Module 4.1 Engaging with creditors Flashcards
What is a document?
“document”includes a written notice or statement or anything else in writing capable of being delivered to a recipient
What is the contact details for an OH?
a postal address, and
an email address or phone number
A notice must identify the proceedings, and if relevant, identify the office holder and provide what details about the office holder.
The office holders contact details
The office holder’s IP number (except for the OR)
The name of any person other than the office holder who may be contacted about the proceedings (e.g. a case manager)
The date of the office holders appointment
What must a gazette notice about a company also contain?
a) its registered office;
b) any principal trading address if this is different from its registered office;
c) any name under which it was registered in the period of 12 months before the date of the commencement of the proceedings which are the subject of the Gazette notice; and
d) any other name or style (not being a registered name)—
i. under which the company carried on business, and
ii. in which any debt owed to a creditor was incurred.
What must a gazette notice about a bankrupt also contain?
a) any other address at which the bankrupt has resided in the period of 12 months before the making of the bankruptcy order;
b) any principal trading address if different from the bankrupt’s residential address;
c) date of birth;
d) occupation;
e) any other name by which the bankrupt has been known; and
f) any name or style (other than the bankrupt’s own name) under which—
i. the bankrupt carried on business, and
ii. any debt owed to a creditor was incurred.
When can contents of a document diverge from that required by the rules?
Where a rule prescribes contents of a document, the document may
depart from that where the circumstances require it
Or where it is immaterial
How is a document authenticated?
A document in electronic form is sufficiently authenticated—
if the identity of the sender is confirmed in a manner specified by the recipient; or
where the recipient has not so specified, if the communication contains or is accompanied by a statement of the identity of the sender and the recipient has no reason to doubt the truth of that statement
R1.5(2) - A document in hard-copy form is sufficiently authenticated if it is signed
R1.5(3) - If a document is authenticated by the signature of an individual on behalf of—
a body of persons, the document must also state the position of that individual in relation to the body
a body corporate of which the individual is the sole member, the document must also state that fact
What are the postal delivery times?
First class – 2nd business day after day of posting
Second class – 4th business day after day of posting
What are the delivery times using DX?
One business day after delivery if on same exchange
Two business days after delivery if on difference exchanges
What is the delivery time if using personal delivery?
The day it is left with that individual or left with an individual at the registered office address, official address or place of business
What is the delivery time if using electronic delivery?
Requires consent (deemed or actual) not to have been revoked
Deemed delivered 9.00am on day after sent
What is the delivery time if via website?
When first made available or at such later time as notice of it is delivered
What must a certificate of delivery/ service state?
R.1.52
Proof of delivery of documents
1) A certificate complying with this rule is proof that a document has been duly delivered to the recipient in accordance with this Chapter unless the contrary is shown.
2) A certificate must state the method of delivery and the date of the sending
Where the document was delivered by a person other than the office holder (e.g. a member of their staff), it should state their name
How are time periods calculated?
Schedule 5 applies the Civil Procedure Rules re: time periods to insolvency
Periods of time expressed in days
period of time expressed as a number of days is to be computed as clear days.
NOT including the day on which the period begins and the day on which an event occurs (i.e. the date of delivery and the date of the event)
If period less than 5 days – exclude weekends and bank holidays
Periods of time expressed in months
if the beginning of the period is specified: the day before the date corresponding to the date in the month on which it begins, or if no such day, the last day of the month
E.g. Appointment on 31March2020 -12 month annual reporting period runs to 30 March 2021
If the end of the period is specified: the day after the date corresponding to the date in the month on which it ends, or if no such day, the last day of the month
What consent is required to communicate electronically?
For cases commencing post - April 2017
Consent to electronic communication can be presumed where the debtor and creditor customarily communicated that way prior to the insolvency
And also where the creditor/creditor representative has given actual permission for email communications
Case commenced prior to April 2017
Consent to email communication cannot be presumed and must be actual
Where there is no actual or presumed consent to email communication, notices will need to be sent by post
Though the documents they refer to can still be put on a website
Can documents be sent electronically to the Court?
R1.46 - Document may not be sent electronically to court unless expressly permitted by the CPR or the Rules
Treated as delivered to court at the time the court records having received it
Where a hard copy of a document is requested from the OH, how long does he have to comply?
Must deliver a hard copy within 5 business days.
Where delivering a notice by website, what must be complied with?
R1.49-Office holder must deliver a notice to that person containing:
statement that document available for viewing and downloading
Web address and any password
Hard copy to be available on request (within 5 business days of request, free of charge)
R1.50 -Further provision for general use in respect of all future communications, without further notices being given (e.g. “all future annual reports”).
When can’t websites be used to deliver notices?
“GeneralUse”not available for documents that:
Require personal delivery
Relate to adjudication of claims or payment of dividends
Not delivered generally to a class of persons (i.e. not a circular)
How long must documents be retained on a website?
Later of 2 months after the end of the particular proceedings or the release of the last person to hold office
How can a creditor ‘opt out’ of receiving notifications?
by delivering notice to the office holder
In writing
Authenticated and dated
The creditor becomes an opted-out creditor when the notice is delivered
The election can be revoked at any time by a further electing (also in
writing, authenticated and delivered)
R1.39 - Office holder must, in the first communication with creditors, inform them that they may elect to opt out and the consequences of their doing so
What documents can’t be opted out of?
A notice of distributions or proposed distribution
Change of office holder and their details
Any court order requiring notice to be given to all creditors
A creditor may still participate in a decision procedure or deemed consent procedure even though they have opted out. Although in practice, they may be unaware of it
What are the implications of opting out?
Opt out begins as soon as reasonably practical after delivery of opt out notice.
R1.39- The office holder’s first communication must contain identification and contact details for the office-holder and statements that:
the creditor has the right to elect to opt out of receiving further documents about the proceedings (unless it is one of the circumstances where opting-out doesn’t apply)
opting- out will not affect the creditor’s entitlement to receive dividends
unless the Rules provide to the contrary, opting- out will not affect any right the creditor may have to vote in a decision procedure or a participate in a deemed consent procedure, although the creditor will not receive notice of it
a creditor who opts out will be treated as having opted out in respect of any consecutive insolvency proceedings of a different kind in respect of the same company or individual
information about how the creditor may elect to be or cease to be an opted-out creditor
i.e. in writing, authenticated, dated and delivered to the office holder
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