The decision by the UK Supreme Court in BTI v Sequana [2022] UKSC 25 is a landmark judgment in setting out the circumstances when directors must have regard to shareholders’ and creditors’ interests, in discharging their functions within the corporate governance system.

Directors cannot serve two masters when considering the interests of the company’s shareholders and creditors. Traditionally, the dilemma for directors has been to identify in whose primary interests should they act and serve for the key dramatis personae of the company: the shareholders who provide capital and take the risk of investing in the company, or the creditors, who provide finance but also take commercial risks when lending to a company? Can directors strike a balance between these two competing interests? If so, how is balance achieved? What are the circumstances that can give rise to directors considering shareholders’ and creditors’ interests at the same time or at different times? Can shareholders ratify any breach by directors in their failure to consider creditors’ interests? Has the common law preserved directors’ duty to take account of creditors’ interests under the Companies Act 2006 (CA 2006) and the interrelationship with the Insolvency Act 1986 (IA 1986)[1]? These are some of the significant issues addressed by the Supreme Court in BTI v Sequana [2022] UKSC 25.

The traditional economic theory of the firm is based on the view that directors act in good faith in the interests of the company as part of their fiduciary duty to the company and to their shareholders,[2] meaning the shareholders’ interests collectively as a group.[3] Directors must exercise their powers bona fide for the company’s benefit.[4] This is a subjective duty based on what directors believe to be in the company’s best interests, and the courts will not second-guess directors’ decisions.[5] In so doing, the directors’ primary objective is profit maximisation for their shareholders,[6] while other stakeholders’ interests were relegated, and only engaged if these interests were for the company’s benefit, that is, for the benefit of shareholders as a general corporate body.[7] After all, the shareholders took the risk in providing the capital and investing in the company, and taking account of the fortunes and fluctuations of the company, shareholders want to be assured they will at least receive corporate dividends based on their capital injection into the company. As the company cannot act in vacuum, directors therefore serve the best interests of shareholders by maximising profits as part of enlightened shareholder value.[8]

Another perspective based on the managerialism and separation of ownership from control concept considers directors as having the freedom to manage the day-to-day operations of the company, which gives them some discretion to have regard to the interests of wider stakeholders, who include the employees, suppliers, customers, creditors and the wider public.[9] In so doing, this enables companies to engage in corporate social responsibilities on a voluntary basis. From this perspective, directors positively engage with creditors to ensure corporate survival, sustainability and growth.

The privilege of incorporation (which can sometimes lead to an abuse of the corporate form) signifies that the company has a separate legal personality distinct from its shareholders, who are shielded by the limited liability status. As the House of Lords in Salomon v Salomon & Co Ltd [1897] AC 22 stated that provided all the formalities are complied with in setting up the company, and it is not set up for an unlawful purpose,[10] creditors take the commercial risks in dealing with companies when providing finance. This creditors’ self-protection perspective means that creditors will therefore engage in a detailed due diligence of the company, assess its financial track record, where appropriate, take security by way of fixed or floating charges, seek personal guarantees from directors, and enter into contractual relations with the company. These mechanisms are used to protect creditors’ interests in the event the company defaults, or falls into an insolvency situation.

While all is well within the company, the directors’ primary focus will be to serve the company and to act bona fide in the company’s best interests. But what happens when the company’s financial fortunes fluctuate, and it encounters hard times because of the economy, slack in the business, excessive overheads, or inability to meet the wages of personnel thereby leading to an insolvency situation? Should the shareholders’ interests be displaced? Should creditors’ interests intrude thereafter - but at what stage?

In BTI v Sequana, the company’s directors of AWA distributed a dividend in May 2009, of €135 million to its sole shareholder, Sequana (May Dividend). The effect of the May Dividend was to extinguish a larger debt that was owed by Sequana to AWA. The May Dividend complied with all formalities for payment of dividends under CA 2006, pt 23 on maintenance of capital based on the common law rules. When the May Dividend was paid, AWA was solvent based on the balance sheet test and the cash flow test and was able to pay its debts as they fell due. However, AWA has long term pollution-related contingent liabilities of which amounts were uncertain, as well as an uncertain value for an insurance portfolio. Owing to these liabilities of an uncertain amount, there was a real risk AWA could become insolvent in the near future – though at the time AWA’s insolvency was neither imminent nor improbable. Subsequently after ten years, AWA went into insolvent liquidation. As assignee of AWA’s claims, BTI attempted to recover the amount of the May Dividend from AWA’s directors. BTI contended AWA’s directors’ decision to distribute the May Dividend was a breach of the creditor duty as the directors had neither considered nor acted in the interests of AWA’s creditors.

The Supreme Court was required to address two competing interests in the company – those of the shareholders (Shareholder Interest) and the creditors (Creditor Interest). It has long been recognised in common law that directors owe their duties to the company, but who is the ‘company’? This has been interpreted to mean to the shareholders collectively.[11] This common law Shareholder Interest has been preserved under various sections of the CA 2006. First, CA 2006, s 171, where the general duties specified in sections 171 to 177 are owed by a director of a company to the company. Second, to reinforce the Shareholder Interest principle, CA 2006, s 172(1) provides that a director of a company must act in the way they consider, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole. At this stage, the Creditor Interest is not the primary concern for directors, because the six factors under section 172(1) do not specifically require directors to consider Creditor Interest.[12] However, the Creditor Interest is implied in some of the six factors because section 172(1)(a) highlights that ‘directors must have regard to the likely consequences of any decision they make in the long term’. Directors must also take into account the need to foster the company's business relationships with suppliers, customers and others: CA 2006, s 172(1)(c).

Suppliers can also be creditors in this situation. It could also be contended that the term ‘others’ opens up a wide range of community interests, some of whom could be classified as creditors, even though creditors are not specifically mentioned in this subsection. The decisions that directors make now about the company could later impact on creditors, where for example, directors venture into activities beyond the company’s objects, and the venture becomes a financial failure, which could impact the Creditor Interest.

Third, the Creditor Interest becomes specifically relevant under CA 2006, s 172(3), which provides that the duty imposed by this section has effect, subject to any enactment or rule of law requiring directors, in certain circumstances, to consider or act in the interests of creditors of the company. Therefore, the rule that directors must act in good faith in promoting the company’s success is modified for directors to also have regard to the Creditor Interest, namely the creditors’ interests as a whole as well, and not to harm those interests (West Mercia Rule)[13] in ‘certain circumstances’. Section 172(3) preserves this common law principle of the Creditor Interest, and is further supported by cases from other jurisdictions and judicial attitudes which support the Creditor Interest principle.[14]

What are the ‘circumstances’ in which the Creditor Interest will intrude to which directors must have regard? The Supreme Court highlighted that creditors have an economic interest in the company’s assets. While the company is financially secure and trading profitably, the Creditor Interest resides in the background as important, but not paramount, as the Shareholder Interest prevails at this stage. The Creditor Interest is not a free-standing interest that is continuously owed to the creditors. However, the Creditor Interest increases on a spectrum of importance and significance where the company is insolvent or near insolvency. At this stage, the Shareholder Interest is relegated, and modifies the rule, so that directors’ duty to the company includes a duty to consider the Creditor Interest as a whole, so as not to prejudice their interests. In this situation, the Creditor Interest becomes paramount because shareholders cease to retain any valuable interest in the company. Directors are not required to consider the interests of particular creditors in a special position, though this rule is modified to some extent by the IA 1986. Therefore, where the company is insolvent or bordering on insolvency, but is not in an inevitable insolvent liquidation or administration, the directors are required to have regard to Creditor Interest, balancing this against the Shareholder Interest, where they may conflict. The greater the company’s financial difficulties, the more directors should prioritise the Creditor Interest. The Creditor Interest does not apply where a company is at a real and not a remote risk of insolvency. It is only engaged when the directors know, or ought to know, that the company is insolvent or bordering on insolvency, or where an insolvent liquidation or administration is probable.