February 2006
Interviewing company officers, partners and bankrupts is an important part of the official receiver's investigation. Information obtained during the first interview together with any other information available will often form the basis of the decision as to whether further investigation should be carried out (see Part 4).
The official receiver should attempt to interview at least the principal director or officer in a compulsory liquidation, all members of a partnership and all bankrupts, with the exception of bankruptcy debtors petition type 0 cases (see paragraph 15.21)
First interviews, whether by telephone or attendance at the office, should be held as soon as possible after the making of the winding-up order or bankruptcy order, subject to attendance by the interviewee.The interviewee should be contacted within 2 working days of the making of the order.
Interviews can be carried out in the office, by telephone or in the case of a debtors petition bankruptcy at court directly following the making of the bankruptcy order. Generally, in the case of a winding-up order or a bankruptcy order made on a creditor's petition, the interview should be carried out at the official receiver's office dealing with the insolvency order. In the case of a bankruptcy order made on the debtor's own petition, the interview will usually be carried out by telephone, unless there are matters that would make an interview at the office more appropriate, or if the bankrupt is interviewed immediately following the making of the bankruptcy order whilst attending upon the official receiver at court or at the official receiver's office. In type 0 debtor's petition bankruptcy cases, no interview will be carried out.
Where an individual resides some distance from the official receiver's office dealing with the insolvency order, and the case is unsuitable for a telephone interview or for transfer to a closer office, a request can be made for the local official receiver's office to carry out the interview as an "in-aid" interview.
Where an individual is incapable of attending at the official receiver's office due to ill-health or disability, the official receiver may interview by telephone or face-to-face by visiting the individual at home, depending on the circumstances of the case.
For further information on the appropriate method of interview, see Chapter 11 Part 2, Part 3 and Part 4 - Interviews.
As far as possible, interviewees should have advance notice, at least in general terms, of the information that he/she will be required to provide at an interview.
15.33 Preliminary information questionnaire
The preliminary information questionnaire (PIQ) should be sent to and completed by the interviewee before the interview [note 1]. The interviewer is authorised to sign the "books schedule" in the PIQ, but apart from this, no additions, deletions or alterations should be made to the questionnaire by the interviewer.
If the PIQ is incomplete or further information is required on any point, the interviewee should be questioned on those matters and his/her answers should be recorded on continuation sheets to the PIQ [note 2].
For further information about the completion of the PIQ see Chapter 11 Part 2, Part 3and Part 4 - Interviews.
A narrative statement may be taken from the interviewee in addition to the PIQ to record any necessary further information. The pro-forma statement form should be used [note 3].
The statement should only contain information relevant to the case, and should not be padded with irrelevant details. It may be used to amplify one or more points arising from the PIQ. However, where a case is likely to warrant further enquiry or investigation, it should contain a concise chronological history of the insolvent and the dates and facts leading to the insolvency.
Where there are matters that suggest that misconduct may have occurred or offences may have been committed, the interviewee should be given the opportunity to provide explanations, which should be recorded in the narrative statement.
For further information about narrative statements see Chapter 11 Part 2, Part 3 and Part 4 - Interviews.
15.35 Record of information obtained in a debtor petition bankruptcy
In a debtor petition bankruptcy type 1 case (see paragraph 15.21) the telephone/court interview record form [note 4] should be used in order to focus on key issues and to record information obtained, whether the interview is conducted by telephone or face to face. The interviewee should not be asked to sign the telephone/court interview record. The telephone/court interview form may also be used in a type 2 case, or the official receiver may record the information obtained in any other appropriate form, such as bullet points.
If further investigation matters are dealt with during a debtor petition bankruptcy interview, the information taken on these matters must be recorded in a narrative statement. See also paragraph 15.34.
For further information about debtor petition bankruptcy interviews see Chapter 11 Part 3 - Interviews.
15.36 Admissions by interviewee
Although a director, partner or bankrupt may admit to an act of misconduct, e.g.falsification of accounting records, in the PIQ or narrative statement, the admission must be tested. The examiner should take steps to obtain information to corroborate the admission, as the interviewee may later withdraw the admission. It is also possible that an admission may conceal more serious misconduct such as the disposal or concealment of assets which should have been made available to creditors.
15.37 Roles and responsibilities of company officers
It is important that clear statements are obtained from the interviewee regarding what the respective duties and responsibilities were within the company. All aspects of the company's trading, for the whole period of trading and all those involved should be covered.
The roles of any other parties who are relevant to the consideration of the company's affairs should also be examined and explained. For example, the director may have delegated certain tasks to employees, accountants, the company secretary etc.
The official receiver must promptly obtain possession of the trading records of the company, partnership or bankrupt where he/she has traded in the relevant period before the order was made. Where accounting records are not recovered before the first interview, e.g. from an inspection, the interviewee should be required to bring them to the interview.
A receipt must be issued and a copy retained by the official receiver each time records are recovered by or delivered to the official receiver [note 5].
If the accounting records of a business are not recovered before the first interview, and the interviewee fails to bring them with them to the interview, the examiner must determine what records exist, where they are and who holds them. This information should be noted in the additional information sheets to the PIQ [note 6]. The examiner should arrange for the records to be delivered to or collected by the official receiver as soon as possible, and preferably before the case assessment record investigation decision (CAR B) is due to be completed.
The PIQ contains a schedule of records handed over, to be completed by the interviewee before the interview commences. Where the interviewee has not completed this part of the PIQ, and delivers up records at the interview, the examiner should complete a separate schedule of records handed over in appropriate cases [note 7]. The interviewer should use his/her discretion as to whether the facts of the case, as known at the time of the interview, merit the use of resources required to complete the schedule of records handed over. If the interviewer forms the view that any further investigation is unlikely then it is not necessary to obtain a completed form schedule of records handed over.
For further information about accounting records see Chapter 10 - Custody, storage, preservation and destruction of records. For information about computerised accounting records see Chapter 66 - Computerised accounting records.
15.39 Income payment orders and income payment agreements
Where a bankrupt is able to make payments from his/her income for the benefit of his/her estate, the level of payments to be made should be assessed at the first interview where possible, from the information contained in the statement of affairs in a debtor's petition or the PIQ in a creditor's petition [note 8].
In a face to face interview, the agreement can be prepared and signed by the bankrupt, or he/she can take it away to consider and sign. In a telephone interview, the agreement must be sent to the bankrupt to sign and return [note 9].
If a bankrupt will not consent to an IPA and the official receiver is of the opinion that he/she is able to make payments from his/her income for the benefit of his/her estate, the official receiver should pursue an IPO.
For more information on income payment orders and income payment agreements see Chapter 31.7 Part 3 and 31.7 Part 7 - Realisation of assets - income payment agreements and income payment orders.
15.40 Post bankruptcy fast-track individual voluntary arrangements
Where a bankrupt is able to offer more to creditors than the amount available under an IPO or IPA e.g. increased time period of payments or the injection of third party funds and he/she is willing to consider entering into a fast-track individual voluntary arrangement (IVA), he/she should be given the IVA forms at the first interview to take away and consider [note 10].
For further information on the fast track IVA procedure see Chapter 20 Part 6 - The official receiver's role in individual voluntary arrangements.
Where appropriate, IPO or IPA forms should be completed at the interview whether or not the bankrupt has been given IVA forms to take away and consider. This is so that an IPO or IPA can be actioned if the fast-track IVA proposal is not returned or if the IVA subsequently fails.
In some cases it may be necessary to re-interview a company officer, partner or bankrupt, or to interview a different company officer, after the CAR B has been submitted. The interview should be conducted in the same way as a first interview. If an interviewee has already completed a PIQ, he/she should not be required to do so again, although he/she may be questioned further on the content of the PIQ submitted.
The official receiver should ensure as far as possible that he/she has completed his/her investigation before a statement of facts, disqualification report or BRO report is submitted, and that all interviews necessary have been conducted.
See also Chapter 11 Part 6 - Interviews.
15.42 Interviewing after the decision to submit a disqualification report has been made
Where a director is asked to attend on the official receiver for an interview after the decision to submit a substantive disqualification report has been made, if the reason for the late interview is solely for the purposes of disqualification proceedings then the director should be informed that the official receiver is not seeking information under his/her general duty to investigate but rather providing the director with the opportunity to assist the Secretary of State in making the decision whether to commence disqualification proceedings. A copy of the leaflet "A Guide for Directors" should accompany the request for attendance unless the director has already been sent one.
It is not recommended that requests for information or attendance are portrayed as part of the official receiver's general (non-disqualification related) duties where that is not genuinely the case (e.g. the only reason the official receiver needs the information is to decide whether to target the case for a disqualification report).
For more information on the conduct of the investigation process after the CAR B has been submitted see Part 5.
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