ACTION FOLLOWING APPOINTMENT OF OFFICIAL RECEIVER AS INTERIM RECEIVER
Following the official receiver’s appointment as interim receiver he/she will be able to utilise the pre-appointment planning (see Part 1, paragraphs2A.20 to 2A.24), and should have sufficient information to attempt to secure the debtor’s bank accounts, all other known assets and investigate whether there are any undisclosed assets to protect. The official receiver will also need to consider carrying out an immediate inspection of any property or, where the debtor is trading, any trading premises. Guidance on inspections is contained within Chapter 8, and some further information relating specifically to interim receiverships is contained within this part.
Where the terms of the order appointing the interim receiver only cover specific property, the official receiver, as interim receiver, should ensure that he/she only takes possession of, and protects that property (see paragraph 2A.34). See the relevant part of Chapter 31 for guidance on protecting specific assets.
The guidance in this part refers to the action that should be taken where the terms of the order covers all of the debtor’s property.
Where the debtor owns property jointly with another who is not subject to any insolvency proceedings, then the official receiver, as interim receiver, will need to think carefully about how best to secure those assets, whether the asset is a bank account, property or some other jointly owned asset.
Where the joint asset is listed in the interim order, then the official receiver can be confident that he/she should initially secure the debtor’s share of the asset (initially assuming that to be 50% unless there is already evidence to the contrary), pending any claim from the joint owner to a greater or lesser share than 50%.
It is essential that the debtor’s funds are protected by the freezing of the bank account as soon as the interim receiver order is made (see paragraph 2A.66 on jointly held accounts). On the presentation of a petition for a bankruptcy order the disposition or alteration of any of the debtor’s assets are void unless a court has otherwise consented, or it is subsequently ratified [note 1].
PIU have a standard letter and fax template for notification in these cases.
The process for notifying the debtor’s bankers is as follows:
(a) Prior to the order being made, full details of the local branch where the account is held, and the group legal office should be obtained, including the name, telephone and fax number of someone at both offices who is prepared to accept notification on that date if an order is made. Care should be taken to ensure that the debtor is not identified at this stage (see paragraph 2A.24).
(b) On the day of the order, the sealed court orders are returned straight to the office from court, and notification should then be given by both telephone and fax to both the local branch and the group legal office, and confirmed by letters to be sent in the post.
(c) Confirmation of receipt of the fax should be obtained from all recipients and placed on the office file.
(d) During the telephone call to the bank, the official receiver should request that the bank does not notify the debtor of the appointment of the interim receiver prior to the arrival of the official receiver’s staff at his/her trading premises (if applicable). This is to prevent the removal of any assets or records by the debtor. The official receiver should give the bank an estimate of when the official receiver’s staff are likely to arrive at the premises.
(e) Some banks will only accept an original sealed copy of the court order as notification of the appointment of an interim receiver, and it should be ascertained whether this is the case prior to the making of the order. If so, arrangements should be made to hand deliver notification to the bank with a sealed copy of the order.
Where the joint bank account is listed in the interim order, then the official receiver can be confident that it should be dealt with. When the official receiver is aware that the debtor’s bank account is jointly held, instead of freezing the account, he/she should initially secure the debtor’s share of the bank account balance (initially assuming that to be 50% unless there is already evidence to the contrary), pending any claim from the joint owner to a greater or lesser share than 50%.
Following the official receiver, as interim receiver, requesting the bank to hold 50% of the account balance to his /her order the debtor and joint owner should be asked to account for how the funds are split and where this split is other than 50:50 evidence to support the account should be requested.
Where the official receiver is acting as interim receiver and becomes aware of registered land owned by the debtor jointly with others he/she should consider applying for a restriction against the property to protect the creditors’ interest (see Chapter 50 Part 7). The official receiver must first make application to the court for permission to apply for a restriction. The procedure necessary to apply for a restriction is explained in paragraph 50.79. The official receiver should withdraw the restriction if he/she ceases to act as interim receiver.
If the land is unregistered and solely owned the official receiver should consider registering a caution against first registration (see paragraph 50.75). If a bankruptcy order is subsequently made the caution should be withdrawn.
Where the official receiver, as interim receiver, thinks it is appropriate, an inspection may be required of the debtor’s home address or other property believed to be owned or resided in by the debtor to ensure that all of the debtor’s property is protected. Before undertaking an inspection of the bankrupt's home the official receiver should ensure that any occupants of the property, other than the bankrupt, give their consent to the inspection. An inspection of residential property without consent may be open to challenge under the provisions of the Human Rights Act 1998.
Where the terms of the order covers all of the debtor’s property (see Part 2, paragraph 2A.33), it includes all property whether or not it would subsequently be included in the bankruptcy estate if a bankruptcy order were to be made [note 2].
The official receiver may consider inspecting and removing property from a debtor’s home if it is known or suspected that he/she has items of value. This should be considered by the official receiver on a case by case basis.
The official receiver, as interim receiver is protected from any claims against him/her from third parties for wrongfully seizing jointly owned property if he/she believed it was the debtor’s property at the time of seizure [note 3] [note 4] (see paragraph 2A.54), and further, any indemnity provided by the applicant will provide the official receiver, as interim receiver, with some protection against a claim arising (see paragraph 2A.38). Where the official receiver has concerns in dealing with an asset, consideration should be given to seeking a specific indemnity from the creditor who applied for the appointment of an interim receiver. Where there is already in force an unlimited liability indemnity, this would not be required (see paragraph 2A.113).
Where the debtor is trading, an inspection should be carried out by the official receiver immediately upon his/her appointment as interim receiver. See paragraphs 2A.20 to 2A.24 regarding the pre-appointment planning.
The official receiver’s staff should assemble out of sight and familiarise themselves with all of the entrances and exits to the premises. Where there is more than one trading address, a team should be at each location and the person in charge of each inspecting team should enter each location at the same time and attempt to make contact with the debtor or person in charge.
Staff should be conscious of using the appropriate tone for the inspection as it is possible that the debtor does not know that the official receiver has been appointed as interim receiver. Staff should act in a calm, assertive and professional manner.
Following contact with the debtor, the examiner should ensure that the official receiver is dealing with the correct business, and that the debtor is prepared to co-operate with the official receiver’s staff. This may involve speaking to the debtor’s solicitors and faxing a copy of the order to them as evidence.
The aims of the inspection are:
(a) To secure the premises, and if appropriate, the locks should be changed (see Chapter 8, Part 6).
(b) To interview the debtor and gain sufficient information about the debtor’s assets and liabilities, and trading (where appropriate) to administer the interim receivership (see paragraphs 2A.76 to 2A.78).
(c) To map the premises and compile an inventory, using photographs to assist with the mapping (see paragraphs 2A.79 to 2A.81).
(d) To identify any third party goods and secure them (see paragraphs 2A.82 to 2A.84).
(e) To identify and secure any assets, obtaining the debtor’s confirmation of ownership (see paragraph 2A.85).
(f) To list and remove any accounting records including payroll records (see paragraphs 2A.86 to 2A.87).
(g) To make a decision on whether to continue to trade the business (see paragraphs 2A.88 to 2A.89).
(h) To ensure that the staff cease to work as soon as possible (see paragraph 2A.73) and to dismiss the staff where appropriate (if the court order allows, if not seek the direction of the court) (see paragraphs 2A.74 to 2A.75).
As soon as the inspecting officer has the cooperation of the debtor, he/she should request all employees to assemble (if possible with the debtor in attendance). The staff should be advised of the appointment of the interim receiver, and that the official receiver has to decide whether to continue the debtor’s trading, which may take some time. The inspecting officer should then send the staff home and either give them a time when to return or tell them the official receiver will let them know whether the business is going to continue trading. See paragraphs 2A.98 to 2A.101 for further guidance if a decision is taken to dismiss staff.
Before the staff can be released they will need to give their details to the inspecting staff together with any of the debtor’s assets in their possession. Staff should also be instructed to take any personal belongings away with them, which should be supervised by the inspecting staff.
As soon as the inspecting officer has the cooperation of the debtor, he/she should request all employees to assemble (if possible with the debtor in attendance), advise them of the appointment of the interim receiver, and that the official receiver has decided to cease the debtor’s trading. The employees should be advised that they might have a claim to redundancy payments (see paragraph 2A.101), under the Employment Rights Act 1996. The inspecting officer should take copies of the booklet “Redundancy and Insolvency – A Guide for Employees” to hand out on the inspection if it is suspected that the debtor has employees who will be dismissed at the inspection.
The inspecting officer should collect names and addresses of all employees and inform them that the official receiver will forward all employees a letter explaining their rights under the Employment Rights Act 1996 (which should be amended from the standard letter [note 5]). The employees’ names and addresses may be recorded on the schedule of employees which forms part of the inspection report [note 6] or on any written additional report produced by the inspecting officer. See also paragraph 2A.86 dealing with P45s.
If the debtor attends the hearing to appoint an interim receiver, the official receiver on his/her appointment as interim receiver, should take immediate steps to interview the debtor (see paragraph 2A.13).
The debtor should be interviewed, either on the inspection, or as soon as possible following the appointment of the official receiver, as interim receiver, where no inspection is carried out. The interview should be purely for the identification and protection of assets, and should include details of;
(b) any property the debtor may have disposed of that would be capable of recovery in the event of a bankruptcy order being made;
(c) any trading activity to enable the official receiver to make a decision as to whether the interim receiver should continue or cease the business;
(d) his/her creditors and liabilities.
The standard bankruptcy preliminary questionnaire can be used as a prompt for the questions to be asked of the debtor, and the responses recorded on a separate statement. The debtor should be encouraged to sign the written statement confirming that he/she has provided the information within it. See Part 2, paragraph 2A.55 regarding the debtor’s duty to co-operate.
The official receiver, as interim receiver should also complete an inspection report whilst at the premises [note 6]. The inspection report should preferably be completed with the debtor in all cases. It is important that the debtor signs the inspection report as an acknowledgement of the details provided. This will be evidence of the assets, together with third party property disclosed, and should help to avoid subsequent disputes. If the debtor subsequently refuses to sign the report, a note should be made on the report and signed by the inspecting officer.
In addition to completing an inspection report [note 6], the inspecting officer may, in appropriate cases, prepare an additional report to record any further matters not mentioned in the inspection report. The report should contain details of premises visited, date, persons seen, nature of enquiries made, results of such enquiries, and the action taken regarding the assets, including details of any items removed from the premises. A brief note of any telephone conversations made during the inspection should similarly be made. The report should be signed and dated by the inspecting officer and placed on the official receiver’s file. The report should provide a written record of the decisions and actions taken on the inspection. There is no standard form for this report, although space permitting, this may be written into the blank pages at the back of the inspection report [note 6].
The inspecting staff should draw a map of the premises, and take photographs to assist in returning the property to the pre- interim receiver position in the event that the bankruptcy petition is subsequently dismissed (see Part 5).
The inspecting officer should prepare an inventory of any stock, plant and machinery, equipment, furniture, fixtures and fittings belonging to the debtor. This should usually be prepared with the debtor to avoid later disputes concerning the assets comprised in the estate. The inventory should, wherever possible, state the make, type and any serial number of large items of plant, machinery, equipment, etc. The inventory should be signed by the debtor who should be present to avoid any later disputes. If the debtor refuses to sign the inventory, the inspecting officer should record the refusal and sign and date the note. Agents should only be instructed to make an inventory when the stock or property contents are valuable or extensive (see paragraph 2A.81).
A professionally prepared inventory should only be obtained if the inspecting officer cannot prepare an adequate inventory, and it is considered absolutely necessary due to the nature of the stock or quantities involved or their value, for example, where a debtor owns a property full of antiques. Such inventories will be expensive and are not always of any benefit. Reference should be made to Chapter 32.3 regarding the employment of an agent to undertake an inventory.
The debtor should be asked to identify all items on the premises in which third parties have an interest. The items may be subject to;
The debtor should produce all relevant documentary evidence, e.g. contracts, agreements, invoices etc. The inspecting officer should keep a record of items where documentary evidence of the name and address, together with the nature of the third party interest, is not available for removal. Where ownership of an item by a third parties has clearly been identified, the third party should be contacted and requested to remove the relevant property.
Where machinery or similar items are identified as third party property, the inspecting officer should consider attaching a label with the name and address of the claimant. When an item of equipment is subject to a hire purchase or lease agreement, the name of the owner may be displayed on a plate affixed to the machine. If a large quantity of items is shown to belong to third parties, the items should be clearly separated from the debtor’s property and any agents instructed should be advised accordingly. Reference should be made to Chapter 31.0, Part 2 regarding subsequent action in relation to third party goods.
If the debtor or one of his/her relatives or friends claims any property, those items should be clearly identified in the inspection report [note 6]. The relative or friend should be informed that they might be required to make a statutory declaration of ownership and produce documentary evidence in support of their claim [note 7]. Where the property claimed is a computer or laptop, the official receiver is entitled to secure the computer and take an image of any records if it is has been used by the bankrupt debtor in his/her business, only following the imaging and proof of ownership being provided should the computer be handed over (see paragraph 2A.87).
The debtor must provide information about his/her assets, whether on the premises or situated elsewhere. Typically this information will be included in the statement taken at the interview.
Where the debtor’s assets are present at the inspection address and can be removed, the official receiver’s agents should be requested to remove the assets on the day of the inspection to ensure their protection. This should only happen after the location of the assets has been noted on the map (see paragraph 2A.79).
Where the debtor has traded, all PAYE and personnel files should be taken back to the official receiver’s office for safe keeping. P45’s will need to be prepared where staff are to be dismissed, and details of all subcontractors should also be obtained. All the trading books and records and other documents relating to the estate, e.g. documents of title, cheque books, bank cards and correspondence should be listed and the location noted on site prior to being boxed up and removed. If they are not at the premises being inspected, the inspecting officer should obtain details of their current whereabouts and immediate steps should be taken for their collection.
Reference should also be made to Chapter 10 regarding custody of the debtor’s records.
Where an inspecting officer encounters computerised accounting records, immediate action should be taken to protect the data stored on computer and preserve the discs, drives or other media on which data is stored.
The official receiver should arrange for the all the records to be imaged prior to allowing anyone to access the computerised records. The consideration as to the requirement for computer imaging specialists to attend the premises is something the official receiver will need to consider as part of his/her planning prior to hearing to appoint a provisional liquidator (see paragraph 2A.20-2A.21). Where it is not possible for the computerised records to be imaged immediately the records should be safeguarded until such time as they can be imaged.
Further information on computerised accounting records can be found in Chapter 66.
Should an inspecting officer discover that a business is still trading, an assessment will need to be made as to whether it is likely to be beneficial to allow it to continue trading. Following assessment the inspecting staff should telephone the office to make recommendations prior to taking action to close a business down. In practice, it is likely that available information will have been considered in relation to any continued trading at the pre-appointment planning stage and prior to the inspection which will assist in this decision (see Part 1).
As a general principle, a business must not be carried on unless the official receiver, as interim receiver, is satisfied that to do so will ultimately be beneficial to the general body of creditors and that the estate is indemnified against any potential loss (see Part 4).
Reference should be made to Chapter 62 regarding continuance of a business.
If the official receiver, as interim receiver, considers that the business ought to be continued and this is not a power in the order of appointment, he/she should apply to the court for an amendment to the order. Before doing so the official receiver must ensure that there is an adequate indemnity in place and sufficient cash deposit or security from the applicant for the continuation of the business and any possible losses (see Part 4). The same provisions relating to deposits apply as if the original order included reference to the continuation of the business (see paragraph 2A.47).
Where the debtor commences a new business following the appointment of the official receiver as interim receiver, the official receiver may not necessarily object to this. The official receiver must, however, ensure that at the date he/she is appointed as interim receiver, any relevant assets are protected (see paragraphs 2A.62 to 2A.66) and any third parties or suppliers of the debtor are made aware of the debtor’s previous estate being under the control of the interim receiver (see paragraph 2A.103).
Where the official receiver decides to continue a business, consideration must be given to all liabilities which may arise. Claims may arise under performance clauses, loss or depreciation of assets, any tax liability arising as a result of capital gains, etc, all liabilities to employees, e.g. under the Employment Rights Acts (see paragraphs 2.97 to 2.100 and Chapter 76) and any other relevant statutory provisions. So that the basis of any claim in relation to the loss or depreciation of assets is ascertainable, the official receiver should consider the advisability of arranging for valuations of any assets as at the date of appointment as interim receiver. The failure of the applicant to increase his/her deposit when required to do so must also be reported to the court so that the court may, if it thinks it the right course, terminate the official receiver’s appointment as interim receiver. [note 8].
Where the applicant has failed to provide an increased deposit or security, the debtor may be able to introduce a third party guarantee against trading loss [note 10] and/or a cash deposit. If this is acceptable, the circumstances should be reported to the court and an appropriate order sought.
A business must be adequately supervised and the official receiver, as interim receiver, should consider applying to the court for an order appointing a special manager to assist him/her in the carrying out of his/her duties if appropriate [note 11]. See Chapter 32.4 for detailed guidance on the appointment of a special manager, including his/her duties, fees and remuneration and how the appointment is terminated.
Where a special manager is engaged to supervise continued trading, it is advisable that the official receiver requires the special manager to report to him/her verbally on a daily basis, and in writing every week so that the official receiver is always aware of the current position. The special manager does not take away the decision making power of the interim receiver.
Also see Part 4 of this chapter for further guidance on obtaining an indemnity where a special manager appointment is to be sought.
Whether or not a special manager is appointed, if the debtor is allowed to continue to trade, the official receiver should ensure that such proper accounting records are maintained as he/she considers appropriate in regard to the business. Where there is no special manager the debtor should account to the official receiver as interim receiver on an agreed basis and pay over to him/her all receipts, after deducting all business payments and sufficient monies agreed to cover household and personal expenses. In a court case in which an interim receiver had been appointed, it was held that the debtor was entitled to an allowance for household and living expenses out of the business receipts, although this amount was limited by the court [note 12].
If the official receiver is to supervises the business (in exceptional circumstances), he/she must collect all takings and ensure that purchases and services are not obtained on credit. If it is necessary to allow sales on credit, due regard must be had to the cash flow position of the business and the credit-worthiness of the buyers.
The official receiver, as interim receiver, should not assume personal liability for expenses, either expressly or by implication, and undertakings in respect of the payment of overhead expenses such as rent, rates and electricity should not be given unless the amounts incurred are covered by the deposit or security.
There is provision for the official receiver, as interim receiver, to negotiate for continuing supplies of electricity, gas, water and telecommunication services if he/she personally guarantees payment for such a supply [note 13]. A guarantee should only be given if it is covered by an indemnity, deposit or security. Payment of outstanding sums in respect of supplies at the date of the interim receiver’s appointment cannot be a prerequisite for the new supply.
The appointment of the official receiver, as interim receiver, does not of itself affect the rights or status of employees. Depending on whether or not a business, or part of a business, is to be continued, an interim receiver should ask the court to order that he/she has power, on the debtor’s behalf, to continue the employment of and pay some or all of the employees or that he/she cause the debtor to terminate their employment at his/her discretion. Where a business is to be continued it will often be necessary to keep on key staff, such as office managers and computer operators.
If employees are dismissed (see paragraphs 2A.73 to 2A.75), the notices affecting dismissal should be issued by the official receiver where he/she is acting as interim receiver, and not by any special manager who may be acting and who may, if he/she issues such notices, become personally liable in relation to the termination of employees’ contracts. The official receiver should base dismissal notices on the standard bankruptcy letter [note 14]. When considering the dismissal of employees, the official receiver should, wherever possible, attempt to minimise possible claims against the estate by employees whose contracts have been terminated. For instance, he/she should always try to give an adequate period of notice in accordance with the employee’s contract of employment to minimise claims for pay in lieu of notice if bankruptcy were to follow. Where urgent action is required, however, it may not be possible to comply fully with the terms of the contract.
An employee who is dismissed should be advised to apply to the appropriate Redundancy Payments Office for a redundancy payment [note 15] on the grounds that his/her employer is unable to pay because of financial difficulty. The Redundancy Payments Office will ask the interim receiver to acknowledge the debtor’s liability for the payments concerned and the subsequent debt to the National Insurance Fund. Such acknowledgement should be given as soon as possible, as redundancy payments cannot otherwise by made.
See Chapter 76 for more information on employment rights.
Dismissal due to an interim receivership (see paragraphs 2A.73 to 2A.75), does not trigger an employee’s right to any insolvency payments under Part 12 the Employment Rights Act 1996 for any of the following:
(a) Arrears of pay;
(b) Holiday pay; or
(c) Pay in lieu of notice.
The right to a payment in respect of these will only arise if and when a bankruptcy order is subsequently made.
For an interim receiver to obtain a redirection of the debtor’s post, a specific order from the court is needed, as is the case in a bankruptcy [note 16]. There are no specific provisions for the court to make such an order under the Insolvency Act 1986, and it should not be requested as a matter of course. It may be that the circumstances of a particular case would benefit from the interim receiver obtaining a redirection order, and if that is the case, the court should be asked to include the term in the order appointing the official receiver as interim receiver. Due to the interaction between the Human Rights Act 1988, the Interception of Communications Act 1985, and the Insolvency Act 1986, (see Chapter 13, paragraphs 13.88 to 13.95), there are questions as to the legality of intercepting the debtor’s post. It has been held that the redirection of the bankrupt’s post does not per se breach the Human Rights Act [note 17] provided its terms are strictly observed and it is not used in a disproportionate manner. [note 18]. Reference should be made to paragraphs 13.88 and 13.93, before consideration is given to applying for the redirection of the debtor’s post.
If a redirection order is obtained, Royal Mail should be instructed to redirect the mail addressed to the debtor to the official receiver, for the period contained within the order, which should be no more than a three month period. A separate request must be made for every trading address contained within the redirection order, together with a separate one for any trading name at each address, see Chapter 3, paragraph 3.45.
Where the debtor is trading on the making of the order appointing an interim receiver, and it is decided to cease that trading, it is important that the official receiver notifies any third parties of the order on that day. The official receiver should adapt the standard bankruptcy letters in order to notify the following third parties:
The official receiver as interim receiver is an officer of the court and has a role independent of the interim receivership process. If a creditor requests information as to why an interim receiver has been appointed, the official receiver should provide the creditor with details of the interim receiver’s functions (see paragraph 2A.40). If the creditor wishes to know the grounds upon which the petition was presented, the official receiver should refer the enquirer to the petition which is a matter of public record.
As the official receiver’s powers, as interim receiver, may be limited by the court order of appointment, his/her role is usually limited to the collection and protection of assets (see paragraphs 2A.43 to 2A.45 and paragraph 2A.49) [Note 25]. Where the value of the assets are likely to be diminished between the appointment of the official receiver as interim receiver and the bankruptcy petition hearing, the power of sale of assets should be sought by the official receiver at the time the order is made or shortly afterwards. Such assets could be:
It is important to remember that the bankruptcy order may not be made, so extreme caution should be exercised when considering the realisation of assets. The bankrupt should always be served with notice of the official receiver’s intention, as interim receiver, to realise assets.