So what happens to the old Rangers now?

Sunday 17 June 2012

The background of one of the liquidators appointed to deal with Rangers Football Club probably gives an indication of the thinking behind HMRC's approach to the issue.

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Insolvency expert Maureen Leslie examines the liquidation process

Malcolm Cohen heads the accountancy firm BDO's Contentious Insolvency Team, which specialises in the recovery of assets through litigation and uncovering fraud. Cohen will be carrying out the liquidation with his BDO colleague James Stephen after they were nominated by HMRC.

Originally, Paul Clark and David Whitehouse of administrators Duff and Phelps put themselves forward as liquidators in the event that liquidation became necessary. However, HMRC opposed this. Realism is essential when trying to predict what the liquidator will do. It's not his job to undertake some quasi-criminal investigation, although criminal conduct might emerge during his investigations. If that happens, he submits a report to the Lord Advocate. The purpose of a liquidator's investigations is to recover assets for the benefit of creditors. Any legal actions which arise from these investigations are civil actions, taken with the aim of receiving some form of financial restitution to the company. As liquidators, Cohen and Stephen will wind up the affairs of Rangers Football Club plc in an orderly manner. They will realise its assets and distribute the cash to creditors. In this case, though, the physical assets have already been sold, so what is left for BDO to do? Physical assets aren't the only source of recovery for creditors. Failed companies may have other, less obvious assets, such as rights to pursue legal actions. Duff and Phelps have already raised proceedings against Collyer Bristow, an English legal firm who acted for Craig Whyte in his takeover of the club. The claim is worth £25 million and the liquidators can continue this.Uncovering these less obvious assets is Cohen's specialism. He'll undertake a fairly detailed review of a company's statutory books as well as its accounting records, looking for suspicious transactions. Or he may have specific lines of enquiry to pursue. Liquidators can raise proceedings against directors if they find that money or property has been "misapplied" or there is some other breach of their fiduciary duty to the company, and they can investigate cases where assets have been concealed or accounting records have been manipulated to produce a false picture of the company's financial position. In Rangers' case, the accounting records might provide further information about the Ticketus deal, for example. Who posted the payments to Ticketus that Duff and Phelps confirmed were made in June and September 2011? How were they described in the accounts? The investigation into that transaction can be followed up in a targeted email review of those involved. The object here would be to provide back up for the action against Collyer Bristow. A detailed review of accounts can also point to "Wrongful Trading". Wrongful Trading is an offence under the Insolvency Act 1986 and occurs when trading is continued beyond the point at which directors knew, or should have realised, that the company couldn't avoid liquidation. The Administrators' report to the creditors of Rangers FC plc makes specific reference to cash flows which were prepared in June 2011. These cash flows clearly indicated that the company "would be unable to continue to trade in the medium term without the introduction of third party funds or shareholder support". What advice, if any, did Duff and Phelps give to the Rangers board at that time? What did the Board decide to do and why? The explanations given by those who were directors at that time for their decision to carry on will be important here. These deliberations and decisions should be minuted in meetings of directors. But director after director has said that few board meetings were ever held at Rangers. Will that save them? Absolutely not. Documented decision making protects directors in this situation. Failure to perform any of their fundamental duties does not.This brings us to reports on the conduct of directors of failed companies. Duff and Phelps have an obligation to report on the conduct of those who were office holders at the club in the three years prior to its entering administration. David Murray resigned as a director of the company in August 2009 but his period as director will fall within the scope of those investigations. People should not expect any resolution in the short term. There are a number of civil actions which can be raised to return money for the benefit of its creditors. Perhaps the creditors of Rangers FC plc can be satisfied that every effort is being made to do just that. Maureen Leslie is a director of insolvency practice MLM Solutions

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So what happens to the old Rangers now?

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