Annex E

Court Records and Returns

June 2014

NOTE: THIS PART IS ONLY APPLICABLE IN RELATION TO CASES WHERE THE PETITION WAS PRESENTED BEFORE 6 APRIL 2010 (OR WHERE A RESOLUTION FOR VOLUNTARY LIQUIDATION OR CERTAIN ADMINISTRATION PROCEEDINGS OCCURRED BEFORE THAT DATE).

1. Applicable legislation

Chapter 5 of Part 7 of the Rules provides instructions as to the records to be kept by the court in relation to insolvency proceedings and the respective rights of inspection of those records. It also provides instructions regarding court returns to the Secretary of State; and the filing of gazette notices and advertisements (the requirement to file Gazette notices and advertisements was removed from the Rules for cases where the petition was presented on or after 6 April 2009). If the official receiver requires a written record to be made at a particular court hearing, then application should be made by the official receiver to appoint a shorthand writer (see Part 9 of Chapter 14 and Part 2 of Chapter 32.3).

2. Court records

The court shall keep records of all insolvency proceedings and shall cause to be entered in the records the taking of any step in the proceedings and such decisions of the court in relation thereto as the court thinks just [Note 1].

3. Office copies of documents

Any person who under the rules has a right to inspect the court file of insolvency proceedings may require the court to provide him/her with an office copy of any document from the file and an office copy provided by the court under this rule shall be in such form as the registrar thinks appropriate and shall bear the court's seal [Note 2].

4. Inspection of records

The court’s records of insolvency proceedings are open to inspection by any person unless the registrar is not satisfied as to the propriety of the purpose for which inspection is required by that person, in which case he may refuse to allow it. The person may then apply forthwith and without notice to the judge, who may refuse the inspection or allow it on such terms as he thinks just. The judge’s decision is final [Note 3].

The purpose of rule 7.28 is to enable those with a legitimate interest in a particular insolvency proceeding to discover what is happening. An ‘insolvency consultant’ does not have a legitimate interest to tout for business by searching the records to establish the names and addresses of potential clients within the meaning of the rules [Note 4].

5. Returns to Secretary of State

The court shall from time to time send to the Secretary of State the following particulars relating to winding-up and bankruptcy proceedings-

a. the full title of the proceedings, including the number assigned to each case;

b. where a winding-up or bankruptcy order has been made, the date of that order [Note 5].

The Secretary of State may, on the request of any person, furnish him/her with particulars sent to him by the court under this rule [Note 6].

6. File of court proceedings

In respect of all insolvency proceedings the court shall open and maintain a file for each case and (subject to the directions of the registrar) all documents relating to such proceedings shall be placed on the relevant file [Note 7] (see also Part 3 of Chapter 47).

7. Right to inspect court file

In any insolvency proceedings, the following have the right, at all reasonable times, to inspect the court’s file of the proceedings [Note 8] – 

• the person who, in relation to those proceedings, is the responsible insolvency practitioner;
• any duly authorised officer of the Department; and
• any person stating himself/herself in writing to be a creditor of the company to which, or the individual to whom, the proceedings relate.

8. Exercise of right

The same right of inspection is exercisable [Note 9] –

• in any proceedings under Parts I to VII of the Act, by every person who is, or at any time has been, a director or officer of the company to which the proceedings relate, or who is a member of the company or a contributory in its winding up;
• in proceedings with respect to a voluntary arrangement proposed by a debtor under Part VIII of the Act, by the debtor;
• in bankruptcy proceedings, by –

i. the bankrupt

ii. any person against whom, or by whom, a bankruptcy petition has been presented, and

iii. any person who has been served, in accordance with Chapter 1 of Part 6 of the Rules, with a statutory demand.

9. Authority and permission to inspect

Any person who has the right of inspection may authorise another person to inspect the court file on his behalf [Note 10]. Additionally any person may, by special permission of the court, inspect the file [Note 11].

Access to the court file is therefore restricted and non parties have a right of access only to the extent provided for in the Rules. The purpose underlying this restriction is that, if and when documents are used in open court, their contents then become readily available but until then the filing of documents should not of itself render generally available what otherwise would not be available, particularly as many documents filed are never used in open court [Note 12].

10. When right not exercisable etc.

The court, by direction, has the power to restrict the right of inspection. It may direct (either generally or specially) that the right of inspection is not exercisable in the case of documents, or parts of documents, without the permission of the court [Note 13]. The official receiver, the person who in relation to any proceedings is the responsible insolvency practitioner or any party appearing to the court to have an interest, may apply for such a direction. When such a direction is made, a person whose right to inspect has been taken away can seek permission to inspect [Note 14].

An application to restrict inspection may be made on grounds such as impropriety of purpose [Note 15] (see also paragraph 4) or on grounds of confidentiality, such as those set out in rule 12.13 namely where in insolvency proceedings the responsible insolvency practitioner considers, in the case of a document forming part of the records of the insolvency, that –

• it should be treated as confidential, or
• it is of such a nature that its disclosure would be calculated to be injurious to the interests of the insolvent’s creditors or, in the case of a company’s insolvency, its members or the contributories in its winding up,
• the court may decline to allow it to be inspected by a person who would otherwise be entitled to inspect it.

The courts have procedures in place to ensure that, by placing printed notices on the front of files and placing documents in sealed envelopes suitably endorsed as restricted, restricted documents are not open to inspection. Documents may be placed in separate files where they are particularly bulky and it is convenient to the court for this to be done. The file cover would be endorsed accordingly to restrict inspection.

11. If Secretary of State etc. requires to inspect

Provided it is for the purpose of powers conferred by the Act or the Rules, the official receiver and the Secretary of State have a right to inspect the court file and may request the transmission of the court file to them, unless for the time being the file is in use for the court’s own purposes [Note 16]. If the transmission of the court file is requested by the official receiver, the file should be inspected and returned promptly. If copies are required of documents contained on the file, these should be made without removing the documents from the file. The file should be examined promptly and returned to the court as soon as possible after inspection.

12. Filing of Gazette notices and advertisements

In any court where insolvency proceedings are pending an officer of the court shall file a copy of every issue of the Gazette which contains an advertisement relating to those proceedings and, where a person inserts an advertisement in a paper relating to insolvency proceedings pending in any court, he/she shall file a copy of it in that court which shall either be endorsed with or accompanied by such particulars as are necessary to identify the proceedings and the date of the advertisement’s appearance [Note 17]. An officer of any court in which insolvency proceedings are pending shall from time to time file a memorandum giving dates of, and other particulars relating to, any notice published in the Gazette and any newspaper advertisements which relate to proceedings so pending. The officer’s memorandum is prima facie evidence that any notice or advertisement was duly inserted in the issue of the newspaper or the Gazette which is specified in the memorandum.

For cases where the petition was presented on or after 6 April 2009, the requirement to file copies of Gazette notices and other advertisements at court was removed from the Rules as a result of the amendments in April 2009.