Ross & Anor v Gaffney & Anor [2016] EWHC 1255 (Ch)

Case No 685 OF 2014[2016] EWHC 1255 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue LEEDS DISTRICT REGISTRY
IN THE MATTER OF COSY SEAL INSULATION LIMITED (IN ADMINISTRATION)
AND IN THE MATTER OF THE INSOLVENCY ACT 1986
The Court House
Oxford Row
Venue Leeds LS1 3BGDate 02/06/2016
Before
His Honour Judge Behrens sitting as a Judge of the High Court in Leeds
Between
STEVEN PHILLIP ROSS & STEPHEN JAMES WAINWRIGHTApplicantsCOSY SEAL INSULATION LIMITED (in Administration)ApplicantPAUL GEORGE JAMES GAFFNEYRespondentsCOSY SEAL INSULATION (UK) LIMITEDRespondent
James Morgan (instructed by Freeths LLP) for ApplicantsRichard Stubbs (instructed by The EndeavourPartnership LLP) for RespondentsHearing Hearing dates: 4 – 6, 9 – 10 May 2016
JudgmentJudge Behrens:
[1]Abbreviations In this judgment I shall adopt the following abbreviations. Entity Abbreviation Cosy Seal Insulation Ltd CSIL Cosy Seal Insulation (UK) Ltd CSIL(UK) Cavity wall insulation CWI E.ON Energy Solutions Ltd E.ON External Wall Insulation EWI Gateshead Housing Company Gateshead Hamilton (Building Contractors) Ltd Hamilton Home Group Limited Home Group JJ Quinn Racing Ltd JJ Quinn Loft Insulation LOFT Mitie Group Ltd Mitie Paul George James Gaffney Mr Gaffney Stephen Wainwright Mr Wainwright Joanne Gaffney Mrs Gaffney Npower Northern Ltd Npower Tadea Limited Tadea The Insolvency Act 1986 The 1986 Act The Applicants The Administrators Agreement dated 2/1/2013 between CSIL and CSIL(UK) The Jan 2013 Agreement Wetherby Building Supplies Ltd Wetherby[2]Introduction This application arises out of the insolvency of CSIL which entered into administration on 4 July 2014. In it the Administrators are making a number of claims against Mr Gaffney and CSIL(UK). At all material times Mr Gaffney was the sole shareholder and sole director of CSIL and Mrs Gaffney the sole director and shareholder of CSIL(UK).[3]The claims made by the Administrators were originally broken down into 4 separate categories. However the joint claims against Mr and Mrs Gaffney have been compromised in a Tomlin order dated 25 June 2015 and it is not necessary to refer to them further.[4]The remaining three categories may be summarised in this way: Payments made by CSIL to Mr Gaffney between March and May 2014.[5]On 28 March 2014 CSIL paid Mr Gaffney £181,000 by way of repayment of a loan made by Mr Gaffney to CSIL on 7 January 2014. The Administrators contend that this repayment was a preference to a connected person within s 239 of the 1986 Act and a breach of his duties as a director of CSIL.[6]Mr Gaffney contends that CSIL was not insolvent at the time of the repayment and that CSIL was not “influenced by a desire to put himself in a better position than other creditors”. Very substantial payments were being made to creditors at the time. Mr Gaffney does not accept that he acted in breach of his duties as a director. He had advice from CSIL’s accountant in the difficult circumstances that CSIL found itself. If he was acting in breach of duty he should be excused under s 1157 of the Companies Act 2006.[7]On 15 May 2014 CSIL paid Mr Gaffney £150,000 in repayment of loans of £50,000 and £100,000 he had made to CSIL in February 2014. The Administrators contend that this repayment was a preference and a breach of duty. Mr Gaffney relies on the same defences.[8]On 27 May 2014, Mr Gaffney caused CSIL to pay him £200,000 – at one time analysed as a salary of £53,100 plus a further £146,900 by way of reduction of his loan account. That was the same day that he chaired a meeting which passed a resolution that the Company was insolvent and filed a notice of intention to appoint administrators and the same day as Wetherby presented a winding up petition against CSIL[9]The claim that the £53.100 was a valid payment of salary was not pursued following the evidence of Mr McKenna. In any event the Administrators challenged the salary on the ground that it was not subject to a resolution as required under Art 82 of Table A and/or was a preference, and the value of Mr Gaffney’s services cannot be justified. The Administrators claim that the payment of £200,000 was an obvious preference and breach of duty by Mr Gaffney. Mr Gaffney relies on the same defences.[10]On 3 occasions between 20 March 2014 and 20 May 2014 Mr Gaffney caused payments totalling £31,284 to be made to JJ Quinn. These sums were debited from Mr Gaffney’s loan account. The Administrators contend that they were acts of misfeasance and/or preferences. Mr Gaffney contends that these payments were part of the amounts due for sponsorship of Cosy Seal Racing which generated publicity and customers for CSIL. Payments to CSIL(UK)[11]On 2 January 2013, CSIL entered into written agreement with CSIL(UK) under which CSIL promised to pay £15,000 per month to CSIL(UK).[12]On 12 and 23 May 2014 CSIL paid £2,000 and £9,000 to CSIL(UK) in repayment of loans that had been made in mid March 2014. More importantly on 23 May 2014 Mr Gaffney caused CSIL to pay CSIL(UK) £252,000 in respect of liabilities under the Jan 2013 Agreement.[13]The Administrators contend that at the very least these were preferences and/or acts of misfeasance by Mr Gaffney. In addition to the defences in relation to the preference claims Mr Gaffney makes the point that Mrs Gaffney devoted her time to working for the Company and all of the profit of CSIL(UK) was effectively diverted into CSIL as all its work was done through CSIL. He contends that the Jan 2013 Agreement was entered into in good faith with the expectation of it being of genuine benefit to CSIL. The March 2014 agreement with CSIL(UK)[14]On 7 March 2014 CSIL entered into a written agreement with CSIL(UK) for the transfer to CSIL(UK) of 40,000 carbon tonnes of credit for £100,000, giving a price of £2.50 per carbon tonne. Payment was to be made by CSIL(UK) in January 2015 on condition that none of the credits had been rejected by OFGEM.[15]No payment has been made by CSIL(UK). The Administrators challenge this on two grounds. It is contended that a price of £2.50 per carbon tonne is a significant undervalue and that this was a transaction at an undervalue within s 238 of the 1986 Act. The Administrators also contend that it was a breach of Mr Gaffney’s duties as a director to enter into this agreement which was plainly not in the best interests of CSIL. Mr Gaffney contends that the figure of £2.50 per tonne was for a variety of reasons a fair figure and that the agreement was in the best interests of CSIL. The issues[16]Although it will be necessary to consider each of the challenged transactions separately there are four main issues to be determined: 1. Whether CSIL was insolvent at the time of each of the challenged transactions. [Curiously the burden of proof is different on this issue depending on whether the allegation relates to a preference or a transaction at an undervalue. However neither Counsel suggests that this is a case which will be decided on the basis of the burden of proof.] 2. [In relation to the preference allegations] whether CSIL was influenced by a desire to put Mr Gaffney and/or CSIL(UK) in a better position than he/it would have been in an insolvent liquidation. 3. [In relation to transfer of the carbon credits in March 2014] whether the value of the consideration provided by CSIL(UK) was significantly less than the value of the consideration provided by CSIL. 4. Whether Mr Gaffney’s conduct in entering into the transactions amounted to a breach of the duties owed to CSIL under ss 171, 172 and 174 of the Companies Act 2006. If so, whether he ought to be excused under s 1157. Evidence[17]As with many insolvency applications this case is document heavy with over 1,000 pages of documents.[18]In addition to the documents I heard evidence from four witnesses of fact. On behalf of the Administrators evidence was given by Mr Wainwright, one of the joint administrators, and Mr Green, a director of Home Group, one of CSIL’s principal creditors. On behalf of Mr Gaffney and CSIL(UK) evidence was given by Mr Gaffney and Mr McKenna. Mr McKenna is a Chartered Accountant who was closely involved in the affairs of CSIL, CSIL(UK) and Mr Gaffney. He acted as accountant to each of them, prepared the VAT returns, the annual accounts. He also prepared the cash flow forecasts, the management accounts and the aged debtor analysis to which I was referred during the course of the case.[19]In addition the Administrators called Mr Kimber as an expert in relation to the value of the carbon credits sold in March 2014. Mr Kimber worked for British Gas for 31 years. He has over 15 years experience in the low carbon/energy company obligation sector. Since March 2013 he has been a partner in AgilityECO. A major part of its business is the supply of ECO credits to energy companies. Gratitude[20]Before dealing with the judgment in more detail it is right that I should acknowledge with gratitude the very considerable assistance I have had from the Counsel and solicitors involved in this case. In a document heavy and factually detailed case such as this I was guided through the detailed facts with considerable skill by each Counsel. Furthermore I received detailed skeleton arguments and written closing submissions which have been of considerable assistance in the preparation of this judgment. I also acknowledge with gratitude the provision at short notice of electronic copies of all the relevant documents in the case.[3]The facts ECO This section of the judgment is taken from section 3 of Mr Kimber’s report Credits[21]Since 1994 all energy companies of a certain size have been required under legislation to develop programmes to help domestic customers reduce their carbon emission. Initially this obligation only applied to electricity suppliers. However, in 2000 this was extended to gas suppliers as well. The current version of the energy supplier obligation is called the Energy Company Obligation (ECO). This programme commenced on 1 April 2013.[22]The methodology for calculation of the number of ECO credits from qualifying actions is complex. It can vary considerably on a product-by-product and an installation-by installation basis. As a rough guide, typically cavity wall insulation would generate around 25 tonnes of lifetime carbon reduction (ECO credits). Therefore the value paid by an energy company for the ECO credits relating to that cavity wall insulation would be 25 times the price per tonne that the energy company is willing to pay for ECO credits at the time.[23]In 2013 there was a fundamental change to the rules of the energy supplier obligation with the introduction of ECO 1.0 on 1 January 2013. This included scope for works undertaken from 1 October 2012 to count towards their target. This resulted in a hiatus within the sector, a sharp upward movement in ECO credit prices and the emergence of more complex compliance requirements on energy companies to demonstrate the legitimacy of the ECO credits claimed by them. Another fundamental change was the introduction of a carbon brokerage mechanism, allowing ECO credit suppliers to offer to sell tranches of ECO credits to energy companies at an offer price of their choosing, via a fortnightly auction process. It is important to note that there is not a single type of ECO credit with a single price, there are multiple types of ECO credits, each with its own price.[24]On 1 April 2014, there was a significant change to the ECO programme. Reacting to public pressure…the government re-designed ECO to reduce the cost of compliance for energy suppliers. In return suppliers agreed to reduce energy bills for householders by a similar amount. The most important change was that some of the more expensive qualifying actions were discouraged in favour of cheaper interventions. This change had a significant impact on certain categories of qualifying actions, namely external wall insulation and cavity wall classified as 'Hard to Treat' (HTT), In the case of the former the price per tonne of carbon for ECO credits reduced from a range of £100 - £140 per tonne to less than £40 per tonne. For the latter (HTT), this category of qualifying action was removed entirely from the programme. CSIL and CSIL(UK) Incorporation and trading results[25]CSIL was incorporated on 21 March 1995. Mr Gaffney became its sole director and shareholder. Mrs Gaffney was company secretary. CSIL was an insulation contractor installing CWI and LOFT for consumers and selling the resultant “carbon savings” to large energy companies to enable them to meet their statutory obligations under the government’s “ECO” schemes.[26]CSIL(UK) was incorporated on 10 September 2001. Mrs Gaffney became its sole director and shareholder, with Mr Gaffney as company secretary. CSIL(UK) primarily dealt with commercial insulation contracts whereas CSIL concentrated on grant funding for social housing. Both companies used sub-contractors for a third type of insulation, EWI.[27]There is no dispute that up to the end of 2012 CSIL was profitable and traded successfully. The year-end accounts for the year ending 2012 show that turnover increased from £2.2 million in 2011 to £6.3 million in 2012 whilst net profit increased from £188,542 to £679,585. Mr Gaffney’s “remuneration” in 2012 comprised a salary of £16,648, pension contributions of £157,200 and a dividend of £136,000. The net assets were £1,070,814.[28]In 2013 turnover increased to £14.5 million but the net profit reduced to £175,098. Mr Gaffney’s “remuneration” in 2013 comprised a salary of £15,427, pension contributions of £114,000 and a dividend of £650,000. The net assets were £595,912. It will be necessary to look at these figures more closely when considering the solvency of CSIL.[29]On 6 October 2012, CSIL entered into a written agreement for “sponsorship services” with Cosy Seal Racing Partnership which was a partnership between Mr and Mrs Gaffney. It provided that the Company would sponsor horses owned by them for the sum of £1,000 per month per horse up to a maximum of 10 horses over 24 months. It appears that the horses were trained by JJ Quinn. The Jan 2013 Agreement[30]On 2 January 2013, CSIL entered into a written agreement with CSIL(UK) which referred to the change in the nature of ECO contracts and the requirement for a blended approach. It provided that CSIL(UK) would cease to trade and not carry out any contracts in the insulation industry for 12 months from 1 January 2013. CSIL promised to pay £15,000 per month to include the “consultancy services” of Mrs Gaffney for 24 months.[31]The consultancy services were to be principally around “ECO compliance and ensuring the compliance team of [CSIL] operates as effectively as possible”[32]No sums were paid under this contract until the payment on 23 May 2014. The E.ON Contract 33 On 24 April 2013 CSIL entered into a contract with E.ON for the sale of carbon credits. The contract envisaged that CSIL would provide E.ON with 98,500 tonnes of carbon credits and would receive £5 million in funding.[34]I was referred to a number of the clause of the contract in the course of the trial. These included clause 4 which contained detailed measures on documentation. In summary CSIL was required to enter information on E.ON’s PEET system. The parties acknowledged (Cl 4.5) that the Ofgem rules were in their infancy and were being developed. CSIL agreed to provide the documentation within a reasonable time.[35]Under clause 4.2 E.ON were required to notify CSIL of any issues with the documentation within a reasonable period.[36]Under clause 7.2 there was an obligation to pay CSIL on the last day of the month following the month in which the invoice was to be paid.[37]In paragraph 10 of his witness statement Mr Green explained the nature of documentation required thus: As a minimum the paperwork requirements for each individual property for the submission of a claim for ECO funding is:-(a) A Chartered Surveyor’s report outlining the measures taken and/or to be taken e.g. external wall insulation;(b) Pre and post energy performance certificates (“EPC”), such Certificates have a limited shelf life under ECO.(c) PAS2030 sign off, this is the official certification which the contractor holds to be able to carry out this work;(d) Customers sign off on the measures; and(e) Either a 25 or 30 year warranty for the works undertaken on the property.[38]One of the matters which was discussed in the course of the hearing was the extent to which a pre EPC certificate was required. I was referred to an exchange of emails between Mr Gaffney and Ms Connolly of Ofgem between 28 January 2014 and 29 January 2014. In that exchange Mr Gaffney asked if a whole house survey by a Chartered Surveyor could be carried out without a pre EPC to support his survey. Ms Connolly confirmed that there was no such Ofgem requirement and that a full internal inspection should meet the requirements of a “whole house survey”. She pointed out that an energy supplier might have a preference for an EPC survey to be carried out as part of the process. She also confirmed that there was no information in the ECO guidance to suggest that the surveyor’s report must be based on an EPC survey.[39]Thus, although it appears that a measure supported by a whole house survey is compliant with Ofgem guidelines, some utilities required the documentation to include a pre EPC.[40]This was not a matter which was considered by Mr Kimber in his report. In cross-examination however he expressed the view that there had to be an EPC on the date before the work was carried out.[41]No problems arose with the E.ON contract until November 2013. It is not in dispute that substantial payments were made by E.ON to CSIL in this period.[42]However there were problems with 3 self billing invoices prepared by E.ON on 12 September 2013, 20 September 2013 and 3 October 2013 totalling £1,193,114.72 inclusive of VAT of £56,814.99. It is common ground that E.ON submitted these invoices to Ofgem and have received appropriate credits in respect of them. However E.ON have refused to make any payment to CSIL.[43]Prior to the administration Mr Gaffney attempted to negotiate with E.ON in order to resolve the compliance issues it was raising. At no time, however, did Mr Gaffney refer the matter to solicitors or write any letter before action to E.ON.[44]Following the administration order the Administrators caused its solicitors to write to E.ON on 19 September 2014 claiming £998,392.76 in respect of the work. On 13 October 2014 E.ON’s legal department sent a four page letter denying liability and raising serious issues as to the work carried out by CSIL. The whole of the claim was disputed and a Counterclaim was intimated for the return of £4,033,925.61 which had been paid under the contract to CSIL.[45]The Administrators took legal advice on the letter. That advice has not been disclosed. In evidence Mr Wainwright suggested that any litigation against E.ON must be regarded as speculative. In any event no recoveries have so far been made.[46]As a result of the problems with E.ON CSIL entered into a contract with Npower. According to Mr Gaffney this was to prevent the debt with E.ON getting larger. The agreement was reached orally in December 2013 and provided for payment 30 days after invoice which was not raised until after a 20 day compliance period. On 26 February 2014 Npower agreed a 2.5% rate reduction in return for payment within 7 days of invoice. Trading in 2014[47]It is not in dispute that CSIL suffered cash flow problems. It had only made a profit of £175,098 in 2013 and only had net assets of £595,912. The failure by E.ON to pay the £1.2 million due had a serious effect on cash flow.[48]There is considerable evidence of the cash flow problems. However in the light of Mr Gaffney’s case that CSIL was not insolvent it is necessary to deal with them in a little detail. HMRC[49]On 6 January 2014 Mr McKenna submitted the VAT return to HMRC. In the covering email Mr McKenna stated that CSIL was experiencing cash flow issues as a result of the E.ON issue and asked that the refund could be authorised as soon as possible. One day later Mr Gaffney lent CSIL £181,000 to cover the VAT.[50]At the end of February 2014 Mr McKenna submitted a further VAT return. In the covering email he requested that the refund be authorised urgently as CSIL was suffering cash flow problems. In an email dated 28 February 2014 a number of queries were raised about the claim for the refund. Mr McKenna dealt with the queries on 6 March 2014 and concluded his email: We trust the above answers are satisfactory and allow you to release the refund which our client desperately needs to honour the payment agreements he has made the subcontractors.[51]Both Mr Gaffney and Mr McKenna sought to play down the significance of this and to suggest that it was only inserted to speed up the repayment. Home Group[52]Home Group first entered into a contract with CSIL in September 2011. Under the contract (and subsequent contracts in 2013 and 2014), it was agreed that CSIL would fund, via ECO funding from the government, appropriate ECO measures of Home Group’s properties to enable utility companies to claim ECO credits on behalf of Home Group.[53]On the instruction of CSIL, Home Group would submit an invoice to CSIL for an agreed amount of credit due following a claim to a utility company in accordance with the contract.[54]In December 2013 it came to the attention of Mr Green, the Procurement Director of Home Group that invoices for September 2013 for £779,040 and £224,907 had not been paid. According to Mr Green the situation was monitored and at the beginning of 2014 there were various meetings between Mr Robson (on behalf of CSIL) and his colleagues which resulted in a payment plan. I was referred to an email chain at the end of January 2014 which resulted in an email dated 3 February 2014 from Mr Robson which included: I have today handed in a cheque for the amount £224,907 inc VAT I will clear the balance on 14/3/2014 and 28/3/2014 with 2 separate cheques for £389,520. I appreciate that the dates are not as soon as we would all like but this is the earliest I can guarantee payment.[55]In his witness statement Mr Gaffney disowned the contracts between Home Group and CSIL alleging that Mr Robson had no authority to sign them. In cross-examination he also disowned the email of 3 February 2014. He stated that he did not approve its terms and had not seen it before it was sent. He acknowledged that he must have approved the cheque for £224,907.[56]In any event the payments due on 14 March 2014 and 28 March 2014 were not paid. As at that point the amount due to Home Group amounted to £1,880,014.30. Mr Green met with Mr Gaffney on 15 April 2014. At that time Mr Gaffney did not dispute the sums due.[57]Mr Gaffney has subsequently sought to raise disputes which Mr Green believes are without foundation. In cross examination he said that all information requested by CSIL had been provided. He accepted that there was a point when Home Group stopped the work and removed CSIL from site. This was because of the non-payment by CSIL.[58]When he gave evidence Mr Gaffney appeared to suggest that the whole of the Home Group debt was disputed. However it is to be noted that in an exhibit to a witness statement in support of a validation order made by Mr Gaffney on 24 June 2014 he stated that the dispute extended only to £779,040 thus leaving over £1 million undisputed. Hamilton and the advice from the Insolvency Practitioner[59]In February 2014 Hamilton presented a winding up petition for £2.3 million. The debt was undisputed and CSIL was not in a position to pay.[60]As a result on 21 March 2014 a meeting was held between Mr Gaffney, CSIL’s accountant, Mr McKenna, its solicitor Mr Bramley and an insolvency practitioner Mr Kelly.[61]There are no notes of the meeting and no written advice was given. It is not clear what information was provided to Mr Kelly. In evidence Mr McKenna made it clear that he did not profess to give insolvency advice at the meeting. In cross-examination Mr McKenna said that the inference he drew form the meeting was that if a deal could be done with Hamilton CSIL could continue to trade.[62]Following the meeting there was an email exchange between Mr Bramley and Mr Kelly on 24 March 2014. Mr Bramley stated that CSIL were talking to Wetherby about putting in money to get rid of Hamilton and get the petition withdrawn. In the meantime he (Mr Bramley) was in the process of briefing Counsel to deal with a number of possible insolvency applications. Mr Kelly stated that he would hold off preparing a report until other routes had progressed.[63]On 25 March 2014 there was a meeting between CSIL, Hamilton and Wetherby. Mr McKenna had prepared a cash flow forecast which appeared to show that between the 28March 2014 and 31 May 2014 there would be receipts of £9.1 million and payments out of £8.9 million. It is however to be noted that the forecast involved deferring an undisputed debt of £1.85 million that was due to Wetherby until the end of May. The forecast does not make clear precisely what payments are intended for each debtor as payments of £4.7 million are included within the description “Others”. In evidence Mr McKenna said he thought he had made provision for 50% of the moneys due to Home Group and had included the £181,000 loan that had been made in January by Mr Gaffney in relation to the VAT.[64]It is not in dispute that an agreement was reached with Hamilton and the petition was withdrawn in April 2014. Payments totalling £2.1 million were made to Hamilton between April and May 2014. Cash flow between March 2014 and May 2014[65]In the course of his closing submissions Mr Stubbs produced two helpful spreadsheets giving details of payments received into CSIL’s bank account and payments over £1,500 made to unconnected parties. I have summarised the spreadsheets in the following table. Mar-14 Apr-14 May-14 Total Payments in 1,848,499 4,048,697 3,808,313 9,705,509 Payments out 1,553,135 3,169,759 3,637,549 8,360,443[66]Mr Gaffney relied on the substantial moneys coming into the bank accounts as showing that CSIL was not insolvent. He also made the point that substantial payments were in fact being made to unsecured creditors. However there are a number of points that need to be made about these figures. 1. The cash flow forecast prepared by Mr McKenna predicted that approximately £8.8 million would be paid in to the bank in April and May 2014. The amounts paid in were about £1 million less. 2. One of the documents produced on behalf of CSIL is an aged debt analysis in respect of invoices paid from 3 January 2014 to 25 June 2014. It can be seen from this document that many of the invoices were over 3 months old and some were as much as 5 months old. Mr Gaffney accepted in general terms that invoices were due after 30 days. He said he tried to renegotiate these terms with the creditors but there were no concluded agreements to that effect. 3. Mr Gaffney also suggested that he was attempting to be fair to creditors in that he was attempting to pay the oldest creditors first and that he paid creditors in respect of invoices up to the end of February 2014. However this suggestion does not bear analysis. There were a number of creditors who were simply not paid at all. Examples of this include Home Group who had invoices outstanding since September 2013 and had a guarantee that it would receive payment in March 2014. Another example is Ryedale DC which issued an invoice for £17,457 in February 2014 and received no payment. 4. No provision at all was made for disputed debts. Examples of this include Mitie. This related to a claim for £1.2 million pursuant to an invoice originally dated 20 March 2013 which was finally due on 19 April 2014. Mr Gaffney sought to challenge the invoice on the ground that the work was non-compliant because Mitie missed the ECO submission deadline of 25 March 2014. Mr Gaffney subsequently took Counsel’s opinion on the claim. On 25 May 2014 counsel advised that on the evidence before him Mitie were likely to be successful in the dispute. It is true, as Mr Stubbs pointed out, that there are areas where Counsel sought more information but an opinion such as this must give rise to a very substantial risk that moneys are due to Mitie. Yet no provision at all was made. Another example, of course, is Home Group. The Insolvency[67]On 23 May 2014 solicitors for Wetherby demanded payment of £2.6 million by 27 May 2014 and threatened a winding up petition in default.[68]On 27 May 2014 CSIL filed a Notice to Appoint an Administrator in Newcastle. The form included a statutory declaration signed by Mr Gaffney that CSIL was or was likely to be unable to pay its debts. On the same day Mr Gaffney chaired a meeting of directors which resolved that CSIL was insolvent and unable to pay its debts as and when they dell due.[69]In cross examination Mr Gaffney disowned these statements saying that he thought that CSIL could trade through its difficulties.[70]On the same day Wetherby duly presented a winding up petition based on the debt of £2.6 million. Mr Gaffney has sought to say that the debt was disputed because it was not due until the end of May 2014. This was not a point taken at the time. In any event it is plain from subsequent events that CSIL was not in a position to pay Wetherby £2.6 million at the end of May. The petition was supported by Home Group in respect of its debt of £1.8 million.[71]On 20 June 2014 Mr Gaffney made two witness statements – one in support of an administration order and the other in support of a validation order. In the witness statements Mr Gaffney: 1. Did not dispute Wetherby’s debt but asserted a dispute to Home Group’s claim. 2. Acknowledged that CSIL was unable to pay Wetherby’s and was thus unable to pay its debts as they fell due. He asserted that CSIL was balance sheet solvent.[72]The application for the Administration Order was made on 24 June 2014. Included within the application was an estimated outcome statement which suggested that there would in any event be a substantial deficiency for creditors. It valued the assets in an administration at £1.17 million against liabilities of £6.29 million.[73]On 27 June 2014 a validation order was granted in respect of payments from 27 June 2014 until 4 July 2014. On 4 July 2014 an Administration order was made. Post Administration Events.[74]Following the order the Administrators employed Mr Gaffney and a staff of about 35 in order to assist in the collection of the debts. The principal debts said to be due to CSIL comprised £520,000 from Npower, £234,000 from Tadea and the sums already mentioned from E.ON. E.ON[75]I have set out the position above and will not repeat it. No sum has currently been collected from E.ON. There has been no response to E.ON’s letter. Npower[76]According to Mr Gaffney his time was spent in collating the necessary information required by Npower to enable funds to be released. He said that he collated the necessary information and placed it on a USB stick. In so far as there was a lack of warranty documentation this was as a result of failures by subcontractors who were unwilling to provide the documentation. I was referred to the meeting of creditors held on 22 September 2014 where there was a discussion about the supply of warranties.[77]There was an exchange of emails on 9 and 10 October 2014 between the Administrators’ solicitors and Npower. It was pointed out that the USB stick would be available shortly and would be sent to Npower.[78]In response Ms Harris of Npower pointed out that there were 776 measures with a value of £820k with insufficient evidence. As only about £500k was being withheld there could be no immediate release of funds.[79]Ms Harris asked for information to enable her to reconcile the invoices and said that upon receipt of the USB stick the team would be able to validate information and recalculate the figures. If the result was favourable to CSIL payments would be made.[80]There is no further information save that no further payments have been made. Tadea[81]There has been no further payment from Tadea which itself became insolvent in February 2015. There is no prospect of any significant recovery from Tadea.[4]Assessment of witnesses[82]In my view both Mr Wainwright and Mr Green were honest straightforward witnesses who were trying to assist the Court. I agree with Mr Morgan that Mr Green’s evidence in relation to defects is more consistent with the documents than that of Mr Gaffney. Not only is there no hint of a complaint about Home Group’s work until 2 June 2014 (after the date of the presentation of the Wetherby petition) but the emails in January and February resulting in the “guarantee of payment” are inconsistent with the allegations now being made. Mr Wainwright has, of course no direct information about events before his appointment. Whether or not the debts from Npower and Eon are of any value is a matter I shall consider later in this judgment.[83]I regret that I did not find Mr Gaffney to be a reliable witness. In his closing note Mr Morgan set out 10 matters to justify this conclusion. I agree with most of them. To my mind the most important matters relate to the documents signed by Mr Gaffney at the time of the insolvency and his evidence in relation to the Home Group settlement. If Mr Gaffney did not believe that CSIL was insolvent he should not have passed a resolution to the effect that it was or have stated in a statutory declaration and two witness statements that it was. As he said in his witness statement CSIL was not in a position to pay the £2.6 million owed to Wetherby. He should not have said that the Wetherby debt was undisputed if there was a genuine dispute. Mr Stubbs tried to suggest that Mr Gaffney had changed his mind later but that was not Mr Gaffney’s evidence. His evidence was that despite the documents he signed he did not believe that CSIL was insolvent. To my mind that seriously undermines Mr Gaffney’s credibility. Mr Gaffney’s evidence over the Home Group settlement is, to my mind, simply incredible. To suggest that Mr Robson negotiated the settlement behind his back is, bearing in mind the sums involved, unlikely. It is made the more unlikely by the fact that Mr Gaffney either authorised or signed the cheque for £224,907.[84]I also agree that Mr Gaffney’s attempt to downplay the use of the word “desperately” in Mr McKenna’s email of 6 March 2014 was wholly unconvincing. If right it shows that Mr Gaffney was prepared to allow CSIL’s accountant to mislead HMRC if it suited his purpose. Again this is a matter which goes to Mr Gaffney’s credibility.[85]In the end I agree that I can only rely on Mr Gaffney’s evidence if uncontroversial, consistent with the documents or corroborated.[86]Mr Morgan was critical of Mr McKenna’s evidence. There is force in some of his criticisms. However Mr McKenna readily admitted that he had no knowledge of insolvency law and at no time gave insolvency advice. He did not know the statutory criteria for preference or transfers at an undervalue.[87]I did not think that Mr McKenna was trying to mislead the court on factual matters. However his opinions on matters to do with insolvency are clearly opinions upon which I can attach no weight.[5]Relevant time[88]It will be recalled that a major issue between the parties is whether the transactions were made at a relevant time. This depends on the provisions of the 1986 Act.[89]The relevant provisions are contained in ss 238, 239 and 240 of the 1986 Act. The relevant parts of those sections are set out below. 238(4)[Interpretation] For the purposes of this section and section 241, a company enters into a transaction with a person at an undervalue if– (b) the company enters into a transaction with that person for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the company. 239(4)[Interpretation] For the purposes of this section and section 241, a company gives a preference to a person if–(a) that person is one of the company’s creditors or a surety or guarantor for any of the company’s debts or other liabilities, and(b) the company does anything or suffers anything to be done which (in either case) has the effect of putting that person into a position which, in the event of the company going into insolvent liquidation, will be better than the position he would have been in if that thing had not been done. 239(5)[Restriction on court order] The court shall not make an order under this section in respect of a preference given to any person unless the company which gave the preference was influenced in deciding to give it by a desire to produce in relation to that person the effect mentioned in subsection (4)(b). 239(6)[Presumption] A company which has given a preference to a person connected with the company (otherwise than by reason only of being its employee) at the time the preference was given is presumed, unless the contrary is shown, to have been influenced in deciding to give it by such a desire as is mentioned in subsection (5). 240(1)[Relevant time] Subject to the next subsection, the time at which a company enters into a transaction at an undervalue or gives a preference is a relevant time if the transaction is entered into, or the preference given– (a) in the case of a transaction at an undervalue or of a preference which is given to a person who is connected with the company (otherwise than by reason only of being its employee), at a time in the period of 2 years ending with the onset of insolvency (which expression is defined below), 240(2)[Where not relevant time] Where a company enters into a transaction at an undervalue or gives a preference at a time mentioned in subsection (1)(a) or (b), that time is not a relevant time for the purposes of section 238 or 239 unless the company– (a) is at that time unable to pay its debts within the meaning of section 123 in Chapter VI of Part IV, or (b) becomes unable to pay its debts within the meaning of that section in consequence of the transaction or preference; but the requirements of this subsection are presumed to be satisfied, unless the contrary is shown, in relation to any transaction at an undervalue which is entered into by a company with a person who is connected with the company.[90]A number of matters are conceded on behalf of Mr Gaffney and CSIL(UK). It is conceded that Mr Gaffney and CSIL(UK) are connected persons within the meaning of the 1986 Act. It is also conceded that all of the challenged transactions took place within 2 years of the onset of insolvency as defined. Thus the question whether the transactions were made at a relevant time depends on whether at the time of each transaction CSIL was unable to pay its debts within the meaning of s 123 of the 1986 Act or became so unable as a result of the transaction. In the case of transactions at an undervalue there is a presumption in favour on the Administrators; in the case of preferences the burden rests with the Administrators.[91]S 123 contains two relevant definitions in ss 123(1)(e), and s 123(2) (e) if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due. 123(2) A company is also deemed unable to pay its debts if it is proved to the satisfaction of the court that the value of the company’s assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.[92]This is an area of where there are 3 recent authorities to which I was referred – Eurosail [2011] 1 W.L.R. 2524 , a decision of the Supreme Court where the leading judgment was given by Lord Walker, Casa Estates [2014] EWCA Civ 383, a decision of the Court of Appeal where the leading judgment was given by Lewison LJ and Cheyne Finance [2007] EWHC 2402 (Ch) where the judgment of Briggs J was expressly approved in Eurosail.[93]In paragraphs 27 and 28 of his judgment in Casa Estates Lewison LJ summarised the legal effect of the two subsections. 27 In my judgment the following points emerge from the decision of the Supreme Court in Eurosail (and in particular the judgment of Lord Walker):(i) The tests of insolvency in s.123(1)(e) and 123(2) were not intended to make a significant change in the law as it existed before the Insolvency Act 1986 : [37].(ii) The cash-flow test looks to the future as well as to the present: [25]. The future in question is the reasonably near future; and what is the reasonably near future will depend on all the circumstances, especially the nature of the company’s business: [37]. The test is flexible and fact-sensitive: [34].(iii) The cash-flow test and the balance-sheet test stand side by side: [35]. The balance sheet test, especially when applied to contingent and prospective liabilities is not a mechanical test: [30]. The express reference to assets and liabilities is a practical recognition that once the court has to move beyond the reasonably near future any attempt to apply a cash-flow test will become completely speculative and a comparison of present assets with present and future liabilities (discounted for contingencies and deferment) becomes the only sensible test: [37].(iv) But it is very far from an exact test: [37]. Whether the balance sheet test is satisfied depends on the available evidence as to the circumstances of the particular case: [38]. It requires the court to make a judgment whether it has been established that, looking at the company’s assets and making proper allowance for its prospective and contingent liabilities, it cannot reasonably be expected to meet those liabilities. If so, it will be deemed insolvent even though it is currently able to pay its debts as they fall due: [42] 28 In the course of his judgment in Eurosail Lord Walker approved what he described as the “perceptive judgment” of Briggs J. in Re Cheyne Finance Plc [2007] EWHC 2402 (Ch); [2008] B.C.C. 182 . Two of the points that Briggs J. made bear on our case: (i) Cash-flow solvency or insolvency is not to be ascertained by a blinkered focus on debts due at the relevant date. Such an approach will in some cases fail to see that a momentary inability to pay is only the result of temporary illiquidity. In other cases it will fail to see that an endemic shortage of working capital means that a company is on any commercial view insolvent, even though it may continue to pay its debts for the next few days, weeks, or even months: [51]. *277 (ii) Even if a company is not cash-flow insolvent, the alternative balance-sheet test will afford a petitioner for winding up a convenient alternative means of proof of a deemed insolvency: [57]. Challenged transactions 7 March 2014[94]The first of the challenged transactions was the 7 March 2014 – the agreement for the transfer of carbon.[95]On 7 March 2014 CSIL had cash flow problems. There was the outstanding winding up petition from Hamilton for £1.5 million. In the absence of funds from E.ON the only realistic prospect of paying Hamilton involved deferring the debt due to Wetherby. The debt from E.ON was disputed and more than 3 months overdue. No steps were being taken to enforce it.[96]On 6 March 2014 Mr McKenna had described CSIL as desperately needing a refund to honour the payment agreement with subcontractors.[97]Although some debts were being paid they were not being paid within the agreed payment terms. There was no concluded agreement to defer credit terms to 60 days. In any event many of the payments were paid more than 90 days after the invoices.[98]Some debts were not being paid at all. There was a liability to Home Group for £779,040 before the end of March with half being payable in 7 days. 20 March 2014[99]This was the date of the first payment to JJ Quinn - £9,635.[100]CSIL’s position does not appear to have been very different from that on 7 March 2014. The meeting with Mr Kelly had not taken place. The Hamilton petition was still outstanding and there was no agreement with Hamilton. A payment of £788,710 had been made to Hamilton. The first of the payments to Home Group (£389,520) which had been guaranteed to be paid by 14 March 2014 had not been made. 6 other creditors were paid between 7 March 2014 and 20 March 2014. Some of the invoices dated back to October 2014. 28 March 2014[101]This was the date of the repayment by CSIL of Mr Gaffney’s loan of £181,000 which had been made in January 2014.[102]By 28 March 2014 Mr Gaffney had met with Mr Kelly and with Hamilton. It is not clear what advice Mr Kelly gave. I do not accept that Mr Kelly advised that CSIL was solvent. This is evident from the email exchange on 24 March 2014. Some form of agreement was reached with Hamilton on 25 March 2014. I do not accept that there was any contractual obligation deferring payment to Wetherby until 31 May 2014.[103]Only 2 other creditors were paid between 20 March and 28 March 2014 – Wetherby (£29,843) and Green Dealer (£24,157). The invoices were dated October and November 2013. The second payment of £389,520 due to Home Group on 28 March 2014 was not made. 18 April 2014[104]This was the date of the second payment to JJ Quinn - £11,146.[105]In the period between 28 March 2014 and 18 April 2014 Hamilton was paid £1,725,000 and the petition was withdrawn. Substantial sums were paid to CSIL from Tadea and Npower. A number of creditors were paid. Some of the invoices dated back to October 2013.[106]No payment was made to Home Group. On 15 April 2014 CSIL sent the first letter to Mitie demanding a credit note in respect of the invoice for £1.2 million. No provision had been made for this sum. 12 May 2014[107]This was the date CSIL repaid CSIL(UK) £2,000 in respect of a loan of £11,000.[108]Substantial payments were received in the period from 18 April 2014 to 12 May 2014. As already noted the amounts received were in fact somewhat less than anticipated in Mr McKenna’s cash flow forecast.[109]The substantive reply was received from Mitie on 25 April 2014 making it very clear that Mitie regarded the sum of £1.2 million as due and gave a deadline of 19 May 2014 for payment.[110]Payments were made to some creditors. The invoices appear to have been overdue. Some creditors were not paid at all. These included Home Group, Mitie and Ryedale. 15 May 2014[111]This was the date CSIL repaid Mr Gaffney £150,000 in respect of a loan he had made in February 2014[112]There is nothing to add to the comments in respect of 12 May 2014. 20 May 2014[113]This was the date CSIL made the final payment of £10,772 to JJ Quinn Racing[114]Save to note that Mitie’s deadline passed on 19 May 2014 there is nothing to add to the comment in respect of 12 May 2014. 23 May 2014[115]This was the date when CSIL paid CSIL(UK) £252,000 in respect of sums due under the Jan 2013 Agreement and £9,000 in repayment of the balance of the loan of £11,000.[116]Mr Gaffney pointed out that the £252,000 was not the total sum due under the Jan 2013 Agreement. It was the sum calculated to the end of February 2014 (i.e 14 months plus VAT).[117]On 23 May 2014 Wetherby’s solicitors issued a formal demand for £2.6 million to be paid by 27 May 2014. The letter was sent by email. As Mr Gaffney acknowledged in his witness statements in support of the administration order and the validation order the debt was undisputed and CSIL could not pay it. It was also not in a position to pay or make provision for sums due to Mitie or Home Group.[118]Some creditors were paid in May but as already noted many were not. 27 May 2014[119]This was the date that CSIL paid Mr Gaffney £200,000 in repayment of his loan account.[120]At one time it was suggested that part of that sum was arrears of salary. However when Mr McKenna gave evidence the position was clarified. On 23 May 2014 Mr Gaffney had asked him to calculate a salary on the basis of £15,000 per month based on Mr Gaffney’s taxable allowance. However the matter never went through CSIL’s books and was not included in the payroll. There was never any agreement that Mr Gaffney would receive such an amount. I have no difficulty in accepting that evidence.[121]On 25 May 2014 Mr Gaffney had received the unfavourable advice from Counsel in respect of the claim by Mitie for £1.2 million.[122]On 27 May 2014 Mr Gaffney took advice from insolvency practitioners and passed the resolution necessary to file the Notice of Appointment of Administrators at the High Court in Newcastle.[123]On 27 May 2014 Wetherby duly presented the threatened winding up petition. Submissions and discussion Cash flow insolvency[124]Mr Stubbs submits that this is not a case where I should apply the cash flow test. He submits that there are issues on many of the claimed debts with the result that the court should apply a balance sheet test as to whether CSIL was insolvent at any particular date.[125]Whilst I accept that Mr Gaffney has asserted that there are issues in respect of some of the debts the allegations are vague and uncorroborated. Furthermore Mr Gaffney has not given any details in respect of the amount of the disputes. That put Mr Stubbs in the difficult position of having to submit that the whole of the claims were disputed. I do not accept that submission.[126]I am conscious that the cash flow test is flexible and fact sensitive; I am also conscious that I must not apply a blinkered approach so as to miss a “temporary illiquidity”. It is for that reason that I have chosen to look at the whole period between 7 March 2014 and 27 May 2014.[127]I am quite satisfied that for the whole of that period CSIL was unable to pay its debts as they fell due. I shall not repeat the comments made above in respect of the individual dates. It is to my mind plainly not a case where there was temporary illiquidity. Rather there was an endemic shortage of funds caused in part by E.ON’s failure to pay the £1.2 million, and in part by the huge dividend of £650,000 paid to Mr Gaffney in 2013. The position was made worse by the changes to the market for carbon credits in April 2014. This led to a position where creditors that were paid were paid late, some creditors were not paid at all, and agreements in respect of late payments not honoured. As Mr McKenna pointed out at the beginning of March CSIL was desperate for cash. That position did not improve despite the fact that substantial amounts of cash was in fact received between March and the end of May 2014. Balance sheet insolvency[128]It is not necessary for me to consider whether CSIL was balance sheet insolvent at the relevant dates. However in the light of the argument I shall deal with it briefly.[129]In order to assist the application for a validation order Mr McKenna prepared management accounts for the period ending 31May 2014. This included as balance sheet as at 31 May 2014 which showed a surplus of assets over liabilities of £622,656. Included within this sum was an item for trade debtors of £1,466,253 and an item for work in progress of £2.8 million. The item for trade debtors includes the E.ON debt. The item for work in progress was substantially written down (to £140,000) in the estimated outcome statement prepared in support of the administration application.[130]Subsequent events have shown that so far no part of the E.ON debt or the Npower debt has been recovered. Tadea is insolvent. Nothing has been recovered in respect of the work in progress save for £5,000 pursuant to an agreement with Mitie.[131]The court has to make a judgment whether looking at the company’s assets and making proper allowance for its prospective and contingent liabilities, it cannot reasonably be expected to meet those liabilities. Cases such as Green v Tai [2015] BPIR 24 paragraph 82and Watchorn v Jupiter [2014] EWHC 3003 (Ch) are authority for the proposition that the court is entitled to use hindsight to determine if the test is met.[132]Mr Stubbs submits that the court should test the matter on a going concern basis. On that basis it should treat the work in progress and the E.ON debt as recoverable in full. I do not accept that submission. This is a case where throughout the period there was a substantial risk of insolvency. For example the email exchange on 24 March 2014 shows clearly that the survival of CSIL was by no means certain. It is also to be noted that no steps were being taken by CSIL to enforce the E.ON debt even though it was more than 3 months overdue. To my mind that indicates that Mr Gaffney appreciated that recovery might not be straightforward.[133]It would not in my view be right to write off the E.ON debt and work in progress but in my view a significant discount of at least 30% should be applied to reflect the risks of non recovery. Such a discount would be more than enough to make CSIL balance sheet insolvent. The matter does not quite end there because it is by no means clear how far the disputed debts are included in the management accounts. In particular it is not clear what figure has been included for the Mitie claim of £1.2 million. In the light of Counsel’s opinion there must be a very significant risk that that claim will be held to be valid.[134]For these reasons I would have held that CSIL was also balance sheet insolvent.[6]The Preference Claims. Better position[135]The first question to be decided is whether the payments made by CSIL did have the effect of putting Mr Gaffney and/or CSIL(UK) in a better position than they would have been in the event of an insolvent liquidation at the time of each payment.[136]In paragraph 52 and 53 of his opening skeleton Mr Morgan produced a helpful table of cumulative debts which I reproduce for convenience (omitting footnotes): Jan ‘14 Feb ‘14 March ‘14 April ‘14 May ‘14 Admin Mr Gaffney £267,750 £239,437 £247,737 £235,625 £26,184 £26,184 CSIL(UK) £234,000 £263,000 £281,000 £299,000 £54,000 £54,000 Wetherby £279,307 £1,294,826 £2,875,060 £2,875,860 £2,596,234 Gateshead £740,674 £1,446,165 Home Group £1,003,947 £1,078,515 £2,119,199 £2,119,199 £1,819,725 £1,813,095 Mitie £1,212,198 £1,212,198 £1,212,198 £1,212,198 KHJ Ltd £2,665 £3,977 £6,289 £3,791 £3,791 £3,791 Ryedale DC £11,484 £17,457 £18,563 HMRC £333,836 £355,378[137]Mr Stubbs did not seek to argue that Mr Gaffney and CSIL(UK) were not in a better position than they would have been in an insolvent liquidation. It is clear from this table that he was right not to do so. Influenced by a desire.[138]Thus, as noted above, the critical question that arises under s 239(5) is whether CSIL was influenced by a desire to put Mr Gaffney and/or CSIL(UK) in a better position than he/it would have been in an insolvent liquidation.[139]This is a case involving connected persons. It follows that under s 239(6) it is presumed that CSIL was influenced by the requisite desire unless Mr Gaffney can prove otherwise.[140]The meaning of “desire” was explained by Millet J in Re MC Bacon[1990] BCC 78 at 87 as follows:
“Desire has been substituted. That is a very different matter. Intention is objective, desire is subjective. A man can choose the lesser of two evils without desiring either. It is not, however, sufficient to establish a desire to make the payment or grant the security which it is sought to avoid. There must have been a desire to produce the effect mentioned in the subsection, that is to say, to improve the creditor’s position in the event of an insolvent liquidation. A man is not to be taken as desiring all the necessary consequences of his action. Some consequences may be of advantage to him and be desired by him; others may not affect him and be matters of indifference to him; while still others may be positively disadvantageous to him and not be desired by him, but be regarded by him as the unavoidable price of obtaining the desired advantages. It will still be possible to provide assistance to a company in financial difficulties provided that the company is actuated only by proper commercial considerations. Under the new regime a transaction will not be set aside as a voidable preference unless the company positively wished to improve the creditors’ position in the event of its own insolvent liquidation. There is, of course, no need for there to be direct evidence of the requisite desire. Its existence may be inferred from the circumstances of the case just as the dominant intention could be inferred under the old law. But the mere presence of the requisite desire will not be sufficient by itself, it must have influenced the decision to enter into the transaction. It was submitted on behalf of the Bank that it must have been the factor which “tipped the scales”
. I disagree. That is not what sub-s (5) says; it requires only that the desire should have influenced the decision. That requirement is satisfied if it was one of the factors which operated on the minds of those who made the decision. It need not have been the only factor or even the decisive one. In my judgment, it is not necessary to prove that, if the requisite desire had not been present, the company would have entered into the transaction. That would be too high a test.”[141]In paragraph 76 of the judgment in Re Oxford Pharmaceuticals Ltd [2010] BCC 834 Mr Mark Cawson QC explained the effect in a transfer to a connected person in this way: As I have said, it is common ground that the onus is on MIL and Dr Masters to rebut the presumption that OPL was, in making any of the payments, influenced by a desire to better the position of MIL in the event of an insolvent liquidation. In practical terms, this involves MIL and Dr Masters satisfying me on to the balance of probabilities that OPL was acting solely by reference to proper commercial considerations in making the payments, and that a desire (i.e. a subjective wish) to better the position of MIL in the event of an insolvent liquidation did not operate on the directing mind or minds of OPL, i.e. Dr Masters, at all - cf. Wills v. Corfe Joinery Limited [1977] BCC 511 at 516 - 517 per Lloyd J, and Re Conegrade [2003] BPIR 358 at 373 - 374 per Lloyd J. Payments to Mr Gaffney[142]As noted above there are 3 challenged payments to Mr Gaffney - £181,000 on 28 March 2014, £150,000 on 15 May 2014 and £200,000 on 27 May 2014. This is a case where I have rejected Mr Gaffney’s evidence as unreliable unless corroborated by either documentary evidence or other reliable witnesses.[143]There is no corroboration for the explanation proffered by Mr Gaffney that he was trying to treat creditors fairly and paying creditors with debts up to the end of February. For reasons already given it is an explanation that does not hold water. Some creditors were not paid at all, others were not paid up to the end of February. As Mr Morgan pointed out there was no pressure on CSIL to make any repayments to connected parties.[144]To my mind the only possible explanation for the payment on 27 May 2014 is that Mr Gaffney was influenced by a desire to prefer his debt over others. There is no other explanation for making that payment on the same day as he had filed the Notice to Appoint Administrators and been party to a resolution that CSIL was insolvent.[145]On 15 May 2014 CSIL was faced with the “undisputed” debt from Wetherby’s which it could not pay. Substantial sums were due to Home Group and there was a claim from Mitie. Other debts were not paid. In those circumstances Mr Gaffney has failed to satisfy me that a desire (i.e. a subjective wish) to better his position in the event of an insolvent liquidation did not operate on his mind at all.[146]On 28 March 2014 Mr Gaffney had negotiated an agreement with Hamilton. However substantial sums had to be paid to Hamilton. Furthermore CSIL had failed to make the two agreed payments to Home Group and owed substantial sums to Wetherby. Creditors were being paid late or not at all. There was no commercial reason to repay the loan that had been made in January 2014. Thus Mr Gaffney has failed to satisfy me that a desire (i.e. a subjective wish) to better his position in the event of an insolvent liquidation did not operate on his mind at all.[147]In addition there were the 3 payments to JJ Quinn each of which was debited to Mr Gaffney’s loan account. In effect Mr Gaffney was drawing on the credit balance of his loan account to enable him to make these payments under which CSIL might have achieved some benefit. The sums involved are relatively small and with some hesitation I have come to the conclusion that Mr Gaffney probably did not consider the question of improving his position when making these payments. It follows that these claims do not succeed[148]It follows that the first 3 of these claims succeed and I would order Mr Gaffney to repay the money with interest. Payments to CSIL(UK)[149]The most important of these is the payment of £252,000 on 23 May 2014. It will be recalled that this was the day upon which Wetherby issued the final demand for £2.6 million which CSIL could not pay. There was no pressure to repay the £252,000. The only possible inference is that Mr Gaffney was influenced by a desire to better CSIL(UK)’s position in the event of an insolvent liquidation. I cannot think of any other reason why he would have chosen to cause CSIL to make this payment at that time[150]In relation to the two loans totalling £11,000 there was no reason to repay them at this difficult time. The loans were only made in March. Thus Mr Gaffney has failed to satisfy me that a desire (i.e. a subjective wish) to better CSIL(UK)’s position in the event of an insolvent liquidation did not operate on his mind at all.[151]It follows that each of these claims succeed and I would order CSIL(UK) to repay the money with interest.[7]The Undervalue claim The facts[152]On 7 March 2014 CSIL entered into a contract with CSIL(UK) for the sale of 40,000 tonnes of carbon at £2.50 per tonne. Thus the value of the contract was £100,000. Under clause 5 any outstanding money to CSIL(UK) was to be netted off any sum payable. Under clause 6 payment was to be made in January 2015 on condition that none of the carbon was rejected by Ofgem.[153]The contract was not favourable to CSIL in that even if £2.50 was a fair value payment was deferred for 9 months and CSIL(UK) could set off the payment against sums due under the Jan 2013 Agreement. In effect CSIL was disposing of 40,000 tonnes of Carbon to CSIL(UK).[154]In paragraphs 56 and 57 of his witness statement Mr Gaffney explained his reasons for entering into the contract: 56. It is correct that on 7th March 2014 the Company entered into a written agreement entered into with CSUK for the sale of 40,000 carbon tonnes of carbon credit for the sum of £100,000. This was done for numerous reasons:a. The Company had no further contracts in place within which it could sell the ECO Measures. The contracts that the Company had in place had carbon already earmarked;b. The winding up petition that had been presented by Hamiltons was widely publicised by them and by Wetherbys. The market had been told that the Company was going to go out of business with Hamiltons or Wetherbys taking over its business and so no one would do business with the Company over the carbon tonnes. Wetherbys are the principal material supplier to Hamiltons and so were keen to align themselves closely to them.;c. Because of the advent of ECO 2 from 1st April 2014 there was a substantial risk that no value would be achieved for the carbon tonnes unless they were placed with a utility or broker by 31st March 2014 - the work that the Company had delivered had already been fully signed off as being compliant in March 2014. This work could not be carried over into April 2014 as this would be under ECO2 and would be rejected due to the sign off dated. The work was subject to clawback and CSUK has in fact repaid funds to GSI Carbon Solutions Limited who brokered the carbon and who have had some of the work rejected by OFGEM - the work type was all CSCO urban and would be very difficult to place due to the utilities having more than enough of this carbon type.e. The Company had previously tried to place the carbon tonnes via ‘Effective Energy’ and ‘Enact’, two of the largest brokers, only to be told that there was no funding available;f. British Gas informed me that they had been to a meeting with Gateshead Housing/Home Group and had been told that the carbon tonnes that we were trying to place was allegedly the property to Gateshead Housing/Home Group and so British Gas would not make funding available to the Company; andg. There was no indication in early March 2014 of what the blended price for carbon tonnes would be and/or whether carbon savings that were due to works pre April 2014 would be worth anything. 57. The sale of the 40,000 tonnes of carbon savings to CSUK genuinely felt like the best deal that the Company could do at the time and like a deal that was necessary before the carbon savings could become worthless.[155]Mr Gaffney managed to sell approximately 18,000 tonnes of the carbon to GSI on about 24 March 2014. Initially the subcontract showed that CSIL was the seller. However a later contract showed it to be CSIL(UK). In any event a sum of £684,442 was paid to CSIL(UK) on 4 June 2014. A witness statement from Mr Bridges the Managing Director of CSI indicates that he was not entirely clear whether he was dealing with CSIL or CSIL(UK). This appears to be confirmed by the contemporaneous emails and documentation.[156]When he gave evidence Mr Gaffney stressed the difficulty that he had had in trying to sell the carbon before 7March 2014. He made the point that there was a risk that the carbon was worthless. He said that it did not have a pre EPC certificate although it was compliant. He said that the figure of £100,000 was reached on the basis of risk. He said that there was a risk that it was valueless.[157]In his report Mr Kimber took the view that the price paid by GSI was a fair price. He also took the view that a price of £2.50 per tonne was significantly less than the market rate at the time.[158]I have already mentioned the cross-examination of Mr Kimber on the question of pre EPC certificates. I do not accept that these carbon credits had no value. They were plainly treated by GSI as compliant. In his witness statement Mr Gaffney described them as compliant. There is no evidence that the ultimate funder (British Gas) has queried them in any way. Undervalue[159]The crucial question is whether the value of the consideration provided by CSIL(UK) was significantly less than the value of the consideration provided by CSIL. The value provided by CSIL(UK) was a deferred payment of £100,000 coupled with a right to set off against other sums due to CSIL(UK) when there was in existence the Jan 2013 Agreement.[160]I accept that some of the factors mentioned by Mr Gaffney might have had some effect on the market value. However there is no real reason to believe that CSIL(UK) was in any better position to sell the carbon credits than CSIL. Certainly Mr Bridges did not distinguish between the two companies. Thus those factors would have been taken into account in the price achieved by CSIL(UK). It is to be noted that it was Mr Gaffney who negotiated the sale on behalf of CSIL(UK).[161]The Court is entitled to take into account the price achieved by CSIL(UK) within a short time of the purchase from CSIL.[162]I am quite satisfied that the value of the consideration provided by CSIL(UK) was worth significantly less than the value of the consideration provided by CSIL. I assess this at the price achieved on the sale by CSIL(UK) or £684,442.[163]In my view CSIL(UK) should repay £584,442 with interest.[8]Breach of Duty[164]I shall not lengthen this already long judgment by setting out the sections of the Companies Act 2006. Both Counsel were agreed that the law is adequately summarised in paragraphs 88 – 92 of the judgment of Mr John Randall QC in Re HLC [2014] BCC 337: 88. … it is accepted that s.172 effectively codifies the pre-existing common law position, and that s.172(3) simply preserves the common law position with regard to considering or acting in the interests of creditors, whatever that was and is. As to the test for when these duties extend to the interests of creditors, this has been expressed in different ways in the cases:(a) “where a company is insolvent the interests of the creditors intrude … in a practical sense it is their assets and not the shareholders’ assets that, though the medium of the company, are under the management of the directors pending either liquidation, return to solvency, or the imposition of some alternative administration”: per Street CJ (NSW) in Kinsela v Russell Kinsela Pty Ltd (1986) 4 NSWLR 722 at 730, cited with approval by Dillon LJ in West Mercia Safetywear Ltd v Dodd[1988] BCLC 250 (CA) at 252h-253b;(b) “where the company is insolvent, or even doubtfully solvent”: per Nourse LJ in Brady v Brady [1988] BCLC 20 (CA) at 40h-i;(c) “given the parlous financial state of the group, the directors had to have regard to the interests of creditors”: per Sir Richard Scott V-C in Facia Footwear Ltd v Hinchcliffe [1998] 1 BCLC 218 at 228f-g;(d) “Where a company is insolvent or of doubtful solvency or on the verge of insolvency and it is the creditors' money which is at risk”:per Mr Leslie Kosmin QC in Colin Gwyer & Associates Ltd v London Wharf (Limehouse) Ltd, Eaton Bray Ltd v Palmer[2002] EWHC 2748 (Ch),[2003] 2 BCLC 153 at [74];(e) “where to the knowledge of the directors there is a real and not remote risk of insolvency, and of course the risk includes the effect of the dealing in question … the directors must consider [creditors’] interests if there is areal and not remote risk that they will be prejudiced by the dealing in question”: per Giles JA in Kalls Enterprises Pty Ltd v Baloglow [2007] NSWCA 191, 25 ACLC 1094 at [162]. 89. For my part, I do not detect any difference in principle behind these varying verbal formulations. It is clear that established, definite insolvency before the transaction or dealing in question is not a pre-requisite for a duty to consider the interests of creditors to arise. The underlying principle is that directors are not free to take action which puts at real (as opposed to remote) risk the creditors’ prospects of being paid, without first having considered their interests rather than those of the company and its shareholders. If, on the other hand, a company is going to be able to pay its creditors in any event, ex hypothesi there need be no such constraint on the directors. Exactly when the risk to creditors’ interests becomes real for these purposes will ultimately have to be judged on a case by case basis. Different verbal formulations may fit more comfortably with different factual circumstances. 90. Messrs Roe and Halban did not ultimately pursue their initial submission, founded on a passage from Gore-Browne and an Australian dictum, that this duty does not extend to considering the interests of contingent creditors. They fall back on submissions, to which I shall come, that the duty only applies where directors subjectively know that the company is insolvent or of doubtful solvency, and only extends to creditors (immediate, contingent or prospective) whose existence as such is subjectively known to the directors. 91. It is common ground that duties (I)(a) and (II)(a) are subjective ones, in the sense explained by Jonathan Parker J (as he then was) in Re Regentcrest plc v Cohen [2001] 2 BCLC 80 at [120]:
“The duty imposed on directors to act bona fide in the interests of the company is a subjective one (see Palmer’s Company Law para. 8.508). The question is not whether, viewed objectively by the court, the particular act or omission which is challenged was in fact in the interests of the company; still less is the question whether the court, had it been in the position of the director at the relevant time, might have acted differently. Rather, the question is whether the director honestly believed that his act or omission was in the interests of the company. The issue is as to the director’s state of mind. No doubt, where it is clear that the act or omission under challenge resulted in substantial detriment to the company, the director will have a harder task persuading the court that he honestly believed it to be in the company’s interest; but that does not detract from the subjective nature of the test.” 92. However, this general principle of subjectivity is subject to three qualifications of potential relevance in this case: (a) Where the duty extends to consideration of the interests of creditors, their interests must be considered as “paramount” when taken into account in the directors’ exercise of discretion (per Mr Leslie Kosmin QC in the Colin Gwyer case supra at [74]). Although I note the contrary view expressed by Owen J in the Supreme Court of Western Australia that although “the directors must ‘take into account’ the interests of creditors [i]t does not necessarily follow from this that the interests of creditors are determinative”(Bell Group Ltd v Westpac Banking Corporation [2008] WASC 239 at [4438]-[4439], applying the judgment of Mason J in Walker v Wimborne[1976] HCA 7, 137 CLR 1), so far as English law is concerned I respectfully agree with Mr Kosmin QC loc cit that his use of “paramount” was consistent with the judgment of Nourse LJ in Brady v Brady [1988] BCLC 20 (CA) at 40h-i, where he observed that “where the company is insolvent, or even doubtfully solvent, the interests of the company are in reality the interests of existing creditors alone”
. I also note that this passage from Mr Kosmin QC’s judgment was cited with apparent approval by Norris J in Roberts v Frohlich [2011] EWHC 257 (Ch), [2011] 2 BCLC 625 at [85]; (b) As Miss Leahy submitted, the subjective test only applies where there is evidence of actual consideration of the best interests of the company. Where there is no such evidence, the proper test is objective, namely whether an intelligent and honest man in the position of a director of the company concerned could, in the circumstances, have reasonably believed that the transaction was for the benefit of the company (Charterbridge Corpn Ltd v Lloyds Bank Ltd [1970] Ch 62 at 74E-F, obiter, per Pennycuick J; Extrasure Travel Insurances Ltd v Scattergood [2003] 1 BCLC 598 at [138] per Mr Jonathan Crow); (c) Building on (b), I consider that it also follows that where a very material interest, such as that of a large creditor (in a company of doubtful solvency, where creditors’ interests must be taken into account), is unreasonably (i.e. without objective justification) overlooked and not taken into account, the objective test must equally be applied. Failing to take into account a material factor is something which goes to the validity of the directors’ decision making process. This is not the court substituting its own judgment on the relevant facts (with the inevitable element of hindsight) for that of the directors made at the time; rather it is the court making an (objective) judgment taking into account all the relevant facts known or which ought to have been known at the time, the directors not having made such a judgment in the first place. I reject the Respondent’s contrary submission of law.[165]Mr Morgan also cited GHLM Trading Ltd v Maroo [2012] 2 BCLC 369 at [148]-[149] as authority for the proposition that once it is shown that a director (or a connected person) has received company assets, the burden is on him as quasi-trustee to show that the transaction was proper one for the company to have entered into.[166]In my view this is a case where the interests of creditors are plainly engaged. It is also a case where I am entitled to take an objective approach. In my view none of the payments were objectively in the best interests of the creditors as a whole. In my view all of the payments (including the payments which were used to pay JJ Quinn) were in breach of duty. In my view this is not a case where it would be proper to relieve Mr Gaffney from the consequences of the breach of duty under s 1157 of the Companies Act 2006. This is a case where Mr Gaffney and/or CSIL(UK) have gained financially as a result of the breach of duty. There is no basis for saying that Mr Gaffney’s conduct was reasonable or for saying that he ought to be excused.[167]I accordingly consider that Mr Gaffney is jointly liable with CSIL(UK) to make repayments by way of equitable compensation and is also liable to repay the £31,284 paid to JJ Quinn even though I am not satisfied that the payment of those sums constituted a preference.