GAZETTING AND ADVERTISING
March 2001
NOTE: THIS PART IS ONLY APPLICABLE IN RELATION TO CASES WHERE THE PETITION WAS PRESENTED BEFORE 6 APRIL 2009
PART 2 – ADVERTISING
5B.16 General requirements
In addition to the gazetting requirements, there are a number of matters (see paragraph 5B.17) which require advertisement for which the official receiver will use the services of an advertising agent. Further details of use of the agent are to be found in the Case Help Manual in the Gazetting and Advertising chapter. Advertising will take place in a newspaper, for this purpose any publication registered as such at the Post Office, including any local paper which is distributed free of charge. The intention should be to reach the maximum number of the insolvent’s potential creditors (or contributories) and the chosen newspaper should have the largest, or close to the largest, circulation in the relevant locality. The choice of newspaper should not be based solely upon cheapness, speed or uniformity of invoicing and since the Insolvency (Amendment) Rules 1991 the choice is extended to include a national newspaper circulating within a local area.
Notes: Newspapers [R6.46]
Matters which the official receiver, in his/her capacity as liquidator (winding up) or receiver and manager (bankruptcy) is obliged to advertise are as follows:
Notes: [R4.21(4)(b), 6.34(2)(b) or 6.46(2)(b) [R4.50(5) and form NFN3 or R6.79(5) and form NFN1][R4.61 or 6.87]
5B.18 Notice of intended dividend
In addition, where he/she is liquidator or trustee, the official receiver is also obliged to advertise an intended first dividend to be paid to non-preferential creditors, unless he/she has previously invited creditors, by public advertisement, to prove their debts. Invitations to claim are normally only invited in voluntary winding up, so in most cases a first dividend in a winding up by the court or in a bankruptcy will be advertised. Any subsequent dividend need not be advertised. Such an advertisement should be placed in the same newspaper(s) in which the winding-up or bankruptcy order was advertised.
Notes: [R11.2(1A) and 11.12 and form NFN2]
5B.19 Other matters which may be advertised
In addition to the matters which the official receiver must always advertise, there are further matters which he/she may advertise at his/her discretion or which he/she may be directed to advertise by the court.
5B.20 Amendment of title of proceedings (August 2008)
If the court makes an order amending the full title of bankruptcy proceedings it may also direct the order to be advertised in such newspaper as the official receiver thinks fit (see Chapter 4, paragraphs 4.19 and 4.20). Unless there are special reasons (in which case Technical Section should be consulted), the advertisement should be placed in the same newspaper as that in which the bankruptcy order was advertised.
Notes: [R6.35(2) or 6.47(2)(b)] [form NFN1]
Where the official receiver summons any general meeting of creditors or contributories other than a first meeting, he/she must give individual notice of the meeting but need only advertise it if he/she thinks fit or is ordered to do so by the court. Where meetings are called (whether first meetings or otherwise) individual notice must be given to each known creditor (or contributory).
Where there are numerous creditors, and particularly where many are owed small amounts and there are no, or very few, immediately realisable assets, the official receiver should consider asking the court to exercise its power to dispense with the requirement for individual notices and order that notice be given by public advertisement only. This will normally involve the use of a local and/or national newspaper, although in exceptional circumstances (eg an insurance company with numerous policyholder creditors for unexpired premiums) it may be appropriate to ask the court to sanction radio, television or other forms of advertisement.
Notes: [R4.54(6) and form NFN3 or R6.81(4) and form NFN1] Advertisement instead of individual notice [R4.59 and form NFN3 or R6.85 and form NFN1]
5B.22 Public examination (bankruptcy)
Where the court orders the public examination of a bankrupt the official receiver may, if he/she thinks fit, advertise the order in one or more newspapers. The advertisement must appear at least 14 days before the date fixed for the hearing.
Notes: [s290] [R6.172(4) and form NFN1]
5B.23 Public examination (winding up)
Where the court orders a public examination of officers of the company in a winding up the official receiver may, if he/she thinks fit, similarly advertise the order in one or more newspapers at least 14 days before the date fixed for the hearing, but the order must not be advertised before at least 7 days have elapsed since the examinee was served with the order, unless the court directs otherwise.
Notes: [s133] [R4.212(3) and form NFN3]
5B.24 Decision on advertising public examination
The decision as to whether to advertise a forthcoming public examination is one entirely for the official receiver, having regard to all the circumstances of the case. Usually the official receiver will wish to consider advertising in cases where there is a lack of co-operation by the potential examinee and there is a likelihood of there being additional creditors who have not been disclosed and/or of useful information being disclosed by creditors or others as a result of the publicity.
Where a bankrupt makes an annulment application on the grounds of payment in full and either the official receiver or the trustee has reported to the court that there are known creditors who have not proved, the court may direct advertisement of the annulment application so that possible creditors may put in their claims within the period stated in the advertisement.
Notes: [R6.206(1)(b)] [R6.207(2)(c)]
Where, in relation to an annulment application, security has been lodged to cover a claim proved by a creditor who subsequently cannot be traced, the court may direct that the relevant details be advertised in such manner as it thinks fit.
Notes: [R6.211(3)and (4)]
Where an annulment order is made the former bankrupt may require the Secretary of State to advertise the making of the order in any paper in which the bankruptcy order was advertised. When such a request is received, the official receiver must draw the former bankrupt’s attention to the cost and the advertisement should not be placed until he has provided funds to cover the cost. Although the application is made to the Secretary of State, in practice the official receiver will deal with any such request and will arrange and place the advertisement himself.
Notes: [R6.213(3)(b)and (4)]
Whether the bankrupt obtains his discharge by expiration of time or by an order of court, he may require notice of the discharge to be advertised in any newspaper in which the bankruptcy order was advertised. Where the bankrupt makes such a request, the same procedure should be adopted as for annulment (see paragraphs 5B.27 and 5B.31).
In cases where the bankruptcy order was made on or after 1 April 2004 and the early discharge process has been applied (see Chapter 22 part 2) an order of discharge must not be gazetted or advertised until Form 6.82 has been endorsed by the court and returned to the official receiver (see also Chapter 22, part 5 paragraph 22.43EA)
Notes: [s279(2) or 280] [R6.220(2)]
Where the official receiver as liquidator obtains a court order authorising a call on contributories, the court may direct that notice be given to the individual contributories concerned, but is only advertised if the court so orders.
Notes: [R4.204(3) and form NFN3]
When arranging the advertisement of a winding-up or bankruptcy order in a newspaper, form NFN3 or NFN1 should be used. The advertising agent used by official receivers should attempt to reduce the cost to the insolvent estate by listing a number of winding-up or bankruptcy orders under one heading where appropriate. The official receiver should ensure that in Article 11 partnership cases the costs are divided between the estates. The official receiver should place the advertisement as quickly as possible, but if there is a possibility of making a quick decision as regards the holding of first meetings, so that the meetings and order advertisements can be combined, a short delay (no more than 10 days) is acceptable, in view of the potential saving to the estate from the lower cost of a combined advertisement. However, if for any reason a decision on calling first meetings cannot be made quickly, advertisement of the winding up or bankruptcy order should not be postponed. The Gazette notice should not be postponed except in the circumstances indicated in paragraph 5B.7.
Notes: [form NFN3 or NFN1] [form NFN3 or NFN1]
5B.31 Other advertising requirements
Although there are other matters which are required to be advertised, eg appointment of liquidator or trustee, such requirements will not be the responsibility of the official receiver. However, when a trustee is appointed after the discharge of a bankrupt the official receiver should draw the attention of the trustee to the matter of the bankrupt’s discharge. The trustee may then consider an appropriate wording for use in the advertisement of his appointment (eg making reference to "former bankrupt"). Terminology should also be carefully considered where an official receiver is required to advertise anything (eg distribution) after the discharge of the bankrupt.
Where the official receiver or deputy official receiver places an advertisement, a copy of it must be sent to the court for filing. In practice, the agent used for advertising will provide a copy to the official receiver for filing, and this should be accompanied by a letter based on form FAC.
Notes: [R7.32(2) and form FAC]
[Back to Part 1 - Gazetting] [Onto Part 3 - Miscellaneous]