The current lockdown and social distancing measures introduced as a result of the coronavirus pandemic mean that courts are having to adjust to more flexible ways of operating, assisted by greater use of video and teleconferencing technology. Guidance of how this will work in practice for insolvency proceedings has been issued via the Temporary Insolvency Practice Direction. These directions will be in force from 6 April to 1 October (unless it is amended or revoked by another insolvency practice direction in the meantime) and apply to all insolvency hearings in the Business and Property Courts. Hearings outside London will be subject to variations as directed by the supervising judge.
Filing notices of intention to appoint an administrator (NOI) and a notice to appoint an administrator (NOA)
The submission of a NOI and NOA by CE-filing will be treated as being delivered to court at the date and time recorded in the Filing Submission Email. If a Notice arrives outside the court’s usual working hours of 10am to 4pm, it will be treated as having been delivered by 10am on the next day the court is open for business. All notices will be reviewed by the court as and when practical although any delay on the court’s part will not affect the validity or timing of the Notice.
Adjournment of pending applications and petitions
In an effort to husband the courts’ reduced resources, only genuinely urgent applications will be dealt with so all applications, petitions and claim forms listed for hearing before 21 April will be adjourned. The only exceptions are for winding-up and bankruptcy petitions and those applications that are considered by the relevant parties to be urgent and accepted as such by the judge (there are specific criteria used to assess the urgency of an application). These applications will be relisted as soon as practically possible at the relevant hearing centre with the administrative aspects being dealt with by either the ICC clerk or High Court Judge clerk.
All hearings will be conducted remotely via video or teleconferencing. Skype and BT MeetMe are the two applications referred to in the TIPD but there is scope for using other conferencing technology as agreed by the court. The temporary listing procedure will involve allocating time slots for groups of two or more petitions and there will be links to join a Skype (or other technology) meeting for each slot which will be published on the daily cause list. The parties involved must give notice of their intention to participate and must be able to access the given link (or arrange an alternative via the court clerk).
Other insolvency hearings
These will be held remotely via Skype (or other video conferencing technology) or recordable telephone conferencing. If the parties do not agree with the court’s proposed method of holding the hearing, they can suggest an alternative. The judge will decide how the hearing should take place.
Although the TIPD acknowledges that making statutory declarations other than in person effectively renders them defective, the current situation requires a more pragmatic response. Therefore, it is accepted that the courts will allow a statutory declaration to be made remotely, via video link, providing the person authorised to administer the oath confirms in writing that it was made in that way. This will give the court sufficient grounds to waive the defect unless it believes that ‘substantial injustice’ has been caused by the defect.
The TIPD demonstrates that, with careful planning and effective use of available technology, the courts can keep running albeit to rather altered timetables. The pandemic has forced everyone, including the justice system, of rethinking the way they work. The experience will prove invaluable in helping to streamline and modernise court services in future as no doubt there will be other circumstances that will arise, as yet unknown, to test all our systems. If you have any queries about how the TIPD might affect you, please contact a member of our insolvency team.