The official receiver has a duty to investigate the reason for the insolvency note 1. There are no exceptions to this duty in a compulsory liquidation. In a bankruptcy the official receiver may be released from the duty to investigate if he/she decides that an investigation is unnecessary, but in practice an initial investigation should take place in every case, although in some bankruptcy debtors petition cases a review of the statement of affairs may be sufficient to conclude that further investigation is unnecessary. See Part 3 for more details on the procedure for dealing with bankruptcy debtors petition cases. In addition to the duty to investigate, as liquidator or receiver and manager the official receiver must also protect and secure assets.
Company officers and bankrupts are generally required to provide the information needed by the official receiver by the completion of the preliminary information questionnaire (PIQ) note 2 and statement of affairs note 3. In the majority of cases it is likely to be necessary for the official receiver to ask additional questions after this information has been received. This additional questioning is carried out during an interview, which may take different forms depending on the type and complexity of the case and the amount of additional information required. The aim of the interview is to allow the official receiver to obtain sufficient information to progress the administration of the case, determine the reason for the insolvency and make a decision as to whether further investigation is necessary. Information provided in the statement of affairs and PIQ should generally be taken to be correct without further questioning unless the official receiver has reason to believe it may be incomplete or inaccurate. Questions already answered in the statement of affairs and/or PIQ should not be asked again merely as an interesting exercise, or just to re-check information already given.
Interviews should be held as soon as possible after the insolvency order is made.The official receiver must contact the company officer, partner or bankrupt with two days of being notified of the order, and should arrange an interview date when the contact is made.
The official receiver should attempt to speak to the company officer, partner or bankrupt to be interviewed within two working days of the making of the order in order to impress upon the interviewee the need for him/her to co-operate with and attend upon the official receiver as required, and to establish whether there are any urgent matters that the official receiver needs to be aware of and take action in respect of before the PIQ is returned and the interview (if necessary) is held.
If an interviewee seeks an alternative appointment for a genuine reason, the official receiver should accede to this request if the proposed delay is reasonable. Where illness is given as the reason for non-attendance and the illness is a medical condition that will prevent attendance for an extended period of time or where it is suspected that this is an excuse to avoid attendance the official receiver should request a medical certificate. In this case, consideration should be given to carrying out a telephone interview instead of requiring the interviewee to attend upon the official receiver.
Where a person fails or refuses to attend an interview without first contacting the official receiver and without reasonable excuse, the official receiver must;
attempt immediately to contact the interviewee and arrange a further appointment,
send a letter to the interviewee making a second appointment for an interview, and setting out the possible consequences of non co-operation with the official receiver,
take further action as appropriate to confirm the whereabouts of and contact the interviewee in order to enforce attendance, i.e. carry out a search of the electoral register and credit reference agencies and carry out an inspection at the home address of the interviewee,
if the interviewee continues to fail or refuse to co-operate, take appropriate enforcement action such as an application for a public examination note 4,a private examination note 5, a court order for attendance note 6 and in a bankruptcy an order suspending the discharge of the bankrupt note 7 and/or an order for the bankrupt's mail to be redirected to the official receiver note 8.
For more information on enforcing attendance and action to be taken when dealing with a non co-operative interviewee see Chapter 13 - Co-operation, non co-operation and enforcement of duty to co-operate.
A stay of advertisement in a winding up or bankruptcy does not affect the director or bankrupt's obligation to supply information to the official receiver and attend for interview if required to do so.
Where there is a stay of proceedings in a bankruptcy, whether or not the bankrupt is obliged to provide information to and attend upon the official receiver will depend on the terms of the court order. The official receiver should attend the court hearing for such an order and ask the court to include such terms in the order as to grant the official receiver sufficient authority to obtain the necessary information from the bankrupt. This may include an undertaking for the bankrupt to co-operate with the official receiver to the extent necessary to allow the official receiver to report to the court on a proposed application for the annulment of the bankruptcy order. If the court orders all proceedings should be stayed generally, the bankrupt will be released from his/her obligation to co-operate with and attend upon the official receiver, and such an order should generally be resisted by the official receiver. See also Chapter 6Part 3 - Appeals, stays, rescissions and annulments.
The interviewee must be treated with courtesy at all times. The interview must not be carried out in a way that would leave the official receiver open to criticism for oppressive conduct, e.g. excessive length of interview without breaks, the interviewer raising his/her voice. The interviewee should not be coerced into signing a statement or any other document with which he/she disagrees. Where information provided by the interviewee indicates the possibility of misconduct, the interviewee should be given the opportunity to provide explanations and/or a defence for his/her actions, and these should be included in any statement taken by the official receiver.
Every interviewee attending an interview at the official receiver's office, and anyone accompanying them, should be offered refreshments at the beginning of the interview and as appropriate during the interview dependant on its length.Breaks should be offered at regular intervals where a interview lasts for more than two hours.
When interviewing face to face, the interviewer must wear a name badge. Any other member of staff present (e.g. for training purposes) must also wear a name badge and must be identified to the interviewee. At the beginning of any interview, face to face or telephone, the interviewer must introduce himself/herself to the interviewee.
When an interview is being conducted by telephone, the interviewee must be telephoned within 5 minutes of the agreed interview time. For a face to face interview, all interviewees who arrive on time must be seen no later than 5 minutes after the fixed appointment time. If in exceptional circumstances this cannot be done the interviewee must be given an explanation why and told how long he/she will have to wait or offered an alternative appointment.
Face to face interviews should be held in a separate room to avoid any interruptions which may disturb the interviewer and interviewee, and to afford privacy to the interviewee. The interviewee is likely to be more relaxed and open to answering questions where the interview is conducted in a private room.
The interviewer should begin the interview by explaining to the interviewee the form that the interview will take, and approximately how long it will last.The interviewer should draw the attention of the interviewee to the appropriate guide at the beginning of the interview (i.e. the Guide for Directors or the Guide to Bankruptcy) and ensure that the interviewee has been given a copy of the guide.
11.13 Interviewee in prison
(Amended October 2011)
Where the interviewee is in prison, the normal interview letter should not be sent, but the official receiver should write to the governor of the prison in order to make arrangements for the interview to be carried out by telephone or by the official receiver's attendance at the prison, depending on the complexity and circumstances of the case. If the governor is unable to guarantee the safety of the interviewer, the case file should be marked accordingly and any contact should be by telephone or letter. It should be noted that use of mobile phones by prisoners is prohibited and under no circumstances should the prisoner be contacted within a prison by calling a mobile phone. Where a prisoner makes contact from within a prison and it is established that he/she is using a mobile phone the caller should be informed that they are committing an offence and that any such calls will not be accepted. The call should then be terminated.
Where an interviewee is believed to be in prison but his/her location is unknown, the official receiver should contact;
HM Prison Service
Prisoner Location Service
PO Box 2152
Fax: 0121 626 3474
Enquiries can be e-mailed to email@example.com and should contain the full name of the person subject to the enquiry, any other names by which they may have been known, date of birth and reason for enquiry.
An interview at a prison should only be conducted with two members of the official receiver's staff present for reasons of safety.
An interviewee may bring a third party such as a solicitor, accountant or friend, to an interview, and the official receiver should not generally object to their presence, although the presence of a third party who is also a potential interviewee in the case (e.g. another company officer in a compulsory liquidation, another partner in a partnership) should not be allowed.
The official receiver should not object to the presence of a third party who is unconnected to the case, but should, if it becomes necessary, inform the third party that they will be asked to leave if they interfere unduly during the course of the interview.
The presence of anyone other than the interviewee and the interviewer should be recorded (name and status of the third party) in the narrative statement or interview notes.
Any charge for the attendance of the third party (with the exception of a translator - see paragraph 11.15) is a matter between such person and the interviewee and is not payable out of the insolvent estate.
(Amended March 2013)
If an interviewee cannot understand or speak English, a translator must be used during the interview. Similar considerations will apply where the interviewee has an aural, verbal or visual disability and requires assistance to translate information given and received at interview.
The translator must be asked to translate the questions and answers given without putting his/her interpretation into the translation. The interviewee may bring a friend or family member to translate for them, and in this case it must be made clear that the translator must not answer the questions for the interviewee, i.e. the information requested must be provided by the interviewee, not the translator. A short statement should be taken from the translator that he/she has translated the questions asked by the interviewer and the answers given by the interviewee accurately, and that the answers given are those provided by the interviewee (see sample statement at paragraph 32.3.32).
An independent translator can be arranged through the Insolvency Service’s translation contractor, K-International, contact details can be found at paragraph 32.3.39. The process for obtaining telephone translation services is outlined in paragraph 32.3.42. The charges incurred in providing translation services is covered by the administration fee as part of the official receiver’s general duties, so should be charged to Vote. For information generally on translators and other interpreters, see Chapter 32.3, Part 3 “Interpreters”.
One copy of the completed PIQ and any additional statements taken should be provided free of charge to the interviewee on request. If the interviewee requires further copies he/she should be encouraged to make them from the copy provided, but if this is not possible the official receiver can provide further copies at a charge of 15 pence per A4 or A5 sheet and 30 pence per A3 sheet note 9.Any monies received in respect of this should be allocated to the general account, and not the estate account.
Rules 4.107 and 6.125 require the official receiver, on handing over the estate to an insolvency practitioner, to supply to that person such information as is reasonably required by the liquidator or trustee for the effective discharge of his/her duties in that capacity.
In every case where an insolvency practitioner is appointed as liquidator or trustee, the official receiver must consider, based on the facts of the case, whether or not the information in the PIQ and any narrative statement taken is reasonably required by the liquidator or trustee. The official receiver should also bear in mind that as the insolvency practitioner could, in any event, obtain the relevant information from the company officer or bankrupt through other means at his/her disposal, it would be an unusual case in which the PIQ and initial statements obtained at the early stages of a case contain information that is not reasonably required by the insolvency practitioner. These documents also contain information which could lead the insolvency practitioner to consider whether a claim lies against a third party.
The company officer or bankrupt is informed in the PIQ that the PIQ will be disclosed to any liquidator or trustee subsequently appointed. The following paragraph appears below the interviewee's signature box:
"If an insolvency practitioner is appointed as liquidator/trustee of your estate 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 similar paragraph should be added to any narrative statement taken.
Copies of PIQs and statements should therefore be supplied to insolvency practitioners on handover, provided that the matter has been duly considered and a note to that effect is made on the CAR B and that the above paragraph has been included in any statement taken. If it has not the interviewee should be informed prior to handover that a copy of the statement will be provided to the insolvency practitioner. The official receiver must avoid possible criticism (perhaps at a later date) that proper consideration has not been given as to whether or not material should be passed to the insolvency practitioner.
Where statements are obtained after a handover has taken place, the same consideration should be given to them and the interviewee notified that they will be handed over to an insolvency practitioner, either as part of the statement or separately. If considered appropriate copies should be supplied to the insolvency practitioner and a corresponding note placed on the file. If a statement contained information relating solely to further investigation matters, it might not contain information of use to an insolvency practitioner in carrying out his duties. However, if the further investigation relates to the whereabouts or non disclosure of an asset, it would be likely to contain such information.
If a party purporting to represent the insolvent (other than a properly appointed liquidator/trustee) requests a copy of the PIQ or statements given, he/she should be instructed to obtain them from the interviewee.
Where a request is made for the disclosure of statements by another investigation authority, e.g. the police, HM Revenue and Customs, the official receiver may release copies of the statements given provided that the official receiver is satisfied that the statements are required by the investigating authority requesting them for the purpose of investigating crime. Such disclosure may be made without a court order and without notice to the person who provided the statement (R v Brady 2005 1 Cr App. R.5).