COVID – 19: The Temporary Insolvency Practice Direction
Trinity Business and Property barrister Chris Hegarty highlights the Temporary Insolvency Practice Direction (the TIPD) that has been issued today to support the ongoing work of the court in insolvency cases during the present crisis.
Key to this is the existing PD51O which is used to implement parts of the TIPD. PD51O is the Electronic Working Pilot Scheme which implements CE-File which now operates across a major part of the High Court, including the QBD, Business & Property District Registries, the SCCO and the Rolls Buildings Courts.
To preserve court resources for genuinely urgent business all applications, petitions and claim forms (except petitions to be heard by an ICC Judge in the Rolls Building) to be heard prior to 21 April 2020 are adjourned.
A Temporary Listing Procedure is established for petitions for bankruptcy and winding up.
All other matters are to be relisted in accordance with local B&PC procedure.
There is a re-listing policy for urgent business at paragraph 5.
Temporary Listing Procedure
The courts will be adopting a block listing approach, each block having its own meeting link – be it Skype for Business, telecon or another – and the link to join will be published
Those intending to appear on the petition must deliver a notice pursuant to Rule 7.14, so by 4pm the day before, and provide details to join the meeting.
This could lead to technical issues however parties should be mindful of the risks of notifying late and that a judge may not be easily persuaded of “inappropriateness” (see Remote Hearings) if invited to adjourn for a party who is late or uncooperative.
There is a fixed process at paragraph 5 to contact the ICC Judges’ clerk (or appropriate High Court Judge’s clerk) to arrange listing genuinely urgent business.
Such hearing would be held by Skype (for Business) or other appropriate teleconferencing solution and requires an essential documents bundle by PDF. The TIPD also envisages carriage of the order being directed by the Judge at the hearing.
This ties in with Urgent Listings and directs that all hearings will take place by Skype for Business, or other technology agreed by the parties and court in advance.
There is a escape provision where a judge determines that it would be inappropriate for the hearing to continue there is a broad discretion to adjourn.
This provision to adjourn is not predicated upon technological failure or other issues inherent in remote hearings, such as concerns over credibility, merely a broad discretion to find “inappropriateness”.
It is therefore vital for parties to approach modern remote hearings in a reasonable and cooperative fashion to keep urgent cases moving.
These are to be arranged by the court proposing how the remote hearing should take place and allowing submissions to be take these into account.
For the purposes of Schedule B1 the TIPD makes a novel leap on making statutory declarations to allow these to be made by video conference with a person authorised to administer the oath and that where followed that the defect in the administration of the oath shall not, by itself, be considered as causing substantial injustice – so that such statutory declarations may be used in limited circumstances.
E - Filing Notices
The court will now treat certain notices as filed at the date and time recorded in the acknowledgement email. However, for some this effective time of receipt of out of hours notices is fixed at 10am the next day the courts are open for business when filed out of hours; for qualifying floating charge holders they may only file during court opening hours (for notices under paragraph 14 of Schedule B1).
The question of when the notice takes effect is not affected by delay in the court’s process of acceptance of such notices.
This brings the insolvency provisions forward a long way and is a pragmatic toolkit to keep urgent insolvency work moving.
For cooperative litigators it will work well and for uncooperative parties the opportunities for recourse to judicial decision making can be expected to lead to robust case management.
In response to the escalating coronavirus crisis, Trinity's Business and Property barristers are committed to providing as much assistance as possible, including urgent advice, online resources and other support, during these challenging and unprecedented times, as such Trinity have a dedicated section of the website focused on COVID-19.