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The Insolvency (Amendment) Rules 2010

The Insolvency (Amendment) Rules 2010 were published by HMSO on 11 March 2010, having been laid before Parliament on 10 March 2010. They come into force on 6 April 2010.

We first reported the New Insolvency Rules (then known as the draft Insolvency (Amendment) (No. 3) Rules 2009) in November 2009 prior to final revision by the Insolvency Rules Committee and to final government approval.

Key points (extracted from the official Explanatory Memorandum) are:

  • communications passing between insolvency office-holders and those involved in the insolvency process may be by electronic means, provided there is consent between the sender and the recipient that communication may be effected in that way;
  • new authentication provisions are provided, to replace the existing requirement that all insolvency documents must be physically signed;
  • meetings that are required to be held within insolvency processes may be held other than at a physical venue;
  • insolvency office-holders are being provided with the option of publishing documents and reports on a website as an alternative to sending such information to creditors by post or e-mail;
  • the requirement for insolvency documents to be sworn before a solicitor or commissioner for oaths is being replaced with a requirement that such documents be instead verified by less burdensome statements of truth and witness statements in accordance with the Civil Procedure Rules;
  • significant amendments are being made to the bases of remuneration and the mechanism by which administrators, liquidators and trustees in bankruptcy have their remuneration and expenses approved or challenged within the insolvency process;
  • an express legislative mechanism is being introduced to enable administrators and other insolvency practitioners to seek recovery of unpaid pre-appointment costs as an expense of the administration;
  • new provisions concerning the content of notices of insolvency events that are advertised in the London Gazette and by other means are being introduced to require certain basic details to be provided in every notice;
  • the current requirement for documents in many insolvency proceedings to be filed with the court will be reduced;
  • provision is being made to provide greater protection to individual debtors by making it explicit that the court may consider limiting disclosure of their address or whereabouts in circumstances where it is satisfied that such disclosure might reasonably be expected to lead to violence against the debtor or a member of their family; and
  • amendments are being made to the 1986 Rules to reflect the fact that the Registrar of Companies will use a power he has within section 1068 of the Companies Act 2006 to impose requirements as to the form, authentication and manner of delivery of documents required or authorised to be delivered to the Registrar.

The essence of the changes in the bases of remuneration is that, for new insolvency cases beginning on or after 6 April 2010, insolvency office holders will be able to be paid on any one or more of the three bases: time-costs, fixed fees and percentage of asset value.

The revised wording makes clear that it is the basis of the remuneration, rather than the quantum, that is fixed by the creditors' committee, the creditors or the court (except when the court is dealing with a claim that the remuneration or expenses of the administrator are excessive).

 

 

Date: 16th March, 2010
Author: Chris Laughton

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