UK: Wrongful Trading: Robin Hood's Not-So Merry Men

Brooks and another v Armstrong and another [2015] EWHC 2289 (Ch)

In a rare judgment considering wrongful trading in detail, the memorably-named "Robin Hood" case considers at which point the directors ought to have known that there was no reasonable prospect that the company would avoid going into insolvent liquidation. It also reiterates that the burden of proof lies with the directors to show that "every step" was taken to minimise loss for the creditors as a whole.

The liquidators of Robin Hood Centre plc ("the Company"), a company that had operated a Robin Hood themed tourist attraction in Nottinghamshire, alleged that, following a sequence of events, the respondents ("the Directors") continued to trade the business when they knew it would not be possible to avoid insolvent liquidation.

The "Knowledge Condition"

Under section 214(1) of the Insolvency Act 1986 ("the Act"), the court may order a director who has been found to have wrongfully traded a company to make such contribution to the assets of the company as the court thinks proper. A prerequisite for liability is that the director, at some time before the commencement of the winding up of the company, must have known, or ought to have concluded, that there was no reasonable prospect that the company would avoid going into insolvent liquidation (the "Knowledge Condition"). It is for the liquidator to prove that the Knowledge Condition was met.

In this case, Mr Registrar Jones (the "Registrar") considered in detail whether or not, and on which date, the Knowledge Condition had been satisfied. The Registrar concluded that the Directors knew or ought to have known by 31 January 2007 that the Company did not have sufficient assets to meet its liabilities and had no reasonable prospect of avoiding insolvent liquidation. A large factor was that at that time the Directors were aware of a large VAT liability and a significant increase in rent which was likely to be due under a rent review of the premises, which the Company could not meet.

In the case of wrongful trading, the balance sheet test of insolvency is applied to show a company's assets are insufficient to pay its creditors. The court considered BNY Corporate Trustee Services Limited v Eurosail1 in this regard, and the Registrar's view was that the Directors could not reasonably have envisaged that all creditors would have been paid when taking into account the VAT liability.

Under s.214(3) of the Act, the defence of having taken every step with a view to minimising the potential loss to the Company's creditors was available to the Directors, and was also considered in detail.

The "Minimising Loss Defence" (the "Defence")

In order to avail themselves of the Defence, the Directors had to establish that they took "every step" to minimise the potential loss to the Company's creditors; it is not for a liquidator to prove that the Directors had failed to do so. Examples of how a Director might successfully demonstrate that every step had been taken could be by ensuring that the trading and financial position of the company was regularly monitored and preparing a business plan considering future trading.

It was held that the Directors were reasonable in continuing to trade for a period, as the Company was making a small profit at this time, though circumstances changed by 3 May 2007, when it became clear that the financial position of the Company had deteriorated by a significant margin. After this point, the Registrar concluded that trading was only possible because the Company was paying certain creditors, whilst failing to pay HMRC or its landlord the outcome of the rent review, which increased their annual rent from £29,000 to £92,500. The Directors should have reassessed the situation in order to have taken "every step."

When a change of circumstances such as these arises, it would be reasonable to produce a new business plan, budget and cash flow. The Directors failed to take any steps to minimise loss and instead continued to trade. Despite the contention that steps had been taken to minimise loss for some creditors, the Defence requires steps to be taken in relation to creditors as a whole. Furthermore, the failure by the Directors to consider and take advice on alternative solutions to protect creditors, such as placing the Company into administration or liquidation, meant that they failed to satisfy the "every step" test. In light of these failures, the Registrar held that the Directors had not acted as reasonably diligent directors and had failed to establish the Defence.

Consequently, on the basis of assuming a hypothetical liquidation on 3 May 2007, the Directors were held to be jointly and severally liable to pay a minimum contribution of £35,000 in compensation.


This case adds welcome clarity on how the courts assess directors' conduct in the period leading up to, and following, the point at which insolvent liquidation becomes inevitable. The decision in this case highlights the importance of directors being aware of the financial conditions of their company, and of taking steps to minimise loss to creditors as a whole where insolvency seems likely. Taking professional advice, considering revised business plans and closely monitoring performance are all activities which may assist directors who find themselves having to rely on the s.214 Defence. However, in carrying out such activities, one would hope that wrongful trading might be avoided.


1 BNY Corporate Trustee Services Ltd & Ors v Eurosail-UK 2007- 3BL plc & 2 other cases [2013] UKSC 28

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.