Insolvency Technical Update - May 2018
By David Menzies, Director of Practice
4 June 2018
Insolvency Technical update: Your round-up of recent developments in insolvency.
Data Protection
The General Data Protection Regulation (or ""GDPR"") came into effect on 25 May 2018. At the same time the Data Protection Act 2018 came into effect and replaced the Data Protection Act 1998. ICAS has issued GDPR FAQs: Practical considerations for IPs to help practitioners understand how the new data protection provisions affect insolvency appointments.
Insolvency Complaints Gateway
From 1 May 2018 complaints in relation to Northern Ireland will no longer go direct to Recognised Professional Bodies and should now be lodged through the Insolvency Complaints Gateway. This brings the complaints handling process across the UK into alignment. Firms should ensure that they have updated their complaints process and relevant references in documents.
Anti Money Laundering: Dealing with suspected criminal property
The National Crime Agency has issued FAQs on Defence against money laundering (DAML). A DAML can be requested from the NCA where a reporter has a suspicion that property they intend to deal with is in some way criminal, and that by dealing with it they risk committing one of the principal money laundering offences under the Proceeds of Crime Act 2002 (POCA).
The FAQs draw together the good practice and interpretations provided by experienced Money Laundering Reporting Officers (MLROs) from across the UK SARs regime. Collaborative answers are provided to the most frequently asked questions concerning the DAML process.
Insolvency Service publications
The Insolvency Service has updated a number of publications:
HR1 – Advance notification of redundancies
Template to request the setting up of a pre-insolvency company on Champ
Common Financial Tool guidance
The Accountant in Bankruptcy has published updated guidance on the operation of the Common Financial Statement as the Common Financial Tool. The revised CFT guidance clarifies and adds information on a number of areas around the determination of a debtor’s income and expenditure to be included in the calculation of their contribution.
Dear Trustee: Recall of sequestration
The Accountant in Bankruptcy has issued a Dear Trustee letter concerning applications to the Accountant for recall of sequestration.
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Bankruptcy Fees (Scotland) Regulations 2018
The Scottish Government has laid The Bankruptcy Fees (Scotland) Regulations 2018 (SSI 2018/127). The Regulations come into effect on 1 June 2018 and will apply to trust deeds executed on or after 1 June 2018 and sequestration petitions presented or debt applications made on or after 1 June 2018.
The main changes in fees are as follows:
Current | From 1 June 2018 | |
Creditor petition fee | £100 | £150 |
Additional fee payable by petitioning creditor where AiB is also subsequently appointed as trustee | £200 | £300 |
Sequestration supervision fee (annual) -where no commissioner is in post -where a commissioner is in post | £70 £50 | £100 £70 |
Publishing notice of a PTD on the Register of Insolvencies | £35 | £40 |
Registering a PTD | £36 | £40 |
Registering a court order for replacement trustee | £19 | £50 |
In addition, a number of fees have not had the amount amended however they will now apply in respect of consideration of a matter (i.e. application, determination, order, etc) and not just where the matter is actioned (application granted, determination made, order registered, etc).
Legal Updates
Cash Generator Limited v Fortune and others [2018] EWHC 674 (Ch)
The High Court considered the validity and consequences of liquidators who had been appointed following a failure to fully comply with the creditors’ voluntary liquidation nomination process set out in section 100 of the Insolvency Act 1986. This is one of the first cases involving the new decision-making procedures in the Insolvency (England & Wales) Rules 2016. (via Thursfields)
Dawson International plc & Dawson International Trading Limited [2018] CSOH 52
The Court of Session has issued a ruling that obligations to carry out works required by the Environment Agency (for England & Wales) under a form of enforcement notice following contamination of land, constituted contingent liabilities of a company which had fallen into administration after the contamination occurred. (via Addleshaw Goddard)
The Court of Appeal considered the situation where a company in administration had no funds and was highly unlikely to have funds in the future to pay administration expenses, including administrators’ remuneration and whether an agreement for funding the payment of the administrators’ remuneration, to ensure that the monies advanced for these purposes never become company monies was effective or not. (via Lexisnexis)
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