Give large creditors more rights over pre-packs, law firm urges

Large unsecured creditors should be given notice of a pre-pack deal and the right to be party to pre-appointment negotiations, a leading law firm has said.

International law specialist Dewey & LeBoeuf has called for unsecured creditors, which hold 10% or more of the company's outstanding debts, to be given access to discussions between management, the insolvency practitioner and the charge holder – prior to the deal being completed.

Peter Sharp, a partner at the firm, said: "It would be desirable to do so because an unsecured creditor, which has a significant interest in the insolvency, has a legitimate expectation that its rights will be fully taken into account… but may find itself disenfranchised."

He added that such a move would require a change in legislation.

In a report written prior to the publication of SIP 16, Sharp and his colleague Nick Greenwood, argued for disclosures similar to those contained in the guidelines.

Sharp said that SIP 16, which sets out a best practice for Insolvency Practitioners (IPs) including the disclosure of any ties the company had with former directors and rival bids to the pre-pack, was a "big step forward".

He added: "Most IPs will take care to comply with SIP 16. If a deal is challenged, it weakens their case if they did not comply with the guidelines."

Challenges to pre-pack deals are rare in the print industry and the UK as a whole. However, Sharp urged aggrieved creditors to be more like their US counterparts if they want to challenge a deal.

He said: "In the US, creditors are far more proactive forming committees to challenge the deal. In the UK challenges are rare but there are provisions in the Insolvency Act, which give creditors the right to launch such a challenge but it helps if they are organised."