What is my legal position if emergency legislation to tackle the outbreak makes performance of a contract illegal or impossible?

From 8 June 2020, people entering the UK from overseas (excluding those entering from Ireland, the Channel Islands or the Isle of Man) must comply with a mandatory 14 day quarantine period. However, for those travelling to England, a number of country specific exemptions have been introduced.

A full list of the countries excluded from the quarantine provisions can be found on the gov.uk website which change on a regular basis, often on short notice.

Where a quarantine period does apply, a person will not be able to leave the place they are staying in for 14 days, except in some very limited circumstances.

These rules will apply to both British and foreign nationals, however there are some further exemptions to this rule where a person is coming to the UK to undertake a certain role (such as a healthcare professional coming to the UK to provide essential healthcare). A full list of the narrow exemptions can be found on the gov.uk website.

Before travelling, individuals will be asked to provide their contact details and information about their journey and the accommodation that they will be self-isolating in. To do this, individuals will need to fill in an online form on the gov.uk website. Individuals who refuse to fill in this form may be fined £100 and/or denied entry at the UK border should they not be a British citizen or UK resident.

The information provided in the form will ensure that the Government can check that an individual is self-isolating at the address given. Where an individual refuses to self-isolate they can be fined £1,000 if they are staying in England or Wales.

Once visa application centres re-open overseas and UK visa applications are processed, this 14 day period will need to be taken into consideration and may require employment start dates in the UK to be delayed.

CBILS is made available through the British Business Bank’s 40+ accredited lenders and partners, which are listed on their website (https://www.british-business-bank.co.uk/ourpartners/coronavirus-business-interruption-loan-scheme-cbils/accredited-lenders/).  

 Businesses should initially approach their own lender and only consider other lenders if they are unable to access the finance they need. Note, not every accredited lender can provide every type of finance listed.   

 Some banks/lenders are not included in the list of accredited lenders which appears to mean that they cannot provide support through the Scheme. We understand from the British Business Bank that further lenders are applying to be accredited but that this may take a little time to process. If the provider of your senior debt is not on the accredited list you should consider approaching the bank which provides your day to day account banking services.

 If you wish or need to access the Scheme via an alternative funder the process may take longer as usual on-boarding and KYC processes will need to be undertaken.  

The Flexible Furlough Scheme was introduced from 1 July 2020 and is due to come to an end on 30 September 2021.

In part in response to the Covid-19 pandemic, legislation was passed by the government earlier this year which sought to assist companies to trade through the current economic climate. Included within the measures is a degree of protection from compulsory winding up.

The Corporate Insolvency and Governance Act 2020 (The Act), was laid before parliament on 20 May, and became law on 26 June. It is important creditors are aware of what changes have been implemented and the potential and impact which it may have upon debt recovery action you may be considering or have already commenced.

The main part of the Act affecting creditors is the temporary restriction on presentation of winding up petitions and the factors that the Court has to take into account when deciding whether to wind up a company.

On Thursday 24 September 2020 the government passed a further statutory instrument which extended the operation of these restrictions. As a result, the measures which were due to expire on Wednesday 30 September 2020 have now been extended until 31 December 2020.

A key point to note is that the Act has retrospective effect so any pending petitions presented after 27 April will be affected, along with any winding up orders made after that date.

The Act has introduced the following restrictions:

• A petition cannot be presented by a creditor during the period of 27 April 2020 and 31 December 2020 unless the creditor has reasonable grounds to believe that (a) coronavirus has not had a financial effect on the debtor, or (b) the debtor would have been unable to pay its debts even if coronavirus had not had a financial effect on the debtor;
• A petition cannot be presented after 27 April 2020 if it is based on a unsatisfied statutory demand served between 1 March 2020 until 31 December 2020;
• When deciding whether to make a winding up order the Court will need to be satisfied that the grounds giving rise to the petition would have arisen even if Covid-19 did not have a financial effect on the debtor;
• All winding up orders made between the 27 April and 31 December will automatically be void (that is, of no legal effect) unless the Court would have made the winding up order if the new law was in force at the time the order was made.

To facilitate social distancing the Home Office has stated that as of 30 March 2020, the following are permitted:

• The RTW check can now take place over video call.
• Job applicants no longer have to send original documents but can send scanned copies or photos to the employer.
• Where the job applicant cannot provide these documents, employers can use the Employer Checking Service and if they have the right to work, then the employer will receive a Positive Verification Notice which will provide the employer with a statutory excuse for 6 months.

These adjustments remain in place until the Home Office confirms otherwise.