13.2 The general problem of non co-operation
Non co-operation by company officers, partners and bankrupts can be a problem for official receivers. Examples of non co-operation may include failure or refusal to attend for interview, failure or refusal to deliver up records or assets and failure or refusal to provide information and documents such as accounts.
The official receiver should take all reasonable steps to secure the co-operation of the company officer, partner or bankrupt.
Where the official receiver believes that there has been serious non co-operation, the official receiver is required to;
A problem may be solved by a clear written warning from the official receiver of the possible consequences of non co-operation. Where after such a warning there is continued non co-operation, the official receiver must consider what action is necessary. The various methods of enforcing co-operation are detailed in Parts 3 - 9 of this chapter.
There may be occasions when a company officer, partner or the bankrupt fail to attend for interview when directed to do so, or when it has been agreed that they should attend. In such cases the official receiver must in general take action to ensure the attendance and co-operation of officers, partners or bankrupts, while allowing for the possibility of error or unavoidable absence.
The official receiver must:
Any information obtained about the case, together with details of the non surrender and the action taken to enforce attendance, must be recorded in the CARB so that the official receiver can decide whether the non surrender justifies further enforcement action with the aim of securing surrender. Such action may include public examination (see Part 4), application for a court order (see Part 6) the issue of a warrant (see Part 7) or suspension of the bankrupt’s discharge (see Chapter 22 Part 1 - Discharge from bankruptcy).
Where illness is given as a reason to postpone or cancel interviews, a medical certificate should be requested from the prospective interviewee. If the postponement/cancellation can be justified in the short term, other methods of obtaining the information should be considered, such as a home visit, telephone interview or use of questionnaires sent via the post.
The official receiver should ensure that any enforcement action taken is justified by the substance of the matters at issue, for example in respect of assets unaccounted for. Action taken should be proportionate to the seriousness of the consequences of the non co-operation. Enforcement should not be sought simply to assert authority over a bankrupt or director.
The intention in any enforcement procedures should be to obtain a positive, rather than simply a "tidy" conclusion to a case. A basic principle of the enforcement procedures which involve an application to the court is that any such application will be taken to a logical conclusion, including committal proceedings for contempt where an order of the court is ignored.