When a person ceases to be an administrator he is discharged from liability in respect of any action of his as administrator, provided that this release has been properly granted under S98 of Sch B1 of the Insolvency Act 1986. The validity of his release from personal liability is probably even more important to an administrator than the validity of his appointment. S105 of Sch B1 IA 1986 validates any act of the administrator in spite of a defect in his appointment. There is no such validation clause for the administrator's release.
The first requirement when considering whether your insolvency appointments are compliant is to define what is meant by 'compliance'. For RMCSC this is simple - compliance means doing a good professional job.
The insolvency Ethics Code covers all aspects of insolvency work, demanding a high standard of professional behaviour, and insolvency practitioners must comply with the Ethics Code at all times. Compliance is therefore much more than just ensuring that statutory deadlines are met or sending reports with the appropriate contents to the right people.
The pre-pack pool, the panel that may be contacted by directors involved in the pre-pack purchase of the business of their insolvent company in the context of an administration, has been effective since 2 November 2015. If a director, or connected party, chooses to contact the pre-pack pool with details of the proposed transaction, the pre-pack pool will give its opinion on the transaction and this is to be made available to creditors.
The Insolvent Companies (Reports on Conduct of Directors) Rules 2016, coming into effect from 6 April 2016, will mean that for appointments from 6 April 2016, the D1 and D2 forms will be replaced by an online questionnaire, to be completed and submitted within three months of appointment for creditors' voluntary liquidations and administrations.
Insolvency practitioners breathed a sigh of relief when it was announced that work done by insolvency practitioners and their firms in the course of an insolvency appointment under s388 of the Insolvency Act 1986 was excluded from FCA regulation.
Grey areas and uncertainties remain, however, and an insolvency practitioner who failed to register for an interim permission before 1 April 2014 or who has not since applied for authorisation from the FCA, when this was required, will run the risk of trading illegally.
The legislation for reporting on the conduct of directors will change from 6 April 2016. The Insolvent Companies (Reports on Conduct of Directors) (England and Wales) Rules 2016 were laid before Parliament on 22 February 2016 and can be accessed on Reports on Conduct of Directors (PDF)
The changes are not onerous but they will mean changes to systems that should be prepared now. The changes will only affect appointments taking place from 6 April 2016. There are transitional provisions that allow for the existing D1 or D2 reports to be sent on appointments before 6 April 2016, provided that the D1 or D2 report is sent before 6 October 2016.
There have always been legal requirements for insolvency practitioners to work with unsecured creditors. Office holders have to report to creditors after appointment, at regular intervals and when cases are to be closed. The approval of creditors (or court) has always been necessary before officeholders could draw remuneration and the Insolvency (Amendment) Rules 2015 have increased officeholders' legal obligations to report to creditors in order to obtain approval of their proposed remuneration. Appointment takers work in the best interests of creditors.
Major creditors have indicated that they expect more from insolvency practitioners seeking approval for remuneration than a matrix of hours charged to the case and a narrative of standard tasks. A speaker for an insolvency licence provider said in 2015 that compliance is not a pack of standard letters.
After the noise and concern in 2015 about SIP 16 and the prepack pool, information has started to come forward about what this means in practical, day to day terms.
As regards the prepack pool - and it is of course for the directors of a company in administration, or facing administration, and that is proposing a prepack to submit an application to the prepack pool if they wish - the best comments have been from an insolvency practitioner who told me that 'From our point of view it was dead simple, just a case of sending a standard letter and having a five minute chat with the director submitting the application'. The response from the prepack pool was prompt and did not cause any problems.
Most of the work of an insolvency practitioner cannot be arranged in advance, of course, which leads to the risk that booking insolvency compliance reviews or other compliance projects is put off until that elusive 'moment' or until deadlines are approaching and priorities suddenly change. It is extremely sensible to take advantage of the end of the year to plan the structure of the following year as far as possible.