ABSTRACT
As indicated in the last chapter, two provisions address fraudulent trading. They are the civil provision, s 213 of the Insolvency Act 1986, and the criminal provision, s 458 of the Companies Act 1985. They are essentially identical, the primary differences being procedural. The standard of proof for a s 213 action is the same as for any civil proceeding, namely the balance of probabilities, while the standard for the criminal proceeding remains beyond reasonable doubt. The applicant for a civil claim is the liquidator, while criminal proceedings must be initiated by the Crown. It has been stated that decisions on s 458 are relevant to a consideration of s 213 (Re BCCI; Banque Arabe Internationale D’Investissement SA v Morris [2002] BCC 407 at 413), so in Part B no distinction is made between the cases on the basis of the provision under which they were decided. The main focus of this part is, however, on s 213, although, of course, many of the things said here will be relevant to s 458, and occasionally reference will be made to the provision, either in the text or in footnotes. Also, there are a couple of sections of the chapter that include brief discussions of aspects of s 458.
