Part 4 - Service and notice of order
April 2000
(Amended April 2012)
Note: [r4.211 and, r4.212 as amended by the Insolvency (Amendment) Rules 2010, Form 4.61 and form PEN, or r6.172 as amended by the Insolvency (Amendment) Rules 2010, Form 6.55 and form PEN]
[r12A.17 and Civil Procedure Rules 1998 rule 6.3]
The order appointing a hearing for a public examination should be served on the examinee as soon as is reasonably practicable after the order is made. Ordinary first class post is the usual method of service, although the Civil Procedure Rules provide for various other methods of service including personal service, document exchange, leaving the document at a specified place and fax or other means of electronic communication (see chapter 19, part 7 – service of documents, for further information). Service should be effective at least 14 days before the hearing. The order contains a ‘penal clause’ warning the subject of the order that a failure to attend the hearing may result in imprisonment and is accompanied by a letter which explains that the individual is liable to be arrested if he/she fails to attend the examination.
Certain courts may require that the examinee be served additionally by recorded delivery post before considering issuing a warrant, but this is not essential unless the court so requires. Personal service may also be used in addition to first class post if the proposed examinee was known to be about to leave an address to attempt to avoid service, or if court practice dictates the use of such a method. If personal service is not to be effected in a case where the official receiver is likely to request a warrant for arrest, the official receiver must be able to satisfy the court that all reasonable steps have been taken to contact the director/bankrupt and that they are aware of the proceedings. Service should be effected at all known addresses.
If the official receiver is aware that the examinee no longer lives at an address and does not know any other, he should draw these facts to the court’s attention and may seek an order for substituted service on another party. If a solicitor has agreed to accept service on behalf of an examinee where the latter’s address is unknown to the official receiver but is known to the solicitor it is probable that the court will accept such service as adequate. The court may order substituted service on a solicitor even if the solicitor is unwilling to accept service. Reference should be made to paragraph 14.11 above where there is no known address for service.
Further information relating to the service of documents generally may be found in chapter 19 - Court practice and procedure, part 7 - Service of documents.
14.19 Effective date of service (Amended August 2010)
Note: [r12A.17 and Civil Procedure Rules 1998 rules 6.2 and 6.26]
Service by first class post will be effected, unless the contrary is shown, on the second business day after the date of posting, which date is presumed to be the post-mark on the envelope containing the order.
"Business day" means any day except Saturday, Sunday or a bank holiday; and "bank holiday" includes Christmas Day and Good Friday.
A document served in accordance with the Civil Procedure Rules is deemed to be served on the dates provided in Annex 1.
14.20 Verification of service
(Amended May 2011)A certificate of service [Form N215] should be prepared by the person who effects service, and filed in court (this is required to be done within 21 days of service having been effected). Where service has been by post the certificate of service should be completed by the person responsible for the outgoing post [rule 12A.8] it is important that the certificate is completed in its entirety including the statement of truth. This will assist the court in the issue of a warrant for arrest if the examinee fails to attend.
The certificate of service must state the details set out below [CPR 6.17]: -
|
Method of service |
Details to be certified |
|
Personal service |
Date of personal service |
|
First class post, DX or other service which provides for delivery on the next business day |
Date of posting, or leaving with, delivering to or collection by the relevant service provider |
|
Delivery of document to or leaving at a permitted place |
Date when document delivered or left at the permitted place |
|
Fax |
Date of completion of the transmission |
|
Other electronic means |
Date of sending the email or electronic transmission |
|
Alternative method or place permitted by the court |
As required by the court |
14.21 Service out of the jurisdiction
Note: [r12.12(3) or r12A.20 for post 6 April 2010 petition cases]
The court may order a person living outside it’s jurisdiction to appear before it at a public examination, irrespective of his/her nationality. The court may specify the time and manner in which service should be effected and may require such proof of service as it thinks fit. See also chapter 19, paragraph 19.95.
Note: Re Seagull Manufacturing Co Ltd [1991] 3 WLR 307
14.22 Discovery of an additional address
Where an additional address is discovered after service of the order the official receiver should ensure that the examinee is immediately served with the order at the new address and should file a further report to court stating the details of the service. It will not be sufficient for the official receiver to inform the court at the hearing, of the further address that has been served, if it is to seek a warrant for the arrest of the examinee. If the examinee fails to attend and it was not possible to serve the new address at least 7 days prior to the hearing then the official receiver should seek an adjournment, so that service may be put in order.
Where it is anticipated that the examinee is unlikely to attend the hearing and a warrant will be sought, at least 7 days before the hearing the official receiver should ensure that all known addresses have been served and that service is in order. If a defect in service is discovered, which cannot be remedied to provide adequate service, and the examinee does not attend the examination, then the hearing should normally be adjourned so that proper service can be effected.
14.24 Proposed examinee in custody (Amended June 2010)
In the case of an examinee who is in prison custody an application for production must be made by the official receiver by letter addressed to the Governor of the prison where the interviewee is being held. Contact details for prisons are available at http://www.hmprisonservice.gov.uk/prisoninformation/locateaprison/. The official receiver should also confirm that the costs of production will be met from the insolvent’s estate. The order for public examination to be served on the examinee must be sent to the prison governor with a covering letter requesting that he arrange service on the examinee.
Notes: [Form 4.61 or 6.55]
Prison inmates are allocated different security ratings and a prisoner who is graded with a security rating "A" will not be produced for a public examination as that person is considered to be a maximum security risk. In such cases the prison governor should be requested to have the inmate’s file clearly marked that notification should be given to the official receiver if it is intended to release that person or if his security rating is downgraded to "B".
The expenses of bringing an examinee in custody to the court must be charged to the estate.
Note: [r4.212(2) or 6.172(3) both as amended by the Insolvency (Amendment) Rules 2010] [form PEN]
The official receiver must also give at least 14 days’ notice of the hearing to:
Notes: [form PEN]
14.26 Relief from giving notice to creditors
The official receiver can seek a direction of the court to relieve him from the obligation to send notice to all creditors (and contributories). It is usual to seek such a direction where the public examination is being held exclusively to enforce co-operation or where the number of notices to be sent exceeds 50. If the official receiver thinks that notice to certain creditors (e.g. those with the largest claims) would be useful in the context of the examination, the official receiver may, as part of the same application, seek a direction to send notice to those creditors only.
Note: [r4.212(2)(c) or 6.172(3)(c) both as amended by the Insolvency (Amendment) Rules 2010 and 10.3]
14.27 Publication of the examination (Amended August 2010)
The official receiver may publish notice of the public examination in the Gazette and if necessary advertise it in any other manner, as he/she thinks fit. A notice of a public examination may not be advertised without also being gazetted. The notice must appear at least 14 days before the date fixed for the hearing.
In a winding up where the petition was presented before 6 April 2010, unless the court otherwise directs, the notice may not appear before at least 7 days have elapsed since the examinee was served with the order.
For post 6 April 2010 petition cases, in a winding up, where the court’s order relates to a person falling within section 133(1)(c), unless the court otherwise directs, the notice may not appear before at least 5 business days have elapsed since the examinee was served with the order.
Notes: [r4.212 or r6.172 both as amended by the Insolvency (Amendment) Rules 2010]
14.28 Consideration of whether to publish (Amended April 2009)
Whether or not notice of an examination is published in the Gazette is a matter of discretion for the official receiver and he will wish to consider whether in the particular circumstances of any case such a publishing would produce a benefit in relation to his inquiries and the usefulness of the examination. Any advertisement of an examination should be placed in a such place as is likely to be seen by the greatest number of interested persons.
The potential publication or advertisement of the public examination, which would include the examinee’s name, may be used to persuade a potential examinee to attend and the possibility of such an occurrence should be included in any warning letters sent.
See Chapter 5 – Part 3.
[Back to Part 3 - Requests] [Onto Part 5 - Co-operation before the publication examination]