September 2007 

47.40 Duty to provide liquidator/trustee with information

Rules 4.107(7) and 6.125(7) require the official receiver to give to the successor liquidator/trustee respectively; ‘all such information relating to the affairs of the company/bankruptcy and the course of the winding up/bankruptcy as he considers to be reasonably required for the effective discharge by the liquidator/trustee of his duties in relation to the estate.’

Notes: [r4.107(7) r6.125(7)]

47.41 Inclusion of details in notes on handover

When a case is handed over to a liquidator or trustee, sufficiently detailed notes of the case should be handed over. These will form part of the administrative records under regulation 10 (liquidators) or regulation 24 (bankruptcy). The notes should cover any matter relating to assets, (including potential civil claims such as preferences, undervalue transactions or wrongful trading) or liabilities contained in the preliminary examination or statements, knowledge of which will be helpful to the liquidator or trustee. All correspondence handed over to the liquidator or trustee must be listed in sufficient detail for identification purposes. The official receiver’s report on handover of the estate must also contain an entry to the effect that the liquidator or trustee should himself/herself, as soon as possible, verify or expand on the information given by the official receiver. If relevant information comes to light after handover, the official receiver must immediately inform the liquidator or trustee and then confirm, in writing (which can include in electronic form), any discussion with him/her.

Notes: [The Insolvency Regulations 1994 Reg 10, 24] [form IPROH]

47.42 Schedule of records on handover to insolvency practitioner

When an insolvency practitioner is appointed trustee or liquidator, the official receiver must ensure that only the insolvent’s records are handed over and not records belonging to other parties. A detailed schedule of the records must be recorded on ISCIS and a copy signed by or on behalf of the practitioner. The official receiver must make it clear on the handing over of the insolvent’s records that, when necessary, he/she must have access to them, or their return if necessary, for the purpose of his/her investigation.

47.43 Use of third party documentation by practitioners

Copies of documents from, or correspondence with BIS, other government departments, or regulators should never be handed over to a liquidator or trustee (except where they solely detail a claim in insolvency). If the practitioner considers that he/she needs the documents, etc. to pursue any matter, he/she should be referred to the relevant body in question to enable him/her to obtain the information directly.

47.44 Disclosure of information received from the Serious Fraud Office (SFO)

In re: Morris v Director of SFO [1993] Ch 372 the court ruled that the official receiver could disclose information provided by the SFO, to an insolvency practitioner appointed as liquidator/trustee. If the official receiver is requested to disclose that sort of information, or thinks disclosure would be appropriate, he/she should first consult the SFO. If the SFO objects to disclosure, then the official receiver should consider making an application to the court for directions under r10.3.

Notes: [r10.3]

47.45 Release of information received by the official receiver from the police/SFO/CPS to trustees /liquidators

Information obtained by criminal investigators e.g. the police, and passed to the official receiver need not be voluntarily disclosed to insolvency practitioners in order to enable them to realise assets. It was held in Marcel v Commissioner for the Metropolitan Police [1992] Ch 225 that material seized in the course of a criminal investigation should only be disclosed by the police under a court order. An insolvency practitioner may apply for disclosure on that basis if appropriate. By contrast, material obtained by other means during a criminal investigation e.g. a witness statement, is conventionally disclosed if the witness consents. If a practitioner asks for that sort of material from the official receiver, the request should be referred to the relevant criminal investigator.

47.46 Hand over of narrative statements and preliminary examination questionnaire (amended September 2007)

The official receiver is required, on handing over the estate to a person other than himself/herself appointed as liquidator or trustee, to supply to that person such information as is reasonably required by the liquidator/trustee for the effective discharge of his/her duties in that capacity. The official receiver is able to, and, as part of his/her obligations to insolvency practitioners appointed as liquidators and trustees, normally should, pass copies of narrative statements and preliminary information questionnaires (PIQs) to them.

In every case the official receiver should, based on the facts of the case, consider whether or not the information in the statement or PIQ is "reasonably required" by the liquidator or trustee. It needs to be borne in mind that the insolvency practitioner, as trustee or liquidator, could in any event, through other means at his/her disposal, obtain or require the relevant information from the director or bankrupt. It would be an extremely unusual case in which the conclusion would be that the information contained in statements and PIQs obtained in the early stages of a case was not reasonably required by the liquidator or trustee. Such statements and PIQs will contain details of assets and liabilities and may contain information which would lead the insolvency practitioner to consider whether a claim lies against any third party.

Copies of statements and PIQs should therefore be supplied to insolvency practitioners on handover, provided the matter has been duly considered and a note to that effect is placed on the file. 

Where statements are obtained after a handover has taken place, the same consideration should be applied to them and, if considered appropriate, copies should be supplied to the insolvency practitioner and an appropriate note placed on the file. If a statement is obtained solely for the purposes of further investigation, it might not contain information of use to an insolvency practitioner in carrying out his/her duties. However, if the further investigation relates to the whereabouts or non-disclosure of an asset, it would be likely to contain such information and should be handed over.

To inform the director/bankrupt of this disclosure the PIQs contain the following wording, which has been approved by the Plain Language Commission, below the signature box: "If an insolvency practitioner is appointed as [liquidator/trustee of your estate, as the case may be] in place of the Official Receiver, the [liquidator/trustee] will have separate powers to require you to provide information. However, a copy of this completed questionnaire will be given to any such practitioner and this should reduce considerably his or her need to contact you again for information."

A note in similar terms to the wording above should be included in any narrative statement taken, or alternatively a separate note should be prepared and given to the person making the statement. For those offices taking part in the recorded interviews trial, such a note should be used for the purposes of taped interviews.

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