PART 7
Insolvency Practitioner Appointed
(February 2006)
15.91 Practitioner acting as liquidator or trustee
Where an insolvency practitioner is appointed as liquidator or trustee, the official receiver is still under a duty to report to the Authorisations Team details of offences committed by company officers or bankrupts which have come to light in the course of his/her investigations. The official receiver is similarly still responsible in a winding up for the submission of a disqualification report, and in a bankruptcy for the submission of a BRO report. Any other significant matters relating to criminality or unfit conduct brought to the official receiver’s attention by the liquidator or trustee should similarly be reported.
15.92 Conflict where practitioner liquidator
Where an insolvency practitioner is liquidator and there are conflicting interests as regards prosecution and civil recovery, the matter should, after consultation with the liquidator, be reported to the Enforcement Technical Team for advice. See also Part 6.
Where an insolvency practitioner has been appointed liquidator or trustee, he/she should inform the official receiver of any matters of misconduct relating to non-disclosure or concealment of property which he/she discovers during his/her administration.
An insolvency practitioner should be informed on a confidential basis if the official receiver intends to submit a prosecution, disqualification or BRO report alleging that property has not been disclosed, property has been concealed and/or there has been a fraudulent disposal of property. The insolvency practitioner should be asked to keep the official receiver informed of all material developments in relation to the recovery of the property. If the insolvency practitioner recovers the property which was the subject of the allegation in the report, he/she should inform the official receiver in order that the Authorisations Team can be notified.
15.94 Disclosure of PIQs and statements to the liquidator or trustee
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, or the telephone/court interview record in the case of a debtor petition bankruptcy interviewed by telephone or from court, 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.
Copies of PIQs, statements or the telephone/court interview record 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. 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.
15.95 Disclosure of statements obtained after handover
Where statements are obtained after a handover has taken place, the same consideration should be given to them and 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.
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. There is no need to add such a paragraph to the telephone/court interview record.
[Back to Part 6 - Matters relating to reporting misconduct identified]