September 2007
47.40 Duty to provide liquidator/trustee with information
Rules 4.107(7) and 6.125(7) require the official receiver to give to the successor liquidator/trustee respectively; ‘all such information relating to the affairs of the company/bankruptcy and the course of the winding up/bankruptcy as he considers to be reasonably required for the effective discharge by the liquidator/trustee of his duties in relation to the estate.’
Notes: [r4.107(7) r6.125(7)]
47.41 Inclusion of details in notes on handover (amended May 2011)
When a case is handed over to a liquidator or trustee, sufficiently detailed notes of the case should be handed over.
See Chapter 17, paragraphs 17.78 to 17.78i for further guidance on this.
Notes: [The Insolvency Regulations 1994 Reg 10, 24] [form IPROH]
47.42 Schedule of records on handover to insolvency practitioner
When an insolvency practitioner is appointed trustee or liquidator, the official receiver must ensure that only the insolvent’s records are handed over and not records belonging to other parties. A detailed schedule of the records must be recorded on ISCIS and a copy signed by or on behalf of the practitioner. The official receiver must make it clear on the handing over of the insolvent’s records that, when necessary, he/she must have access to them, or their return if necessary, for the purpose of his/her investigation.
47.43 Correspondence with The Service, BIS or other Government departments (amended May 2011)
Copies of documents from, or correspondence with BIS,The Service, other government departments or regulators should never be handed over to a liquidator or trustee (except where they solely relate to a matter concerning the administration of the estate – i.e., relating to assets or liabilities).
If the insolvency practitioner considers that he/she needs the documents etc. to pursue any matter, he/she should be referred to the relevant body in question to enable him/her to obtain the information directly.
47.44 Disclosure of information received from the Serious Fraud Office (SFO)
In re: Morris v Director of SFO [1993] Ch 372 the court ruled that the official receiver could disclose information provided by the SFO, to an insolvency practitioner appointed as liquidator/trustee. If the official receiver is requested to disclose that sort of information, or thinks disclosure would be appropriate, he/she should first consult the SFO. If the SFO objects to disclosure, then the official receiver should consider making an application to the court for directions under r10.3.
Notes: [r10.3]
47.45 Release of information received by the official receiver from the police/SFO/CPS to trustees /liquidators
Information obtained by criminal investigators e.g. the police, and passed to the official receiver need not be voluntarily disclosed to insolvency practitioners in order to enable them to realise assets. It was held in Marcel v Commissioner for the Metropolitan Police [1992] Ch 225 that material seized in the course of a criminal investigation should only be disclosed by the police under a court order. An insolvency practitioner may apply for disclosure on that basis if appropriate. By contrast, material obtained by other means during a criminal investigation e.g. a witness statement, is conventionally disclosed if the witness consents. If a practitioner asks for that sort of material from the official receiver, the request should be referred to the relevant criminal investigator.
47.46 Hand over of narrative statements and preliminary examination questionnaire (amended May 2011)
The official receiver is able to, and as part of his/her obligations to an insolvency practitioner appointed as liquidator or trustee (see paragraphs 47.40 and 17.77) normally should, pass copies of narrative statements and preliminary information questionnaires (PIQs) to him/her.
In every case the official receiver should, based on the facts of the case, consider whether or not the information in the statement or PIQ is "reasonably required" by the liquidator or trustee. It needs to be borne in mind that the insolvency practitioner, as trustee or liquidator, could in any event, through other means at his/her disposal, obtain or require the relevant information from the director or bankrupt.
It would be an extremely unusual case in which the conclusion would be that the information contained in statements and PIQs obtained in the early stages of a case was not reasonably required by the liquidator or trustee, unless the statement related entirely to a matter of investigation. Generally speaking, preliminary statements and PIQs will contain details of assets and liabilities and may contain information which would lead the insolvency practitioner to consider whether a claim lies against any third party.
Copies of statements and PIQs should therefore be supplied to insolvency practitioners on handover, provided the matter has been duly considered and a note to that effect is placed on the file.
47.46a Handover of statements obtained after the preliminary stages of the case (amended May 2011)
Where statements are obtained after the preliminary stages of the case, the same considerations outlined at paragraph 47.46 should be applied to them and, if considered appropriate, copies should be supplied to the insolvency practitioner and an appropriate note placed on the file.
If, as is likely for a statement obtained at that stage of the case, the statement is obtained solely for the purposes of further investigation, it might not contain information of use to an insolvency practitioner in carrying out his/her duties and should not, therefore, be handed over. However, if the further investigation relates to the whereabouts or non-disclosure of an asset, it would be likely to contain such information and should be handed over.
47.46b Wording to be used in statement to facilitate handover (amended May 2011)
To inform the director/bankrupt of the disclosure requirement on handover to an insolvency practitioner, the PIQs contains the following wording, which has been approved by the Plain Language Commission, below the signature box:
"If an insolvency practitioner is appointed as [liquidator/trustee of your estate, as the case may be] in place of the Official Receiver, the [liquidator/trustee] will have separate powers to require you to provide information. However, a copy of this completed questionnaire will be given to any such practitioner and this should reduce considerably his or her need to contact you again for information."
A note in similar terms to the wording above should be included in any narrative statement taken, or alternatively a separate note should be prepared and given to the person making the statement.
47.46c Handover of information that does not relate solely to the administration of the estate
As outlined at paragraph 47.40, the official receiver is under a duty to supply the liquidator/trustee with such information as he/she will require to discharge his duty as such.
In short, this will primarily be documents relating to the assets and liabilities of the insolvent and not, for example, information relating to the official receiver’s investigations; or complaints received (see paragraph 17.78a).
Where the document (for example, a narrative statement or a letter from the insolvent) contains information that should be disclosed and also information that should not be disclosed to the insolvency practitioner , the official receiver should extract the ‘disclosable’ information into a separate document or letter and disclose that instead. If that is impracticable (where, for example, the ‘un-disclosable part makes up a minor part of the document), the official receiver may disclose the document with the ‘un-disclosable’ element redacted by, for example, striking out the un-disclosable part.
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