We have recently been made aware of a potential issue in relation to the concurrent service of Statutory Demands and Schedule 10 Notices on companies.
The Insolvency Service Rules state that service should be effected in accordance with CPR Rules in the absence of any specific provision within the Insolvency Rules. There is a specific provision for service of the Statutory Demand within the rules, however there no such provision for the Schedule 10 Notice. CIGA states that the Schedule 10 should be ‘delivered’ to the registered office.
1.42-1.44 of the Insolvency Rules relates to ‘delivery’ of documents.
Postal delivery of documents
1.42.—(1) A document is delivered if it is sent by post in accordance with the provisions of this rule.
(2) First class or second class post may be used to deliver a document except where these Rules require first class post to be used.
(3) Unless the contrary is shown—
(a)a document sent by first class post is treated as delivered on the second business day after the day on which it is posted;
(b)a document sent by second class post is treated as delivered on the fourth business day after the day on which it is posted;
(c)where a post-mark appears on the envelope in which a document was posted, the date of that post-mark is to be treated as the date on which the document was posted.
(4) In this rule “post-mark” means a mark applied by a postal operator which records the date on which a letter entered the postal system of the postal operator.
Delivery by document exchange
1.43.—(1) A document is delivered to a member of a document exchange if it is delivered to that document exchange.
(2) Unless the contrary is shown, a document is treated as delivered—
(a)one business day after the day it is delivered to the document exchange where the sender and the intended recipient are members of the same document exchange; or
(b)two business days after the day it is delivered to the departure facility of the sender’s document exchange where the sender and the intended recipient are members of different document exchanges.
Personal delivery of documents
1.44. A document is delivered if it is personally delivered in accordance with the rules for personal service in CPR Part 6. (The rules for ‘personal’ service under CPR Part 6 are under 6.22 and 6.5(3) – in the case of a company this is ‘(b) a company or other corporation by leaving it with a person holding a senior position within the company or corporation)’
Therefore, there does not appear to be any provision within the rules for ‘delivery’ of the Schedule 10 by way of leaving it at the registered office (CPR 6.20 allows for this, however rule 1.44 of Insolvency Rules does not allow for this as it states only the Part 6 rules for ‘personal’ service may be used). The Schedule 10 must be either posted, or handed personally to a person holding a senior position. This means that in cases where the Statutory Demand is letterboxed or left at the registered office, or handed to an employee or some other person authorised to accept service, this actually does not meet the service requirements for the accompanying Schedule 10.
How we propose to deal with this
Going forward, in cases where there is any ambiguity as to whether the service meets the requirements for Schedule 10, we will propose to also send a further copy of the documents by first class pre-paid post to the registered office address.