01
Control turns on the ability to influence
Formal office is only part of the analysis. Courts examine whether a person could determine decisions, transactions or their terms. Review ownership, authorities, bank mandates, correspondence, budgets, management instructions and the beneficiary’s actual role.
- Director
- Authority and decisions actually taken.
- Owner
- Participation, corporate rights and directions.
- Shadow control
- Influence without formal office.
- Professional adviser
- Ordinary professional services alone do not establish control.
02
The central question is when the objective crisis arose
Build a monthly timeline of liquidity, arrears, demands, enforcement, tax debt, loss of key contracts and asset insufficiency. Concealing distress indicators does not postpone the legally relevant date.
03
The filing duty cannot be assessed from a single ratio
Article 9 lists circumstances requiring a debtor filing as soon as possible and generally no later than one month. At the same time, test any realistic and documented plan for overcoming temporary distress.
04
Liability depends on causation
Article 61.11 asks whether conduct was a necessary cause of the inability to satisfy creditors or materially worsened an existing crisis. Separate market shock, counterparty conduct and management decisions.
05
Statutory presumptions change the evidential burden
Material creditor harm, missing or distorted records, inaccurate registry data and other statutory circumstances increase risk. Assemble evidence of commercial rationale and alternative causation early.
06
Every material crisis transaction needs a decision file
For asset sales, new security, intragroup payments, loans or waivers, record purpose, alternatives, valuation, post-deal liquidity, conflicts and expected creditor effect. Corporate approval is not a substitute for good-faith analysis.
07
Missing records make an explainable decision impossible to prove
Preserve accounts, corporate files, contracts, primary documents, bank statements, email, minutes and models. Establish a legal hold, source map and controlled handover to a successor or insolvency office-holder.
08
Tax debt must be analysed together with business decisions
Map audits, objections, appeals, reserves, payments and enforcement. Keep the quantum dispute separate from the question of which decisions caused an inability to pay.
09
A group review follows the movement of value
Analyse cash pooling, loans, guarantees, security, transfer pricing, central services and contract migration. Each operation needs a debtor benefit, proportionate consideration and a clear rationale.
10
Minutes should show the board’s work, not only the vote
The agenda covers liquidity, forecast, financing, restructuring, asset disposals and the filing duty. Members record information requests, positions, dissent and proposed steps; passive attendance is not a defence.
11
Defence starts before a claim is filed
Build an independent timeline and decision-causation matrix, evidence the reasoned plan and separate each respondent’s management period and authority. Test claim quantum, applicable periods and competing causes.
12
Proceedings require one coherent factual and economic case
A secondary liability claim is heard in connection with insolvency and carries special evidential and claim-disposal rules. Coordinate pleadings, experts, financial modelling, disclosure and positions among respondents.
13
Director crisis pack
Monthly cash flow; arrears; creditor and security register; tax files; litigation and enforcement; board minutes; financing plans; valuations; material transactions; intragroup operations; accounting database; correspondence; handover records; D&O insurance; adviser map.