The Legislative Reform (Insolvency)(Miscellaneous Provisions) Order 2010 (LRO) introduced provisions from 6 April 2010 which permit the official receiver and other office-holders to convene meetings on a remote basis. Where considered appropriate, the convener can arrange for a meeting to be held in such a way that persons who are not present together at the same place may all attend without the need for travel or other inconvenience [Note 1] [Note 2].
In practice a remote meeting may, where the technology is available, be held via a telephone conferencing system or by accessing a web-based forum page, although the Rules do not limit the convener by specifying the methods to be used for conducting the meeting.
The normal guidance and rules for making the decision as to whether a meeting should be called, submission of proofs and proxies and determining who can attend at a meeting apply to remote meetings. See parts one, two, four, five and six.
A person is considered to have attended a remote meeting where they have been able to exercise any rights that they may have to speak or vote at the meeting [Note 3] [Note 4]. This means that the ‘attendee’ must be in a position to communicate any information or opinions which they have regarding the business of the meeting, to all those attending. The attendee must also be able to vote during the meeting on resolutions put to the vote. Their vote can then be taken into account in determining whether or not such resolutions are passed, at the same time as the votes of all the other persons attending [Note 5] [Note 6].
It is for the official receiver as convener to make whatever arrangements he/she considers appropriate to enable those attending to exercise their rights to speak or vote. The convener must confirm the identity of those attending the meeting and ensure that any electronic means used to enable attendance at the meeting are secure [Note 7] [Note 8].
When issuing meeting notices where the intention is to conduct a remote meeting the convener does not have to specify a place for the meeting but must provide details of the time and date and the arrangements they propose to enable attendees to speak or vote [Note 9] [Note 10] [Note 11]. When making arrangements to convene a remote meeting the convenor must take into account the needs of the proposed attendees, and their respective legitimate interests in bringing the business of the meeting to an effective conclusion [Note 12] [Note 13].
Where the official receiver has issued meeting notices specifying arrangements for the meeting to be held on a remote basis, the creditors or contributories can request that a place for the meeting be specified instead. In the case of a meeting of creditors or contributories a valid request to specify a place for the meeting must be supported by not less than ten percent in value of the creditors or contributories.
Any request to specify a place for a meeting of creditors must be accompanied by the following:-
The request must be made within 7 business days of the date on which the official receiver sent the notice of the meeting [Note 15].
Where the convener considers that the request has been properly made in accordance with the requirements of the Act and the Rules, he/she must do the following:-
The notice that the meeting is to be held at a specified place and the notice giving details of the venue, may be given at the same time or separately [Note 16]. In practical terms a combined notice should be issued wherever possible so as to minimise costs to the estate.
There may be occasions where, despite having taken all necessary action to attend a remote meeting under the arrangements made by the convener, those arrangements do not permit a person to be able to attend the whole, or part, of the meeting. The person is in such circumstances referred to as an ‘excluded person’. Where the chairman becomes aware that a person is excluded from the meeting, he/she can take the following action:
Alternatively the chairman has the discretion to declare the meeting suspended for a period of up to one hour, without the need for an adjournment [Note 18]. This may be sufficient time for the difficulties to be resolved so that the excluded person is able to attend.
Should the chairman take the decision to continue the meeting, the meeting is valid unless a complaint is received under Rule 12A.25 (see paragraph 16.164 below), or the court directs otherwise [Note 19].
Any person who claims to have been excluded from a meeting can request an ‘indication’ of what occurred during the period of their exclusion from the meeting. The request must be made as soon as reasonably practicable and no later than 4.00pm on the business day following the day on which the exclusion is purported to have occurred [Note 20]. The request must be made to either the chairman of the meeting, if it is made during the course of the meeting, or to the office-holder where the meeting has been concluded [Note 21]. The ‘indication’ must be given to the person making the request as soon as reasonably practicable but by no later than 4.00pm on the business day following the day on which the request was made [Note 22].
Any person who claims to have been excluded from a remote meeting, or attended the meeting but considers they were adversely affected by another person’s actual, apparent or claimed exclusion, can make a complaint [Note 23]. The complaint must be made to the ‘relevant person’ who is either the chairman of the meeting if the complaint is made during the course of the meeting, or to the office-holder where the meeting has been concluded [Note 24]. The complaint must be made as soon as reasonably practicable but no later than 4.00pm on the business day following the day on which the person was, appeared or claimed to be excluded, or the day on which the complainant received the ‘indication’ (see paragraph 16.163 above) [Note 25].
The relevant person receiving the complaint must firstly consider whether there was an excluded person, and where satisfied that an exclusion has occurred must then consider the complaint. If it is shown that there has been prejudice, such action should taken as considered fit to remedy the prejudice [Note 26].
If it is shown that an exclusion occurred, that a resolution was voted upon during that period and the excluded person has stated how they would have voted on the resolution, the relevant person must consider if the vote would have changed the result of the resolution. Where he/she is satisfied that that it would have changed the result, the intended vote should be counted as being cast in accordance with the complainant’s stated intention. Accordingly the record of the result of the resolution should be amended and where notice of the resolution has been issued to those entitled to attend the meeting, notice of the change in the result of the resolution should also be issued [Note 27] [Note 28]. The complainant must also be notified in writing of any decision [Note 29]. Where there is more than one excluded person, regard must be had to the combined effect of the intended votes [Note 30].
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