What a difference a day makes…

Notice punctuality is much more than a virtue for IPs.

Many actions by office-holders (or directors in respect of prospective appointments) require the delivery of a notice to categories of persons (typically creditors), providing certain specified notice periods.

The Insolvency (England and Wales) Rules 2016 formalised the rules around notice, deemed date of delivery and calculation of time periods. The Scottish equivalents of these rules came into force in April of this year, and the issues discussed below are of equal application to appointments in Scotland.

Working in the world of compliance, we are frequently invited to review clients’ case files. On a number of occasions in recent months, we’ve seen files where insufficient notice has been given to persons entitled to receive it. The legal effects of short notice are debatable, but what is certain is that any doubt about the validity of a resolution will be extremely unwelcome.

In many cases, we are talking about simple and avoidable calculation errors resulting in short notice by a single day. In this article we will examine what difference a day can make. The criteria are all clearly set out, so why are we seeing so many instances of short notice?

Deemed date of delivery – day zero

One area of confusion seems to be that delivery is itself subject to rules around when it is deemed to have taken place. The deemed date of delivery is calculated with reference to the delivery mechanism employed and is based on business days. It does not, therefore, include weekends and UK Bank Holidays.

The deemed date of delivery is not included within the calculation of the notice period, so is effectively day zero, not day one. By way of example, if you mail by first-class post on the Friday before a Bank Holiday weekend, the deemed date of delivery is not until the following Wednesday and day one of the notice period does not commence until the Thursday.

Notice periods

Notice periods in excess of five days are based on calendar days, not business days, and the default position for notice periods is 14 clear days, unless specified to the contrary. Clear days means including neither the day of delivery, nor the day of the event. So, when fixing a decision date, you must typically add 15 days to the date of deemed delivery, not 14 (as we frequently see).

The administration conundrum

It’s well known that proposals must be sent to creditors within eight weeks of appointment and, where a decision on those proposals is sought, for the initial decision date to be within ten weeks.

However, the rules require 14 days’ notice of the decision date to be given. So, if you exclude the date of the decision itself, the date of delivery and the deemed delivery period, sending out proposals on the last day of the eight weeks necessarily means the initial decision date will not fall within the ten weeks and an extension will be required. We’ve seen a number of cases where practitioners have sent their proposals out on the last day of week eight, seeking to hold the decision on the last day of week ten, with the effect that creditors have received short notice of the decision.

Effect of short notice

The legal effect of short notice is debatable. Some comfort can certainly be drawn from rule 12.64 – ‘Formal defects’ (Scottish equivalent: rule 1.56), which provides that

‘No insolvency proceedings will be invalidated by any formal defect or any irregularity unless the court before which objection is made considers that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of the court.’

But that comfort might be rather cold if the defect is in the appointment process. In Pui-Kwan v. Kam-Ho it was held that the predecessor of this rule (r7.55) was only available once there was a valid insolvency appointment (and not in that case, to cure a defect in an inquorate board meeting at the inception), and in Minmar we saw an administrator’s appointment held to be invalid for a lack of notice to the company. Although in a recent and more encouraging decision, Cash Generator Ltd v. Fortune and others, the liquidators’ appointment was held valid despite a failure to give all creditors notice of a deemed consent procedure.

Short notice will necessarily give rise to rights of challenge by those affected, even if not the automatic invalidity of the process. The consistent message from regulators is that they expect any defects on the approval of remuneration to be remedied (and remuneration to be repaid in the meantime).

Practical tips:

  • Make sure your teams are clear on the calculation of delivery times and notice periods.
  • Why not add the ‘deemed date of delivery’ to your Certificates of Delivery template? It will act as a helpful aide-memoir and instantly flag the earliest date a proposed decision date can be held.
  • If you realise that you’ve provided short notice of a decision on remuneration, consider whether you need a fresh resolution or some form of ratification. Your RPB may expect you to do so.
  • We provide compliance review and in-house training services and can assist with any aspect of your compliance needs.

For further information about how we may assist you, please contact: enquiries@insolvencysupportservices.com

First published in the June 2019 edition of RECOVERY News and reproduced with the permission of R3 and GTI Media.


Alison Curry to speak at R3 Personal Insolvency Forum

Insolvency Support Services director Alison Curry will be speaking about “Compliance around the edge” at the R3 Personal Insolvency Forum in Birmingham on 18 June and Huddersfield on 25 June.

We’re looking forward to a wide-ranging discussion at the event on the key issues and challenges facing insolvency practitioners in the personal insolvency market in the coming years.

For more information and to book: https://www.r3.org.uk/personal_insolvency


Eileen Maclean speaking at IPA Glasgow Roadshow

Insolvency Support Services director Eileen Maclean will be speaking on the recent Scottish Protected Trust Deeds and Debt Arrangement Scheme consultations at the upcoming IPA Glasgow Roadshow 2019.

It’s gearing up to be a great afternoon of learning, discussing and networking. Hope to see you there.

IPA Glasgow Roadshow 2019

13 June 2019
2pm – 5pm

140 West George Street
G2 2HG

For more information and to book: https://www.insolvency-practitioners.org.uk/events/event_details/88

Eileen Maclean on the panel for the Edinburgh Insolvency Discussion Group

Insolvency Support Services director Eileen Maclean is delighted to be taking part in the Edinburgh Insolvency Discussion Group (EIDG) Panel Session on 30 May 2019.

The event will be held at ICAS’ offices in Haymarket Yards from 17:30. Steven Jansch, Head of Insolvency at Gilson Gray, will be chairing the event.

We are looking forward to an interesting discussion. Hope to see you there.

Breathing spaces and Statutory Debt Repayment Plans, Moratorium and DAS

What the Insolvency Service’s new proposals have been learning from Scotland

The Insolvency Service has announced plans to introduce a statutory moratorium for individual debtors – a breathing space – and a statutory debt repayment plan (SDRP) in England & Wales. Both provisions draw heavily from their Scottish cousins – the moratorium provisions of the Bankruptcy (Scotland) Act 2016 and debt payment plans (DPP) under the Debt Arrangement Scheme (DAS) – but are distinct in key aspects, not least the role of the IP in DAS, which is not replicated in SDRP.

The role of the IP as money adviser

Following its introduction in 2004, DAS was provided solely by the money advice community. Money advisers were trained to provide DAS, but with no personal financial incentive to reflect their enhanced skills or responsibilities, after an initial flurry of interest and qualifications, the number of DAS-approved money advisers in the free sector levelled off. As a result, it was difficult to access the programme and, where DAS was available in the free sector, it could (and still does) mean a much longer wait for an appointment. DPP numbers in the initial years were disappointing, and it was only following substantial revision to the DAS Regulations in 2011 allowing IPs to set up and run DPPs, that numbers increased. It’s perhaps therefore disappointing (depending on your view!) to see that the SDRP doesn’t envisage a role for IPs.

The Scottish government is looking to extend the ability to be a debt payment distributor (currently restricted to four firms appointed following public tender) to all money advisers, including IPs, with a view to making the procedure more attractive to IPs generally and less complicated from a debtor’s perspective. The role of the IP is generally viewed in Scotland as a positive enabler of DAS and one that relieves the pressure on the money advice sector. To have any chance of success, SDRP will have to see the money advice sector adequately and routinely funded.

Role of the FCA

Any IP doing DAS has to be registered with the Financial Conduct Authority (FCA). Leaving aside the cost implications and the double regulation of FCA/RPB oversight, an IP who is not FCA registered cannot advise on DAS. The insolvency exemption doesn’t cover us, since if we can’t do a DAS, we can’t advise on it. IPs will therefore have to signpost debtors looking for SDRP to the money advice sector.

Impact on IVAs

The big question for IPs will be what impact SDRP will have on the number of IVAs. Similar concerns about the impact of DAS on protected trust deeds (PTDs) were expressed, but the anticipated reduction in PTDs didn’t happen. Arguably that’s because the products provide different solutions and meet the distinct needs of different sectors of the market, and SDRP and IVA will do the same. There’s a further argument that the focus on money advice and breathing spaces will see an increase in individuals generally seeking debt advice.

Breathing space as a ‘blocker’ and DAS as preferred solution

What will be interesting is the extent to which the breathing space will be used, and if so, to what extent it will be used to block action by a creditor. In Scotland, the moratorium provisions have been used far less than expected. It’s often creditor action that propels the debtor to the money adviser, and a moratorium after the event is of no consequence. A bigger problem is DAS being used as a blocker to bankruptcy, given the court’s discretion to allow an attempted DAS as a defence to the award of sequestration. DAS as a solution is therefore prioritised, and the interaction of SDRP and English bankruptcy law will determine whether SDRP is to be given the same ‘preferred’ status.

Debtor’s property, rent or mortgage arrears

A Scottish moratorium doesn’t prevent action against a debtor by their landlord or secured lender in respect of their property, and there is still the risk that a debtor could lose their tenancy or face repossession. DAS has always struggled with rent or secured lender arrears, and it’s only very recently that mortgage and rent arrears can be excluded from the DPP. This allows creditors to accept or reject the proposal on full disclosure, but partial inclusion. The plans for SDRP specifically include such arrears as priority debts. Coupled with the proposed ban on no-fault eviction in England & Wales, it will be interesting to see that practical effect these have on protecting debtors in leasehold property.

Another key differential is the option to include the sale proceeds or a lump sum released on the re-mortgaging of the property in DAS whereas in SDRP, the property will not be included in any way. The option to include as a discretionary condition in DAS has again only recently been introduced, to assist debtors who wanted the ability to offer a lump sum sourced from a future sale or re-mortgage of the house. That more closely mirrors IVA provisions, and where property is part of a debt solution, an IVA may well be the most appropriate option


Scotland is attempting to replace the Common Financial Statement with the Standard Financial Statement, and it is the SFS which will underpin the SDRP. The aim is the same: there should be a common platform against which everyone is assessed and their contribution fixed. In theory, when introduced in Scotland, this was to ensure that there was no ‘contribution shopping’, there was consistency of assessment wherever the debtor sought advice, and certainty of contribution on entry into the solution of choice. Of course, the reality has been somewhat different, and most criticism seems aimed at the DAS Administrator’s assessment of and fixing of contributions. Insolvency Service take note!

First published in the May 2019 edition of RECOVERY News and reproduced with the permission of R3 and GTI Media.


Requirement for Annual Meetings in existing CVLs

There have been differing interpretations within the profession of the savings provisions contained in The Public Services Reform (Insolvency)(Scotland) Order 2016 and how they apply in conjunction with the new Scottish Rules.

The original order may be found here, in which s105 is repealed as of 6th April 2019, subject to Article 15(3) which appeared to save s105 for any case where the resolution to wind up pre-dates commencement under article 1(4), (notably, without reference to the obligation having arisen yet).

However, we have since become aware that the 2016 Order has been amended by The Public Services Reform (Insolvency)(Scotland) Order 2017 to the effect that s105 is no longer saved, other than where the obligation to hold the annual meeting has arisen prior to commencement: click here. Unfortunately, the government does not publish amended secondary legislation, so reference needs to be made to both instruments.

So where the anniversary falls within the three months prior to April 2019, the ability and requirement to hold the annual meeting is preserved by the transitional provisions in the Rules. In these straddle situations, the old rules on type of report are also saved.

All other existing cases will now follow the amended s104A (s105 having been repealed).

The recently published advice from the AiB is here.

How we can assist you

We’ve been examining in detail the new Scottish Rules and their practical implications. We can offer bespoke in-house training, Rules-compliant document packs and checklists, and compliance support.

For further information about how we can assist you in adjusting to the changes brought about by the new Rules, contact enquiries@insolvencysupportservices.com

Insolvency (Scotland) Rules: Statutory Declarations

An aim of the new Rules is to modernise the language of the statute. One of the terms that we wave goodbye to is affidavit, and in its place comes statutory declaration. The language might not be ancient Latin, but it’s still an old and well-established piece of statute that sits behind it, stemming as it does from the Statutory Declarations Act 1835.

A Statutory Declaration is a statement made in lieu of an oath and the Act contains a prescribed form of Statutory Declaration. A Statutory Declaration is included within the current standard form Notices of Appointment of Administrators and therefore a similar approach to the various documents which require a Statutory Declaration in terms of the New Rules seems reasonable. The following wording (amended to reflect the terminology used in the relevant Rule) can be inserted into the relevant document.

I [ ] do solemnly and sincerely declare that [the information provided in [this notice/this statement of affairs/statement of concurrence] is,] [these accounts are,] to the best of my knowledge and belief, [true][accurate and complete],

AND I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declarations Act 1835.

Declared at _________________________________

Signed _____________________________________

This ______________ day of ___________________ 20

before me __________________________________

A Notary Public or Justice of the Peace

It appears that a solicitor in Scotland is not authorised to take oaths as per s18 of the 1835 Act, and therefore any statutory declaration should be signed in front of a notary public or justice of the peace. If any doubt as to your requirements, take independent legal advice.

How we can assist you

We’ve been examining in detail the new legal requirements and their practical implications. We can offer bespoke in-house training, Rules-compliant document packs and checklists, and compliance support.

For further information about how we can assist you in adjusting to the changes brought about by the new Rules, contact enquiries@insolvencysupportservices.com

Insolvency (Scotland) Rules: Nomination Process

The new Rules will come into force on Saturday 6 April 2019. We will be keeping you posted where we can on interpretations and issues in the period of their introduction.

First up, we’ve walked through the nomination process to have a look at the timescales involved where an interim liquidator, appointed on 8 April 2019, seeks and obtains one nomination as liquidator, and goes back to the creditors for a decision by way of deemed consent. We have assumed that the interim liquidator in this example issues notices at the last possible occasion, and uses 2nd class post wherever possible. The table below outlines what we think that process looks like.

Event Date or deadline Statutory Reference Narrative
Winding Up Order (WUO) Monday 08/04/2019 S138 Must as soon as practicable seek nomination within 28 days beg within WUO.  Therefore 28 days in this example expires on Sunday 5 May. It’s possible that that RPBs may take view on an  IL always sending out at last possible time given s138 requires nominations as soon as practicable.  Can ignore Easter bank holidays, since requirement is 28 days (not business days) from WUO.
Last date for posting report and nomination request: using 2nd class post 29/4/2019 R1.38 Deemed to have been delivered 4 business days after the date of sending.


Last date report and notice can be received by creditors Friday 3/5/2019 Report and nomination notice received by creditors on Friday (since Sunday  not a business day)
Nominations received from Creditors Mon 13/5/2019 R5.22(5) Has to be received within 5 business days of the date of the notice issued requesting nominations (if they are sending it 2nd class, they would have to post it Tues 7th May latest (since Mon 6th May is a Bank Holiday) to ensure received by IL in time)
Decision date expiry Monday 3/6/2019 R5.22(9) The decision date has to be no later than 21 days after the date of receiving nominations – nomination date 13/5/2019 + 21 days = Monday 3 June 2019 (can ignore bank holiday on 27 May since Rules refer to 21 days and not business days).
Therefore, latest date for issue of circular, giving a minimum of 14 days’ notice, to include 2 business days for 1st  class.  (note posting 2nd class here doesn’t give enough clear notice) Wed

15/5/2019 deemed to be delivered Fri  17/5/2019 at latest)

R5.22(10) Giving at least 14 days’ notice + 4 business days for 2nd class post not to include the date of delivery and the date of the decision. (Rule 1.3)  In effect, on the next business day following the expiry of the nomination period, using 2nd class post doesn’t allow 14 clear days’ notice of the decision to be issued – since Rule 1.3 defines clear days not to include the date of sending or the date of the event.  On this occasion, looks like you are going to have to use first class post.
Last date for creditors to exercise 10:10:10 objection and request a physical meeting Fri 24/5/2019 R8.8 Creditors may within 5 business days from the date of delivery of the notice require a physical meeting to be held. The convenor then has 3 business days from the threshold for requests being received to send notice in accordance with the Rules, giving creditors 14 days’ notice of the meeting. That would have to take into account the bank holiday on Monday 27 May.
Latest date for decision (the backstop) Thu 6/6/2019 R5.22 (7) where a decision is sought under r5.22(6) the decision date must be not more than 60 days from the date of the winding up order.

Most of you will have diary systems and prompts to assist you with the planning of your processes. However, this exercise demonstrates that you can’t leave everything to the last minute and issue by 2nd class post. You simply won’t meet your deadlines.

This is a good example of why putting everything on a website going forward will be advantageous, and understanding the implications of delivery (rather than sending).

How we can assist you

We’ve been examining in detail the new legal requirements and their practical implications. We can offer bespoke in-house training, Rules-compliant document packs and checklists, and compliance support.

For further information about how we can assist you in adjusting to the changes brought about by the new Rules, contact enquiries@insolvencysupportservices.com

Common Ground: Insolvency (Scotland) Rules 2018

The new Scottish corporate insolvency rules will come into force on 6 April 2019. At the same time, the final suite of changes to Scottish specific elements of the Insolvency Act 1986 will be enforced with the commencement of the Public Services Reform (Insolvency) (Scotland) Order 2016.

Two sets of Rules

Due to a partially devolved corporate insolvency regime, Scotland’s new corporate rules are found in two pieces of secondary legislation: The Insolvency (Scotland) (Company Voluntary Arrangement and Administration) Rules 2018 and the Insolvency (Scotland) (Receivership and Winding up) Rules 2018 (“the new Scottish Rules”). Together, they will bring Scotland’s corporate insolvency regime broadly in line with England and Wales from 6 April 2019. But not entirely. Certain aspects of the Scottish procedures will remain distinct – for example accounting periods and remuneration approval processes. It is also worth noting that the new Rules in Scotland have no impact on personal insolvency, which continues to be subject to the Bankruptcy (Scotland) Act 2016.

Decisions, decisions…

Scottish IPs are now getting to grips with provisions familiar to our English cousins: the restriction on an officeholder’s ability to hold a physical meeting of creditors, and the move to decisions of creditors by deemed consent (where available) or by one of a number of prescribed decision procedures: correspondence, virtual meeting or electronic voting, with physical meetings available only where requested by the requisite number or value of creditors (the 10:10:10 rule).

The good news for practitioners dealing with Scottish appointments from 6 April 2019 is that a lot of creditors and stakeholders will be familiar with the decision-making process already. On the other hand, if the English experience is anything to go by, it won’t necessarily increase engagement and deemed consent will be the default process.

Consolidation or duplication?

One of the driving principles behind the new Rules North and South of the Border was to consolidate 32 years of amendments to statutory instruments since the existing Rules came into force in 1986. The new Scottish Rules contain impressive lists of revocations, but also a fair amount of duplication across both sets. Part 1 of each of the administration and liquidation Rules defines scope, times and documents. Decision making, proxies and corporate representation, the EU regulation, and block transfer of proceedings also enjoy commonality, but under different section numbers in each set of rules.

Those familiar with the 1986 Scottish Rules will know that currently the Administration rules rely heavily on the Liquidation Rules for their provisions. The new Administration Rules no longer do so, and the process is set out in detail in Part 3 of the new Rules. The process for a CVA is similarly detailed in Part 2. There is an extension, rather than contraction, of the Scottish Rules pertaining to Liquidation. Part 4 of the existing 1986 Rules applies to Court Liquidation, and then Schedules 1 and 2 set out how Part 4 applies to CVL and MVL (if at all, in the case of the latter procedure), but each of these liquidation processes now has a dedicated part in the new Scottish Rules.

CVL in Scotland

The CVL entry process will once again be common across the UK. Directors North and South of the border will seek a decision from creditors as to their preferred liquidator and gone will be the costly statutory advertising requirements and personal attendance at a section 98 meeting that, post-2017, survived in Scotland only. This provides a level playing field for all IPs, wherever they are located, and widens the choice of IP firm from a director’s perspective.

Court Liquidation

As you know, there are a lot of distinct Scottish terms – gratuitous alienation, for example! Here is another one: “guddle”, meaning muddled or messy. To use it in a sentence, one might say ‘the new court liquidation process to appoint a liquidator is a bit of a guddle’.

In their capacity as interim liquidator IPs will need to seek a nomination as liquidator from creditors, and if no nomination is provided, will revert to the relevant court to seek confirmation in office as liquidator. That’s the easy bit, which has not significantly changed from the 1986 provisions.

If, however, a nomination (or nominations plural) is received, the IP must go back to creditors with a decision-making procedure for appointment. If only one nomination is made (presumably for the interim liquidator to continue as liquidator), then a deemed consent procedure could be used. If two or more nominations are received, a decision by correspondence or virtual meeting is the next logical step, but the Rules are not explicit. Practitioners therefore need to give some thought to the situation and which procedure best suits. The standard appeals (10% in value to deemed consent) and the 10:10:10 Rule in relation to physical meeting requirements apply, so it could be possible, in a contentious liquidation, for deemed consent to lead to a decision procedure, but still end up in a physical meeting. The familiar (and comfortable) court liquidation process has been up-ended. Deep breath everyone!

Liquidation process

Where commonality does feature, it relates to the post- appointment liquidation process. Part 7 of the Liquidation Rules sets out how accounting periods, progress reports and final reports will apply in future, and from what date retrospectively. As a rule, the start date for progress reports in a CVL will be the date of the appointment of a liquidator and in a court liquidation it could be variously the date of the appointment of the provisional liquidator (if there is one) or the appointment of the interim liquidator in all other cases.

Relevant date for claims

Another surprise is the relevant date for claims moving from the date of the presentation of the petition in court liquidation to the date of the winding-up order. The definition of relevant date is unhooked from s129 and instead attached to the definitions in s247 of the Insolvency Act 1986. Given too that the appointment of a provisional liquidator is more prevalent in Scotland, IPs should think carefully about the consequences of their actions in the period of provisional appointment.

Remuneration and accounting periods

As those of you dealing with Scottish cases know, the process for obtaining approval for remuneration is distinct from England and Wales and invariably involves the court. The remuneration approval process will remain largely unaltered, which limits the impact of the decision-making procedures when compared to England and Wales.

A more welcome revision may be the changes to the operation of accounting periods that allow an IP to manage accounting periods, albeit with court or committee approval. The first two six-month accounting periods will remain, but thereafter a practitioner can defer a claim for remuneration without court or committee approval.

MVL in Scotland

So how does the MVL process fare in the new Rules shake-up? The good news is that the entry process remains unchanged North and South of the border. Statutory interest is now consistent – both in terms of amount and application, but will automatically apply in retrospect to MVLs open at 6 April 2019. IPs need to review cases now for outstanding creditor claims and ensure that where these, and the corresponding statutory interest burden, might be material, they are paid in full before 6 April. If that is not possible, then shareholders need to know the quantum of back-dated interest that’s going to impact on their capital return. You may also need to dust down some indemnities as well.

From 6 April 2019, the statutory rate of interest in corporate insolvency in Scotland will reduce from 15% to 8%, (in line with the judicial rate and the applicable rate in personal insolvency in Scotland) and applies in MVLs, which is not the case under the 1986 Rules. Schedule 2 of the 1986 Rules specifically doesn’t apply Rule 4.66 and 4.67 to MVLs. Scottish IPs contemplating an MVL immediately post 6 April 2019 need to be mindful that statutory interest will apply and deal with the payment of pre and post appointment corporation tax accordingly.


For the reasons set out already, the biggest change to the Administration Rules is their length. The 1986 Liquidation Rules, on which Scottish administrations relied, have been written out in full in the new Administration Rules – for example Creditors’ Committees and Claims. The Scottish Administration Rules are the closest to their English equivalents, but it is disappointing to see some of the glitches arising from the English provisions being imported directly into the Scottish Rules – specifically, listing the date and time of appointment in the proposals and notice documents. There are also duplicate, but conflicting, Rules on the order of priority. Watch out for more guidance on these areas in the coming months.

Key steps for your practice

Your geographical location, and your familiarity with the English Rules, will dictate how much preparation your practice requires for the introduction of the new Scottish Rules. You may already be familiar with the changes that the new Rules are bringing, or you might need training and guidance on their introduction and implementation.

You will need to amend your document packs to reflect new standard contents. You will also need to consider what form of decision procedure will be appropriate for the size and nature of the cases you administer and think about which platform best suits a virtual meeting provision. Consider too the benefits and opportunities presented by these changes in terms of cost saving to how you operate, particularly surrounding the use of websites as a principal form of communication with creditors.

For further information about how we may assist you in adjusting to these changes, contact: enquiries@insolvencysupportservices.com

First published in the Spring 2019 edition of RECOVERY magazine and reproduced with the permission of R3 and GTI Media.

Celebrating International Women’s Day 2019

Insolvency Support Services is proud to be celebrating International Women’s Day (8 March 2019).

Today – and every other day of the year – we recognise the vast and vital contribution that our many talented female colleagues and clients make not just to our own business, but also to the insolvency industry throughout the UK.