Revenue’s loss a gain for struggling firms

It was a bad day for the Revenue on Thursday as the Supreme Court ruled that banks and other lenders could leapfrog it in the queue for payment when a company collapses.

It’s not exactly an open door. The loan must be secured on some “floating assets”, it must be registered with the Companies Office and, before any move to wind up the company begins, the lender must have written to the borrower formally notifying it that the charge is being “crystallised”

As such loans are generally secured on some assets and registered any way, the conditions hardly seem too onerous.

Revenue had opposed the appeal to the court following an earlier High Court ruling that had gone in its favour on the issue, which had arisen in the liquidation of the Belgard Motors group. The outcome makes it unlikely to get anything out of that liquidation now, as the lender Bank of Ireland was exposed for €16.2 million.

Its loss is clearly a gain for the banks, but not just them. Companies stand to find it easier to get bank loans on foot of the judgment as Tom Kavanagh, the liquidator in the Belgard Motors case, noted.

"Over the last number of years, we have observed many companies in Ireland struggle to raise capital," the Deloitte restructuring services partner said, adding that it had been "a significant contributing factor for many companies entering formal insolvency arrangements". Kavanagh, who joined Deloitte last year when it acquired his former firm Kavanagh Fennell, said the decision means banks will now feel more secure in lending to businesses.

“If the company fails, the bank can crystallise the floating charge and rank ahead of the preferential creditors, leading to increased certainty on repayments,” he said. “We look forward to seeing this have a positive impact on the banks’ willingness to lend to the many viable Irish businesses who need support in terms of their working capital position.”

And that is the nub of the headache now facing the Government. Delivering the Supreme Court judgment, Ms Justice Mary Laffoy referred to the "undoubtedly unsatisfactory" effect of the court decision in allowing lenders push Revenue (and other preferential creditors) down the priority order for payment. She suggested the new Companies Act needed to be amended in light of the judgment.

The Government will be keen not to see the Revenue miss out on money it is owed, but it has exerted considerable energy in attempting to persuade banks to lend more to the indigenous sector.

Whatever it decides, someone is likely to lose out.