April 2004

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.

13.3 Steps to secure co-operation

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;

1. send a formal written warning to the person concerned advising them of the legal position as regards co-operation with the official receiver (see Part 2);
   
2. take such further appropriate action to warn the officer, partner, bankrupt or third parties (e.g. accountants) of their responsibilities and the consequences of non co-operation;
   
3. where non co-operation occurs during the preliminary examination, details of the non co-operation must be recorded in the CARB (preliminary action return) with details of action already taken and proposed further action to be taken to enforce co-operation;
   
4. where non co-operation takes place or continues after the completion of the CARB, this should be recorded on the office file together with details of any enforcement action taken.

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.

13.4 Non surrender of company officers, partners or bankrupts

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:

1. attempt immediately to contact the officer, partner or bankrupt and arrange a further appointment,
   
2. if the officer, partner or bankrupt cannot be contacted, or a second appointment is missed, send a formal written warning to the person(s) concerned advising them of the legal position as regards co-operation with the official receiver (see part 2). If needs be, a third attempt must be made to arrange an appointment.
   
3. if considered appropriate, obtain a court order to redirect all mail addressed to the bankrupt (see Part 9),
   
4. take such further action, as appropriate, including an inspection or hand delivery of an appointment letter, to contact the officer, partner or bankrupt to warn them of their responsibilities and the consequences of their failure to attend. Any contact made under such circumstances can be demonstrated to the court at public examination to show that the respondent is aware of the proceedings.

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).

13.5 Illness

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.

13.6 When enforcement procedures are appropriate

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.

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