Coronavirus - Insolvency

All communications with teams within AiB should now be done via its shared IT systems or e-mail, with a list of team contact information available on its website.

The AiB has produced the following guidance as part of its response to the coronavirus crisis:

'Dear Trustee' – COVID-19 – Contingency Arrangements.

A letter containing coronavirus contingency arrangements including the suspension of all division and sale actions related to occupied properties and the halting of all evictions until further notice in bankruptcy cases and the relaxing of supporting documentation requirements where possible to allow debtor applications to be processed.

'Dear Trustee' - COVID-19 – expanded PTD Contingency Arrangements

A letter containing expanded coronavirus contingency arrangements in relation to PTDs

DAS - COVID-19 Emergency:  Information for DAS Clients

DAS - COVID-19 emergency – FAQ

Two documents providing DAS emergency information for those impacted by coronavirus.

Modified procedures for the debtor application process

Details of the relaxed level of supporting evidence necessary to accompany debtor applications during the coronavirus crisis.

‘Dear Trustee’ – The Coronavirus (Scotland) Bill

Details of changes to AiB processes surrounding moratorium extensions and electronic signatures in light of the emergency coronavirus legislation.

‘Dear Trustee’ – Introduction delay to Form 2A – Household income and expenditure

Notification of an indefinite delay to the planned introduction of a household income & expenditure form to accompany trust deeds presented for protection.

Dear Trustee - Coronavirus (Scotland) (No.2) Act 2020

Details of changes to the bankruptcy process in light of the further emergency coronavirus legislation.

DAS ‘Low and Grow’ process

Following representations from the money advice community, the AiB as DAS Administrator, has introduced a short-term ‘low and grow’ Debt Arrangement Scheme (DAS) process.

The ‘low and grow’ approach is intended for individuals who would benefit from being in a DAS Debt Payment Plan (DPP), but can only afford to pay minimal instalments toward their DPP in the short-term, with their contribution increasing once their circumstances improve.

Guidance on the new process has been issued by the AiB. The guidance sets out how proposals for any potential “low and grow” DPPs would be considered if they were subject to a ‘fair and reasonable’ assessment.

DAS - missed payments

The AiB has indicated that, from 18 January 2021, the DAS Administrator will start an exercise to write to every DAS client who has missed more than 3 payments, asking that they make contact with their money adviser as a matter of urgency to establish if DAS is still the correct debt solution or to see if there are any changes which could be made to the DPP to make it sustainable.

Supplementary AML Guidance for the Accountancy Sector during COVID-19 has been published which provides guidance on the completion of client due diligence (CDD) during urgent work.

As the first stage of a general review of statutory debt solutions in Scotland, Jamie Hepburn MSP, Minister for Business, Fair Work and Skills, has introduced draft Regulations aimed at helping to address the consequences of the COVID-19 pandemic.

The specific proposals which have been brought forward are:

• Reduction of the Minimal Asset Process (MAP) debtor application fee to £50.
• Reduction of full administration bankruptcy application fee to £150.
• Removal of all bankruptcy debtor application fees where prescribed benefits are in payment.
• Increase in the debt threshold for access to the Minimal Asset Process route into bankruptcy from £17,000 to £25,000.
• Removal of student loans for consideration in the MAP debt threshold.
• Enablement of electronic signatures on applications for bankruptcy.
• Increase the time scale for a trustee to submit their initial debtor contribution proposal to AiB from six weeks to 12 weeks.

If approved by Parliament, the changes will come into effect on 29 March 2021.

Companies House will now accept the filing of statutory insolvency documents via emailed PDF attachments.

Full filing requirements can be found here. Emails for Scottish cases should be sent to Liquidation_SC@companieshouse.gov.uk..

Companies House has further confirmed that it has changed its requirements in relation to the filing of a Declaration of Solvency.

The Coronavirus (Scotland) Act 2020 came into force on 7 April 2020. The purpose of the Act is to respond to the emergency caused by the coronavirus pandemic.

An article has been produced to look at the impact of the new legislation on restructuring and insolvency practice in Scotland during its period of operation including:

• Changes to the moratorium on diligence
• Electronic signatures
• Commercial leases and evictions

An explainer video has also been created looking at changes to the moratorium provisions.

The Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020 came into force on 29 September 2020.

The Regulations amend the expiry date of Part 1 of the Coronavirus (Scotland) Act 2020 and Part 1 of the Coronavirus (Scotland) (No.2) Act 2020 from 30 September 2020 to 31 March 2021.

The extension does not apply to all provisions currently in the Acts as a separate instrument expired early certain provisions on 29 September 2020 – the Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020. The provisions expired by those Regulations do not benefit from any extension of Part 1 of each of the Scottish Acts.

None of the provisions expired early relate to restructuring and insolvency, which are therefore all extended to 31 March 2021.

The Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2021 came into force on 30 March 2021.

The regulations amend the expiry date of Part 1 of the Coronavirus (Scotland) Act 2020 and part 1 of the Coronavirus (Scotland) (No.2) Act 2020 from 31 March 2021 to 30 September 2021.

Some of the temporary measures originally introduced by those Acts were made permanent through the Bankruptcy (Miscellaneous Amendments) (Scotland) Regulations 2021.

The extension therefore applies to the remaining temporary measures, namely:

• The increase of the minimum debt level for creditor petitions to £10,000.
• The extension of the length of the moratorium against diligence from 6 weeks to a period of 6 months.
• The removal of the prohibition against an individual benefitting from more than one moratorium in any 12-month period.
• The ability to allow meetings of creditors to take place using electronic means.

The extension does not apply to all provisions currently in the Acts as some provisions have already expired and a separate instrument expired early certain provisions on 30 March 2021 – the Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2021. The provisions expired by those regulations do not benefit from any extension of part 1 of each of the Scottish acts.

None of the provisions expired early relate to restructuring and insolvency.

The Coronavirus (Scotland) (No.2) Act 2020 came into force on 27 May 2020. The purpose of the Act is to further respond to the emergency caused by the coronavirus pandemic.

An article has been produced to look at the impact of the new legislation on restructuring and insolvency practice in Scotland during its period of operation including:

• A change to the qualified creditor minimum debt level
• Alterations to debtor application fees
• An increase in the MAP debt ceiling
• Provisions surrounding electronic communications and electronic signatures
• Provisions to allow oaths to be administered without physical presence

The Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2020 came into force on 29 September 2020.

The Regulations amend the expiry date of Part 1 of the Coronavirus (Scotland) Act 2020 and Part 1 of the Coronavirus (Scotland) (No.2) Act 2020 from 30 September 2020 to 31 March 2021.

The extension does not apply to all provisions currently in the Acts as a separate instrument expired early certain provisions on 29 September 2020 – the Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2020. The provisions expired by those Regulations do not benefit from any extension of Part 1 of each of the Scottish Acts.

None of the provisions expired early relate to restructuring and insolvency, which are therefore all extended to 31 March 2021.

The Coronavirus (Scotland) Acts (Amendment of Expiry Dates) Regulations 2021 came into force on 30 March 2021.

The regulations amend the expiry date of Part 1 of the Coronavirus (Scotland) Act 2020 and part 1 of the Coronavirus (Scotland) (No.2) Act 2020 from 31 March 2021 to 30 September 2021.

Some of the temporary measures originally introduced by those Acts were made permanent through the Bankruptcy (Miscellaneous Amendments) (Scotland) Regulations 2021.

The extension therefore applies to the remaining temporary measures, namely:

• The increase of the minimum debt level for creditor petitions to £10,000.
• The extension of the length of the moratorium against diligence from 6 weeks to a period of 6 months.
• The removal of the prohibition against an individual benefitting from more than one moratorium in any 12-month period.
• The ability to allow meetings of creditors to take place using electronic means.

The extension does not apply to all provisions currently in the Acts as some provisions have already expired and a separate instrument expired early certain provisions on 30 March 2021 – the Coronavirus (Scotland) Acts (Early Expiry of Provisions) Regulations 2021. The provisions expired by those regulations do not benefit from any extension of part 1 of each of the Scottish acts.

None of the provisions expired early relate to restructuring and insolvency.

The Bankruptcy (Miscellaneous Amendments) (Scotland) Regulations 2021 came into force on 29 March 2021 and make permanent some emergency measures that were introduced last year through the Coronavirus (Scotland) (No.2) Act 2020.

The measures introduced include:

• Reduction of the Minimal Asset Process (MAP) debtor application fee to £50.
• Reduction of full administration bankruptcy application fee to £150.
• Removal of all bankruptcy debtor application fees where prescribed benefits are in payment.
• Increase in the debt threshold for access to the Minimal Asset Process route into bankruptcy from £17,000 to £25,000.
• Removal of student loans for consideration in the MAP debt threshold.
• Enablement of electronic signatures on applications for bankruptcy.
• Increase the timescale for a trustee to submit their initial debtor contribution proposal to AiB from six weeks to 12 weeks.

On 28 March 2020, the UK Government announced plans to bring forward changes in legislation to temporarily suspend the wrongful trading provisions within the Insolvency Act 1986 and to introduce new measures to aid the restructuring of companies.

As a result, the Corporate Insolvency and Governance Bill was laid in Parliament on 20 May 2020 and came into force as the Corporate Insolvency and Governance Act 2020 (CIGA 2020) on 26 June 2020.

The government previously consulted on changes to the corporate insolvency regime and announced plans to introduce new insolvency restructuring procedures in August 2018. The new legislation, in large part, implements those plans.

The overarching objective of the legislation is to provide businesses with the flexibility and breathing space they need to continue trading and avoid insolvency, particularly during this period of economic uncertainty.

A series of articles has been produced looking at the various insolvency and restructuring measures introduced by CIGA 2020. An 'Ask ICAS' webinar was held on 25 June 2020 to look at the changes in more detail.

The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) Regulations 2020 (“the first Regulations”) came into force on 29 September 2020.

The first Regulations prolong the period within which certain temporary provisions in CIGA 2020 are to have effect.

The small supplier exemption from termination clause provisions and the modifications to moratorium provisions and the temporary moratorium rules are extended to 30 March 2021.

Temporary modifications concerning the restrictions on the use of statutory demands and winding up petitions are extended to 31 December 2020 and the relaxation of company annual general meeting (AGM) requirements is extended to 30 December 2020.

Crucially the temporary provision regarding the suspension of liability for wrongful trading is not being extended and therefore expired automatically on 30 September 2020.

A second statutory instrument, the Corporate Insolvency and Governance Act 2020 (Coronavirus) (Early Termination of Certain Temporary Provisions) Regulations 2020 (“the second Regulations”), came into force on 1 October 2020.

Somewhat confusingly, the second Regulations reinstate a time limit that was already in effect but had been extended by the first regulations. The purpose of the second Regulations is to re-establish, for certain measures, the time limit that was originally specified in the legislation (in effect, carving-out certain provisions from the first Regulations).

Specifically, the second Regulations terminate modifications to the conditions for having a moratorium which allows the supervising insolvency practitioner to disregard aspects of the company’s financial position that relate to coronavirus when considering whether the company is “rescuable” for the purposes of having a moratorium.

They also terminate the relaxation of the conditions for extending, monitoring and terminating of the moratorium on the grounds that any worsening of the company’s financial position, because of coronavirus, should be disregarded.

As a result the lowered threshold will no longer apply, and, when considering whether the company is rescuable, the monitor will not be able disregard the economic impact of coronavirus so that only a company deemed to be rescuable by the proposed monitor is able to access a moratorium.

The intention of this change is to minimise the risk of increasing the number of so-called zombie companies (those that have no real prospect of servicing and repaying their debts).

The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Suspension of Liability for Wrongful Trading and Extension of the Relevant Period) Regulations 2020 came into force on 26 November 2020 and revive the temporary suspension of liability for wrongful trading for company directors until 30 April 2021.

The regulations do not have retrospective application so the worsening of the company’s financial position between 1 October to 25 November 2020 will be of relevance to courts considering wrongful trading actions against directors and the contribution a director may require to make to the company’s assets.

The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) (No. 2) Regulations 2020 came into force on 31 December 2020.

The Regulations extend the duration of the temporary measures restricting the use of statutory demands and winding up petitions until 31 March 2021.

The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Change of Expiry Date) Regulations 2021 came into force on 1 April 2021 and amend CIGA 2020 to extend the date on which the power in section 20 to make temporary amendments to, or modify the effect of, corporate insolvency and governance legislation, expires, by a year to 29 April 2022.

The Regulations do not extend any of the measures relaxing requirements currently in place (most of which are due to expire on 31 March 2020). However, keeping the power in section 20 of CIGA 2020 available for a further year provides a means for specific and temporary changes to be made to corporate insolvency and governance legislation should the urgent need arise to do so, which will allow quick reactions to any unforeseen challenges arising as a result of the pandemic’s impact on business.

The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) Regulations 2021 came into force on 26 March 2021.

The regulations further extend the duration of some of the temporary measures introduced by CIGA 2020 as follows:

• The restrictions on the use of statutory demands and winding up petitions are extended from their current expiry date on 31 March 2021 to 30 June 2021.
• The modifications to moratorium provisions and temporary moratorium rules are extended from their current expiry date of 30 March 2021 to 30 September 2021.
• The small supplier exemption from termination clause provisions is extended from its current expiry date of 30 March 2021 to 30 June 2021.

The provisions suspending liability for wrongful trading in the Corporate Insolvency and Governance Act 2020 (Coronavirus) (Suspension of Liability for Wrongful Trading and Extension of the Relevant Period) Regulations 2020, are also extended from the current expiry date of 30 April 2021 to 30 June 2021.

The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Amendment of Certain Relevant Periods) Regulations (Northern Ireland) 2021 came into operation on 29 March 2021.

The regulations further extend the duration of some of the temporary measures introduced by CIGA 2020, as detailed above, for companies in Northern Ireland.

For the latest information in relation to Courts in England and Wales, please refer to the Courts and Tribunals Judiciary web page.

A temporary insolvency practice direction (TIPD) for the Business and Property Courts came into force on 3 April 2020. This expired on 1 October 2020 and was replaced and extended by a further TIPD which came into force on the same day.

It applies to all insolvency proceedings throughout the Business and Property Courts in England and Wales, subject to any variations as directed by (in London) the Chief Insolvency and Companies Court Judge or (outside London) the relevant Supervising Judge. It will remain in force until 31 March 2021 unless amended or revoked by a further insolvency practice direction.

Its purpose is to provide workable solutions for court users while the coronavirus pandemic continues together with guidance as to the type of hearings which the Insolvency and Companies Court list will endeavour to provide during the period the TIPD is in force.

A further TIPD came into force on 1 April 2021. It replaces and extends the previous TIPD, which expired on the same day.

It applies to all insolvency proceedings throughout the Business and Property Courts in England and Wales, subject to any variations as directed by (in London) the Chief Insolvency and Companies Court Judge or (outside London) the relevant Supervising Judge. It will remain in force until 30 June 2021 unless amended or revoked by a further insolvency practice direction.

Its purpose remains to assist court users during the continuing COVID-19 pandemic by avoiding the need for parties to attend court in person, and to deal with some of the problems arising from the need for the court(s) to operate with limited staff and resources.

The FCA has provided information for firms on coronavirus response.

The Gazette is currently to accept notices for publication by post or fax. Please place notices online or email customer.services@thegazette.co.uk. Further information is available of the Gazette website.

HMRC has issued:

• Guidance on how it is dealing with situations where an individual or company is already in an insolvency process and enforcement action during the COVID-19 period.
• Guidance for Insolvency Practitioners on the introduction of electronic banking for insolvency practitioners making dividend payments.
• Guidance on temporary changes to the time limit and rules for notifying an option to tax land and buildings. There is a temporary extension to the time limit to 90 days from the date the decision to opt was made.
• Guidance on HMRC’s approach to variations and new proposals in respect of Individual Voluntary Arrangements (IVAs), Partnership Voluntary Arrangements (PVAs) and Company Voluntary Arrangements (CVAs) from 1 July 2020 until 30 November 2020.
• Guidance for notifying HMRC of a moratorium including contact details and information to be supplied to HMRC.

This article covers ICAS’ view on insolvency practitioner responsibilities during the coronavirus crisis and outlines the position with insolvency monitoring visits. The article was produced on 19 March. As matters progress, the guidance will be updated if appropriate.

The second webinar in the ‘Ask ICAS’ series provides an overview of director responsibilities and keeping cash as king with some discussion of the temporary amendments to insolvency legislation.

The ICO has created a data protection and coronavirus information hub which will be updated on an ongoing basis.

The ICO can be contacted on +44 (0)303 123 1113 if you wish to discuss a specific data protection matter.

The insolvency service has issued the following:

Dear IP 92

An edition specifically concerned with coronavirus which includes signposting to government emergency measures to support businesses and individuals expected to be adversely financially affected.

Dear IP 93

Further updates from the Insolvency Service on the steps being taken during the coronavirus pandemic, including changes to the way it delivers its services and guidance on the acceptance of electronic signatures on requisitions.

Dear IP 95

Contains coronavirus updates on matters including books and records requirements, the job retention scheme, and acceptance of CAU103 & 104 forms by email.

Dear IP 96

Covering the temporary insolvency practice direction for the Business and Property Courts which came into force on 3 April 2020.

Information on the IVA registration fee process. Fees can now be accepted by BACS.

Confirmation that it will accept requisitions of payments via email.

Dear IP 97

Containing COVID19-related guidance in relation to payments against proof of debts, fee requests to the Redundancy Payments Service, parliamentary hub app scam and the Straightforward Individual Voluntary Arrangement (IVA) Protocol.

Dear IP 98

Containing COVID19-related guidance in relation to electronic banking for insolvency practitioners making dividend payments.

Dear IP 99

Containing information about delays to the processing of e-filed insolvency documents at Companies House in England and Wales plus clarification surrounding the Incorrect refusal of Job Retention Scheme (JRS) financial support by HMRC.

Dear IP 100

Companies House is asking for feedback from insolvency practitioners in relation to the new document upload filing service, introduced as a response to the COVID-19 pandemic.

Dear IP 101

Introduces the new Corporate Insolvency and Governance Bill and contains information about submission of DCRS reports in the absence of records and processing payments for employees who are made redundant whilst on the Coronavirus Job Retention Scheme (CJRS).

Dear IP 102

Containing COVID-19: Individual Voluntary Arrangement (IVA) Protocol guidance.

Dear IP 103

The latest updates from the Insolvency Service on the steps being taken during the COVID-19 pandemic including progress of the Corporate Insolvency and Governance Bill through Parliament and electronic communications with HMRC in IVAs.

Dear IP 104

Containing a link to draft guidance for monitors in relation to the new moratorium process to be introduced by the Corporate Insolvency and Governance Bill.

Dear IP 105

Containing a link to the final guidance for monitors in relation to the new moratorium process and a link to the relevant forms to send Companies House regarding commencement, extension or end of the moratorium Government financial support schemes and insolvency.

The edition also contains details of the interaction between Government financial support schemes and insolvency.

Dear IP 106

Including new Court Practice Directions for the Corporate Insolvency and Governance Act 2020. A new Schemes Practice Statement has also been published for the new Restructuring Plan under Part 26A of the Companies Act 2006. Both documents are included as attachments to Dear IP 106.

Dear IP 107

The edition includes details of the process for submission of VAT426 forms to HMRC via the Dropbox file sharing service.

Dear IP 109

Containing coronavirus-related articles in relation to HMRC's Digital Mail Service, revisions to the IVA Protocol COVID-19 Guidance and delivery of insolvency forms by email to Companies House.

Dear IP 110

Containing coronavirus-related articles concerning the extension of temporary measures introduced by the Corporate Insolvency and Governance Act 2020 and the reinstatement of the Insolvency Service’s account cheque payment production.

Dear IP 112

The edition includes coronavirus-related guidance for filing notice of a Restructuring Plan for an overseas company pursuant to CIGA 2020 and HMRC’s request for assistance to clear a backlog of IVA correspondence and proposals.

Dear IP 113

Dear IP 113 includes guidance for IPs who are appointed to businesses which have customs authorisations, a reminder for IPs of the requirements when filing a report of an approval of an IVA with the Secretary of State and details of the revival of the suspension of wrongful trading provisions of the Insolvency Act 1986.

Dear IP 114

The edition includes guidance on reporting misconduct in corporate insolvencies in which there appears to have been abuse of the various COVID-19 Government financial support schemes.

Dear IP 117

Dear IP 117 provides a reminder of an Insolvency Practitioner’s responsibilities in relation to suspicious or fraudulent redundancy payment claims.

Dear IP 118

Dear IP 118 includes information on information about cheque payments to HMRC and details of changes to cheque payment production by the Insolvency Service.

Dear IP 119 provides details of the extension of the IVA Protocol COVID-19 Guidance.

Dear IP 123 includes details of the extension of temporary measures under the Corporate Insolvency and Governance Act 2020.

Dear IP 124 includes details of an extension of the IVA Protocol COVID-19 Guidance.

Form HR1

Form HR1, providing advance notification of potential redundancies, has been updated to include clarity on furloughing. The format of the form has also been revised to aid completion.

The Joint Insolvency Examination Board has confirmed that, as the insolvency examinations are not until November, it is proceeding on a “business as usual” basis.

The Board is keeping the situation constantly under review and will keep students and tutors fully appraised of any developments.

Carluccio's Ltd, Re Insolvency Act 1986 [2020] EWHC 886 (Ch)

Re Debenhams Retail Limited [2020] EWHC 921 (Ch)

The High Court has provided some clarity on applying the government’s Coronavirus Job Retention Scheme (CJRS) to insolvent businesses. In particular, how the Scheme permits administrators to pay furloughed employees within the constraints of current insolvency legislation and the effect on the adoption of employee contracts.

For the latest information from the Insolvency Service, Department for the Economy, please refer to the Department’s homepage.

For the latest information on court business continuity arrangements in Northern Ireland, please refer to the Department of Justice’s website.

The PPF are currently unable to accept paper s120 notification submissions. Wherever possible, submissions should be made via the online notification service. If you experience a problem with the online service please email websiteupdates@ppf.co.uk.

If you are unable to make a submission online, please email a copy to s120validation@ppf.co.uk or call the PPF on 0345 600 2541 to discuss further.

Redundancy payments helpline

The Redundancy Payments Services (RPS) helpline is closed. However, redundancy claims processing continues as normal.

The RPS should instead be emailed via redundancypaymentsonline@insolvency.gov.uk.

Furlough and redundancy

The Insolvency Service has issued guidance for people who were furloughed using the Coronavirus Job Retention Scheme (CJRS), then made redundant because their employer is now insolvent.

The Corporate Insolvency And Governance Act 2020 (Meetings of Scottish Charitable Incorporated Organisations) (Coronavirus) Regulations 2020 comes into force on 30 September 2020.

The Regulations allow Scottish Charitable Incorporated Organisations (SCIOs) more flexibility as to when and how general meetings (such as annual general meetings) and some other meetings are held.

The Corporate Insolvency and Governance Act 2020 allows SCIOs to hold such meetings remotely (regardless of whether that is permitted by their constitutions) in the “relevant period”. The “relevant period” began with 26 March 2020 and will end with 30 September 2020. These Regulations amend when the “relevant period” will end for SCIOs to 30 December 2020. The amendment will allow SCIOs to hold meetings remotely until 30 December 2020.

Changes to civil court business have been announced by Scottish Courts and Tribunals (SCTS). IPs should note that civil business without witnesses will continue where possible and motions and ancillary business will be dealt with electronically where possible.

Documents due to be lodged may be posted to the offices or left at reception or public counters. Electronic submission of documents will be accepted where competent or allowed for by Schedule 4 of the Coronavirus (Scotland) Act 2020.

However, while urgent insolvency and sequestration applications are included within the business deemed ‘urgent and necessary’ by the Sheriff Courts, ICAS has become aware of difficulties currently facing its members in cases where some form of court involvement is required.

ICAS has been liaising with the AiB, as the Scottish Government’s Executive Agency, and the Insolvency Service at a UK level, in an attempt to open a dialogue with the Scottish courts in connection with this matter.

An article has been produced which provides further information about this matter.

ICAS submitted proposals to SCTS on what needs to be priority applications to help the economy and preserve jobs. ICAS are also working alongside the Law Society of Scotland to ensure there is consistent messaging as well as raising the need to resolve issues at Scottish Government Ministerial levels.

An update was published by SCTS on 24 April, with further guidance following on 29 April. That guidance makes it clear that "this is not a return to business as usual". No reference is made to personal insolvency in the guidance and it only relates to corporate insolvency proceedings to the extent of those "sisted by the court ex proprio motu; administratively adjourned to a date on or after 1 June 2020; or in respect of which no further order was made, where the court is satisfied that there is good reason why the action should be restarted and that the action can be progressed remotely without recourse to a hearing which requires the leading of evidence". Therefore, any new non-urgent business will not be dealt with.

A further update was issued on 1 June. Hub Sheriff Courts will continue to consider urgent and/or necessary corporate insolvency and sequestration applications up until 15 June. Thereafter, all civil applications should be submitted to local courts having jurisdiction.

New arrangements were introduced in Scotland’s courts from 12 January 2021 with a view to supporting the public health response to the COVID-19 pandemic by reducing the number of people required to attend court in person. The measures will remain in place until 26 February 2021 with a review taking place on 15 February 2021.

The vast majority of all civil business in the Court of Session and Sheriff Court continues to be conducted remotely.

Guidance setting out arrangements for the disposal of proceedings in both the Court of Session and Sheriff Courts has been published.

Electronic submission of documents

All documents in relation to new and existing cases in sheriff courts should generally be lodged electronically. Only in exceptional circumstances (which require to be set out in a covering letter), or where a sheriff so directs in advance of a hearing, should documents be lodged in hard copy.

Relevant email addresses and information in relation to format and naming conventions etc. is available for each Sheriffdom in the ‘Coronavirus: Orders, Guidance and Practice Notes’ section of the Scottish Courts website.

Both Companies House and the AiB have indicated that they will accept statutory documents which are not signed or administered physically.

However, IPs should be aware that acceptance of such documents does not clarify their legal validity – simply that they will not be rejected for filing purposes.

ICAS previously raised the issue of Oaths with the Law Society of Scotland, who advised that the law requires physical attendance to administer Oaths and that doing so in another manner would be misconduct on the part of the solicitor.

A Temporary Practice Direction has been issued by the Courts in England that gives some comfort that IP appointments (at least in relation to administration) will not be invalidated by medium of Oath administration. In Scotland, the courts have not issued such a direction – the Practice Direction does not extend to Scottish courts or Scots law.

It is assumed that the provisions in insolvency legislation for the court to waive defects such that any deficiency would not have an effect on the conduct of an insolvency. However, that assumption has not been tested and is ultimately a decision for the courts.

Following representations from ICAS, an amendment has been proposed at Stage 2 of the Coronavirus (Scotland) No 2 Bill to allow Oaths to be administered without physical presence.

In the meantime, consideration should be made as to whether it is possible for Statutory Declarations to be made and signed physically by practising appropriate social distancing measures and safeguards to avoid unnecessary doubt on validity.