
Photo courtesy of: Hawee.
The Lowdown:
In simple terms, the act of Pre-Pack administration is when a new company is formed by the management team of a struggling business. The new company then proceeds to buy the assets, contracts, goodwill and even the rights to the old company name – all for a reasonable market rate. The legacy of debt is left with the old business, which is subsequently liquidated, allowing the new ‘Phoenix’ business to trade on - debt free. Generally speaking, a Pre-Pack involves the management drawing up a scheme to break up a company well in advance of it actually going bust. In fact, creditors, staff and customers will generally not know anything about the deal until the deal itself has been done.
Any creditors who have outstanding balances with the old company are paid as far as possible from the proceeds of the liquidated assets, but these amounts often fall well short of what they are actually owed. However, creditors have no claim over the new company for any outstanding debt. Pre-Pack administration deals are increasingly used by the directors and owners of under-performing businesses as a way of abandoning the loss-making parts of their business (not to mention its debts), whilst maximizing the profitable areas of the operation. Understandably, this murky practice is wide open to abuse, and the Press have started to seize on its more dubious elements. With insolvency experts estimating that up to 100 businesses may arrange a Pre-Pack administration this year, ToFind.co.uk takes a closer look at the specifics of this increasingly popular practice…
Key Examples:
Pre-Pack administration has featured prominently in the business news in recent months thanks to an assortment of high-profile company failures – all of which have made use of a Pre-Pack deal, and allowed the existing bosses to maintain control. A key example is the recent sale of the assets of Cobra Beer to Coors, immediately after Cobra Beer entered administration. This Pre-Pack deal preserved the much-loved brand and saved under-threat jobs, but also left suppliers out of pocket to the tune of roughly £75 million. Last year companies such as Whittard of Chelsea, the USC fashion chain and clothing retailer The Officers Club were all sold back to their original owners using the Pre-Pack technique. In addition, many Woolworths stores were almost sold under a Pre-Pack deal to a property company last autumn, but banks pulled the plug at the 11th hour. On the other hand, MFI sought to re-launch itself in a similar fashion, only to implode pretty much straight away.
However, without a doubt the most controversial example of a Pre-Pack administration is the case involving Greek Telecoms group Wind Hellas. Bertrand des Pallières saw the entire investment of his hedge fund - SPQR Capital - wiped out when Wind Hellas registered as a UK company two weeks before entering into the largest Pre-Pack administration that this country has ever seen. Mr des Pallières refers to the case as a “blatant and offensive abuse of the law”, and insists that many more struggling companies are planning to relocate to the UK in order to exploit the very same restructuring tool. He claimed: “If nothing is done, London will become a bankruptcy brothel for low-life businesses to come from all over and take advantage of the British system to dump some of their debts and move on.” Mr des Pallières and other investors lost a combined €1.5 billion (£1.3 billion) and are currently preparing a landmark lawsuit that will accuse Wind Hellas of “bankruptcy tourism”.
Advantages:
Where the core business idea remains viable, logic suggests that setting up a new company using the lessons learnt from the old business is a prudent course of action. The positive aspects of the old business can be retained and/or developed, whilst the unproductive elements can be hastily discarded. By leaving the legacy of debt behind, the new business is arguably maximizing its chance of success, and can resume trading very quickly. Generally, if a business is liquidated under these circumstances, any assets will be sold as distressed (not to mention below market price), leaving any creditors with a comparatively meagre return.
Instances of Pre-Pack administration allow businesses to change hands remarkably smoothly, and work out far cheaper than using insolvency practitioners. Pre-Pack administrations also prevent liquidations and fire sales, which are frequently of no real benefit to anyone. An additional benefit of using a Pre-Pack administration is that it allows an administrator to sell the business in question before it is damaged by negative publicity – a particularly important concern for any otherwise viable businesses that have been hit hard by short-term cash-flow problems.
Disadvantages:
Without a doubt, the loudest complaint about Pre-Pack administration is that it leaves the creditors ‘high and dry’. With scant regulation in place, Pre-Packs leave themselves wide open to abuse, and there is a common perception of barely-legal deals being hammered out by shady characters in smoky rooms! As some prominent examples have shown us, a bad management team can devise a Pre-Pack arrangement months in advance, line up an administrator and then find themselves back at the helm almost immediately. Critics point out that these rules reward failure, and allow failed businessmen to secure their assets at a knock-down fee, rather than being held accountable for their mistakes. Jon Moulton of Alchemy Partners assessed: “It means when retailers fail they are often being kept with the same directors when it would be much healthier if new management arrived and with fresh money to invest. It is not a procedure that has any legal basis. It has grown up as a practice and no one has yet had the enthusiasm to contest it.”
With unemployment figures still on the rise, any kind of measure which saves jobs is bound to be a popular option. However, with Pre-Pack administration, saving jobs in the short-term takes precedence over doing right by suppliers and creditors - even if jobs may be lost further down the line as a direct consequence. According to the Association of British Insurers, Pre-Packs happen “behind closed doors, with no advance warning to unsecured creditors. Suppliers are blindly trading with these companies right up to the point of administration – in the end they could be risking their own company going under.”
The ToFind.co.uk Verdict:
The world of Pre-Pack administration is a real ethical mine-field, and without a set of solid rules in place, the procedure is wide open to abuse. If the very nature of Pre-Packs leaves a bad taste in the mouth for hard-done-by creditors who find themselves deliberately excluded from negotiations, then the ill-feeling that is generated is far worse in the cases such as the Wind Hellas fiasco. The fact that a foreign company was able to relocate to British soil solely to exploit English bankruptcy law is astonishing, and as in many cases, the Wind Hellas deal was driven through by the existing owners, who went on to retain control of the business. Unsurprisingly, these deals are often little more than a stay of execution for the doomed companies involved…
R3, the trade body for insolvency practitioners, says that the likelihood of a second insolvency rises from 38% to 45% if the business is sold to a connected party. Now-defunct retailers such as Mk One and MFI are prime examples of this type of poor business acumen, and neither managed to go the distance after staving off the creditors the first time around. The figures tell their own story, and it is abundantly clear that not everyone deserves a second bite at the cherry.
A Pre-Pack administration is a great idea in principle, but when management teams with demonstrably poor business track records are given the green-light to ride roughshod over their creditors and come out the other side smelling of roses, it is clear that the current system has a gaping loophole that desperately needs to be filled. Despite big talk about saving jobs and safe-guarding employment, the only parties to truly benefit from a Pre-Pack administration are the shadowy figures behind the initial business’s collapse. Even worse, for every legitimate case there will always be a company like Wind Hellas lining their pockets at the expense of others…
Has your business been affected by Pre-Pack Administration? If so, please have your say in our Comments section below:









