Consultation letter from the Insolvency Service on the function of the Official Reciever - Monday 31st May deadline
"I am seeking your views on three proposals designed to simplify and streamline the
bankruptcy and company case administration process.
The proposals are as follows:
1. That the official receiver automatically becomes trustee of a bankrupt’s estate upon
the making of the bankruptcy order, and remains in office unless and until such time
as an insolvency practitioner - as is the case now - is appointed trustee in his or her
place. This change is suggested in order to bring bankruptcy into line with other
insolvency procedures.
2. As a consequential change, the term ‘interim receiver’ should be changed to
‘receiver’.
3. Remove the requirement to file a ‘no meeting’ notice in cases where a secretary of
state appointment has been made shortly after the making of the company winding
up order.
I set out below the background and details of the proposals, together with a summary
Impact Assessment.
Overview
Bankruptcy is the only court initiated insolvency procedure that provides an initial period
during which the official receiver’s duties are restricted just to protecting the estate. For
example, when a winding up order is made against a company, if an insolvency practitioner is not named as the liquidator, the official receiver immediately becomes liquidator of the company. Similarly, the official receiver becomes liquidator when a winding up order is made against a partnership, and he or she is also appointed trustee by the court where bankruptcy orders are made against any of the members of a partnership.1
In making this proposal, our primary objective is to simplify the administration of
bankruptcy. For example, this would not only make the bankruptcy process clearer,
more transparent and consistent with other insolvency procedures, but would also help
deliver savings to all those affected by a bankruptcy - whether as creditors, the official
receiver or the bankrupt him/herself - by encouraging the most efficient use of time and
operational resources. For instance, under this proposal it would no longer be
necessary for the official receiver to prepare, send to creditors and file at court a notice
that no meeting of creditors is being called. This would currently happen in cases where
the official receiver is purely seeking to apply to the secretary of state for the
appointment of an insolvency practitioner to act as trustee in bankruptcy in his or her
place. In these circumstances, this additional administrative duty builds in an artificial
component to the process, and adds resource implications.
Detail
Currently, on the making of either a bankruptcy order or an insolvency administration
order2, the official receiver becomes receiver and manager of the bankrupt’s estate3.
Thus, between the making of the bankruptcy order and the time at which the bankrupt’s
estate vests in a trustee, the official receiver is the receiver and (subject to the
appointment of a special manager4) the manager of the bankrupt’s estate5.
As receiver and manager, the official receiver is responsible for protecting the assets of
the insolvent person, which involves taking immediate steps to secure any property or
assets which are comprised in the bankruptcy estate. The official receiver is therefore
limited to protecting the assets and value of the estate for the benefit of those entitled to
it, principally the creditors. This can include seizing and disposing of perishable goods
comprised in the estate, the value of which is likely to diminish if they are not dealt with
quickly. However, the property of the debtor remains vested with the bankrupt, albeit
subject to the control of the official receiver, until such time as a trustee is in office to
deal with the debtor’s affairs. This position can cause confusion and in some cases
additional expense when dealing with some assets, particularly rights of action and
trading businesses. The official receiver is also prevented from dealing with onerous
1 Insolvency Partnership Order 1994
2 The Administration of Insolvency Estates of Deceased Persons Order 1986
3 Section 287 Insolvency Act 1986
4 Section 370 Insolvency Act 1986
5 Section 287 Insolvency Act 1986
property between the making of the bankruptcy order and the trustee taking office.
Consequently, the powers and scope of the official receiver in his duty as receiver and
manager to safeguard the bankruptcy estate are limited.
With the exception of a vacancy in office6, there are currently two ways in which a
trustee can come into office when the official receiver is acting as receiver and
manager7.
The first instance is where the official receiver has given notice to the court of his or her
decision not to call a meeting of creditors for the purpose of appointing a trustee8.
Within 12 weeks of the making of the bankruptcy order, the official receiver must decide
whether to summon a general meeting of creditors to appoint a trustee or to issue a
notice informing creditors that a meeting will not be held. On filing the notice of his or
her intention not to call a meeting at the court (which is also sent to all known creditors)
the official receiver becomes trustee in bankruptcy and is able to exercise his or her
powers as trustee in the protection and realisation of the bankruptcy estate. Only as
trustee is the official receiver then able to apply to the secretary of state who can
appoint an insolvency practitioner to act as replacement trustee. In addition creditors
have the right to requisition a general meeting9 , which under our proposals, would
remain.
The second instance is if the official receiver calls a first meeting for the purpose of
appointing a trustee. The first meeting must be held no later than four months from the
date of the bankruptcy order10. This allows creditors the opportunity to express their
views and to be involved in the decision of which insolvency practitioner will be
appointed as the trustee in bankruptcy.
Thus, unless an insolvency practitioner is appointed at a first meeting of creditors, the
official receiver is currently unable to apply for the appointment of an alternative trustee,
nor is he or she able to act as trustee until the notice of ‘no meeting’ has been prepared
and filed at court. This serves to add a further delay in dealing with the administration of
the bankruptcy estate, which, with the development of insolvency legislation and
practice, adds limited benefits to the personal bankruptcy case administration process.
Background to the current position and the benefits of change
6 Section 300(2) Insolvency Act 1986
7 This excludes the court’s powers of appointment under s. 297(4) and 297 (5) Insolvency Act 1986 which apply only on the making of the
order.
8 Section 297(6) Insolvency Act 1986
9 Section 294 Insolvency Act 1986
10 Rule 6.79(1) Insolvency Rules 1986
Prior to the Insolvency Act 198611, entry into bankruptcy involved a two-stage process.
On receipt of a petition, the court would first make a receiving order under which the
official receiver would become receiver and manager of the insolvent’s estate. After
some initial inquiries as receiver and manager, the official receiver would then apply to
the court for an adjudication of bankruptcy. Whilst the new legislation introduced the
concept of an immediate bankruptcy order, it retained the old concept of a receiver and
manager followed by the subsequent appointment of a trustee.
As the bankruptcy process and case administration procedures have developed and
changed, so too has the need for a receiver and manager. Providing for the official
receiver to become trustee on the making of a bankruptcy order would offer consistency
and certainty in the case administration process for the benefit of creditors, the bankrupt
and insolvency practitioners. It would also remove the complication in the process of
making applications to the secretary of state for the appointment of a trustee in cases
where assets need to be dealt with urgently.
Currently, even if the appointment of an insolvency practitioner is desired urgently in
order to deal with assets, the official receiver has to still first become trustee before an
appointment could be made by the secretary of state. Under our proposal, there would
no longer be a need to file the notice of ‘no meeting’ at court in order for the official
receiver to become trustee, offering resource and administrative savings for official
receivers (over £1.1 million) , the court services and creditors who receive the
paperwork. The attached Impact Assessment summarises the main savings.
If the official receiver were to become trustee on the making of the bankruptcy order, the
official receiver would be able to use the wider powers of a trustee in circumstances
where immediate action is needed. For example, where assets are in jeopardy and
would be better protected or a better realisation value could be achieved by an
immediate sale without the added delays of needing to demonstrate the property as a
diminishing asset; or where assets continue to be stored or protected through insurance
and any related charges would in effect reduce the net value of the bankruptcy estate.
Our proposals would also bring personal insolvency in England and Wales in line with
current Scottish legislation. Under the Bankruptcy (Scotland) Act 1985, where the
Accountant in Bankruptcy or sheriff grants a bankruptcy order and does not appoint a
person to be the trustee, the Accountant in Bankruptcy automatically becomes trustee of
the bankrupt’s estate12.
11 Bankruptcy Act 1914
12 Section 2(1B), (1C) and (2) Bankruptcy (Scotland) Act 1985
Change of term ‘interim receiver’ to ‘receiver’
As a consequence of this first proposal there would also be a requirement to change the
term ‘interim receiver’. Between the presentation of the bankruptcy petition and the
making of the order, to ensure the protection of the debtor’s property in necessary
cases, the court has the power to appoint an interim receiver13. In a company winding
up, the interim receiver equivalent, who would either be the official receiver or an
insolvency practitioner, is a provisional liquidator14. With the removal of the function of
the receiver and manager in bankruptcy cases, I am also proposing to change the term
‘interim receiver’ to simply ‘ receiver’. This is intended to better describe the role of the
official receiver or insolvency practitioner (this is the subject of a separate proposal to
remove the current restriction of only allowing the official receiver to act in this office)
appointed prior to the making of the bankruptcy order but after the presentation of the
petition.
Removal of requirement to file ‘no meeting’ notices
In all circumstances, the secretary of state has the power to appoint an insolvency
practitioner in place of the official receiver as trustee or liquidator15. In some cases there
may be an urgent need to appoint a trustee or liquidator other than the official receiver
to deal with particular assets or property. There may not be time for convening and
holding a meeting of creditors. Before the official receiver makes such an application,
the views of a majority of the creditors' must have been sought and adhered to and in
bankruptcy cases, as described above, a notice of ‘no meeting’ must be filed at the court
to give the official receiver status as trustee before an application for a secretary of state
appointment can be made. Furthermore, in company cases where the official receiver is
already liquidator, a notice of no meeting must still be filed in every case16.
I am proposing that in cases where secretary of state applications for company cases
are made within the period in which a decision to call a meeting or not must be made,
the official receiver will no longer be required to give formal notice of ‘no meeting’ to the
court. This is designed to streamline the administration in such insolvency cases.
The statutory report to creditors will still be issued17, so that creditors are informed of the
action taken by the official receiver. Additionally, the trustee or liquidator (as the case
may be) will still be required to inform creditors of their appointment.
What is not changing
13 Section 286 Insolvency Act 1986
14 Section 135 Insolvency Act 1986
15 Section 296 and 137 Insolvency Act 1986
16 Section 136 Insolvency Act 1986
17Rules 4.43(1) and 6.73(1) Insolvency Rules 1986
As outlined above, these proposals would not alter the exchange of information between
the official receiver and creditors through, for example, the report to creditors. The right
of creditors to express their views regarding the appointment of a trustee would also
remain unchanged, as would the creditors’ right to requisition a first meeting for the
purpose of appointing an insolvency practitioner as trustee18.
Presently, the official receiver as trustee may summon a general meeting at any time in
order to ascertain the wishes of creditors in any matter regarding the bankruptcy,
including to appoint a trustee other than the official receiver19 and this would still be the
position under our proposal. As an alternative to holding a meeting of creditors, the
secretary of state’s power to appoint an insolvency practitioner as trustee would also
remain20. The official receiver would also still seek the appointment of an insolvency
practitioner as trustee in every case where that is appropriate, as is the case now.
The three questions this consultation letter poses, therefore, are:
1. Should the official receiver be appointed trustee of the bankrupt’s estate on the
making of a bankruptcy order?
2. Should the term ‘interim receiver’ change to ‘receiver’ to better reflect his or her new
function?
3. Should the need to file the ‘no meeting’ notice be removed for company cases where
a liquidator is appointed by the secretary of state in the period between the making
of the order and the time when the official receiver is required to inform creditors of
his/her decision on whether, or not, to call a meeting ?
I would welcome hearing your comments and would be grateful for your views on any
consequences not already identified, which could result from the proposals put forward
in this letter. If you are aware of anyone else who you think may have an interest,
please feel free to pass on a copy of this letter as appropriate.
All views should be sent to The Insolvency Service Policy Unit at policy.unit@insolvency.gsi.gov.uk or by post to The Insolvency Service, Zone B, 3rd Floor, 21 Bloomsbury Street, London WC1B 3QW
by Monday 31st May 2010.
18 Section 292(1)(a) and section 194 Insolvency Act 1986
19 Rule 6.81 Insolvency Rules 1986
20 Section 296 Insolvency Act 1986"
Picture Credit: The Insolvency Service.
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