Part 8

Court Records and Returns

December 2010

Transitional provisions for April 2010 Rules changes

The Insolvency (Amendment) Rules 2010 (IAR) came into force on 6 April 2010. For cases where the petition was presented on or after 6 April 2010 (unless in a company case there was a voluntary winding up resolution or certain administration proceedings prior to that date), the Rules described in this part will apply and the guidance and advice therein should be followed. Full details of the transitional provisions can be found in schedule 4 to the Insolvency (Amendment) Rules 2010 and a summary is available at Annex A. For the purposes of this part reference will only be made to the petition date in the transitional provisions.

For cases where the petition was presented before 6 April 2010 (or where any of the exceptions noted above apply), the Rules prior to the introduction of The Insolvency (Amendment) Rules 2010 will continue to apply and the guidance and advice in Technical Manual Chapter 19 Part 8 (issued March 2001) may be followed. This is attached at Annex C and has been renumbered consecutively (1, 2, 3 etc…) to avoid confusion with other paragraphs in this chapter.

19.98 Applicable legislation

Chapter 5 of Part 7 of the Rules provides instructions as to the records to be kept by the court in relation to insolvency proceedings and the respective rights of inspection of those records.  

19.99 Court file

The court must open and maintain a file in any case where documents are filed with it under the Act or the Rules [Note 1]. Any documents which are filed with the court under the Act or the Rules must be placed on the file [Note 2]. (see also Chapter 47, Disclosure of information, Part 7). 

19.100 Right to inspect court file

The following persons may inspect or obtain from the court a copy of, or a copy of any document or documents contained in, the court file [Note 3]:

1. the office-holder in the proceedings;
2. the Secretary of State; and
3. any person who is a creditor of the company or the individual to which the proceedings relate, if that person provides the court with a statement in writing confirming that they are a creditor.

The same right to inspect the court file and obtain copy documents is exercisable [Note 4]:

a. in any proceedings under Parts I to VII of the Act, by:

i. an officer or former officer of the company to which the proceedings relate; or

ii. a member of the company or a contributory in its winding up;

b. in proceedings with respect to a voluntary arrangement proposed by a debtor under Part 8 of the Act, by the debtor;

c. in bankruptcy proceedings, by:

i. the bankrupt;

i. any person against whom a bankruptcy petition has been presented, and

ii. any person who has, in accordance with Chapter 1 of Part 6 of the Rules, been served with a statutory demand.

d. in proceedings relating to a debt relief order, by the debtor.

Where any person wishes to exercise the right to inspect the file, if the permission of the court is not required, they may do so at any reasonable time [Note 5].  

19.101 Authority and permission to inspect court file

Any person who has the right of inspection may authorise another person to inspect the court file on his behalf [Note 6]. Additionally any person who is not otherwise entitled, may, by permission of the court, inspect the file [Note 7]. Where permission of the court is required an application notice must be filed with the court [Note 5]. Such application may be made without notice to any other party, but the court may direct that notice must be given to any person who would be affected by its decision [Note 8].

Access to the court file is therefore restricted and non parties have a right of access only to the extent provided for in the Rules. The purpose underlying this restriction is that, if and when documents are used in open court, their contents then become readily available but until then the filing of documents should not of itself render generally available what otherwise would not be available, particularly as many documents filed are never used in open court. [Note 9].

In addition, the restriction of availability of information on the court file ensures that only those with a legitimate interest in a particular insolvency proceeding are able to discover what is happening. An ‘insolvency consultant’ does not have a legitimate interest to tout for business by searching the records to establish the names and addresses of potential clients within the meaning of the rules [Note 10].

19.102 When right not exercisable etc.

The court has the power to restrict the right of inspection. It may direct that the court file, documents, or parts of documents, must not be made available without the permission of the court [Note 11]. The official receiver, the office-holder in the proceedings or any party appearing to the court to have an interest, may apply for such a direction [Note 12].

An application to restrict inspection may be made on grounds such as impropriety of purpose [Note 13] or on grounds of confidentiality, such as those set out in rule 12A.51 namely where in insolvency proceedings the office-holder considers, in the case of a document forming part of the records of the insolvency, that: 

1. it should be treated as confidential, or
2. it is of such a nature that its disclosure would be prejudicial to the conduct of the proceedings or might reasonably be expected to lead to violence against any person.

The courts have procedures in place to ensure that, by placing printed notices on the front of files and placing documents in sealed envelopes suitably endorsed as restricted, restricted documents are not open to inspection. Documents may be placed in separate files where they are particularly bulky and it is convenient to the court for this to be done. The file cover would be endorsed accordingly to restrict inspection. 

19.103 Right to obtain a copy of a document

Any person who under the rules has a right to inspect the court file of insolvency proceedings, may require the court to provide him/her with a copy or an office copy of any document from the file [Note 14]. Where any person wishes to exercise the right to obtain a copy of a document that person must pay any fee prescribed by the court, and [Note 15]: 

1. if the permission of the court is required, file with the court an application notice (see paragraph 19.102); or
2. if the permission of the court is not required, file with the court a written request for the document.

An office copy of any document provided by the court shall be in any form as the court thinks appropriate and shall bear the court’s seal [Note 16]. 

19.104 Official receiver and Secretary of State – right to request file

Provided it is for the purpose of powers conferred by the Act or the Rules, the official receiver and the Secretary of State have a right to inspect the court file and may request the transmission of the court file to them, unless for the time being the file is in use for the court’s own purposes [Note 17]. If the transmission of the court file is requested by the official receiver, the file should be inspected and returned promptly. If copies are required of documents contained on the file, these should be made without removing the documents from the file. The file should be examined promptly and returned to the court as soon as possible after inspection.

NOTE: Due to the updating and restructuring of the advice and guidance in this part, paragraphs 19.105 to 19.109 no longer exist. However, as the previous guidance continues to be available at Annex C, changes have not been made to the paragraph numbering in parts 9 and 10.

[Back to Part 7 - Service of documents] [On to Part 9 - Persons who lack capacity to manage their affairs]