I am delighted to say that I’ve had some productive exchanges with people at the Insolvency Service on the practical applications of parts of the SBEE Act, the Deregulation Act and the new fees Rules. I have found them generally very reasonable and pragmatic. That’s not to say, however, that it’s all good news!
Small Business Enterprise and Employment Act 2015
I’ve not covered the Small Business Enterprise and Employment Act 2015 since it was just a draft in autumn 2014. Even now, considering that several provisions take effect from 26 May 2015, I don’t see the need to repeat the detail here. Most of you will have received R3’s Technical Alert by email on 17 April 2015, which I think did a pretty good job of telling us all what we need to know right now. However, there is one item that I think deserves more explanation.
CVLs – Progress Reports
As you know, the words “continuing/continues for more than one year” will be removed from S92A and S104A. This means that, where a liquidator ceases to act at any time during a liquidation, he/she will need to issue a progress report in compliance of R2.47(3A) (for E&W only; I can see no equivalent in the Scottish Rules).
Although this may seem fairly innocuous, it now encompasses one circumstance that occurs quite frequently: the replacement of the members’ liquidator with the creditors’ choice at the S98 meeting. The Insolvency Service has confirmed to me that this change does indeed mean that any members’ liquidator who leaves office at the S98 meeting will need to issue a progress report on his/her term in office. There is no reason why this will not apply where the company general meeting immediately precedes the S98 meeting, although it is very difficult to see what the members’ liquidator will have to report other than an hour or so of time costs!
If the company general meeting is held on a different day to the S98 meeting, the creditors’ liquidator will also need to remember that R2.47(3A) resets the progress reporting clock and so, rather than issue a progress report for the first 12 months of the liquidation (i.e. from the date of the members’ meeting), the creditors’ liquidator will need to report every 12 months from the date of his/her appointment.
Although this seems a bit of a nonsense, I am optimistic that the progress reporting rules will become much simpler when the new Insolvency Rules come into force, which is the plan for April 2016. Although there is still much work to be done on the draft Rules, the ones that are currently on the .gov.uk website (https://goo.gl/kr1CSR) hint that progress reports on office-holder switches will be far more flexible. See, for example, draft Rule 18.8(4).
Deregulation Act 2015
This is an odd Act: it began life far earlier than the SBEE Act, but its progress seemed to stall when all eyes turned to the SBEE Act. Thus, it is not surprising that it contains some items that, I think, are far more pressing for IPs than the 26 May provisions of the SBEE Act.
Oh dear! How long will we have to put up with the Minmar state of affairs where Notices of Intention to Appoint an Administrator (NoIA) have to be issued even on some cases where there is no floating charge holder?!
The answer is: not much longer.
The answer is in the Deregulation Act: its paragraph 6 of schedule 6 will amend Para 26 of Schedule B1 so that the need to issue an NoIA is restricted to cases only where there is a floating charge holder. This will then flow through nicely to the existing Insolvency Rules. The problem is that unfortunately it doesn’t yet have a commencement date.
I have been told that it is the Insolvency Service’s current intention to commence this provision in October 2015 (although, of course, that was under the previous Business Secretary).
New Fees Rules (The Insolvency (Amendment) Rules 2015)
A month ago, I blogged on this subject – see http://wp.me/p2FU2Z-a3 – and now I’m able to update some of my queries.
When is a liquidator not a liquidator?
As mentioned previously, R4.127 will be amended to state that “where the liquidator proposes to take [remuneration on a time costs basis], the liquidator must prior to the determination… give to each creditor… the fees estimate”, but does this mean that the IP needs to be in office as liquidator when he/she issues the fees estimate?
The Insolvency Service does not believe this is limited to the liquidator once he/she is in office. In other words, the prospective liquidator may provide the fees estimate before the members’ meeting. This means that, provided the IP can produce an early estimate, these new rules should not impact on the current practice of holding members’ meetings and S98 meetings on the same day.
It is worth noting that the new rules do not stipulate how long before the creditors’ meeting (or postal decision) the fees estimate should be sent: thus, it could be sent along with the S98 notice or at any time before the meeting is held. As the fees estimate needs to be provided to all creditors, however, it will not be sufficient to hand out the fees estimate only at the S98 meeting.
Exceptional treatment needed for SoS-appointed liquidators
As noted in my previous blog, the transitional provisions operate so that, generally, if an IP takes office (as administrator, liquidator, or trustee) after 1 October 2015, he/she will need to follow the new rules in fixing the basis of his/her fees. However, whilst the rules cover compulsory liquidations where the liquidator is appointed by: creditors’ meeting (S139(4)); contributories’ meeting (139(3)); and the court following an administration or CVA (S140), they do not refer to appointments by the Secretary of State (S137).
The consequence of this is that the new rules will apply to all SoS-appointment liquidations, irrespective of when the liquidator was appointed. However, the Insolvency Service has stated that, if the basis of the liquidator’s fees has already been approved before 1 October 2015, then the new rules will have no effect on that case (unless the liquidator seeks to change the basis of his/her fees).
Thus, you may want to look to get your fees fixed on all existing SoS appointment compulsory liquidations before 1 October 2015; otherwise you will need to have some system in place to ensure that you follow the new rules, despite your appointment commencing before 1 October.
As the transitional provisions define that the new rules apply generally wherever there is an administrator/liquidator/trustee appointed after 1 October 2015, I wondered how this would impact, say, cases involving block transfer orders after 1 October 2015: does this mean that the new office-holder would need to go through the fees estimate etc. process?
The answer I received was: not where the new office-holder is continuing to draw remuneration under any prior approval. Only where a new office-holder seeks to change the basis of his/her fees will the new rules kick in.
I look forward to meeting some of you, and hearing more on these and other developments, at R3’s SPG Technical Review series, the first one being held on Tuesday 12 May 2015 in Manchester. There’s a lot going on!