that the contract should be void. The deal created a debenture under the Act, and so this rule of equity was not applied.

Registration

While all records of all a company's debentures need to be kept by the company, debentures secured by a "charge" must additionally be registered under the Companies Act 2006 section 860 with Companies House, along with any charge on land, negotiable instruments, uncalled shares, book debts and floating charges, among other things. The purpose of registration is chiefly to publicise which creditors take priority, so that creditors can assess a company's risk profile when making lending decisions. The sanction for failure to register is that the charge becomes void, and unenforceable. This