Personal, imaginative, reliable

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1 For an insolvency official formally appointed outside the Islands (the Insolvency Practitioner ), the prospect of obtaining assistance in the Channel Islands is probably somewhat daunting if the procedures are unknown. However, although the jurisdictions of the courts of the Bailiwicks of Jersey and Guernsey are entirely separate from the UK (and from each other), several possibilities exist for obtaining assistance and such requests are well known and frequently granted by the Royal Courts of both Islands. This article deals specifically with the principal statutory procedures designed to assist Insolvency Practitioners. However, it should be noted that other procedures exist which could also assist Insolvency Practitioners, including:- procedures to freeze assets and gather evidence (in both civil and criminal law); enforcement of foreign judgments; and Bankruptcies in the islands (the most important of which is the Désastre, a bankruptcy procedure which originally arose at customary law). The Procedure in England and Wales Insolvency Practitioners from the UK will need to have regard to the Insolvency Act 1986 when making their application for assistance. Cooperation between courts exercising jurisdiction in relation to insolvency proceedings is envisaged by Section 426 of the Act. The person making the application (typically a Trustee in Bankruptcy) will need to address in the affidavit the areas in which assistance is sought (i.e. disclosure of assets, documents and information). These areas should be referenced to the enabling domestic statutory power i.e. section 366 of the Insolvency Act. The reason for this is that the Royal Courts of the Islands will only provide assistance in areas where the Insolvency Practitioner could ordinarily obtain assistance domestically. The Insolvency Practitioner will need to state in the affidavit when their appointment was made and by which court (i.e. County or High Court) in the relevant insolvency district. The affidavit and accompanying Letter of Request (see below) will then be presented to this Court. For personal bankruptcy both District Judges and Registrars can deal with such applications. If there is urgency (or in the case of the County Court not having the file) an application can be made to the Applications Judge in the Chancery Division of the High Court. Great care needs to be taken in drafting the Letter of Request. An example of a Letter of Request for UK Insolvency Practitioners is to be found in the Encyclopaedia of Forms and Precedents (International Cooperation). There is also a Letter of Request in Annex A of the Practice Direction to Part 34 CPR. This can be amended to

2 particularise the assistance that is required. The Procedure in Jersey For Insolvency Practitioners appointed in the United Kingdom (England, Wales, Scotland and Northern Island), the Isle of Man, Guernsey, Australia and Finland a statutory scheme for assistance is provided under Article 48 Bankruptcy (Désastre) Jersey Law, For other jurisdictions, assistance may also be available in like manner on the basis of comity. The Article 48 procedure is relatively straightforward. Typical orders made by the Court include those relating to - The recognition of the office holder who is applying to the Court; Disclosure of documents/information regarding assets; Examination of witnesses; Delay of disclosure of the existence of the order ( Gagging orders ); Freezing orders; Orders on the subsequent use of information; Costs. The fact that requests for assistance are frequently granted does not mean that orders will be automatically granted without question and certain pitfalls are ready to trap the unwary, both substantive (see Trusts and Foreign Revenue Claims beneath) and procedural (as follows). Preparation is of paramount importance and advice should ideally be sought from within the jurisdiction before the application for the issue of the Letter of Request from the High Court is made. This will ensure that the Request is in its proper form which will be acceptable to the Royal Court. Following the Jersey case of Re: Andrew David Kirk [2000 JLR Notes 4a], an application for an order in aid under the Bankruptcy (Désastre) (Jersey) Law 1990, art. 48 to fulfil a letter of request from a foreign court should not be made to the court until the applicant has consulted with the Viscount s Department [the Executive Officer of the Royal Court] with a view to ensuring that the order sought, while seeking to achieve the objects of the letter of request, is drawn in terms suited to Jersey legislation. Unless a personal appearance is to be made, an Advocate admitted to the local Bar will need to be retained to make the application. However, it is advisable to retain such an Advocate at the outset to give advice on the drafting of the letter. The Royal Court will be

3 constrained from departing from the terms of the Letter of Request of the foreign court and appropriate drafting at the outset should ensure a smooth passage through the courts. Application to the Royal Court is made in the name of the Insolvency Practitioner, by originating process known as a Representation. The application must be supported by evidence in the form of an affidavit, appending the original Letter of Request and a copy of the document recording the appointment of the Insolvency Practitioner is presented to the Court. The documents should contain as much detail as possible, of the applicant, the reasons for his appointment, events since appointment and the reasons for and nature of the assistance sought. The assistance requested must be necessary for the proper discharge of the Insolvency Practitioner s duties. A well-drafted request will lean towards the specific rather than the general and include a request to apply to extend its scope at a later date if necessary. Applications are generally made and granted at the regular Friday afternoon sitting of the Royal Court and so initial and subsequent applications can, in the absence of complications, be made speedily. The applicant should be ready to offer to the Court undertakings in relation to costs and use of documents. In the LeisureNet case 1, the Respondent (the person or institution at which the orders are directed) did receive its costs, but this is not automatic and will depend on the extent of the obligations to be complied with. The Court will often make an order limiting the use of documents and will expect such orders to be respected in the UK unless an application is made at a later date to the Royal Court to vary them. Following the granting of the request by the Royal Court, the orders are served on the Respondent and (if relevant) must be complied with within the time limits set out in the orders. The Procedure in Guernsey The Insolvency act 1986 (Guernsey) Order 1989 (the 1989 Order ) extends to the Bailiwick of Guernsey the effect of sub-sections (4) (5) (10) (11) of section 426 of the Insolvency Act 1986 (subject to modifications specified in the schedule to the Order). Accordingly an order made by a court in any part of the UK in the exercise of its insolvency jurisdiction shall be enforced in any other part of the UK as if it were made by the court exercising the corresponding jurisdiction in that other part. A request for assistance is made by the court requiring assistance to the Royal Court of Guernsey. An application is made to the Royal Court by tabling the letter of Request before it. The assisting court has discretion to apply the insolvency law applicable in 1 In the matter of LeisureNet Limited (In liquidation) JU 2002/46

4 the other jurisdiction. In the Guernsey case of Re Tucker (Bankrupt) (1989) Court of Appeal it was held that where a court receives a request for aid it has as a duty not a discretion to act, in the absence of some compelling reason to the contrary. Whether this remains good law is untested in recent times, following the introduction of the 1989 Order. Authority for the proposition that the Bailiwick court has the discretion to exercise the jurisdiction which the English court could of exercised is found in Slinn v. The Official Receiver and Liquidator of Seagull Manufacturing Company Limited (Court of Appeal) 5 August Requests which may present difficulties. Trusts If an Insolvency Practitioner seeks orders in relation to assets owned by the bankrupt (e.g. information held by a bank), they will usually be obtained. However, if a bankrupt is a settlor or beneficiary of trust property, it must be borne in mind that he or she is no longer the legal owner of the property - the legal owner is the formally appointed trustee of the trust (the Trustee ). The guiding principle is that the Insolvency Practitioner is entitled to request whatever the bankrupt would be entitled to. If the bankrupt is not a beneficiary of the trust, he or she has no proprietary rights to the trust property and is effectively a third party or stranger (unless allegations are made of a payment to defraud creditors, sham trust or similar). Common law duties of confidentiality are owed by the Trustee and information should not be divulged (either to the bankrupt or the Insolvency Practitioner appointed to administer his estate). If the bankrupt is a beneficiary, the extent of information available depends on the nature of the trust, the bankrupt s interest in it and the extent of discretion exercisable by the trustee. It is also to be noted that the Court has discretion on whether to make information available. In summary, and broadly speaking, both Jersey law (Re: Rabaiotti 2 ) and Guernsey law (Stuart Hutchinson v Spread Trustee Co Ltd 3 ) follow the principles developed in Re: Londonderry s Settlement [1965] Ch 918, namely that a beneficiary is entitled to see trust documents, but not documents relating to the exercise of discretionary powers. Thus, at one extreme there is the bare trust or nomineeship (where the trustee holds assets absolutely to the order of the beneficiary), where much information will be available (as there are, strictly, no discretions). But at the other end of the spectrum, in the case of a fully discretionary trust, much information will not be disclosed. Minutes of and agendas for trustees meetings, 2 In the Matter of the Rabaiotti 1989 Settlement (2000) JLR Hutchinson v. Spread Trustee Company Limited Judgment 1/2006 Royal Court (Civil Action File 906)

5 trustee/protector correspondence and most correspondence between trustees, beneficiaries and/or protectors will not be available; nor (probably) the letter of wishes. The documents which should be available include those relating to the administration of the trust, including the trust instrument, the trust accounts (the latter term has a wide definition) and the documents relating to trust investments. The restrictive principles described above do not apply if litigation is commenced, and normal principles of discovery will apply (which principles are very similar in the Channel Islands to the UK). Thus, if it is alleged that a trust is a sham or payments into it were a fraud on creditors, for example, more information will be available in the ordinary course of litigation. Enforcement of Foreign Revenue Claims. General principles of private international law 4 apply to applications for assistance, including the prohibition on assistance in the recovery of a foreign revenue (i.e.: tax) or penal claims, whether directly or indirectly. However, this rule is being progressively eroded and where the Insolvency Practitioner s requests would only partly have the effect of collecting tax, the application will usually be permitted 5. 4 See in Re Tucker JLR See in Re Hoare, a Bankrupt Act of Court 7 November 2001/ and in Re Representation Carman, Act of Court 3 April 2002

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