Reports to Creditors (ISCIS)

Reports to Creditors (ISCIS)

October 2010

Introduction 

1. Why does the official receiver issue reports to creditors?

The official receiver is required, by the legislation, at least once after the making of a winding-up or bankruptcy order to report to creditors on the proceedings and on the state of the insolvent’s affairs. In the case of a winding up, the report will also be sent to the contributories. By providing informative and relevant information to creditors, the official receiver encourages them to provide useful feedback that may aid decision-making and further investigation efforts. The report will also provide creditors and contributories with a contact name and address and advise them at an early stage that the official receiver is dealing with the insolvency proceedings.

In certain circumstances (usually non-surrender cases) the official receiver sends out a first report to creditors which does not contain much information about the reason for the insolvency other than details of the petition and winding-up order/ bankruptcy and the extent of any other known debts. In these circumstances the official receiver will also comment on what further action is now to be taken. When new information is received, possibly after the publication of the gazette/advertisement ,subsequent surrender of the director or bankrupt to the proceedings, an application for a disqualification order or bankruptcy restrictions order, the official receiver should generally further report this success to the creditors. For exceptions, however, please see Technical Manual Chapter 18, part 2, paragraph 18.20.

If the official receiver considers that the cost of reporting, having regard to the number of creditors (and/or contributories), their interest in the proceedings and the amount of assets available, is likely to be excessive, he/she should consider applying to the court either to relieve him/her of his/her duty to report or to authorise him/her to report in a different way, for example by advertising where a copy of the report can be obtained from. The official receiver should only consider making such an application where he/she is dealing with a case which has an exceptionally large number of creditors/contributories. The application should also cover the seeking of relief from sending out individual notice of a meeting/no meeting.

 2. Can the official receiver send the report to creditors by electronic means?

With effect from 6 April 2010 the official receiver is permitted to send his or her report to creditors (RTC) by electronic means provided that the creditor or contributory has consented and has provided an electronic address for delivery. Where the official receiver issues a RTC by electronic means, the document must contain or be accompanied by a statement informing the recipient that they may request a hard copy and providing a telephone number, email address and postal address for making such a request. Where a hard copy of the report is requested, it must be sent within 5 business days of receipt of the request.

The official receiver may also satisfy his or her requirement to report to creditors and contributories by the report being available for viewing or downloading on a website. The official receiver is required to notify creditors and contributories of the address of the website together with any password required to access or download the document. The notice must also contain a statement informing the recipient of their entitlement to request a hard copy of the report and specifying a telephone number, e-mail address and postal address to make such a request. Where a hard copy is requested this must be issued within 5 business days of the receipt of the request. 

Where a notice to creditors and contributories is issued informing them of a website address where they can view the report, the RTC must be available on the website for a period of not less than 3 months after the date on which the notice was sent.

 3. When should the report to creditors be issued?

The report to creditors/contributories should be issued as soon as possible since early dispatch will reduce the number of routine enquiries received, although a balance should be struck between this and providing adequate information to creditors. For example, if you knew that the bankrupt/director was to attend the office for an interview when the case was 5 weeks old, you would not issue a non-surrender report to creditors (RTC) with little information for creditors prior to this time. However, ISCIS will generate a workflow task to start the process to create a RTC, which will become due one day after the date of the winding-up/bankruptcy order. The task to issue the RTC will only be displayed to the case clerk after the RTC review has been completed by the examiner.

The report must be completed by the examiner, using the appropriate RTC form and issued with, either the notice convening a first meeting (form NFM) or a notice stating that no meeting will be held (form NNM). There is no statutory time limit within which the official receiver is required to issue a report to creditors, but The Insolvency Service aims to issue the majority of reports to creditors within 8 weeks of the making of the order.

4. What if the proceedings are annulled, stayed or rescinded?

If the proceedings have been annulled, stayed or rescinded, the official receiver no longer has a duty to issue a report to the creditors. In a bankruptcy, however, the official receiver must contact everyone already notified of the making of the bankruptcy order to inform them that it has been annulled (form NABO). The outcome of any stay/annulment/recission hearing will be recorded in ISCIS both in the ‘Data Store’ and  the ’Hearings’ tabs. Instructions to issue form NABO will be distributed via the ’Notes’ tab, referring the case officer to the ‘Hearings’ tab.

Whilst the official receiver is not compelled by the Rules to notify creditors in a winding up of a stay of proceedings or the rescission of the winding-up order, an early letter informing them of the position is likely to reduce the number of queries received.

 5. Who will receive a copy of the official receiver’s report?

The report is sent to the creditors, the contributories of a company and the liquidator or trustee (if other than the official receiver). "Creditors" means those who are known to the official receiver as such, i.e. are on the list of creditors, are listed in the preliminary information questionnaire (PIQ) or, where a statement of affairs has been submitted, are disclosed on that document. All creditor information should be recorded accurately on ISCIS in the ‘Creditors’ tab. Where someone states that they are a creditor or contributory, and they are not recorded in the proceedings as such, they should be asked to provide details in writing. This can either be on paper or in electronic form and must be provided prior to a copy of the report being sent to them. Once such details have been received, they should be treated as a creditor. The official receiver’s report should only be given or copied to creditors or contributories (or, alternatively, their representatives, provided they have written authority from the creditor or contributory they represent, or the official receiver is otherwise satisfied that they have been retained by the creditor or contributory concerned). It should be noted that the Rules do not provide for other office-holders, for example an administrative receiver, to be provided with a copy of the report. Reports should never be given or copied to journalists or press agencies.

With effect from 6 April 2010 the official receiver is no longer required to file a copy of the report to creditors / contributories at court. Where a notice of no meeting is issued a copy of this must still be filed at court.

Prior to 6 April 2010 a company officer or a bankrupt could obtain a copy of the RTC through his/her right to inspect the court file and to take copies of documents on it. In future, the official receiver may provide a company officer or a bankrupt with a copy of the RTC upon request, but he/she must be satisfied as to the identity of the individual making the request. In these circumstances it would be sufficient to ensure that the requested report is sent to the address of the company officer or bankrupt known to the official receiver.

Any requests under the Freedom of Information Act 2000 for a RTC or a list of creditors from companies that are not creditors of any specific insolvent should be referred to the examiner. For more information see Technical Manual: Chapter 81 - Freedom of Information and Data Protection and Case Help Manual part: Freedom of Information and Data Protection Act.

 6. What information is included in the report?

Much of the information contained within the RTC will be taken automatically from data held in ISCIS but there are parts of the report which must still be entered manually (see ISCIS Protocol - RTC). Page one of the report will summarize details of the assets and liabilities in the insolvency as recorded in ISCIS under the ‘Assets’ and ‘Creditors’ tab. These are automatically pulled through to the RTC. Further question responses are generated on producing the RTC including an indication of whether there is any realistic prospect of a distribution to creditors. It must be made known why certain property disclosed in the proceedings cannot or will not be realised for the benefit of the creditors (this includes exempt property). Details of any income payments agreement/income payments order (IPA/IPO) will automatically be taken from the ‘Assets’ area of ISCIS, including details of how much and for what period.

Form RTC will also contain editable fields where for example, the director’s or bankrupt’s reasons for the insolvency (ISCIS automatically includes this in the RTC) can be edited so that creditors can make an assessment as to whether these match their knowledge of events and if appropriate can inform the official receiver of matters of which he/she may not be aware which may be relevant as to how the case proceeds. If the official receiver disagrees with the reasons given for the insolvency there should be a statement to that effect giving the official receiver’s views as to the reasons for the insolvency.

 

Only the total amount of all liabilities will appear in the front page summary of the RTC, but a full list of creditors’ name and amounts owed will be produced as an attachment (LOC) to it. Where the RTC is not generated from ISCIS the accompanying list of creditors(LOC) must be produced through document production (ISCIS ‘Docs’ tab).

Although the RTC makes no mention of discharge in bankruptcy cases, it should also contain sufficient information to enable creditors to form a view as to whether they wish to make representations as to a bankrupt’s unsuitability for an early discharge from the proceedings. This will be of use later when creditors receive the official receiver’s letter regarding the early discharge process.

For further information see Case Help Manual part: Discharge From Bankruptcy.

7. Who prepares the report ?

The examiner will create the RTC from a workflow task which takes staff through the creation and review process. The CARB form has been replaced by a conduct assessment note within ISCIS (See ISCIS Protocol - Pre-targeting assessment). Once the examiner has recorded the meetings decision (ISCIS ‘Creditors’ tab), a workflow task to issue the RTC will be generated for the case clerk, after confirmation that all known creditors are recorded. The RTC will be stored in the electronic case file

The case officer will then follow the steps in the document production process found under the ‘Docs’ header tab, to issue the RTC 

 8. Partnerships

Where there is a winding-up order only against a partnership without insolvency orders against any of the members, the report should only contain details of the assets and liabilities of the partnership/a summary of the partnership statements of affairs, if appropriate, and the official receiver’s report on the partnership, which is treated as an unregistered company. Details of the partners’ separate affairs should not be given in the report.

Where there is a winding-up order against a partnership and an insolvency order against one or more of the partners, separate reports must be prepared for each estate (i.e. the partnership and each member) for issue to the respective creditors. This ensures that creditors only receive information to which they are entitled.

It is not possible to generate an RTC from ISCIS and the Word template forms provided should beused. It is suggested that in an Article 14 case, where bankruptcy proceedings are consolidated to enable a partnership estate to be dealt with, the CAR A Article 11 form can be used, with  references to Article 11 being replaced by Article 14. 

For further information see Case Help Manual parts: Partnerships and Meetings.  

9. What is qualified privilege?

Due to the nature and source of the information contained in the RTC, and because the official receiver has a statutory duty to issue the report, he/she retains a benefit known as qualified privilege which protects him/her from being sued for defamation.

It means that as long as the information contained within the report is believed by the official receiver to be true and has not been included for any malicious reasons or with a desire to injure, the official receiver cannot be sued for defamation. The best way is to adopt a fair and reasonable approach to every case. It is also important that third parties such as banks, accountants, solicitors and creditors are not named in the report, as this could result in legal action being taken against the official receiver. 

 

Notes 

  1. Accuracy in recording details on ISCIS is very important since much of the information contained within the RTC will be taken automatically from data held in ISCIS. Mistakes can lead to complaints and possible action against the official receiver.
  2. In the case of a bankruptcy, ensure that any amended description has been actioned and ISCIS screens updated before the issue of the RTC.
  3. In non-surrender cases, ensure that you check the file and any correspondence thoroughly to glean as much information as possible regarding the bankrupt/company. See also Case Help Manual part: Initial Enquiries in Company and creditor petition Bankruptcy cases.

 

Where can I find out more?

Insolvency Rules 1986 as amended by Insolvency (Amendment) Rules 2010

Rules 4.43 - 4.49 Information to creditors and contributories

Rule 4.59 Notice of meetings by advertisement only

Rule 4.107(8) Hand-over of assets to liquidator

Rule 6.212(1) Notice to creditors

Rules 6.73 to 6.78 Information to Creditors

Rule 6.85 Notice of meetings by advertisement only

Rule 6.125(8) Hand-over of estate to trustee

Rule 12A.10 Electronic delivery in insolvency proceedings - general

Rule 12A.11 Electronic delivery by office-holders

Rule 12A.12 Use of websites by the office-holder

Insolvent Partnerships Order 1994 Articles 7-11

Technical Manual

Chapter 6 - Appeals, Stays and Rescissions

Chapter 6A - Annulments

Chapter 18 - Reports to Creditors and Contributories

Chapter 81 – Freedom of Information and Environmental Information

Chapter 81A - Data Protection

Case Help Manual

Amend Description 

Discharge From Bankruptcy

Freedom of Information and Environmental Information Regulations

Data Protection

Initial Contact

Initial Enquiries in Company and creditor petition Bankruptcy cases

Meetings

Partnerships

Insolvency Casework Standard

ISCIS Protocols

RTC

Pre-targeting assessment

Forms to be used:

RTC – Report to creditors

NABO - Notice of annulment of bankruptcy order

NFM – Notice of first meeting

NNM – Notice of no meeting

Partnership: 

RTC (partnership) Article 7,8,9 or 10

RTC (corporate member) Article 8 or 10

RTC (member) Article 8 or 10

RTC (partnership) Article 11

RTC  (member) Article 11

PROXY - Proxy

POD - Proof of debt

 

Reports to Creditors Flowchart 

 

Procedure

ISCIS tabs that must be used to record/view information are given in brackets e.g. (‘Docs’ tab).  

1  Ensure all known creditors, assets and liabilities, including those listed in the PIQ and/or statement of affairs are recorded accurately on ISCIS (‘Creditors’ tab).

2  In bankruptcy only, if the proceedings have been annulled, stayed or rescinded, form NABO (notice of annulment of bankruptcy order) must be issued to everyone already notified of the bankruptcy order. In company cases check with the examiner as to what notification, if any, should be issued. Instructions should be recorded as a Note on the ISCIS ‘Hearings’ tab.

3  In bankruptcy only, check  under the ‘Notes’ tab to see whether instructions have been given to amend the description and action accordingly. See Case Help Manual part: Amend Description.

N.B. The meetings decision must be entered onto ISCIS via the ‘Creditors’ tab ( select both ‘Record IP appointment decision’ and ‘Record Meeting’ tab option) before the NNM (Notice of no meeting) or NFM (Notice of first meeting) will be generated.

4  If no meeting, follow workflow instructions and arrange for the issue of the report together with form NNM (notice of no meeting) to all known creditors according to local office practice. A notice to court will also need to be issued. (ISCIS ‘Docs’ tab).

5  If meeting required book the meeting date by following workflow instructions and recording details on ISCIS (‘Creditors’ tab – Record Meeting option). A minimum of 14 days notice must be given (for cases with petitions before 6.4.10 the minimum period is 21 days). In practice a longer period is given to allow for dispatch and posting. In a few cases this date may fall outside the Service's aim of notices issued within 8 weeks of the date of the insolvency order. In these circumstances refer the matter to examiner to see whether an extension of time needs to be applied for. In all other cases arrange for issue of the RTC together with form NFM (notice of first meeting), POD (proof of debt) and PROXY to all known creditors according to local office practice (ISCIS ‘Docs’ tab).

6 Issue the Gazette notice of meeting(if required) in accordance with the guidance given in  CHM Part: Publication of Insolvency Information. (ISCIS ‘Docs’ tab).For further information see Case Help Manual part: Meetings (all parts).