October 2010
Part 6
Non surrender and non co-operation cases
The official receiver should have sufficient information from the statement of affairs and the ICON to identify what measures he/she initially needs to take to protect the bankrupt’s estate. If the bankrupt does not surrender for interview, either by telephone or in person, then the procedure outlined below should be followed.
The official receiver will have made his/her initial enquiries after the making of the bankruptcy order. A decision will have been made as to whether an inspection is required and whether any measures are needed to protect the bankrupt’s estate. If the bankrupt fails to surrender to the proceedings then the procedure outlined below should be followed.
24.69 Bankrupt fails to surrender
Where a bankrupt fails to attend for an appointment, without contacting the official receiver, a tracing inspection should be considered, especially where he/she is trading, has recently ceased trading or there are assets at risk. In creditor petition cases the official receiver should inform the petitioning creditor’s solicitors that the bankrupt has not surrendered to the proceedings and to ask them to provide any further details they may have, for example other know addresses and details of how the petition was served.
24.70 Petitioning creditor: HM Revenue & Custom (HMRC)
The Insolvency Service has a partnership agreement with HMRC and where they are the petitioning creditor the official receiver should contact HM Revenue & Customs, Enforcement & Insolvency, Durrington Bridge House, Worthing BN12 4SE for further information about the bankrupt. The current contact is Richard Lawler, telephone number 01903 701043 or e-mail richard.lawler@hmrc.gsi.gov.uk . A copy of the partnership agreement is included here.
A decision to conduct a tracing inspection should be made as soon as reasonably possible. This may be after a first missed appointment rather than automatically issuing a second and potentially third appointment letter as it may elicit contact at an earlier stage. Further details about how to conduct a tracing inspection are contained in Chapter 8, part 2.
If the bankrupt fails to surrender to the proceedings then the official receiver should apply to the court for a public examination [Note 1]. The official receiver should have followed the guidance in paragraph 13.4 and generally made at least three attempts to arrange an interview. He/she should have advised the bankrupt of the need to attend for interview, together with the consequences of non-attendance. The official receiver should exercise his/her discretion to advertise the public examination only in those cases where there will be a positive benefit to the administration of the bankrupt’s affairs [Note 2].
If the bankrupt does not attend the court for his/her public examination the official receiver should consider asking the court to adjourn the examination to a date to be fixed and issuing an arrest warrant [Note 3]. If the court is unable to issue the warrant where, for example the address of the bankrupt is not known, the official receiver should ask the court to adjourn the public examination generally and suspend the bankrupt’s discharge [Note 4]. See Chapter 13 for further guidance on when enforcement proceedings are appropriate.
Where the bankrupt has partially surrendered to the proceedings but is refusing to co-operate and enforcement action is justified by the substance of the matters at issue, for example assets which have not been accounted for. T The official receiver should send a formal written warning to him/her advising them of the legal position. If the non co-operation continues after the written warning the official receiver will take the appropriate action, such as applying for a public examination, court order, etc, to enforce co-operation (see Chapter 13, in particular Parts 3 to 9).
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