R3 in Scotland’s NextGen/Young Professionals Group committee

The R3 in Scotland Committee has invited expressions of interest in joining and becoming part of an exciting initiative to form a sub-committee of ‘NextGen’ and ‘young professionals’ to guide the shape and values of the profession in Scotland into the future.

It will be a requirement for all initial members of the sub-committee to be confirmed R3 members, however expressions of interest may be made by non-members as well as existing R3 members. Any nomination should be received by 23 September 2019 to be considered.

Insolvency Support Services very much welcomes this important inititaive to support and encourage career development and community among the insolvency and restructuring profession in Scotland.

If you are interested in being involved, either as a member of the organising committee or as a group participant, please contact R3.

Insolvency Support Services director Eileen Maclean has been included in the prestigious TRI 250, the exclusive group of senior professionals across the turnaround, restructuring and insolvency profession.

As an index of influence and best practice, leading trade journal Credit Strategy’s TRI 250 recognises those responsible for the progression of industry standards, and inspiring excellence across turnaround, restructuring and insolvency.

Insolvency Support Services director Eileen Maclean is to chair and present at the Law Society of Scotland’s Insolvency and Debt Recovery conference next month.

Taking place at the 200 SVS venue in Glasgow on 5 September, the conference will look at key issues and challenges faced by professionals operating in the increasingly complex world of insolvency and debt recovery, and address recent legal changes and how they can be managed in practice.

Eileen will be speaking about the new Scottish Insolvency Rules, highlighting key changes from the previous regime.

Joining Eileen in the impressive line-up of speakers will be:

• Sian Aitken, Partner, CMS
• Christina Barr, Solicitor, Brodies
• Stephen Cowan, Partner, Yuill + Kyle
• Dr Richard Dennis, Chief Executive, The Accountant in Bankruptcy
• Andrew Foyle, Partner, Shoosmiths
• Steven Jansch, Partner and Head of Insolvency, Gilson Gray
• Paul Kirkwood, Solicitor and Commercial Mediator
• Louise Laing, Senior Associate, Brodies
• Bobby Lindsay, Lecturer, University of Glasgow

For more information about the conference and to book, visit the Law Society of Scotland’s website.

The recent R3 Scotland newsletter highlighted some concerns about the time taken for some court reporters to respond, with a request for evidence if appropriate.

We are aware that not all users of court reporters are based in Scotland, and that not everyone is a member of R3. Therefore, if you are experiencing these delays and would like to pass on your concerns, please contact Penny McCoull at [email protected]

Item from R3 Scotland Newsletter – Summer 2019

Penny McCoull
Following concerns raised by committee members about instances where they had experienced delays in receiving reports back from court-appointed reporters, I raised this matter with both the R3 Smaller Practices Group Committee and the Scottish Technical Committee. I have received confirmation that ICAS is aware of the issue and is willing to contact the IPs concerned directly. If any members wish to provide details of specific cases where undue delay has been experienced in obtaining authorisation for their own fees and approval of a scheme of division, can they please email me in confidence ([email protected]) or contact David Menzies at ICAS ([email protected])

The issues can be summarised as:

• The court report system normally works very well, as IPs are all too aware that their colleagues are waiting for approval of their fees and authorisation of a scheme of division to carry out our main function, which is to return funds to creditors.
• The system breaks down where some IPs, whether through pressure of their own workload, absence from work or some other reason, are not attending to the audit of files delivered to them in a timely manner. The regulations state that the audit should be carried out within six weeks of the end of the accounting period, which itself is dependent on the appointed IP preparing their accounts within two weeks of the end of the accounting period.
• RPBs are now looking at court reports carried out by their members as part of the monitoring visit. R3 members are encouraged to advise us of any specific instances where they have waited a longer time than is reasonable for the reporter to submit their report. As everyone’s idea of timescales is subjective, notifications should be made in confidence to R3 for consideration. Members will be notified in due course of the follow-up action taken.
• Informal discussions with the Courts are being advanced by R3 STC members. However, in order to assess the extent of the issue, the Committee calls for members to provide evidence of their experiences (anonymised if desired), on delays by appointed reporters and/or courts in the approval process.

It’s a clean sweep for ISS Training’s students in the June 2019 CPI and CPPI exam sitting. Every single one of our candidates has passed their exam, with a third achieving a merit.

Our director Eileen Maclean, who delivers our CPI and CPPI training, said: “We’re chuffed to bits for all of our students and feeling enormously proud of them all. It’s hugely rewarding to see everyone’s hard work paying off. Very well done, class of 2019!“

Enrolment for our 2020 CPI and CPPI training will be open soon. If you would like to discuss your options, please speak to us at any time on 0845 601 7570 or email [email protected]

Insolvency Support Services’ Director Eileen Maclean is a member of the IPA’s Standards, Ethics and Regulatory Liaison Committee. She was recently interviewed for an IPA communications feature. Here’s what she said.

What is your career background?

After a couple of years in the accountancy profession, I found my spiritual home in insolvency. I stumbled into the field 30 years ago and have never left. I spent 9 years with Ernst & Young in Edinburgh, before becoming a self-employed sub-contractor to the insolvency profession in 1999. In 2009 I co-founded Insolvency Support Services Limited, and this year celebrated (another!) 10 years of providing training, compliance, outsourcing and practice support to the UK insolvency profession.

I’ve been a member of R3 and licensed by the IPA since 1996. I represented Scotland on R3’s National Council for six years, am an active member of R3’s Scottish Technical Committee and represent Scotland on the IPA’s Standards, Ethics & Regulatory Liaison Committee. I also represent the IPA and R3 on the AiB’s PTD Standing Committee and Bankruptcy Stakeholder Group and recently attended the Scottish Statutory Debt Solutions Discussion Forum chaired by Jamie Hepburn MSP, Minister for Business, Fair Work and Skills on behalf of the IPA and R3.

Why did you join the Standards, Ethics and Regulatory Liaison (SERL) Committee?

I was invited to join SERL to ensure that any particular Scottish angle on legislation, consultations and regulation was represented and considered by the Committee. It’s important that the IPA’s committees take account of the various jurisdictions their members work in. There are often subtle but key differences in how an insolvency plays out north and south of the Scottish border, and my role on SERL is to ensure that these are reflected. My 30 odd years’ experience as an IP don’t go amiss either!

What is the role of the SERL at the IPA? 

SERL monitors industry activity and issues, including their potential impact on standards in the insolvency profession. We work with the IPA Council to recommend developments to member guidance, ethics and standards and, similarly, liaise with the Joint Insolvency Committee (JIC) to promulgate professional guidance to the wider profession. As part of this, SERL works with the IPA’s regulatory operations department to ensure that understanding is consistent across the organisation in terms of guidance and standards for IPA members.

SERL also plays a key role in formulating the IPA’s response to UK and Scottish Government consultations.

What is the value to you and your firm of being on this committee?

Being on any committee and representing your fellow IPs is a privilege. I work with some great people, and it’s always interesting and useful to hear the wider views and concerns of the others working in the profession. In turn, I can gather and relay common themes to various stakeholders, and it means that ISS’s training, compliance and practice management approach reflects current best practice. Issues that IPs raise with me and my ISS colleagues can be channelled back to SERL, the IPA generally and the AiB, among others. I really enjoy the interaction, our discussions and a well-argued alternative viewpoint.

If you were not an insolvency practitioner, what would you be doing?

The only other thing that I think could provide the variety, the challenges and the complexity of insolvency would be a career in politics. But if I didn’t have to work, I would write, garden and get a dog!

Notice punctuality is much more than a virtue for IPs.

Many actions by office-holders (or directors in respect of prospective appointments) require the delivery of a notice to categories of persons (typically creditors), providing certain specified notice periods.

The Insolvency (England and Wales) Rules 2016 formalised the rules around notice, deemed date of delivery and calculation of time periods. The Scottish equivalents of these rules came into force in April of this year, and the issues discussed below are of equal application to appointments in Scotland.

Working in the world of compliance, we are frequently invited to review clients’ case files. On a number of occasions in recent months, we’ve seen files where insufficient notice has been given to persons entitled to receive it. The legal effects of short notice are debatable, but what is certain is that any doubt about the validity of a resolution will be extremely unwelcome.

In many cases, we are talking about simple and avoidable calculation errors resulting in short notice by a single day. In this article we will examine what difference a day can make. The criteria are all clearly set out, so why are we seeing so many instances of short notice?

Deemed date of delivery – day zero

One area of confusion seems to be that delivery is itself subject to rules around when it is deemed to have taken place. The deemed date of delivery is calculated with reference to the delivery mechanism employed and is based on business days. It does not, therefore, include weekends and UK Bank Holidays.

The deemed date of delivery is not included within the calculation of the notice period, so is effectively day zero, not day one. By way of example, if you mail by first-class post on the Friday before a Bank Holiday weekend, the deemed date of delivery is not until the following Wednesday and day one of the notice period does not commence until the Thursday.

Notice periods

Notice periods in excess of five days are based on calendar days, not business days, and the default position for notice periods is 14 clear days, unless specified to the contrary. Clear days means including neither the day of delivery, nor the day of the event. So, when fixing a decision date, you must typically add 15 days to the date of deemed delivery, not 14 (as we frequently see).

The administration conundrum

It’s well known that proposals must be sent to creditors within eight weeks of appointment and, where a decision on those proposals is sought, for the initial decision date to be within ten weeks.

However, the rules require 14 days’ notice of the decision date to be given. So, if you exclude the date of the decision itself, the date of delivery and the deemed delivery period, sending out proposals on the last day of the eight weeks necessarily means the initial decision date will not fall within the ten weeks and an extension will be required. We’ve seen a number of cases where practitioners have sent their proposals out on the last day of week eight, seeking to hold the decision on the last day of week ten, with the effect that creditors have received short notice of the decision.

Effect of short notice

The legal effect of short notice is debatable. Some comfort can certainly be drawn from rule 12.64 – ‘Formal defects’ (Scottish equivalent: rule 1.56), which provides that

‘No insolvency proceedings will be invalidated by any formal defect or any irregularity unless the court before which objection is made considers that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of the court.’

But that comfort might be rather cold if the defect is in the appointment process. In Pui-Kwan v. Kam-Ho it was held that the predecessor of this rule (r7.55) was only available once there was a valid insolvency appointment (and not in that case, to cure a defect in an inquorate board meeting at the inception), and in Minmar we saw an administrator’s appointment held to be invalid for a lack of notice to the company. Although in a recent and more encouraging decision, Cash Generator Ltd v. Fortune and others, the liquidators’ appointment was held valid despite a failure to give all creditors notice of a deemed consent procedure.

Short notice will necessarily give rise to rights of challenge by those affected, even if not the automatic invalidity of the process. The consistent message from regulators is that they expect any defects on the approval of remuneration to be remedied (and remuneration to be repaid in the meantime).

Practical tips:

• Make sure your teams are clear on the calculation of delivery times and notice periods.
• Why not add the ‘deemed date of delivery’ to your Certificates of Delivery template? It will act as a helpful aide-memoir and instantly flag the earliest date a proposed decision date can be held.
• If you realise that you’ve provided short notice of a decision on remuneration, consider whether you need a fresh resolution or some form of ratification. Your RPB may expect you to do so.
• We provide compliance review and in-house training services and can assist with any aspect of your compliance needs.

For further information about how we may assist you, please contact: [email protected]

First published in the June 2019 edition of RECOVERY News and reproduced with the permission of R3 and GTI Media.

Insolvency Support Services director Alison Curry will be speaking about “Compliance around the edge” at the R3 Personal Insolvency Forum in Birmingham on 18 June and Huddersfield on 25 June.

We’re looking forward to a wide-ranging discussion at the event on the key issues and challenges facing insolvency practitioners in the personal insolvency market in the coming years.

For more information and to book: https://www.r3.org.uk/personal_insolvency

Insolvency Support Services director Eileen Maclean will be speaking on the recent Scottish Protected Trust Deeds and Debt Arrangement Scheme consultations at the upcoming IPA Glasgow Roadshow 2019.

It’s gearing up to be a great afternoon of learning, discussing and networking. Hope to see you there.

IPA Glasgow Roadshow 2019

13 June 2019
2pm – 5pm

TLT LLP
140 West George Street
Glasgow
G2 2HG

For more information and to book: https://www.insolvency-practitioners.org.uk/events/event_details/88

Insolvency Support Services director Eileen Maclean is delighted to be taking part in the Edinburgh Insolvency Discussion Group (EIDG) Panel Session on 30 May 2019.

The event will be held at ICAS’ offices in Haymarket Yards from 17:30. Steven Jansch, Head of Insolvency at Gilson Gray, will be chairing the event.

We are looking forward to an interesting discussion. Hope to see you there.