This briefing note addresses the effect of the Insolvency Rules 2016 ("Rules") to the: (i) Electronic delivery of documents; and (ii) use of Websites to deliver documents.
Consolidation of the Rules
The Rules in relation to Electronic delivery of documents and use of websites have been applied as follows, namely:
- Rules 1.45 to 1.48 are now applicable to the Electronic delivery of documents both: (i) generally; and (ii) to the Court and enforcement officers (which were formerly found at subsections 2,10,11,14 and 29 of Rule 12A of the Insolvency Rules 1986 ("IR86").
- Rules 1.49 to 1.51 are now applicable to the use, proof of delivery and retention period for documents made available on Websites (which were formerly found at subsections 12 and 13 of Rule 12A of the IR86).
The new provisions
New provisions of the Rules affect (i) the Electronic delivery of documents and (ii) Websites.
Electronic Delivery of Documents.
The Electronic delivery of documents is relevant to delivery of documents by office holders, to the Court and enforcement officers, such that:
- Generally: for documents to be electronically delivered in either specific cases or generally, the intended recipient must: (i) give actual or deemed consent; (ii) not revoked that consent before the document is sent; (iii) provided an electronic address for delivery of the document; and (iv) receive a statement from the office holder containing contact details to request a hard copy of the same document within 5 days (of receipt of the same request). Consent is either express, or deemed through customary use of electronic communications. However, in practical terms, customary use is open to qualification and obtaining express consent is preferable. Documents delivered electronically are treated as delivered to the electronic address at 9 am on the next business day after being sent.
- Court: Unless permitted by CPR or a practice direction, a document may not be electronically delivered at Court, but will be deemed to be delivered at the time recorded as being received by the Court.
- Enforcement officers: Where permitted by the Insolvency Act 1986, documents may be electronically delivered to an enforcement officer or an agent authorised to accept delivery.
An office holder wishing to make documents available on Websites will need to be aware of the following provisions:
- Notice: The Officeholders' notice to make documents available on a website will need to specify: (i) which future documents will be available on the website; (ii) passwords to access the same documents on the website; (iii) that no hard copy documents will be provided unless requested; and (iv) the telephone, email and postal address to make such requests. If a request for a hard copy document is received by an office holder that document must be provided within 5 business days of the request. The documents available on a website must be accessible (by download) within a reasonable time of the electronic request being made.
- Excluded Website Documents: Certain documents must be provided in hard copy, namely: (i) documents which personal service is required (such as bankruptcy petitions); (ii) a notice to declare a dividend under rule 14.29; and (iii) a document which is not delivered generally.
- Retention of Website Documents: Certain prescribed documents must be retained on the website until 2 months following the end of the particular insolvency proceedings, not least: (i) notice of Administration extensions (ii) notice of the result and consideration of both CVA and IVA proposals (under Rules 3.54 (3) and 8.22 (4)).