October 1998
35.10 Official receiver is trustee
Immediately the bankruptcy order is made on a petition based on a criminal bankruptcy order the official receiver becomes trustee. As no one other than the official receiver can be trustee, there is no requirement to consider summoning a first meeting and there is no creditor’s committee. The function of the creditor’s committee is carried out by the Secretary of State.
Notes:[s297(1)] [R6.233(1) and R6.234(2)] [s302(1)]
35.11 Notice of bankruptcy order and sending forms of proof
The official receiver has a duty to send out, within 12 weeks from the date of the bankruptcy order, both notice of the making of the bankruptcy order and forms of proof of debt, to every creditor known to him/her.
Notes: [R6.232(4) and (5); Form POD and form NORD1]
35.12 Creditor status of Official Petitioner
The Official Petitioner is regarded as a creditor of the bankrupt and may attend or be represented at any meeting of creditors. Therefore any notice in the Act or Rules which is required or authorised to be given to creditors must be given to the Official Petitioner. The requirements of the Rules relating both to proofs of debt and to the lodging or use of proxies, do not apply to the Official Petitioner.
Notes: [R6.230 [R6.232(3) and R6.230(2)]
The claims of all creditors should be proved in the same way as in a normal bankruptcy, and will consist of both claims resulting from the offence(s) and any claims from other creditors. The normal rules of priority of payment apply (see chapter 36). A copy of a criminal bankruptcy order is sufficient evidence to support a proof of debt submitted by a person specified in that order as having suffered loss or damage. However that creditor may also claim more (or less) subject to providing evidence.
Notes: [R6.232(2)]
35.14 Funding recovery of assets
The Official Petitioner is authorised to and is usually willing to provide the necessary funds and indemnities required to pursue recovery of assets. The Official Petitioner should be given the essential facts of the potential recovery, balanced with details of any likely problems, with a view to obtaining preliminary legal advice and then, if appropriate, taking recovery action.
35.15 Transactions at undervalue and preferences
Where there are possible recoveries to be made from transactions at an undervalue or preferences, the relevant time is to be any time on or after the date given in the criminal bankruptcy order (see paragraph 35.2 and also Chapter 31.4A). However no order for adjustment of a prior transaction under sections 339 and 340 can be made by the court where an appeal against conviction is pending.
Notes:[s341(4)] [s341(5)]
A criminal bankrupt is excluded from the automatic discharge provisions and may only apply to the court for his/her discharge after five years have elapsed from the making of the bankruptcy order (see also chapter 22).
Notes:[s279(6) and s280]
Care should be taken to ensure that no distribution is made in a criminal bankruptcy case where there is an appeal against conviction pending under the meaning of section 277.
Notes:[s327]
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