Background
Fulmar Contracting Ltd operated as an umbrella company, processing payments for workers supplied through employment agencies. It failed to remit substantial PAYE, National Insurance contributions and VAT to HMRC and entered compulsory liquidation following a winding-up order in September 2023.
The company and its liquidators pursued separate claims against two consultant doctors, Dr Maria Nina Williams and Dr Tatyana Viner, who had received gross payments from Fulmar for locum work arranged through Fresh Medical. The company alleged that employment contracts required the doctors to repay overpayments caused by its failure to deduct payroll taxes. The liquidators also argued under section 238 of the Insolvency Act 1986 that the gross payments were transactions at an undervalue because Fulmar incurred payroll-tax liabilities without receiving corresponding consideration.
The liquidators had obtained no records directly from Fulmar and relied principally on documents supplied by third parties. The purported employment contracts contained typed names rather than the doctors’ signatures, were not shown to have been provided to them, lacked the contemplated assignment schedules and contained unexplained drafting and remuneration anomalies.
The Court’s Holding
The High Court dismissed the contractual claims because the company failed to prove that either doctor had entered into a contract with Fulmar containing the repayment clause on which the claims depended. The available third-party documents and surrounding circumstances did not establish agreement to the asserted employment terms.
The court also dismissed the section 238 claims. It found that the doctors had accounted to HMRC for the gross payments through self-assessment returns and, in Dr Williams’ case, relevant company tax returns. Because HMRC had accepted that treatment without challenge, the same income could not properly be taxed again through a proof against Fulmar; accordingly, the payments involved no undervalue.
Even if the payments had technically been transactions at an undervalue, the court would have exercised its discretion to grant no relief. The income had already been brought into tax, HMRC had suffered no relevant detriment from these payments, and recovery from the doctors would not restore a loss to the insolvent estate but would effectively produce double recovery.
Key Takeaways
- A liquidator asserting contractual repayment rights must prove that the recipient actually agreed to the contractual terms relied upon; unsigned documents obtained from a third party may be insufficient.
- Gross payments were not transactions at an undervalue where the recipients declared the income, assumed the resulting tax liability and HMRC accepted that tax treatment.
- Relief under section 238 is discretionary and restorative; even if an undervalue exists, the court may refuse relief where the relevant income has already been taxed and the company’s creditors suffered no corresponding detriment.
Why It Matters
The decision identifies important evidential and substantive limits on attempts by liquidators of failed umbrella companies to recover alleged payroll-tax shortfalls from workers. Proof that an umbrella company should have operated PAYE does not by itself establish either a contractual repayment obligation or a recoverable undervalue.
The judgment is expressly fact-specific. It does not immunize every worker paid through Fulmar or another umbrella company: claims involving different contractual evidence or recipients who did not declare their income to HMRC may produce a different result.