TEMPORARY PRACTICE DIRECTION SUPPORTING THE INSOLVENCY PRACTICE DIRECTION: THE KEY POINTS HIGHLIGHTED

The Temporary Practice Direction supporting the Insolvency Practice Direction is reproduced in full below. Eleanor Temple summarises the key points.  Eleanor’s detailed summary can be found on the Kings’ website here.

Eleanor Temple

Points of note.

 

* New Guidance of appointments of administrators

* NOI and NOA which are electronically filed when the court is open between 10:00 am – 4:00 pm shall be deemed delivered on the date and time of the filing submission;

*NON QFC Notices filed outside of 10 – 4 or on a non court day, shall be deemed effective at 10:00 am on the day the court is next open for business;

*QFC – electronic filing may not be used outside of court hours- Use Rules.  3.20-3.22

* Adjournment of insolvency cases (in ICC all applications listed before 21 April) and how to get “genuinely” urgent matters listed

* Temporary Listing Procedure for winding-up and bankruptcy petitions

*Format of remote hearings

*Alternative method of swearing statutory declarations by video conference

*  Local Business (North/North Eastern Circuit) Provisions.

TEMPORARY PRACTICE DIRECTION SUPPORTING THE INSOLVENCY
PRACTICE DIRECTION

Introduction
This Insolvency Practice Direction has been introduced to provide workable solutions
for court users during the current COVID-19 pandemic. Its intention is to avoid, so far
as possible, the need for parties to attend court in person and to take into account
the likelihood of the Court needing to operate with limited staff and resources. It also
provides users with guidance as to the type of hearings which the Insolvency and
Companies Court list will endeavour to provide during the period for which this
practice direction is in force.
1. Definitions
“Acceptance” has the meaning ascribed by paragraph 5.3(1) of
PD510
“Act” means the Insolvency Act 1986
“Business Day” means any day other than a Saturday, a Sunday,
Christmas Day, Good Friday or a day which is a bank
holiday in any part of England & Wales
“CE-File” refers to the Court’s Electronic Working portal and
“CE-Filing” means the filing with the court of any
document using Electronic Working
“Electronic Working” has the meaning ascribed to it by paragraph 1.1 of
PD51O which, in accordance with paragraph 1.1 (2) of
PD51O is a permitted means of electronic delivery of
documents to the court for the purposes of rule 1.46 of
the Rules
“Temporary IPD” means this Temporary Practice Direction
“Temporary Listing
Procedure for
Winding-Up and
Bankruptcy Petitions”
means the procedure set out at paragraph 7 of this
Temporary IPD
“Filing Submission
Email”
means the email referred to at paragraph 5.3(1) of
PD51O, generated by automatic notification following
submission of a document using Electronic Working,
which email acknowledges that the document has
been submitted
“IPD” means the Insolvency Practice Direction made by
order of the Chancellor on 4 July 2018
“PD51O” means Practice Direction 51O – The Electronic
Working Pilot Scheme which supplements CPR rules
5.5 and 7.12
“Rule and Rules” means the Insolvency (England and Wales) Rules
2016
“Schedule B1” means Schedule B1 to the Insolvency Act 1986
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2. Application and coming into force
This Temporary IPD supplements IPD. It will apply to all insolvency proceedings
throughout the Business and Property Courts, subject to any variations outside
London as directed by the relevant supervising judge. It will come into force on
6
th April and remain in force until 1 October 2020 unless amended or revoked by
a further insolvency practice direction in the meantime.
3. Filing a notice of intention to appoint an administrator and a notice of
appointment of an administrator
3.1 Subject to paragraphs 3.3 to 3.6 below, for the purposes of Rule 1.46(2), and
notwithstanding anything to the contrary in PD510, in the case of a CE-filing
of any of the Notices identified in paragraph 3.2 below, the Notice shall be
treated as delivered to the court at the date and time recorded in the Filing
Submission Email.
3.2 The Notices to which paragraph 3.1 above applies are: (1) a Notice of
Intention to Appoint an Administrator filed by a company or its directors under
Paragraph 27 of Schedule B1; (2) a Notice of Appointment of an
Administrator filed by a qualifying floating charge holder under paragraph 18
of Schedule B1; and (3) a Notice of Appointment of an Administrator by a
company or its directors under Paragraph 29 of Schedule B1.
3.3 Paragraph 3.1 above shall not apply to a Notice of Intention to Appoint an
Administrator filed by CE-File pursuant to paragraph 27 of Schedule B1
outside the time period 10:00 hours to 16:00 hours on any day that the courts
are open for business. Any such Notice filed by CE-file outside that time
period shall, for the purposes of Insolvency Rule 1.46(2), be treated as
delivered to the court at 10:00 hours on the day that the courts are next open
for business. Accordingly, the date on which the time period of ten days in
paragraph 28(2) shall begin is the date on which the courts are next open for
business.
3.4 Paragraph 3.1 above shall not apply to a Notice of Appointment filed by CEFile pursuant to paragraph 29 of Schedule B1 outside the time period 10:00
hours to 16:00 hours on any day that the courts are open for business. Any
such Notice filed by CE-file outside that time period shall, for the purposes of
Rule 1.46(2), be treated as delivered to the court at 10:00 hours on the day
that the courts are next open for business.
3.5 Notwithstanding paragraph 3.1 above, all Notices identified in paragraph 3.2
above shall continue to be reviewed by the Court, as and when practicable, in
accordance with paragraph 5.3 of PD510. The validity and time at which the
appointment of an administrator is effective shall not be affected by reason
only of any delay in Acceptance of the Notice.
3.6 Electronic Working may not be used to file a Notice of Appointment of an
administrator under paragraph 14 of Schedule B1 by the holder of a qualifying
floating charge outside Normal Court Opening Hours. Such a Notice may
3
only be filed outside Normal Court Opening Hours by the procedure set out in
Rules 3.20 to 3.22.
4. Adjournment of pending applications and petitions
4.1 In the immediate term, it is essential that the court’s resources and
time are preserved for genuinely urgent applications. To that end, all
applications, petitions and claim forms (save for petitions for windingup and bankruptcy to be heard before an ICC Judge sitting in the Rolls
Building in London) currently listed for hearing prior to 21 April 2020
are adjourned, to be re-listed according to one or other of the
following:
4.1.1 Where one or other of the parties considers that a matter that
has been adjourned pursuant to paragraph 4.1 above is
urgent, they may apply to have it re-listed pursuant to the
listing procedure set out in paragraph 5 below.
4.1.2 In the case of petitions for bankruptcy or winding up (other
than those to be heard before an ICC Judge sitting in the Rolls
Building in London), the Temporary Listing Procedure for
Winding-up and Bankruptcy Petitions shall apply, immediately
in the case of petitions to be heard before an ICC Judge sitting
in the Rolls Building in London, and as from the date that it is
brought into effect for each other relevant hearing centre of the
Business and Property Courts by a further guidance note to be
issued by the supervising Judge for that hearing centre.
4.1.3 All other matters shall be re-listed pursuant to such procedure
as is notified as soon as possible for the relevant hearing
centre of the Business and Property Courts by a further
guidance note to be issued by the supervising judge for that
hearing centre.
4.2 The further guidance notes to be issued pursuant to paragraphs 4.1.2
and 4.1.3 above will be published on the Insolvency List web page for
the relevant hearing centre(s) (https://www.judiciary.uk/you-and-thejudiciary/going-to-court/high-court/courts-of-the-chancerydivision/insolvency-and-companies-courts/).
5. Listing Urgent hearings before a High Court Judge or an Insolvency
and Companies Court Judge
5.1 Email the ICC Judges’ clerks at Rolls.ICL.Hearings1@justice.gov.uk ,
or relevant High Court Judge clerk setting out
5.1.1 the nature of the application/claim form/petition (“Application”);
5.1.2 why it is urgent;
5.1.3 estimated time for hearing and pre-reading;
5.1.4 number of parties who will need to attend; and
5.1.5 your confirmation that the hearing can be conducted by Skype for
Business, another stated remote communication application, or
telephone.
4
5.2 Subject to further amendments to deal with practical issues as they arise, the
ICC clerk or High Court Judge clerk will:
5.2.1 allocate the hearing to a judge and send a Skype (or other application)
meeting invitation or dial-in details to the parties;
5.2.2 confirm whether the Application should be issued and paid for via CEFile or whether an undertaking to issue and pay the fee will be required
due to limitations with CE File processing;
5.2.3 either endorse the Application via CE File in the usual way or provide
an email setting out the time and date of hearing which shall be treated
for all purposes as if endorsed on the Application.
5.3 The applicant/claimant/petitioner must send only those documents which are
essential for the hearing by PDF (or by sending a link to an online data room)
to the clerk for forwarding to the judge, confirming the pre-reading time
required.
5.4 The judge will join the hearing by Skype or other means at the allotted time.
5.5 The judge will make directions for the filing of a draft minute of order which, as
soon as practicable, will be sealed and returned to the serving party in the
usual way.
6. Remote Hearings
6.1 Unless ordered otherwise, all insolvency hearings will be conducted remotely
by way of Skype for Business or such other technology as the parties and the
court agree in advance of the hearing.
6.2 In the event that the judge determines, for whatever reason, that it is
inappropriate to continue the hearing, the hearing shall be adjourned and a
new hearing date and time will be fixed by the court.
6.3 Where the circumstances described at 6.2 apply, a notice of adjournment will
be issued by the court.
7. Temporary listing procedure for winding-up and bankruptcy petitions
7.1 As from the date this paragraph is brought into effect the Court will list for
hearing all winding-up and bankruptcy petitions (whether adjourned pursuant
to paragraph 4.2 above or otherwise) in the manner described in this
paragraph 7.
7.2 The Court shall allocate time slots for groups of 2 or more petitions. Each time
slot shall be given a designated meeting link using Skype for Business, or
such other video conferencing technology as the relevant Court decides, or
BT MeetMe, or such other telephone conferencing technology as the relevant
court decides. The links shall be published on the daily cause list. The onus
is on the parties to ensure they are able to utilise the link provided.
7.3 In the event that one or more of the parties is unable to use the link
designated by the Court, subject to the judge’s availability, they may arrange
an alternative link via the Court clerks.
5
7.4 Any person who intends to appear on the hearing of the petition must deliver a
notice of intention to appear on the petition in accordance with Rule 7.14,
providing an email address or telephone number for the purposes of being
invited to join the hearing remotely pursuant to paragraphs 7.1 or 7.2 above
8. Other insolvency hearings
8.1 Judges, clerks, and/or officials will, in each case, wherever possible, propose
to the parties:-
8.1.1 a Skype for Business (or other video conferencing technology) call at
the allocated time by sending an invitation or otherwise making
available a link;
8.1.2 a BT MeetMe (or other recordable telephone conferencing facility) to
be arranged by the court or one or other of the parties at the court’s
direction in good time before the allocated time for the hearing.
8.2 If the parties disagree with the court’s proposed method of hearing, they may
make submissions in writing by email or CE-file (if available), copied to the
other parties, as to what other proposal would be more appropriate. On
receipt of submissions from all parties, the judge will make a determination as
to the way in which the hearing will take place, and give all other necessary
directions.
8.3 It will also be open to the court to fix a short remote case management
conference in advance of the fixed hearing to allow for directions to be made
in relation to the conduct of the hearing, the technology to be used, and/or any
other relevant matters.
9. Statutory Declarations
9.1 Where Schedule B1 requires a person to provide a statutory declaration, a
statutory declaration that is made otherwise than in-person before a person
authorised to administer the oath may constitute a formal defect or irregularity.
Pursuant to Rule 12.64 it is open to the court, on objection made, to declare
that such a formal defect or irregularity shall not invalidate the relevant
insolvency proceedings to which the statutory declaration relates, unless the
court considers that substantial injustice has been caused by the defect or
irregularity which cannot be remedied by any order of the court.
9.2 Where a statutory declaration is made in the manner described in subparagraphs 9.2.1 to 9.2.3 below then the defect or irregularity (if any) arising
solely from the failure to make the statutory declaration in person before a
person authorised to administer the oath shall not by itself be regarded as
causing substantial injustice.
9.2.1 The person making the statutory declaration does so by way of video
conference with the person authorised to administer the oath;
6
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.

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