New ISS Training website and 2020 course programme

We are delighted to launch our comprehensive new directory of courses for 2020 on our brand-new bespoke ISS Training website. Click here to access our new online booking platform – from which you can book and pay online – to see our complete range of training courses running throughout 2020 and online.

We have added new streams to our training offering, with Practice Management Workshops and Compliance Awareness Online Learning joining our ever-popular Foundations, Exam Training, One Hour Series, Technical Updates, Masterclasses and Personal and Business Development.   You can search for courses by stream, date or location.

Brand New: Practice Management Workshops

Designed specifically for the SME or sole IP, or those responsible for compliance in their team, out new Practice Management Workshops consider, discuss and develop practical policies and procedures that you can implement in your practice to meet your legal obligations in a manner that enhances your business in a cost effective and timely manner.

There are five workshops to choose from:

  • Practical AML Policies and Procedures;
  • Financial Controls and Annual Compliance Statements;
  • Data Privacy and Cyber Crime Prevention;
  • Avoiding Discrimination;
  • PII, Bonding and Insurance Considerations.

Choose to attend all five and pay for just four.  Workshops will run throughout 2020 in Birmingham, London and Edinburgh.  Click here for full details.

Compliance Awareness Online Learning

Tailored specifically for insolvency teams, our Compliance Awareness Online Learning allows you to manage your insolvency compliance risks cost effectively, meet your statutory training requirements and protect your firm’s reputation.  Delivered across four modules, on line, with certification on completion, these courses on Anti-Money Laundering, Data Protection, Vulnerability and Ethics will enable your team to grasp the key legal, regulatory and business issues related to each area, understand their relevance to their role, and apply their learning in an insolvency environment. Click here for more information.

Book and Pay Online

All of our courses are detailed on our ISS Training website, and you can now book and pay online if you wish.  If you book three places at a Technical Update, Masterclass or One Hour Series you will qualify for our usual great discount of 50% off the third booking.

If you prefer us to invoice you, or to have your booking processed by us, you can phone us on 0845 601 7570 or email courses@insolvencysupportservices.com

If you wish to purchase a pre-recorded webinar, you can book and pay online, and access will be available as soon as payment is processed – this means you can catch up on your CPD at any time!

Register Your Interest / Bespoke In-House Training

On our new site you will find all of our scheduled courses for 2020, as well as our catalogue of courses that we can run publicly or in-house.  You can register your interest in a course in your area and we will advise you when we can run it.  If you wish to run any of our courses in-house, contact us directly.

We look forward to welcoming you on one of our courses soon.

The quality of IP reporting: a cause of creditor confusion?

Yvonne Joyce and Eileen Maclean provide an insight into insolvency practitioner reporting in corporate insolvency proceedings.

  • Insolvency reports, including statements of affairs, abstracts of receipts and payments (R&Ps), trading accounts, estimated outcome statements and the accompanying qualitative narrative, are a primary channel of communication between insolvency practitioners (IPs), creditors and shareholders. Insolvency reports provide creditors with information on how the IP has maximised value for the creditors and stewardship information on how the IP has managed scarce resources.
  • Statements of Insolvency Practice 7, 9 and 14 set out the principles under which this information should be presented, but the indirect findings of a large-scale empirical research project undertaken by academics at Glasgow University suggests that reporting in insolvency is not straightforward, despite the requirements of the relevant SIPs.
  • Yvonne Joyce and Eileen Maclean analyse the challenges this presents to the creditor body (the primary recipient of these reports) in terms of their ability to fully understand how the insolvency has been managed and to quantify the amounts paid out as dividends, and suggest room for improvement in practitioner reporting if the insolvency reports are to fulfil their important accountability and trust-building roles and comply with relevant SIPs.

Contemporary analysis of corporate reporting underlines the importance of robust communication between companies and a range of stakeholders. Corporate reports provide information on performance and stewardship information relating to the management of resources. Corporate reporting is therefore a key mechanism by which managers can account for their decisions and actions to different stakeholders. Corporate reports are also recognised as an important means of restoring trust among market participants (ICAS, 2018)<1>. The relevance of the above analyses to insolvency reporting ought to be clear. Insolvency reports, including statements of affairs, abstracts of receipts and payments (R&Ps), trading accounts, estimated outcome statements and the accompanying qualitative narrative, are a primary channel of communication between insolvency practitioners (IPs) and creditors and shareholders. Insolvency reports provide creditors with information on how the IP has maximised value for the creditors and stewardship information on how the IP has managed scarce resources.

Academic research has drawn attention to ‘information’ and ‘competence’ gaps between IPs and creditors (Joyce, 2019)<2>. An ‘information gap’ arises as a consequence of information asymmetry. IPs should be better informed than many creditors, having access to management and internal information systems. A ‘competence gap’ arises as a consequence of one party possessing expert knowledge of a situation compared with another. IPs are expected to have higher competence levels than many creditors on insolvency-related matters, being repeat players and professionally qualified. In this context, insolvency reports play an important role in mediating relationships between IPs and creditors, helping to build trust at a time of uncertainty (Joyce, 2019). However, their potential in this regard depends on the quality of information provided. According to SIP 7, insolvency reports should be clear, informative and presented in a manner that is transparent, consistent and useful to creditors.

The quality of information provided by IPs

Considering the above, the purpose of this article is to explore and debate the quality of information provision by IPs. It does so by summarising the indirect findings of a large-scale empirical research project undertaken by academics at Glasgow University<3>.

During the process of data gathering, it became apparent that reporting in insolvency was not straightforward, despite the requirements of relevant SIPs. This presents challenges to the creditor body (the primary recipient of these reports) in terms of their ability to fully understand how the insolvency has been managed and to help explain the monetary amounts paid out as dividends. These issues suggest room for improvement in practitioner reporting if the insolvency reports are to fulfil their important accountability and trust-building roles and comply with relevant SIPs.

Categorisation between fixed and floating charge assets

A key reporting issue identified was the allocation of realisations between different categories of assets and apportionment of costs. SIP 14 sets out best practice for receivers in cases where assets are subject to a floating charge. Despite the specific application to receivership, it is our view that the principles of SIP 14 ought to apply across all corporate insolvency proceedings, a point we return to later in this article.

In a significant number of cases, the format of R&P accounts is such that the categorisation between fixed and floating asset realisations and payments is unclear. Single headings are used, described only as ‘receipts’ or ‘asset realisations’ and ‘payments’ or ‘costs of realisation’, with a corresponding list of what the realisations and costs entail. Reporting in this way does not enable a straightforward and transparent view of how realisations relate to or have been apportioned between the different categories of assets and, furthermore, hinders an assessment of how costs have been allocated between fixed and floating charge asset realisations. Without a clear categorisation between fixed and floating charge assets, readers are often left to form ‘best guess’ allocations of realisations and costs. In the majority of cases, the narrative provided within the administrator’s reports is inadequate to form anything other than a ‘best guess’.

The level of dividends paid to preferential and unsecured creditors is a function of the funds realised from the disposal of assets subject to a floating charge net of the costs of realisation. SIP 14 reminds us that these returns are dependent not only on the correct categorisation of the assets but also on the appropriate allocation of costs incurred in effecting realisations. Data gathering revealed the difficulties in assessing the allocation of the administrator’s fees and expenses between fixed and floating asset realisations. There was usually no explanation of how administrator’s fees had been split and the SIP 9 data was of little help. In fact, SIP 9 data often supported time spent on ‘asset realisations’ (including property) but with no corresponding allocation of fees to fixed asset realisations on the R&P accounts. Greater transparency over allocation of significant cost items, such as office-holders’ fees and legal fees, is of paramount importance, given the knock-on effects on the calculation of a prescribed part.

Where these issues become most apparent is in cases where the secured creditor appears to be ‘overpaid’ from the net proceeds of their fixed charge assets. According to SIP 7, realisations of assets subject to charges should be shown, with the amounts accounted for to the charge holder shown separately as payments. However, in some cases, the net asset realisations less payments to the secured creditor was reported as a ‘negative’ figure. Reading between the lines, a reader must assume that an element of floating charge asset realisations has effectively been applied to the secured creditor’s debt. While the ‘end result’ may be correct, R&P accounts should be presented in a way that ‘makes sense’. In some of these cases, a prescribed part could have theoretically been calculated (or could have been higher) and a (higher) distribution made to unsecured creditors.

Reporting the statutory objective of administration

The Glasgow University project collected information on which statutory objective the administrator was pursuing, the formal exit route and the administration outcome. Preliminary analysis of these variables suggests that corporate rescue is rarely achieved (the majority of cases are asset sales and approximately half of the cases pursue statutory objective c)). This result is not new. Prior studies have revealed similar findings, suggesting that administration tends to be used as means of trying to rescue the ‘business’ rather than the legal entity (Joyce, 2014)<4>. However, what this project does find is that there is insufficient explanation of how the administrator has arrived at the chosen statutory objective. Beyond the restatement of statutory wording, there is rarely any relevant and useful information provided by the office-holder on why they deem the chosen objective to be most appropriate to the case in hand. Furthermore, given the tendency for asset sales, readers are often left wondering why administration was chosen over liquidation.

In several cases, a clear statement of which statutory objective is being pursued was not provided. It was observed that either the chosen statutory objective was not stated, following the ‘boiler plate’ descriptions of the three objectives, or the proposal stated that both objectives b) and c) were being pursued apparently at the same time. The research project, which tracks cases through to completion, also revealed some instances where the stated statutory objective appears inconsistent with the formal exit route or the reported administration outcome.

General reporting issues

A wide range of general reporting issues was observed and a flavour of some of these is briefly discussed here. In cases where the company in administration enters a CVL, a common occurrence was for the ‘closing balance’ on the final set of administrator’s accounts to differ from the ‘opening balance’ (or ‘funds transferred from administrator’) on the first set of liquidator’s accounts. One explanation for this is that the ‘closing date’ and the ‘opening date’ are not necessarily the same. However, in these instances, this effectively leads to a ‘missing period of account’. In cases where the closing date of the administrator’s final R&P is the same as the opening date of the liquidator’s first R&P, no explanation is given for what in some cases are substantial differences of value.

It was also quite common to find a ‘final balance’ on the administrator’s last R&P account. Sometimes this is noted as ‘bank balances’ or ‘VAT control accounts’, but there is no explanation of what this means or what will happen to these funds.

Inconsistencies from one progress report to another or even within the same report were also encountered. The filing of documents with Companies House was also confusing in a small number of cases. For example, the notice of move from administration to dissolution is filed after the notice of end of administration or after the notice of automatic end. A further issue is reporting under English rules for Scotland-registered companies.

Summary and policy recommendations

SIP 7 states that insolvency reports should be produced with the interests of the reader in mind. Earlier in this article, we noted the theoretical possibility of information and competence gaps between IPs and creditors. The above snapshot of reporting clearly highlights the difficulties facing the general body of creditors in understanding how the IP has taken care of, managed and realised the company’s assets. It also reveals the difficulties in understanding what factors have ultimately driven the value of creditor dividends. A concern is a lack of transparency and therefore understandability for creditors. Reports are not consistent across a case and a considerable amount of ‘toing and froing’ is required between reports. Unfortunately, even then, a ‘best guess’ is quite often the end result for the reader. Insolvency reports must be capable of providing a ‘stand-alone’ account of how the office-holder has fulfilled their statutory duties and provide creditors with a clear account of the office-holder’s stewardship activities. Greater care and attention ought to be directed towards the preparation of these reports and accounts. IPs, whose names ultimately appear on these documents, must be satisfied with their accuracy, consistency and understandability before they are sent to creditors and made available to the public.

The ambiguity surrounding the allocation of realisations and costs to fixed and floating charge assets was observed in a significant number of cases. From a creditor’s perspective, this ambiguity and lack of transparency makes it more difficult for them to understand why, in many cases, they are receiving very little or no dividend. The qualitative information contained within the reports should be consistent and helpful in explaining the financial position presented in R&Ps. This article and the wider research project that underpins it therefore support the revision of SIP 14 and the argument that SIP 14 should be best practice across all corporate insolvency proceedings.

Consideration may also be given towards improving the required content and format of the explanation and justification within the administrator’s proposal of the chosen statutory objective. Given the rare occurrence of statutory objective a) administrations, attention may be directed towards enhancing the explanations offered for why administration has been chosen rather than liquidation.

Finally, it may be worth considering whether a reconciliation ought to be provided by the liquidator between the closing balance per the administrator’s accounts and the opening balance per the first set of liquidation accounts.

 

<1>ICAS (2018). https://www.icas.com/__data/assets/pdf_file/0010/368461/VISION-STRAW-MAN-4-June-2018-FINAL-PDF.pdf

<2>Joyce, Y. (2019) Building Trust in Crisis Management: A Study of Insolvency Practitioners and the Role of Accounting Information and Processes, Contemporary Accounting Research, https://onlinelibrary.wiley.com/doi/abs/10.1111/1911-3846.12577

<3>The researchers are Yvonne Joyce (yvonne.joyce@glasgow.ac.uk) and Betty Wu, from Glasgow University, Adam Smith Business School, Accounting and Finance. The final data set comprises the full population of Scottish registered companies entering administration during 2012-2013.

<4>Joyce, Y. (2014) Knowledge mandates in the state-profession dynamic: A study of the British insolvency profession. Accounting, Organizations and Society, 39 (8), pp. 590-614. https://www.sciencedirect.com/science/article/pii/S0361368214000555?via%3Dihub

 

Yvonne Joyce (BA Hons CA) is senior lecturer in accountancy at Glasgow University

Eileen Maclean (MA Hons MIPA MABRP MBA) is director of Insolvency Support Services Ltd

 

First published in the January 2020 edition of RECOVERY NEWS and reproduced with the permission of R3 and GTI Media.

New Course: Anti-Money Laundering 2020 (including 5MLD changes)

Meet your annual AML training obligation with the ISS online Anti-Money Laundering Update. This short course is tailored specifically to those working in the insolvency profession and includes:

• An overview of the key changes to the above, by virtue of the 5th European Money Laundering Directive (5MLD)
• A refresher on key elements of the UK’s Anti-Money Laundering and Terrorist Financing regime, to include:
o Identifying risks
o Client Due Diligence / Enhanced Due Diligence
o Suspicious Activity Report

Knowledge checking

To reinforce learning values the course includes individual knowledge checking, so you can be assured that that each member of your team is alive to the risks they face in their role and can play their part in controlling these risks to your practice.

Individual certification

Each participant receives their own personalised certificate of completion in order that you can evidence that you have addressed the training requirements contained in the Money Laundering Regulations to your AML Supervisor.

This course is aimed at insolvency personnel and relevant support staff and is suitable for people with varying levels of pre-existing knowledge and technical ability.

Flexible completion and progress tracking

Individual registrations may commence at any time, to cater for work flows and new joiners within your firm. The time available for completion can be determined by you to suit your business (we recommend allowing around 4 weeks from registration) and to ensure everyone fully engages with their training, we will provide you with updates on participation and completion.

Cost

Individual – £75

5-person package – £200

20-person package – £700

50-person package – £1,500

All prices are exclusive of VAT at the prevailing rate.

Book Your Place

For enquiries and bookings, email: courses@insolvencysupportservices.com

ISS Training announces 2020 JIE Programme

We are delighted to announce our 2020 JIE Programme.  Click here for comprehensive details.

At ISS Training we pride ourselves on the quality of our material, the depth of our practical experience as IPs and our ability to translate both into exam success for our candidates. Face-to-face tutorials get results.

Our JIE courses are structured in three-day modules, taught face-to-face, and designed to cover the relevant legislation and the exam syllabus in depth. We include detailed notes to aid learning and revision and we also look at practical issues faced when taking appointments, current issues in insolvency and the impact of recent judicial decisions.

Our programme also includes mock exams, which we will mark and return with individual written comments on technical ability and exam technique. We also provide individual coaching and support self-study throughout the year.

Candidates will be examined on legislation in force as at 30 April 2020.

Book your place

Email to book your place: courses@insolvencysupportservices.com

Alternatively, should you have any questions in relation to these courses, please feel free to contact us via the email above or give us a call on 0845 601 7570.

 

 

 

 

ISS Training launches CPPI England & Wales Training for 2020

ISS Training is delighted to launch a brand-new offering: CPPI training for England and Wales, starting February 2020. We have two options: a distance learning course and our full course, which includes online learning and four days of face-to-face training. For comprehensive details of both options, click here.

The IPA’s Certificate of Proficiency in Insolvency exams are designed to test and demonstrate competency in insolvency administration. CPPI concentrates solely on personal insolvency and non-insolvency debt solutions.

Study at a consistent pace, with support throughout, to maximise your chances of success. Our courses offer periodic testing to reinforce knowledge – we are the only training provider to do so.

The next CPPI E&W exam is in June 2020, and our first programme is designed to meet the learning requirements of any student working towards that sitting.

Book your place

Email to book your place: courses@insolvencysupportservices.com

Alternatively, should you have any questions in relation to these courses, please feel free to contact us via the email above or give us a call on 0845 601 7570.

 

New One Hour Series for 2020

Our webinars have proven extremely popular since we launched them in 2017, so we are delighted to announce a brand new One Hour Series for 2020.

Meet your CPD requirements without even stepping away from your desk. Or multi-task and view them on the go!

You can pick the individual sessions that suit your needs, or you can choose a stream:

Protecting your Licence:
• Changes to the Code of Ethics – 31 January 2020
• SIP 11 and Financial Controls – 24 April 2020
• Conducting firm-wide AML risk assessments – 26 June 2020

Technical Short:
• The return of HMRC preferential status – 28 February 2020
• SIP 2 and investigations into conduct – 27 March 2020
• Books and Records – balancing competing requirements – 30 October 2020

Business Insolvency:
• Employees Rights and Claims – 29 May 2020
• Health and Safety basics for IPs – 25 September 2020
• Understanding Environmental Risks – 27 November 2020

CPD Learing Outcomes

• Clear concise update on legislation and regulation in respect of the subject matter under the spotlight.
• An understanding of how these requirements impact on your day to day work.
• The confidence to apply your newly learned skills in the workplace.

Speakers

Alison Curry LLB Hons MIPA MABRP
Director of Insolvency Support Services Limited

Eileen Maclean MA Hons MIPA MABRP MBA
Director of Insolvency Support Services Li

Cost

£50 + VAT per person per webinar. 50% reduction for every third one hour session you book.

Book Your Place

Email: courses@insolvencysupportservices.com

Phone: 0845 601 7570

Get ready for the 5MLD – more AML changes ahead!

The insolvency profession has now largely got to grips with the provisions of the Money Laundering Regulations 2017 (MLRs) and implementing the Fourth Money Laundering Directive (4MLD) into UK law on 26 June 2017. But are we sufficiently prepared for yet another set of AML changes (5MLD) that are just around the corner?  What do you need to do as an IP to prepare?  Insolvency Support Services director Alison Curry sets out the issues.

Background

In February 2016 (before it was even enacted) EU Member States agreed to revisit some areas of 4MLD, in light of revelations from the Panama Papers. This resulted in the 2018 Fifth Money Laundering Directive (5MLD), which the UK is committed to enacting into UK law by 10 January 2020, irrespective of any Brexit outcome.

Although the HM Treasury 5MLD consultation closed on 10 June 2019, at the time of writing, the outcome of that consultation is yet to be published, and the precise terms of implementation are far from fully crystalized. Given the general election, it’s clear that firms will have a very limited window to implement any necessary changes to their internal AML policies and procedures.

So how can we prepare?

Some changes are reasonably certain: the categories of AML-regulated business are to be extended; there must be greater transparency around beneficial ownership; express provision will be made for the risks presented by virtual assets (or cryptoassets) and enhanced due diligence (EDD) measures will need to be conducted more broadly where transactions involve high risk third countries. Some basic preparation can therefore be made in light of these known quantities.

Due diligence

5MLD mandates that electronic verification should be used wherever possible in the customer on-boarding process and firms will need to migrate from traditional physical identification procedures.

There will be increased expectations to conduct enhanced due diligence to assess business relationships and transactions involving high risk third countries.  A good starting point will be to ensure staff access the ever-changing Financial Action Task Force (FATF) and EU High Risk lists online, rather than referring to downloaded lists that may not be current.

Transparency obligations

Member states will be required to develop public ownership registers and the UK has already implemented the Persons with Significant Control register. However, internal policies for identifying ultimate beneficial owners should be reviewed and robustly applied, particularly when dealing with high risk third countries or jurisdictions where there is a lack of transparency.

Member states must keep an up-to-date list of the exact functions that render an individual to be a Politically Exposed Person (PEP) and the prominent functions of any international organisations they host. This should make PEP identification simpler, provided that your service provider is working from current data.  Remember also that PEP lists may not be available for countries outside the EU.

Expanded categories of regulated persons

The implementation of 5MLD will bring within the AML regime tax advisers, letting agents (where the monthly rent is €10k or more) and art dealers (when transacting in sums over €10k). These persons (legal or natural) will be conducting regulated activities and obligated to conduct Customer Due Diligence. 5MLD also ensures that all estate agency, book-keeping, accountancy and legal professionals across the EU are subject to regulation (which has been the case in the UK for some time). UK IPs will need to consider the risks presented in dealing with the insolvency of such businesses and any concerns about that business’s AML compliance.

Virtual assets and virtual asset service providers

5MLD will extend to virtual asset service providers, who will become regulated entities over whom the Financial Conduct Authority will assume supervisory responsibility. The regulations will also cover transacting in virtual assets.

However, combating money laundering and terrorist financing activity is a fast-paced global activity and whilst the UK is occupied in responding to incoming EU legislation, global bodies are busily publishing guidelines that render EU Directives potentially out-of-date before they are even enacted domestically.

On 21 June 2019, the FATF updated its recommendations for the application of its globally applicable standards to virtual asset activities and service providers, and the HM Treasury consultation posed the question whether the EU’s 5MLD definitions were sufficiently broad in the light of various more recent recommendations. Even the language has shifted from “virtual assets” to “cryptoassets”.

While there remains some uncertainty as to the precise form the new UK regulations will take, it is apparent that this sector and transactions involving cryptoassets will be formally classified as “high risk”.  Your internal transactional risk assessments will need to be amended accordingly and staff made aware that this is red flag area. CDD of counterparties to cryptoassets transactions will be required and insolvent entities who have been transacting in cryptoassets will warrant closer scrutiny. The FATF updated guidance for a risk-based approach to virtual asset services providers and transaction will be a “must-read” for your MLRO.

 

Need help? Insolvency Support Services provide tailored training solutions for insolvency firms in AML and other key compliance areas. Contact us at enquiries@insolvencysupportservces.com to discuss your firm’s requirements.

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

Celebrating Living Wage Week 2019

As one of 1,648 Living Wage accredited employers in Scotland, Insolvency Support Services is delighted to be joining the annual celebration of the Living Wage movement in the UK this week.

More about Scottish Living Wage: https://scottishlivingwage.org/

 

Burial jobs – Transparency v. Efficiency?

Alison Curry examines the differing approaches adopted north and south of the border to CVL closure and court involvement.

For over a decade, the buzzword across regulation has been ‘transparency’. The BBC’s complaints handling processes were recently accused of lacking it and the Insolvency Service has just consulted on whether those applying its regulatory objectives are sufficiently meeting it. We are told by the policy makers that the periodic reporting requirements placed on IPs are intended to ensure it.

But in the case of no or low-assets jobs, there is surely a balance to be struck between the ‘mahogany open-casket’ approach of providing chapter and verse to a disengaged creditor cohort and the benefits of an efficient ‘economy burial’; and it seems we may be striking that balance at a different point in Scotland than we are in England and Wales.

Comparable systems

Both in Scotland and in England and Wales, comparable systems for liquidator appointments by deemed consent in CVL now exist; SIP 6 reporting requirements are identical (and identically, largely optional) and annual reporting has replaced annual meetings. The debate around whether these measures promote creditor engagement is now well rehearsed and I shan’t reprise it here!

But where there is a marked difference (and one that I have no doubt my English colleagues will be as surprised at as I was to discover) is in the manner in which a Scottish CVL may be concluded without the need or cost of a final report to creditors.

This is perhaps an unintended consequence of historical national differences in the approach to corporate insolvency administration. As there is no Official Receiver in Scotland, s138 IA1986 requires a liquidator to be appointed by the court upon the making of a winding-up order (a clearly sensible provision to ensure there is always a liquidator in office). The provisions of s203 IA 1986, which allow the Official Receiver to be released from office without the need for a final report (or final meeting, as was), have a parallel provision in s204, which applies to the private practice liquidators of Scottish companies in compulsory winding-up proceedings. They may apply to court for early dissolution ‘if it appears to the liquidator that the realisable assets of the company are insufficient to cover the expenses of the winding up’ – ie without going through the final reporting process. How is this relevant to final reports in CVL cases, I hear you ask?

Well, under s112 IA86, a liquidator, creditor or contributory can apply to court to determine any question arising in the winding up of a company – be that an MVL, CVL or compulsory matter. The court, if satisfied that the required exercise of power will be just and beneficial, may make such order as it thinks just.

Court involvement shivers

Scottish practitioners are quite accustomed to levels of court involvement in their cases that would send a shiver down the spine of their English and Welsh counterparts. The court system is customarily involved in the remuneration approval process and routine applications are made at a level of costs and determined with a timeliness that does not have the same dissuasive impact that the spectre of approaching the English courts holds.

S112 provides the court a very broad discretion and one that forms the basis of routine applications in CVL cases in Scotland, including those for early dissolution under s204. By stark contrast, s112 appears to be little used in England and Wales. Reported cases appear to be few and far between, and typically involve cases of substantial potential value. For example, in Rubin v. Cohen & Crooks [2017] (a dispute between successive liquidators about the availability of funds to meet 1,796 separate statement of affairs fees), there were fees totalling £2.9m at stake. Another reported case concerned the disclosure of documents by an English liquidator to the USA trustee in the Bernard Maddoff case.

What the nature of these cases illustrates is that matters don’t often get as far as the courts in England & Wales unless there are some pretty big numbers involved. Curiously, it’s the polar opposite of the justification for making such an application in Scotland to apply s204 as an alternative to the delivery of a final report to creditors: that of costs and efficiency.

Swift cremation

The practice of applying for early dissolution under s204 in Scottish CVL cases must beg questions about consistency across the UK of the CVL process, if not its transparency. It is quite feasible that creditors will receive no substantive information in this scenario, as most of the SIP 6 information requirements are not mandatory and the s138 reporting requirements in the compulsory process do not apply to CVL cases. Depending on timing, a Scottish CVL matter can proceed to a swift and economic cremation, potentially without any form of report having been issued to creditors. Whether the court demands a report is entirely at the court’s discretion but is not normally required. Maybe, having spotted the ‘gap’, that might change?

Economically speaking, this could be viewed as a good idea. If efficiencies like these lead to reduced costs, surely that is a tick in the box for the regulatory objective of a competitive profession? It remains to be seen what approach the courts will be to such applications, particularly if no SIP 6 report was issued, or what regulatory expectations will evolve. But for now, at least, the balance in Scotland seems to be for efficiency over transparency.

Alison Curry is an insolvency practitioner, trainer and director at Insolvency Support Services Limited.

Insolvency (Scotland) Rules – 6 Months On

Join Eileen Maclean for one of our Insolvency (Scotland) Rules – 6 Months On Technical Update courses to find out more about developments under the new rules. For further information or to book a place, contact courses@insolvencysupportservices.com

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

Sample materials for Compliance Awareness Online Learning

You can preview the different types of content included in our new modular Compliance Awareness Online Learning course in our free samples. They will take just a few minutes to view or complete. Click here to access the free samples.

Instructional video content

Concise, comprehensive videos that you can watch, learning when and where is most convenient for you.

Reference materials and handouts

Downloadable documents to read and keep for future use and reference.

Knowledge checks

Multiple-choice knowledge checks to reinforce the value of the learning.

To sample the Ethics and Professional Standards Quick Quiz, register as a user with your name and email address.

Course Modules

Our Compliance Awareness Online Learning course is delivered in four modules, which you can mix and match to cater for your practice’s needs:

1.      Anti-money laundering (AML)

2.      Data privacy (GDPR)

3.      Vulnerability awareness

4.      Ethics and professional standards

Click here or below to watch our one-minute introductory video.

To find out more, click here, call 0845 601 7570 or email courses@insolvencysupportservices.com