Affording the fees in an IVA
A major concern for many people who become insolvent and are considering entering into an IVA is whether they can afford the fees incurred in the process.
This is an understandable concern but it should not really be a worry. If the firm providing the insolvency service is worth its salt then this particular concern can be put to bed quickly and assuredly.
In the first instance it is really the creditors who pay the fees since the monies which the insolvent debtor contributes to the IVA is repayment of (part of) the debt which the debtor has incurred with his or her creditors. Let us call these contributions ‘the IVA fund’. The fees of the IVA are paid from this fund. In relation to the payment of fees, let us look at the role of the Insolvency Practitioner or the IP. The IP is called the Nominee up to the time when the IVA is approved (or rejected) at the Meeting of Creditors and after that the IP is called the Supervisor. These are simply the terms used in the legislation and reflect the fact that the role of the IP changes somewhat between the time when the IVA proposals are offered to creditors and the time when the proposals are accepted. In fact legally the Nominee IP need not be the same person as the Supervisor IP although generally they are the same person.
The Supervisor IP receives the contributions from the debtor over the life of the IVA and is responsible for controlling the fund and making payments from it. These payments can be broadly broken down into three types: dividends to creditors; fees payable to the IP (Nominee & Supervisor) and disbursements such as the cost of registration of the IVA, insurance and VAT on transactions.
The amounts of the IP fees are not arbitrary. These have already been
set when the Meeting of Creditors approved the IVA in the first place.
More than 75% of the creditors had to agree to these fees. The usual
practice is the IVA proposal carries the details of the fees and costs
and the creditors may amend these, by way of modifications to the IVA,
if they think they are too high.
The IP may not charge more than the agreed amounts without the express
permission of the creditors (again more than 75% of creditors, as
measured by the value of the debts, have to agree) even where the work
of supervising the IVA turns out to be more extensive and costly than
originally anticipated. Creditors are not slow to reduce proposed fees
if they think they are excessive since the lower the fees the higher the
amount of debt that will be repaid or to use the normal terminology,
the higher the dividend.
The insolvent debtor should not be concerned about his or her capacity to pay the IVA fees – they come from ‘the IVA fund’ and are not an additional burden to be borne by the debtor.