Restructuring plan

Financial difficulty and the proposed solution

The statutory gateway concerns financial difficulties affecting the ability to carry on as a going concern. The proposed compromise must seek to eliminate, reduce, prevent or mitigate their effect. The procedure can be relevant before a company is unable to pay every debt as it falls due.

Plans may restructure debt, provide new funding or change equity. The company must explain the proposal and its expected consequences, including the outcome if the plan is not sanctioned. Valuation and the realistic alternative are central to the exercise.

Classes, voting and the court

Affected stakeholders are divided into appropriate classes by reference to their rights. A convening hearing addresses matters such as meetings and class composition. Stakeholders receive explanatory material and an opportunity to vote or make representations within the court process.

A favourable vote is not the end of the process. At the sanction hearing, the court considers statutory compliance, fairness and the exercise of its discretion. The court is not merely registering a commercial vote.

When a dissenting class can be bound

The court has a conditional power to sanction a plan despite a class voting against it. This is commonly called cross-class cram down. Among the statutory safeguards are comparison with the relevant alternative and support from at least one qualifying economically interested class.

It does not follow that any plan supported by one creditor can be imposed on everyone. Class composition, economic interest, valuation, treatment of affected stakeholders and the court’s discretion can be contested. Costs and evidential requirements can be substantial.

Control, protection and implementation

Starting a plan does not automatically appoint an administrator or liquidator. Directors ordinarily remain in control, subject to any other procedure in place. A plan also does not automatically create a general moratorium; protection must come from an available separate measure.

Once sanctioned and effective under the statutory requirements, the plan binds the parties within its scope. It may support continued trading, a sale or a wider restructuring. Cross-border effectiveness and sector-specific regimes require separate analysis.

The Scottish framework

Part 26A applies on a UK-wide company-law basis. A Scottish company’s plan requires the proper court jurisdiction, evidence and directions; local proceedings may be brought in the Court of Session where it has jurisdiction.

This is separate from Scottish personal debt procedures. Any attempt to bind creditors beyond the relevant jurisdiction or to rely on foreign recognition needs its own analysis.

The process, at a glance

1. Develop the plan and evidence. The company explains financial difficulties, the proposal, class rights and the realistic alternative.Process stage — practical timing varies
2. Apply for meeting directions. The court considers the proposed voting classes and directions for the process.Statutory milestone — check its trigger and exceptions
3. Classes consider the plan. Affected creditors or members receive information and vote under the court’s directions.Statutory milestone — check its trigger and exceptions
4. Court considers sanction. The court considers the statutory tests and fairness, including any request to bind a dissenting class.Statutory milestone — check its trigger and exceptions
5. Make the plan effective and perform it. The sanctioned plan takes effect through the required delivery and terms, and the agreed restructuring is implemented.Statutory milestone — check its trigger and exceptions