United Kingdom Insolvency Law - Secured Lending

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 frequently characterised as a negative externality. 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.