PART 3
NOTICES
(cases where the petition was presented on or after 6 April 2010)
July 2010
NOTE
Transitional provisions for April 2010 Rules changes
The Insolvency (Amendment) Rules 2010 (IAR) came into force on 6 April 2010. For cases where the petition was presented on or after 6 April 2010 (unless in a company case there was a voluntary winding up resolution or certain administration proceedings prior to that date), the Rules described in this part will apply and the guidance and advice therein should be followed. Full details of the transitional provisions can be found in schedule 4 to the Insolvency (Amendment) Rules 2010 and a summary is available at Annex A. For the purposes of this part reference will only be made to the petition date in the transitional provisions.
For cases where the petition was presented before 6 April 2010 (or where any of the exceptions noted above apply), the Rules prior to the introduction of The Insolvency (Amendment) Rules 2010 will continue to apply and the guidance and advice in Technical Manual Chapter 16 Part 3 (issued August 2008) may be followed. This is attached at Annex B and has been renumbered consecutively (1, 2, 3 etc…) to avoid confusion with other paragraphs in this chapter.
Where it is necessary to use a place other than the official receiver’s office for the holding of meetings, consideration should be given to where the majority of the creditors (and, if relevant, the contributories) are situated. It should, however, only be necessary in exceptional cases to hold meetings away from the official receiver’s office. Where technology permits consideration can be given as to whether the convening of a remote meeting would be appropriate (see Part 12 for further information).
First meetings in the liquidation should usually be held on the same day, with the contributories’ meeting immediately following the creditors’ meeting. Unless the court otherwise directs, meetings must be commenced between 10 am and 4 pm on a business day [Note 1] [Note 2] [Note 3].
16.26 Notices of first meetings - Recipients
With the implementation of the IAR 2010 the official receiver is no longer required to send a copy of the notice for first meeting to the court. Notices must be sent to the following:
In all cases the notice of first meetings must be published in the Gazette, and may be advertised in such other manner as the official receiver thinks fit. [Note 10] [Note 11]. The IAR 2010 specify standard contents for all gazette notices and other advertisements [Note 12]. When gazetting or advertising first meetings the notice must also contain further specified contents [Note 13] [Note 14]. The forms required for requesting publication of such notices are available within the Case Help Manual part ‘Publication of Insolvency Information. These forms should be completed fully so as to comply with the content requirements of the Rules.
16.27 Provisions applying to general meetings
Notice of a general meeting need not be given to the court.
The convenor of a general meeting is required to publish notice of the meeting in the Gazette and it may be advertised further at the discretion of the convenor [Note 15] [Note 16]. As with the requirements for first meetings, where gazetting or advertising of a general meeting is done the notice must also contain further specific contents [Note 17] [Note 18]. The forms required for requesting publication of such notices are available within the Case Help Manual part ‘Publication of Insolvency Information’. These forms should be completed fully so as to comply with the requirements of the Rules.
The provisions applying to first meetings also largely apply to general meetings summoned by the official receiver [Note 19] [Note 20] [Note 21] [Note 22] [Note 23]. Where any matter differs from that for first meetings throughout the remainder of this chapter, it is mentioned within the relevant paragraph.
16.28 Notices – Time for giving notice
Notices should be sent to all relevant parties, detailed in paragraph 16.26 above, at least 14 days before the date fixed for the meeting. [Note 24] [Note 25] The official receiver should also aim for the notice of first meetings to appear in the Gazette and, if appropriate, advertised (see Chapter 5) no less than 14 days before the meeting.
In calculating the 14 day notice period, official receivers should additionally take into account any service period applicable to the method of delivery used [Note 26] [Note 27] [Note 28]. Notices including, proofs and proxies for use by foreign creditors, or contributories, should be despatched as early as possible to allow extra time for their return prior to the meeting. Where the official receiver is aware of an overseas creditor having a fax number or e-mail address, it may be advisable for him/her to serve notice via this method. When sending documents by email the rules regarding electronic delivery apply (see paragraph 16.28A).
If the notices of meetings are served in accordance with the required time limits detailed above, any meeting held is presumed to have been duly summoned and held. This is not altered in the event that certain creditors or contributories have not received the notices [Note 29].
16.28A Electronic delivery of meetings notices and use of websites
The Legislative reform (Insolvency) (Miscellaneous provisions) Order 2010 (LRO) and IAR 2010 introduced provisions which permit the official receiver to send his/her notice of meetings to creditors and contributories by electronic means, provided that the intended recipient has consented to electronic delivery and has provided an electronic address for delivery [Note 28]. Where the official receiver issues a notice by electronic means, the document must contain or be accompanied by a statement informing the recipient that they may request a hard copy and providing a telephone number, email address and postal address for making such a request. Where a hard copy of the notice is requested, it must be sent within 5 business days of receipt of the request.
The official receiver may also satisfy his/her requirement to give notice of a meeting to creditors and/or contributories by the notice being available for viewing or downloading on a website [Note 30]. The official receiver is required to notify creditors and contributories of the address of the website together with any password required to access or download the document. The notice given to creditors and contributories must also contain a statement informing the recipient of their entitlement to request a hard copy of the report and specifying a telephone number, email address and postal address to make such a request. Where a hard copy is requested this must be issued within 5 business days of the receipt of the request.
Where a notice to creditors and/or contributories is issued informing them of a website address where they can view a meeting notice, the meeting notice must be available on the website for a period of not less than 3 months after the date on which the notice was sent.
The notice of first meetings issued to creditors and where applicable contributories, must provide details of the venue of the meeting, which is defined as the time, date and place of the meeting [Note 31]. For information regarding the content of notices where a remote meeting is to be held see part 12.
The notice must also state that proofs and, where applicable, proxies must be lodged at a specified place not later than 12.00 noon on the business day before the date fixed for the meeting, in order for creditors to be entitled to vote at the meeting. The same rule applies to contributories when lodging proxies [Note 32] [Note 33].
For general meetings notices must also state the purpose of the meeting [Note 34] [Note 35].
16.30 Notices – forms to accompany
Where notice of a meeting is sent out, the notice to creditors should be accompanied by proof of debt forms and both creditors and contributories must be sent proxy forms [Note 4] [Note 36] [Note 37] [Note 38] [Note 39]. The official receiver should attempt where practicable to send out his/her report to creditors at this stage (see Chapter 18, paragraph 18.3). The official receiver should also consider including in his/her report, or sending out at the same time as the meetings papers, by way of separate form, any other notice which it may be possible to dispatch at that stage, such as notices of a public examination [Note 40]. However, the sending of the meetings notices should not be unduly delayed where the other notice cannot be prepared in time.
16.31 Notice by advertisement only
The court may order that notice of any meeting of creditors (or contributories) may be given by advertisement only [Note 41] [Note 42]. The contents of the advertisement are specified in the rules [Note 43] [Note 44]. The official receiver should only apply for such an order in exceptional circumstance (e.g. a large insurance company with numerous policy holders). In such circumstances, he/she may also consider applying to the court for an order dispensing with the requirement to send out documents (e.g. proxy forms), in cases where this would involve unreasonable expense, in view of the vast number of creditors [Note 45]. (For further information on applications to court generally, please see Chapter 19, Part 4).
16.32 Notice to company personnel
The official receiver must give at least 14 days’ notice of any meetings to any of the company’s personnel (present and past officers, employees etc as defined by paragraphs (a) to (d) of section 235(3) of the Insolvency Act 1986) who, in his opinion, either ought to attend the meetings or should otherwise be told of them [Note 46]. The notice [Note 7] may be adapted either to require presence at the meeting or to be in attendance (i.e. at the venue), or simply to give notice of the meeting. If attendance is required, an appropriate separate notice should be sent, even if the company personnel in question are being given notice additionally as creditors or contributories.
The official receiver can, should he wish, require a bankrupt’s presence at the meeting or to be in attendance. The official receiver must give at least 14 days notice of the meeting to the bankrupt whether or not his/her attendance is required [Note 7] [Note 47].
16.34 "Presence" and "attendance"
"Presence " can be taken to indicate a person being called into the meeting whilst "attendance" means the person being available to be called into a meeting (e.g. by being in a waiting room at the meeting venue).
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