UK insolvency practitioners can F…. their Forms

While insolvency practitioners in Australia are anxiously waiting to find out what new forms they must fill in and tick boxes to lodge with the regulators, UK practitioners will soon be able to Forget their Forms altogether.

Existing insolvency forms are being withdrawn from 6 April 2017 when the new UK insolvency rules come into force. The rules prescribe the content, setting out the information that needs to be contained in documents relating to insolvency processes – “standard contents’” – including the required format: see The Insolvency (England and Wales) Rules 2016.

UK insolvency practitioners are then free to create their own templates or to use commercially available templates designed to comply with these requirements.

There will be a small set of templates for compulsory liquidations and bankruptcies designed specifically to assist the Official Receiver and its users. If practitioners choose not to use these forms, the new rules specify what information is required and the form in which it is to be supplied.

The Gazette has also updated its services to enable insolvency practitioners to place relevant information required under the new rules.

The Explanatory Memorandum refers to this approach as building in “a significant degree of future-proofing as there will be less need for amendment to accommodate advancements in technology, business practice and to enable e-delivery”.

It may also be meant to address what can be a culture of focusing on process rather than content, evident in liquidators’ reports under s 533 of the Corporations Act here.     

Australia

Under the new insolvency reforms in Australia, forms remain. While England and Wales have the one regulator, and government department, the fact that we have two of each means that there is inconsistency between corporate and personal insolvency requirements, and approaches to how forms are devised. This is despite the harmonization objects of the new law.

In corporate, all documents required to be lodged with ASIC must be in a form approved by ASIC: s 100-6 Corporations Schedule.  But there also remain a number of prescribed forms in the Corporations Regulations: s 350 Corporations Act.

In bankruptcy, all forms are approved by the Inspector-General: s 6D Bankruptcy Act. There are no other forms, in the regulations or elsewhere.

Necessarily there will have to be consistency in some areas, for example in relation to applications for registration as a trustee or liquidator, and under disciplinary processes. But in other areas, we can expect a range of different requirements.

A difficulty can arise when a form is issued by a regulator that does not meet the legal requirements. AFSA’s first form under the new law – Application to renew registration as a trustee – form 31 – does not quite cover the legal requirements under the Bankruptcy Schedule and the Rules, but it may be saved by s 20-70(4). 

It should not be an issue in corporate, with ASIC no doubt going its own, and hopefully accurate, way.