April 2010

Introduction

1. What is the purpose of a description?

Descriptions are relevant to bankruptcy matters only. The description is used for identification purposes, so that creditors can easily recognise the individual against whom the order has been made. The description of a bankrupt forms part of the bankruptcy order and is the title of the proceedings. It is first used at the bankruptcy petition stage.

The description of a bankrupt should be included on all statutory forms, notices, gazettes and advertisements. It must be as full and accurate as reasonably possible and can only be changed by the court. The procedure for making any amendments to the description is known as “Application to Amend Title of Proceedings”.

2. What information should be included in the description?

The Insolvency Rules set out those details which should be covered in the description for the purpose of identifying the bankrupt. In summary, they are:

1. name, place of residence and occupation (if any)
2. all business names and whether he/she carried on business alone or with others
3. the nature of the business and all addresses at which it operated during the period that the debts were incurred
4. any other addresses at which the debtor resided during the period that the debts were incurred, and  
5. any aliases used by the debtor.

This is not meant to be a definitive list, in particular, the provisions for debtors’ petitions are different to that for creditors’ petitions and thus it is important to refer any concerns to an examiner for their attention.

3. What details should never be included in a description?

The following details must never be included in a description for the reasons given:

a An incorrect name, house number, street, address or trading style

This can lead to complaints or even legal action by third parties with similar names or who actually live at the incorrect address.

b Inclusion of a prison address

Where the official receiver receives notice of a bankruptcy order including a prison address, he or she should immediately refer it back to the court for amendment.

c The current address when an order to withhold that address under the ‘persons at risk of of violence’ provisions has been made

In cases where the bankruptcy petition was presented on or after 6 April 2010 a court order can be sought to limit the disclosure of a bankrupt’s current address where such disclosure might put an individual at risk of violence. Where the official receiver receives notice of a bankruptcy order including such an address, he or she should immediately refer it back to the court for amendment. See CHM part ‘Initial Notices and Letters’ paragraph 6 for more details.

d Inclusion of a third party’s name. 

A partner or former partner should be referred to as “another” and not by name, unless the partner is also bankrupt when his/her name can be mentioned.

e Inclusion of a company’s name.

A bankrupt may be described as a “company director” but the company must never be named, even if it is in liquidation, as it is a separate legal entity from the bankrupt.  Where a former business is sold on to new owners, e.g. a nursing home or a hotel, great care should be taken in the wording so as not to connect the new business with the bankruptcy. Any matters relating to this would be dealt with by the examiner.

If any of a to e above appear in a description and you have not been asked to apply for an amendment of title you should refer the matter to your B1. 

4. Who is responsible for creating the description?

With a creditor’s petition, the petitioning creditor's solicitor will have drawn up the description based upon the information available. In the case of a debtor’s petition, the court clerk is responsible for completing the description from details supplied by the bankrupt when the petition is filed. For this purpose, the court clerk may contact the official receiver for assistance in preparing the description, where necessary.

Once a bankruptcy order is made it then becomes the official receiver (or trustee) who is obliged to apply to court for any alterations to be made where there are errors or omissions in the description.

5. Why would the description be incomplete?

The description is based on the information provided in the petition and may be incomplete or inaccurate. For example, the bankrupt’s initials may be quoted rather than his or her full name, the bankrupt’s occupation may be stated as “unknown” when in fact he or she is a trader or an address at which the bankrupt has incurred debts may have been omitted.

Care needs to be taken when altering a description as the official receiver does not want to appear to be pedantic but accuracy is important. For this reason, any queries that you may have regarding whether or not a description needs amending should be referred in the first instance to the examiner.

6. How will I know if a description needs amending?

Generally, the examiner who interviews the bankrupt will decide whether an amended description is required and will draft this accordingly. If it is your local office practice for administrative staff to provide the amended description, then it should be approved by the examiner/Assistant Official Receiver before application is made to the court.

7. How is a description amended?

An amendment of title can be made at any time after the bankruptcy order is made and the official receiver should apply to court soon after becoming aware of any mistakes or omissions. A description may only be amended by the court and until such an order is made, the original title of the proceedings must be used. Generally, most amendments of title are routine and as such notice of the application is not served on any other person so that the court can consider the application immediately without fixing a date or venue.

The application and draft court order are prepared by completing form AMOT on LOIS (DO73)

8. What happens when an order amending the description is made?

Once the court has ordered that the title be amended, the official receiver must inform the Land Registry of the amendments made by completing form LRRABO. The new description must be entered on LOIS (CA01, CA03) and used in all further notices, and correspondence, where necessary.

Following the court order to amend the title of bankruptcy proceedings, the official receiver may decide to gazette the amendment. Where the changes are minimal or will make no difference to the administration of the case and there is no benefit to be gained by publishing the minor amendment, it should not be gazetted. The official receiver also has discretion to advertise the amendment and the same considerations apply. It should be noted that no other form of advertising can be done without also gazetting.

If the official receiver has decided to gazette the amendment the notice is produced using form B37.18 - Bankruptcy Gazette Notice (DO73).

If the official receiver has decided to advertise the amendment the appropriate notice for the newspaper (NFN1) needs to be produced. In cases where the petition was presented before the 06 April 2010 this notice can be produced through LOIS (DO73), and in cases where the petition was presented on or after 06 April 2010 a Word template of notice NFN1 should be used (see ‘Forms to be Used’). The advertisement should be sent under cover of form LCAD to the advertising agents. For further information on gazetting and advertising see CHM part Publication of Insolvency Information  

9. What happens when the court amends a description under the ‘persons at risk of violence’ provisions?

The court may also make an order amending the description following an application by the bankrupt (or rarely, the official receiver) for his or her current address to be removed from the description due to the risk of violence to the bankrupt or a family member. Where such an order is made notice must be given to the Land Registry as soon as possible using form LRRABO. The new description must be entered on LOIS (CA01, CA03) and LOIS (CA02) must be updated to indicate that the current address is to be withheld. 

It is unlikely that the official receiver would wish to publish notice of the order in these circumstances although he/she has the discretion to do so. In the rare circumstances where it is thought appropriate, the gazette notice and any advertisement must not include the current address of the bankrupt as part of the standard contents of the notice and must not include the description under which the proceedings were previously published. The usual gazette notice form (B37.18) must not be used and a template gazette form for this event has been drafted – see ‘Forms to be Used’. The newspaper advertisement form (NFN1 Amendment of Bankruptcy Description) must be amended to ensure that the current address and previous description are omitted.

Notes:

1. There is no corresponding procedure in company liquidation. But where the company’s name is wrong, it can be changed by order of the court.
2. The court should delete any prison address which may appear in a petition under its general authority to amend proceedings at any time, so that the order will not contain reference to the prison address. It is, however, acceptable for the address of a prison to appear in a petition for the purpose of bringing proceedings within the jurisdiction of a particular court.

Where can I find out more?

Insolvency Rules:

6.7      Identification of debtor (creditor’s petition)

6.35    Amendment of title of proceedings (creditor’s petition)

6.38    Identification of debtor (debtor’s petition)

6.47    Amendment of title of proceedings (debtor’s petition)

6.235(B) Persons at Risk of Violence

Technical Manual:

Chapter 4 – Initial Procedure when Bankruptcy Order Made

Chapter 5 – Publication of Insolvency Information

Case Help Manual:

Publication of Insolvency Information

OROS Bulletins:

OROS Bulletin 3 of 2005, amended title - LOIS case name http://intranet/OROS/CaseMngment/OROSBulletins/BulletinParts/IT.htm    

Forms to be used:

AMOT -Amendment of Title

LRRABO - Land Registry Registration of a Bankruptcy Order

B37.18 – Gazette Notice – Amendment of title of proceedings

Gaz 14 –  Gazette notice - Amendment to Title of Proceedings (Persons at Risk of Violence). Click HERE for word template

NFN1 - Notice for newspaper (1) – Amendment of bankruptcy Description. Click HERE for Word template

LACD – Letter Covering Advertisement – ‘A letter to advertising agents from the official receiver, enclosing an advertisement for publication’. Certificates of publication are no longer required and reference to these should be deleted from the letter until the template has been replaced in ISCIS. 

Click HERE to view the Flowchart of Application for Amended Description

 
Procedure

LOIS screen references are given in brackets e.g. (DO73).

NOTE: The text of the amended description must be carefully checked for absolute accuracy.

1. Receive approved request for amended description from examiner with a draft of the new description, if appropriate. Otherwise, draft amended description and have approved by examiner/AOR (CA35).

2. Prepare application to amend order by the court, form AMOT on LOIS (DO73).

3. Leave the date of the order blank for the court to complete.

4. Sign the application or have the form signed as per your local office procedure.

5. Send the forms to court for sealing and ask for one copy to be filed on the court file and the remaining copy to be returned to you.

On receipt of the sealed order of the court. 

6. Enter the new description onto LOIS (CAO1, CA03- PU08).

7. Prepare form LRRABO (DO73) and after careful checking send to HM Land Registry.

8. Where the examiner has decided that the official receiver should not gazette or advertise the amended description, no further action has to be taken.

9. If the examiner directs that the amended description be gazetted, prepare B37.18 (Gazette Notice – Amendment of title of proceedings) on LOIS (DO73). This will be submitted electronically for publication; only one copy must be printed for the file.  

10. If the examiner directs that the amendment be advertised in a newspaper, produce the appropriate notice, NFN1. In cases where the petition was presented before the 06 April 2010 this notice can be produced through LOIS (DO73), and in cases where the petition was presented on or after 06 April 2010 the Word template of notice NFN1 must be used (see ‘Forms to be Used’).

11. The NFN1 should be sent under cover of form LCAD to the advertising agents. For further information see CHM part Publication of Insolvency Information 

On receipt of amended description order under the ‘persons at risk of violence’ provisions.

12. Enter new description onto LOIS (CA01, CA03). Immediately mark LOIS (CA02) to show that the current address is withheld.

13. Prepare form LRRABO and after careful checking despatch to HM Land Registry (DO73).

14. If the official receiver decides to publish notice of such an order the Word template gazette form (Gaz 14 – see ‘Forms to be Used’ ) must be used and form NFN1 must be completed without including the current address or previous description.