PUBLICATION OF INSOLVENCY INFORMATION - PRACTICALITIES
NOTE: THIS PART IS ONLY APPLICABLE IN RELATION TO CASES WHERE THE PETITION WAS PRESENTED ON OR AFTER 6 APRIL 2009
As regards the Rules relating to the publication of insolvency information, it is generally the case that where publication is required this means that the relevant notice should be published once in the Gazette, and this should be done as soon as reasonably practicable (see paragraph 5.3). There is no automatic requirement that the relevant notice be published in any other place – for example, in a newspaper - as was the case prior to the Rules changes in April 2009 – this decision is left to the discretion of the office-holder.
Annex 2 to this chapter contains a summary of Rules relating to insolvency events over which official receiver has responsibility and/or discretion to publicise.
There are three matters of publication for which the official receiver is responsible in his/her role as Official Receiver (as opposed to his/her position as liquidator or trustee). These are:
The first two listed duties remain even where a liquidator or trustee other than the official receiver has been appointed by court immediately on the making of the winding up order or bankruptcy order. In the third case, of course, the official receiver would not call a first meeting where a liquidator or trustee other than the official receiver had been appointed by the court or otherwise by the Secretary of State.
Where a case is transferred to another official receiver at the initial stage, it is the responsibility of the receiving official receiver to ensure that the relevant insolvency event (see paragraph 5.9) is published.
Generally, there is a principle in the Rules that the publication of insolvency information should be done as soon as is reasonably practicable. Whilst this does not set a deadline by which the official receiver should carry out this function, it is expected that the publication would be carried out as soon as any necessary information is available. In the case of the Gazetting of a notice of a winding up order or bankruptcy order (see paragraph 5.26 and 5.27), this must be carried out as soon as the sealed order is received.
See paragraph 5.47 regarding discretion in relation to the timing of an advertisement.
The most commonly used gazette notices (the making of an insolvency order and the amendment of a bankruptcy description) are produced electronically which means that the official receiver is primarily responsible for the production of gazette notices, but only partly involved in the process. Where a gazette notice is created and forwarded electronically, it is automatically downloaded to a file that is monitored by CUST, then at 0500 hours each day the file is automatically formatted. It is then available for the Fees & Data Management (F&DM) team within Estate Accounts Services (EAS) to access and arrange for publication. Gazette notices will usually be published two working days after being sent for publication by the F&DM team.
For other events the gazette notice is prepared using a word template and the completed form is sent as an e-mail attachment to firstname.lastname@example.org. The subject line of the email should contain the account number which can be found in the ISCIS Workbook, and the name of the office that is submitting the advert.
See the Case Help Manual part on Publication of Insolvency Information for further guidance and details of the forms to be used.
With effect from 6 April 2010 the rules specify the standard contents of all gazette notices and advertisements. The information may only be omitted if it is not reasonably practicable to obtain it (for example where initial contact with the insolvent has not been possible and as a result the information is not known) [note 0]. The provisions are summarised as follows:-
1. There are standard contents requirements for every gazette notice and advertisement which include the name, address and contact details of the office-holder together with details of the capacity in which he or she is acting and for relevant gazettes, the date of the office-holder’s appointment. [note 1] [note 1A]
2. There are then additional requirements depending on whether it is a company or bankruptcy matter. For companies the additional standard contents requirements include: the registered name and number, any other registered name of the company during the 12 months before the commencement of the winding up, any trading names and for gazettes the registered office address and principal trading address [note 1B] [note 1C]
In addition to the standard contents, the rules also specify additional contents that must be included for each insolvency event that is gazetted and advertised. The main content requirements are as follows:
This list is not exhaustive but templates have been prepared for all the events likely to be published by the official receiver to include all the standard and required contents to comply with the rules. To locate the appropriate forms please see Case Help Manual part Publication of Insolvency Information – Forms to be used.
Only one print of the gazette notice must be made (but this should not be carried out until the order or notice of order is received – see paragraph 5.11) and, once printed, this should immediately be placed on the office file. If, for any reason, a gazette notice is duplicated, the information will be automatically downloaded and forwarded electronically again (see paragraph 5.12), which will result in another gazette entry of the same information. If this should occur, contact by e-mail must be made with the F&DM team email@example.com as soon as possible, to notify them of the error and request that the second entry be removed.
5.14 Where gazetted order is varied or mistake is made
Where an order of the court which is gazetted has been varied, and where any matter has been erroneously or inaccurately gazetted, the person whose responsibility it was to place the original entry in the Gazette is required to cause the variation of the order to be gazetted or, as the case may be, a further entry to be made in the Gazette for the purpose of correcting the error or inaccuracy [note 2].
Where an order or notice of order is received from the court, it should be carefully checked prior to any required publication. If there is any doubt as to whether the order ought to have been issued (for example, where there is a stay in proceedings in force), or if there are inaccuracies in the order, the official receiver should refer the matter back to the court before taking any further action. It is better to act in this way, rather than causing the publication of a notice which may turn out to contain inaccurate information.
5.15 Gazette notice as evidence
A copy of the Gazette containing any notice required by the Act or Rules to be gazetted is evidence of any facts stated in the notice [note 2A]. Similarly, where a notice of an order has been gazetted, a copy of the Gazette containing such notice may be produced in court proceedings as conclusive evidence that the order was made on the date specified in the notice [note 3].
The requirement to file copies of gazette notices and other advertisements at court was removed from the Rules as a result of the amendments in April 2009. With effect from 6 April 2010, this applies to any notices appearing after that date regardless of the petition date. [note 3A]
(Amended July 2011)
The Service has a Service Level Agreement for its advertising with TMPW. Contact with TMPW should be made by email to firstname.lastname@example.org, or by telephone on 020 8501 9730. The services account coordinators are-
Ewan Clydesdale 020 8501 9731
Laura Browne 020 8501 9735
John Watson 020 8501 9701
The account coordinators will handle any day to day enquiries.
5.18 Preparation and placement of a newspaper advertisement
(Amended July 2011)
A newspaper advertisement is created by completing the relevant forms [note 4] [note 5] [note 6] [note 6A] and then forwarding them electronically to the relevant contact at The Service’s agents, TMPW (see paragraph 5.17), along with a covering letter [note 7]. More information concerning the practicalities of advertising are contained in the Case Help Manual Part – Publication of Insolvency Information. Requests for publication should be made to TMPW by Thursday 5 pm for publication in the following week’s issue.
On receipt of the request, the Service’s advertising agent (see paragraph 5.17) will check the advertisement for mistakes. If there are any mistakes in the original court order, such as the incorrect spelling of a name in the bankruptcy description, for example, the official receiver should highlight the error by underlining it. This will let the agents know that the official receiver is aware of the error but that it is to be published as it stands. If mistakes other than those highlighted are found, the agent will e-mail or telephone the originating official receiver to check whether a correction is required. Any such checks via e-mail will be headed up to indicate the urgency of the matter.
(Amended January 2010)
On receipt of the request, the agents (see paragraph 5.17) will arrange for the advertisements to be published. Advertisements for new winding-up orders or bankruptcy orders should be published within eight days of receipt of the request, provided that the order is received by the weekly deadline (see paragraph 5.18). Where the official receiver requires an advertisement to be published on a specific date, such request should be notified to the agents.
(Amended July 2011) Certificates of publication are no longer required to be retained or filed at court. They will, therefore no longer be provided by the agent as a matter of course. If a certificate of publication is required in exceptional circumstances then a request may be made to TMPW. Invoices are forwarded by the agents (see paragraph 5.17) directly to Official Receivers’ Business Support (ORBS) on a weekly basis. Payment of invoices has been centralised and is generated by ORBS. Payment is made from a centralised cost centre and account code. The invoices will be issued only after the agent has received proof of publication of the advertisement, which will generally be within 21 days of publication. Details of the invoices will be provided, for information, to local offices by the Service Delivery Manager TMPW will acknowledge all public notice orders within 2 hours, either by email or telephone.
(Amended July 2011)
Certificates of publication are no longer required to be retained or filed at court. They will, therefore no longer be provided by the agent as a matter of course. If a certificate of publication is required in exceptional circumstances then a request may be made to TMPW.
Invoices are forwarded by the agents (see paragraph 5.17) directly to Official Receivers’ Business Support (ORBS) on a weekly basis. Payment of invoices has been centralised and is generated by ORBS. Payment is made from a centralised cost centre and account code. The invoices will be issued only after the agent has received proof of publication of the advertisement, which will generally be within 21 days of publication. Details of the invoices will be provided, for information, to local offices by the Service Delivery Manager
TMPW will acknowledge all public notice orders within 2 hours, either by email or telephone.
If the official receiver is notified of an order staying the proceedings or of an order for a stay of advertisement, or notice is received from the court of an application for any stay, the Gazette notice for publication must not be generated. If the notice has already been generated, every effort must be made to prevent publication (see paragraph 5.23).
Similarly, no advertisement of any insolvency event should be carried out (see paragraph 5.24).
If the gazette notice has already been generated, the official receiver must e-mail the (F&DM) team at EAS (email@example.com) as soon as notification is received that a court order for a stay of advertisement has been made, or that such an application has been made and is pending. Where it is possible to stop publication of the gazette, the F&DM team will allocate a unique security number and reply to the local office e-mail, with the security details. A copy of the e-mail should be placed on the case file.
Gazette notices are usually published on the second working day after receipt by the F&DM team. A gazette notice can only be stopped where notification is received before midday on the day before the publication date.
Where notice to the newspaper has been prepared but not yet dispatched, all copies awaiting forwarding to agents (see paragraph 5.17) should be retrieved and destroyed, together with any other file copies. This is to stop the inadvertent advertisement of a matter. A file note of the action taken and the reason for it should be made and placed on the case file.
Where the newspaper advert has been sent, immediate contact should be made with the Service’s agents with instructions to cancel publication. If contact is by telephone the name of the person who is spoken to at the agents should be taken and the telephone call should be followed up with confirmation in writing of request for the cancellation of the newspaper advertisement. Where contact is made by e-mail, the matter should not be concluded until confirmation of the cancellation of the advertisement has been received. A file note recording the actions should be taken and placed on the case file along with the copy letter, or a copy of any e-mail exchanges.
Where the official receiver has been appointed provisional liquidator [note 8], he/she is required to publish notice of the appointment [note 9] and, where appropriate, termination of appointment in the Gazette [note 10]. Where the appointment is followed by the making of a winding-up order, there is no requirement to publish notice of the termination. Both the provisions to publish are at the discretion of the court, which can order otherwise.
The official receiver is only required to publish notice of the termination of his/her appointment in cases where a winding-up order does not follow his/her appointment.
On receipt of the winding up order made against a company the official receiver, as soon as reasonably practicable, is required to publish notice of the order in the Gazette. In addition, the official receiver may advertise notice of the order in such other manner as he/she thinks fit [note 11] (see Part 3).
On receipt of sealed copies of the bankruptcy order made against an individual the official receiver, as soon as reasonably practicable, is required to publish notice of the order in the Gazette. Care should be taken to seek amendment of the bankruptcy order before gazetting if the description contains any sensitive information or there has been any order under the ‘persons at risk of violence provisions’, (paragraph 5.37 and paragraph 5.45A). In addition, the official receiver may advertise notice of the order in such other manner as he/she thinks fit [note 12] [note 13] (see Part 3).
If the official receiver is holding a first meeting of creditors and contributories (in a liquidation) or a first meeting of creditors (in a bankruptcy) (see Chapter 16), he/she is required to publish notice of the meeting in the Gazette and may further advertise in such other manner as he/she thinks fit. [note 14] [note 15] Where the meeting is adjourned (see Chapter 16, paragraph 16.52) there is no requirement to publish notice of the adjourned meeting, although the official receiver may choose to do so if it is apparent that initial notice of the meeting had failed to reach the creditors - for example, if a postal strike had intervened.
For a general meeting in bankruptcy for cases where the petition was presented before 6 April 2010, there is no obligation to publish such notice in the Gazette or advertise in any other manner unless the convenor thinks fit.
For bankruptcy cases where the petition was presented on or after 6 April 2010, the convenor must as soon as reasonably practicable publish notice of the general meeting in the Gazette and may also advertise in such other manner as he/she thinks fit. [note 18]
Where a bankrupt makes an annulment application on the grounds of payment in full [note 19] and either the trustee or official receiver has reported to the court that there are known creditors who have not proved, the court may direct the trustee or, if there is no trustee, the official receiver to advertise the fact that the annulment application has been made so that possible creditors may put in their claims within the period stated in the advertisement [note 20].
Similarly where, in an annulment application, a debt is disputed or a creditor who has proved can no longer be traced and the bankrupt has been required to give security for such sum as may be proved to be due [note 21] the court may direct that particulars of the alleged debt and security be advertised in such manner as it thinks fit [note 22].
This is at the discretion of the court (rather than the trustee or official receiver), and the word “advertise” in the relevant Rules can be taken to include publication in the Gazette. This is a matter of publication to which the general principle outlined in paragraph 5.3 does not apply.
Where the court orders the annulment of a bankruptcy order, the former bankrupt is entitled to request, in writing and within 28 days of the making of the annulment order, that the Secretary of State give notice of the making of the order of annulment in the Gazette and in the same manner as the bankruptcy order was originally advertised (assuming it was, in fact, advertised originally) [note 23] [note 24]. The costs of such publication are met from the administration fee.
This is one of the few occasions where the official receiver would be required to advertise in addition to the usual mandatory requirement to publish in the Gazette, and where there is no choice regarding the form of advertisement.
Whereas application for publication of a notice of annulment is made to the Secretary of State, in practice the matter is dealt with by the official receiver.
Where there is an order suspending action by the official receiver (see paragraph 5.27) and as a result no gazetting or advertisement of the bankruptcy order has taken place, the former bankrupt can still request an annulment to be gazetted. Logically, though, there is no provision for advertisement in such a case, as the Rules [note 25] provide for such an advertisement to be placed only in any form in which the bankruptcy order was originally advertised (see paragraph 5.27).
Generally speaking, a stay of proceedings or stay of advert will expire with the hearing of the annulment application (if not before) (see paragraph 6.27). In the unlikely event of the stay still being in place at the date of the request for gazetting or advertisement of the annulment from the (former) bankrupt, the directions of the court should be sought before proceeding, unless the matter can be resolved in correspondence with the former bankrupt.
Where the official receiver, as liquidator, obtains a court order authorising a call on contributories (see paragraphs 31.10.41 to 31.10.47), the court may direct that notice be given to the individual contributories concerned, but is only advertised if the court so orders [note 26].
This is at the discretion of the court (rather than the trustee or official receiver), and the word “advertise” in the relevant Rule can be taken to include publication in the Gazette. This is a matter of publication to which the general principle outlined in paragraph 5.3 does not apply.
A discharged bankrupt is entitled to request that the Secretary of State give notice of the discharge in the Gazette and in the same manner as the bankruptcy order was originally advertised (assuming it was, in fact, advertised originally) [note 27]. In practice this is dealt with by the official receiver on behalf of the Secretary of State The costs of such publication are met from the administration fee.
For cases with petitions presented on or after 6 April 2010, the request should be made by the former bankrupt within 28 days from the date of his/her certificate of discharge.
This is one of the very few occasions where the official receiver would be required to advertise in addition to the usual mandatory requirement to publish in the Gazette, and where there is no choice regarding that publication.
If the official receiver is publishing information in relation to a matter where the bankrupt has been discharged (perhaps, in relation to a distribution – see paragraph 5.35), he/she should be careful in the terminology that is used. For example, it may be appropriate to use the term “former bankrupt”.
Before declaring a first dividend the official receiver as liquidator or trustee is required to give notice of the intended dividend in the Gazette and may further advertise in such other manner as he/she thinks fit [note 28]. There is no requirement to gazette or advertise where the official receiver has previously, by notice in the Gazette, invited creditors to prove their debts [note 29].
See Case Help Manual part Distributions for more information on this subject.
Where the court makes an order under section 176A(5) relieving the official receiver of the duty to prescribe a part of a company’s net assets for the payment of unsecured debts [note 30] he/she must give notice as soon as reasonably practicable to each creditor of whose claim and address he/she is aware [note 31]. The court may direct that this requirement is complied with if a notice has been published by the official receiver as liquidator stating that the court has made an order disapplying the requirement to set aside the prescribed part. Such a notice shall be gazetted as soon as reasonably practicable and may be advertised in such other manner as the official receiver sees fit [note 32]. Notice of the order must also be given to the registrar of companies [note 33] using their prescribed form 12.1. http://www.companieshouse.gov.uk/forms/insolvencyForms/form12-1NoticeToRegistrarOfCompaniesInRespectOfOrderUnderSection176A.pdf
Particular care should be taken to ensure that, where a bankrupt is in prison at the date the petition is presented, no reference to the prison address is included in the bankruptcy order description. The court should remove the address to prevent the gazetted order including the prison address. If this has not been done prior to the official receiver receiving the bankruptcy order, the official receiver should refer the order back to the court to consider amending the order.
This is equally valid where a bankrupt has been a victim of domestic violence (see paragraph 5.45A) and requests that their location should not be advertised. There may be other cases where an individual’s safety may be compromised by the publication of insolvency information and, if appropriate, the official receiver may refer the matter back to court for consideration.
Depending on the views of the court, the phrases “address withheld” or “of no fixed abode” may be used as an alternative to publishing the actual or prison address.