James Wilson discusses the Temporary Insolvency Practice Direction 2020 (“TIPD”)

On 6th April 2020 the TIPD came into force. It implements a number of changes and supplements to the Practice Direction – Insolvency Proceedings July 2018. The purpose is to avoid, where possible, parties attending court in person and the likely disruption in proceedings as a result of the COVID-19 pandemic.

The TIPD applies to all insolvency proceedings in the Business and Property Courts subject to any variations outside London as directed by the relevant supervising Judge.  TIPD remains in force until 1 October 2020 unless amended or revoked by a further insolvency practice direction.

Regard should also be had to PD510

Paragraph 3. Filing a Notice of Intention to Appoint an Administrator and a Notice of Appointment of an Administrator

CE-Filing (filing by using the Court’s Electronic Working portal)

When:

• filing a Notice of Intention to Appoint an Administrator by a company or its directors under Paragraph 27 of Sched B1 (Insolvency Act 1986); or
• filing a Notice of Intention to Appoint an Administrator by a qualifying floating charge under paragraph 18 of Schedule B1; or
• filing Notice of Appointment of an Administrator by a company or its directors under Paragraph 29 of Schedule B1.

The Notice shall be treated as delivered to the court at the date and time recorded in the Filing Submission Email.

Exception

• If a Notice of Intention to Appoint an Administrator by a company or its directors (under Paragraph 27 of Sched B1) is filed by CE-file outside of court time (10:00 hours to 16:00 hours) or on a weekend, it shall be treated as delivered to the court (for the purposes of Insolvency Rule 2016 46(2) at 10:00 on the day the court is next open for business.
• If a Notice of Appointment of an Administrator by a company or its directors under Paragraph 29 of Schedule B1 is filed by CE-file outside of court time (10:00 hours to 16:00 hours) or on a weekend, it shall be treated as delivered to the court (for the purposes of Insolvency Rule 2016 46(2) at 10:00 on the day the court is next open for business.

Therefore, the ten-day period, under paragraph 28(2) begins on the date on which the courts are next open for business.

• Filing the Notice of Appointment of an Administrator by a qualifying floating charge holder under paragraph 14 of Schedule B1 is not amended by the TIPD. Rules 20-3.22 still apply to this method of filing (outside of business hours). In short, by use of fax or email to the number/ email addressed published by the Secretary of State on the Insolvency Service Web Page. The appointment takes effect from the date and time of the fax transmission or sending of the email but the appointment ceases to have effect if the requirements of rule 3.20(9) are not complied with. 3.20(9) still requires the appointer to “take to the court” three copies of the appointment a number of other documents and a statement explaining why it was filed out of hours. 3.20(9) does not appear to be included within the meaning of documents that can be filed by CE Filing under PD510 and r1.46(2).

Filing the Notice of Appointment of an Administrator by a qualifying floating charge holder under paragraph 14 of Schedule B1 during court hours is not included within the TIPD. And so the usual rules apply (see rule 1.46(2) and PD510 1.1(2))

Paragraph 4 Adjournment of Pending Applications and Petitions

All applications, petitions and claim forms (save for petitions for winding-up and bankruptcy to be heard before an ICC Judge sitting in the Rolls Building in London) listed before 21 Aril 2020 are adjourned to be re-listed.

Most will be re-listed pursuant to the local procedure of the particular court; see local guidance for each court centre (see the @PSQBar Twitter feed for details). Further guidance notes from individual supervising Judges will be posted to the Judiciary web page but any new guidance will be published on the PSQB COVID 19 information page.

If a case has been adjourned and one or other of the parties considers the matter is urgent, it may apply to have it re-listed. The procedure is found within Chapter 5 of RIPD. Essentially giving the reasons why it is urgent and details of the number of parties, ELH and confirmation that the matter can be dealt with remotely. There is no provision for such hearings to be done.

Paragraph 6 Remote Hearings

Unless ordered otherwise, all insolvency hearings will be conducted remotely. The Court’s preference is Skype for Business or BT MeetME telephone conferences.

The courts are placing the onus on the parties to agree that matters can be dealt with remotely and to agree the method by which that can be done. The most practical way forward is for the parties to agree, by ay of letter/ consent order/ that the matter will be dealt with by Skype for business. Include the advocates’ email addresses. The court can then arrange the invites to the advocates.

Paragraph 7 Winding-up and Bankruptcy Petitions

The courts will allocate time slots of groups of petitions. This is likely to be BT MeetME or Skype for Business. The links for the hearings will be published on the daily cause list and the parties are required to ensure they can access the link.

Anyone intending to appear must deliver the requisite notice under Rule 7.14.

Paragraph 8 Other Insolvency Hearings

The court will propose remote hearings by ay of BT MeetME or Skype for Business. If a party disagrees, they may make written submissions (by email or CE-file). On receipt of any submissions, the judge will make a decision and/ or give directions including the possibility of a remote CMC.

Paragraph 9 Statutory Declarations (Schedule B1)

A statutory declaration made otherwise than in person is open to challenge pursuant to Rule 12.64 on the grounds that substantial injustice has been caused by the defect. Paragraphs 9.2.1 to 9.2.3 provides alternative methods by which a statutory declaration can be made. In those circumstances, the court will not regard such a method as causing substantial injustice.

They are:

9.2.1 The person making the statutory declaration does so by way of video conference with the person authorised to administer the oath;

9.2.2 The person authorised to administer the oath attests that the statutory declaration was made in the manner referred to in 9.2.1 above; and

9.2.3 The statutory declaration states that it was made in the manner referred to in paragraph 9.2.1 above