E-FILING, ADMINISTRATION – NOTICE OF APPOINTMENT
… WELCOMED CLARIFICATION
Issue 119 of the Technical Bulletin reported that members had queried as to when a Notice of Appointment (‘NOA’), filed via e-Filing by the company or directors, outside the normal court hours took effect as e-filing is available 24 hours a day.
Welcomed clarification
In two separate cases of in the matter of S.J. Henderson & Company Limited (in administration) and Triumph Furniture Limited (in administration) Insolvency and Companies Court Judge Burton gave a combined judgment and was asked to consider the correct interpretation of para 8.1 of the Insolvency Practice Direction – Can a company or its directors file a NOA outside of the court’s usual counter opening hours via e-filing?
Answer – No. ICC Judge Burton concluded that a company or its directors cannot appoint outside the court’s usual counter hours, with the exception of applying to a judge for an administrator order, without a legislative power enabling this action.
If a NOA is filed out of hours, regardless of whether the court staff accept the filing before counter-opening times, the appointment can only take effect from when the court counter opens, which is likely to be different dependent on the location of filing i.e. London opening time is usually 10am.
Notice of Intention to Appoint an Administrator (‘NOI’)
The judgment of ICC Judge Burton also considers the ability to file a NOI outside of court hours, which the Insolvency Practice Direction does not address.
ICC Judge Burton considered there is nothing to prevent a NOI being e-filed by any party, out of court hours. Provided the filing does not fail Acceptance, the NOI will take effect at time and date it was filed.
Conclusion
The judgment is welcomed and states that a company or its directors cannot appoint an administrator outside the court’s usual counter hours with the exception of applying to a judge for an administrator order. However, this was a first instance decision in unchallenged applications. Insolvency Practitioners should therefore appreciate that other first instance decisions could contradict this at a later date. A judgment from a higher court, or clarification in the CPR or Rules is still needed.
Para 5.4(6) of Practice Direction 51O of the Electronic Working Pilot Scheme