CCCUA Newsletter Winter 2011

CIVIL COURT USERS ASSOCIATION PromotINGABEttErCoUrtSErVICE

TEL 0845 052 5336 www.CCUA.ORg.Uk [email protected]

•AviewoftheCCUAAnnualConference

•RegionalRound-up

•Lobbying/Legal&TechnicalCommitteeUpdates

•HomeworkisnotjustforSchoolchildren

CCUA Newsletter Winter 2011

CONTENTS Editor’sNotes

when I saw our Chairman’s telephone number flash up on my mobile some weeks ago, instead of listening to my inner voice telling me to press ‘ignore’, I answered it. I thought it would be nice to speak to Brian and hear one or two of his hilarious jokes in order to momentarily escape the doom and gloom of yet

another euro zone financial crisis. Yet instead of adding to my collection of bad jokes I now find myself welcoming you all to the winter 2011 CCUA Newsletter as its new Editor. I did ask Brian if the job would involve ‘Hacking’ but was told that our President was far too busy to help! (Don’t worry I won’t give up the day job).

Now down to serious editorial business. In this edition we discover what’s been happening around the regions and have reports from the busy Legal & Technical and Lobbying Committees. Martin Huddleston, Lead Operational Manager at HMCTS Salford Business Centre tells us about the workings of the Centre and Louise kirby summarises the Insolvency Service consultation paper and offers her own thoughts. This will hopefully remind members to respond to the Legal & Technical Committee with your views.

In our new ‘If I could change one law’ feature, Tanzeela Aslam, issues a vain plea to change the law on driving licence photographs. what law would you change? get in touch.

In our ‘member profile’ I dodge bullets with Caroline knowles-Ley of Lloyds Banking group. I will be profiling members at random and as life’s a lottery remember next time “it could be you!”

Thanks to all contributors for spending their own time writing and submitting articles, to my editorial board for their assistance and to Claire for basically doing everything as usual. finally big thanks to Linetime for their continued support in sponsoring the Newsletters. Please circulate the newsletter amongst your colleagues and associates. Happy reading!

Rob Burke, Editor

The Editor, Rob Burke, can be contacted by email; [email protected]. All contributions and letters welcome.

4 Chairman’s notes Brian Havercroft produces an update of tHe association’s activities

3 editor’s WelComeroB Burke welcomes readers to tHe 2011 winter edition

reports from ccua regional cHairman

5-8 regional roundup

9-10 annual ConferenCe

a look at tHe ccua annual conference 2011 in pictures

11-12 lobbying Commitee

amir ali provides a round up of recent loBBying committee activity

Jeremy cHaplin provides a round up of recent legal & tecHnical committee activity

13 l&t Committee update

16 homeWork is not just for sChoolChildrenantHony sHarp asks wHetHer tHe government are doing tHeir Homework

14-15 salford business Centre

martin Huudleston introduces tHe new salford Business centre

louise kirBy discusses tHe insolvency service’s Bankruptcy consultation paper

17-18 bankruptCy

20 if i Could Change one laW

tanzeela aslam discusses wHicH law sHe would cHange

21 happy retirement!Brian Havercroft gives a fond farewell to Jeremy sutcliffe wHo retires tHis year

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22 linetime 24 merry Christmas wisHing all our readers a very merry cHristmas and a Happy new year

23 dates for your diaryHave your diary ready, 2012 is already Being planned!

19 member profile

caroline knowles-ley talk to tHe editor

2 3


Regional Roundup - GLSE Region

In this Roundup for the Greater London and South East Region (GLSE), I thought I would give a summary of the past year.

We have held three meetings in the year where I have been ably supported by my Vice-Chair, Robert Thompson of Brachers. Whilst I am sure the membership are keen to

hear what Rob and myself have to say, I am always eager to invite speakers, on varied topics, to the meetings and 2011 has been no exception. In February – Fuat Emin, Senior Fraud Lawyer Crown Prosecution Service, In June – Paul Mawson, Project Manager Liberata (working for HMCTS), In November – Andy Fyfe, Detective Inspector City of London Police. All different in style and topic, but well appreciated by all attendees. I feel it is important for any region to develop their members for the benefit of the Association on a regular basis and, with this in mind, I must mention Kelly Young of Southern Water in Worthing. Kelly has really come to the fore in 2011 by not only being elected - she did volunteer! - to the Legal & Technical Committee, but also being invited to present the Creditor ‘slot’ at the Annual Conference. Without wishing to embarrass Kelly, but I will, over 90% of delegates rated her speech either Excellent or Very Good. Well done Kelly!! A lot of our discussion at meetings revolves around the various Consultation Papers, issued primarily by

the Ministry of Justice, throughout the year. There is obviously a lot of interest generated because of the direct impact these Consultations have on members’ day-to-day workings. I must thank Robert who, as a very proactive member of the Legal & Technical Committee, produces a concise report at each meeting on the various statuses of each Consultation during the given period. It is also beneficial to the regional members to see Council members, outside of their own regions, attending our meetings to heighten their visibility and I would like to thank Brian Havercroft, Amir Ali and Jeremy Chaplin for giving up their time as well as Claire Havercroft, our Administrator, for her assistance in compiling the minutes. Overall 32 different members, including a couple of guests, attended the meetings in 2011 and we are looking to build on that in 2012.

Finally thanks to my own Company, BDO LLP, for hosting the meetings at our Baker Street offices and providing interesting buffets!

Anthony Whitman, GLSE Regional Chairman

Chairman’sNotes

I was pleased to see so many members at the conference and from comments received it was one of the best we have held. Congratulations to Amir Ali and his team for providing such an interesting programme.

Many thanks to Linetime, High Court Enforcement Officers Association and LPC for

sponsoring the event.

I know that the introduction of Payment by Account will benefit many of our members and we await details of the “roll out” date. However I was aware of the sense of frustration from members over what was seen as a repetition of plans from the MOJ & HMCTS representatives.

At the Annual General Meeting the following day Council was given a mandate to be more assertive in our dealings with government and you can be assured that we will continue to press for improvements.

As I said in my opening comments at the conference, whilst the Association is working hard on behalf of members we are not good at advertising that fact. As a result we have now introduced a Communications Committee under the chairmanship of Ron Lack. We will utilise a new website and LinkedIn to provide more detailed information and further details will be provided early in the New Year.

In addition I have taken responsibility for the Lobbying and the Legal & Technical committees under the respective chairmanship of Amir Ali and Jeremy Chaplin. Amir will have responsibility for the Conference committee, which is now being, renamed the Events committee. Jacky Cooper will continue

to have responsibility for administration and the secretarial duties.

At our recent liaison meeting with the MOJ & HMCTS we were impressed with their plans for the future and their wish to include the Association in moving forward. Amir Ali and Simon Hardy were amongst delegates to visit the new Salford National Money Claims Service and I know they were very impressed with what they saw and the management they met.

At the liaison meeting we were provided with an update concerning the “quick wins” we had suggested and there are several that are being looked at. Presently their priority is to get Salford right but there appears to be a willingness to listen to what we have to say and work on the suggestions.

The meeting is normally held every six months but at their request it will for the time being be held quarterly which I would suggest confirms their readiness to listen to our views.

However it must be considered that all the plans are subject to finance but presently they are moving forward.

As an Association we are committed to see an improvement in the service offered by the courts; rest assured we will continue to look after the best interests of our members.

Finally may I wish you and your families a very Happy Christmas and a prosperous New Year.

Brian Havercroft, Chairman

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The Central Region of The CCUA has a rather vague set of boundaries- probably from Norfolk to the Welsh coast and Derby to the M25. I don’t think anyone has quite drawn lines, but I reckon that this is approximately the correct area.

As with all other regions, Central Region, which I have the privilege to Chair, meets quarterly. The venue has for the last five years been the excellent offices of KPMG in the centre of Birmingham. Thanks to Mike Sargeant of KPMG who kindly organises the venue, our meetings are morning meetings and are followed by a very nice buffet lunch provided by KPMG. How long this arrangement will last, we are not certain. We normally get an attendance of about 25-30 delegates at our meetings and during 2011 as I have said, we have held four meetings and the main agenda items have been as follows.

These have included:-

March: An Open Forum session for members’ technical queries and to consider current matters of concern and interest to members.

June: The Ministry of Justice’s Payment By Account Service. Speaker: Paul Mawson, Project Manager-Payment by Account, Payment Solution Programme, LIBERATA.

October: “Fraud, how to be a victim.” Speaker: Fuat Emin. Central Fraud Group, CPS central casework.

December- Jane Shepherd, Principal Debt Policy Officer, Credit Policy, Corporate Services, Office of Fair Trading gave us an important update on current work in the personal debt arena being undertaken by the Office of Fair Trading.

We are delighted that The Birmingham Civil Justice Centre remain keen to be regularly represented at our

meetings and provide an update report. This has a great benefit both for the HMCTS and members in being able to raise and resolve local issues and get them sorted out and for the HMCTS to provide the meeting with current news and information.

Together with the able assistance I receive from the Deputy Chair - Sat Singh of HSBC - we are also fortunate to have Brian Havercroft, CCUA Chair and Jeremy Chaplin , Chair of the Legal & Technical Committee as members of Central Region and therefore to supply up- to- date reports of CCUA activities.

The dates of the Central Region meetinga for 2012 will be found at the end of this newsletter.

May I take this opportunity of wishing all readers a Happy Christmas and dare I say a Happy New Year.

Anthony Sharp, Central Region Chairman

This year we have had a variety of speakers attend meetings to give talks/presentations on various subjects. In March Mark Danks from the Insolvency Service addressed the meeting about insolvency matters. In June we had an interesting talk by District Judge Jordan, which was very informative and in

September we heard about Paymen by Account (PbA) from Paul Mawson, Project Manager at Liberata, a government outsourcing specialist.

At our December meeting, which hasn’t taken place at the time of writing this article but will have done so by the time you read this, Cid Spooner, Operations Manager at the CCBC/CPC will have given us an update on matters at the CCBC/CPC and on the data transfer work. Jason Latham, National Back office Manager with responsibilities for CCBC/CPC, Salford and Haywards Heath Business Centres and several of the Tribunal back offices, will have provided an overview of where HMCTS are with their business and contact centre network.

Attendance at the Northern Regional meetings has been good with the exception of September when the date of our meeting clashed with the CSA conference. However, we still managed to average 28 attendees at each of the meetings.

I know that time is precious to us all and it is becoming more and more difficult to find the time to “escape” from the office. That is why we, as an Association, need to ensure that the regional meetings are informative, meaningful and beneficial to all.

I recently visited the Salford Business Centre and had a tour of the operation which was most impressive. They have very kindly offered to host one of our meetings in 2012. This will be an excellent opportunity to see

the operation and to meet the staff. That takes account of one meeting but who do you want to hear speak at future meetings? Have members from other regions had speakers who have been particularly interesting and that other regions would benefit from hearing, or are there speakers you would like to hear again to provide an update on their subject? I know that all regional chairs would welcome your suggestions as we want to meet your needs.

Regional meetings also provide the ideal opportunity to network, make new friends and to air issues. On several occasions I have gone to a meeting with an issue or problem thinking it was unique to me, but have soon discovered that it is a problem common to many. By identifying common problems we as an Association can take up the issues with the appropriate authorities or, as we now have our new Lobbying Committee, lobby for change.

I would also like to take this opportunity to say “thank you”, on behalf of all Northern Regional members, to those organisations which host our meetings. We meet at some excellent venues, are provided with wonderful lunches and are always made to feel most welcome – thank you to all concerned.

Finally I want to wish all readers and their families a very Merry Christmas and a Happy and Peaceful New Year. I look forward to seeing you at regional meetings in 2012.

Simon Hardy, Northern Region Chairman

Regional Roundup - Northern RegionRegional Roundup - Central Region

6 7


Over the year the region has held a variety of excellent meetings especially one by the Deputy District Judge which brought forward many interesting scenarios faced and provoked much discussion.

The Association is very grateful to all the speakers and would thank Burgess

Salmon for kindly providing the venue throughout the year.

Sadly Deborah Poynter has found it necessary to resign as Chair and Martin Wood has kindly agreed to replace her.

The next meeting will be held on Wednesday 1st February when the Association Chairman Brian Havercroft will be there to speak about issues faced by members. An invitation is made for members to bring a ‘friend’ to join the discussion.

Rob Burke, Editor

Annual Conference & Gala Dinner - In Pictures

Regional Roundup - South West Region

8 9


Lobbying Committee - An updateThe inaugural Meeting of the Lobbying Committee took place in Leicester at the Leicester Marriott on the 27th July 2011.

The Committee is made up of the following members:

Amir Ali CCUA Vice Chair / Lobbying Committee Chair – CRAndrew Aspell Office Depot – CRTamsin Cooper Drydens – NRDarren Devoile Coltman Warner Cranston – CRJo Frisby British Gas Business – CRJonathan Pyke RBS – CRPeter Wordsworth Fairfax Solicitors – NR Anthony Sharp Central Region Chair / AS Associates - CRJeremy Chaplin Geoffrey Parker Bourne Solicitors - CRCharles Wilson Lovett’s - GLSEClaire Havercroft CCUA Administrator – NT

CR – Central RegionNR – Northern RegionGLSE – London & South Eastern RegionNT – Note Taker

I highlighted that the initial proposal for lobbying had been accepted and approved by the National Council in January 2011. This first meeting would be approached as a ‘think tank’ to generate ideas and discuss how the topic of lobbying should be tackled. I encouraged the committee members to highlight any issues which they felt should be debated as all ideas were welcome. I highlighted the success achieved with Payment by Account; I explained that I had initially been approached by Paul Mawson at the CCUA Conference in 2010 to discuss how the CCUA may be involved in promoting and highlighting a need for a different payment system.

I held weekly meetings and lobbied heavily with emails to Kevin Sadler and Jonathan Djanogly. As such the PbA was kept alive and the pilot was a success, a business case was made and the Ministry of Justice in turn confirmed that they would announce the official launch of the facility at the Civil Court Users Association Annual Conference in September 2011.

The meeting discussed how the Association should undertake lobbying in a professional and consistent manner. It was agreed that it needed to be more proactive and not too concerned if our views are controversial.

It was suggested that in order to lobby effectively we needed the assistance of other bodies. This should include developing a better relationship with other trade bodies so that a similar set of views could be expressed to Government. An example could well be the Association linking with organisations such as the Institute of Credit Management and The Credit Services Association at Legal & Technical level.

Also the development of a good working relationship with the various government departments was essential – something that CCUA did indeed enjoy.

The Committee agreed that lobbying needed to be dealt with in a more organised fashion than had been carried out before so as to produce the most beneficial effect for the Association.

Leicester Marriott Hotel20th September 2011

10 11


The committee felt that consideration should be given by the Legal & Technical Committee to the circulation of the Association’s responses to Government Consultation Papers to the membership as a whole to help to ensure that there is a consistency, amongst members in such responses.

Issues to be considered:

The Committee felt that the membership should be kept up to date with the activities of the Lobbying Committee. The following subjects were proposed as priorities for lobbying:

• Solicitors Costs.

• Judiciary preventing sole traders from being pursued for business debts.

• Rights of entry – proposed by British Gas

• Scale of Costs and general costs in Small Claims

• Consumer Credit restriction on use of High Court and their Enforcement Officers.

• County Court Bailiffs, require value for money.

• Absence of understanding within judiciary regarding serial non payment

• Financial Statements of the debtor at the point of Admission & Offer

• Interpretation of Guidance’s issued by Regulators

• A better dissemination of Court Forms – Consumer / Commercial e.g. the Forms do not differentiate between consumer and commercial. You do not need a date of birth for a commercial debt!

• A consistency of Hearings with the Judiciary.

• Fixed Costs - As we are all aware, the fixed costs have remained unchanged for many years now and this is despite the fact that we have seen significant increases in the Court fees. It has further been suggested that Court fees perhaps be increased year on year in line with inflation. It was felt that the approach to the increase in the fixed costs should be looked at from a completely fresh and new angle. Further details will follow on this point.

The Management Group of the Lobbying Committee which consists of Anthony Sharp, Jeremy Chaplin and I met on the 28/10/11 to consider fully all the above and are due to present the same to the National Council shortly in order that a strategy can then be drawn up for lobbying activity over the next 12 months.

Further details will follow, so please watch this space.

Amir Ali is Chair of the Lobbying Committee for the Civil Court Users Association.

Legal & Technical Committee - An update

During the first half of 2011 the work of the Legal & Technical Committee was dominated by the “Solving Disputes in the County Courts” paper published by the Ministry of Justice.

This was one of the most important papers to appear for some years – possibly since the Woolf Reform – as it represented a starting point for reform of Civil Justice by the current Government. The paper contained many items that were visited by the last Government which were not taken to any proper conclusion. An example of this is in relation to the proposed threshold on orders for sale following charging orders. Having regard to the importance of the paper members of the Association were invited to attend a consultation workshop which took place on 1st June 2011 in Birmingham. The outcome of the consultation is, at the time of preparation of this note, still outstanding and it is believed that the Ministry of Justice is awaiting clearance from No 10 Downing Street.

More recently the Legal & Technical Committee has been concerned with two papers from the Office of Fair Trading – Draft Guidance for Debt Management and Draft Guidance for Debt Collection.

There are other papers in the pipeline including an important paper from the Insolvency Service on the Reform of the Process to Apply for Bankruptcy and Compulsory Winding Up. Members will already have seen a note about this paper which proposes to take

the Courts out of the bankruptcy process where there is no dispute. (Members are urged to let the Legal & Technical Committee have comments on this paper as indicated in the communication dated 17th November 2011).

The main function of the Legal & Technical Committee is to respond to consultation papers published by the Ministry of Justice and other relevant Government departments and regulatory bodies in terms which will secure the best outcome for members. As all committee members are involved in the industry, it is usually quite easy to gauge what the general feeling of the membership will be about a particular paper. Occasionally there are conflicting views which are usually based upon self interest. There are occasions when members can come up with a point which is to the benefit of the entire membership and which has not been identified by the Committee. This is why it is absolutely essential for members to feed in their views about various papers all of which are easily accessible on the internet. All comments are welcome.

On behalf of the Civil Court Users Association I would like to record the Association’s sincere thanks to John White and his staff at Hendersons Chambers for so generously hosting the Committees meetings.

Jeremy Chaplin is Chair of the Legal & Technical Committee for the Civil Court Users Association.

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National Business Centre - Salford

National Business Centre Salford

The Salford Business Centre was set up in 2010 and is central to Her Majesty’s Courts and Tribunal Service’s (HMCTS) strategy to improve the efficiency, effectiveness and responsiveness of the administrative elements of civil courts by centralising the processing of the early stages of court claims at the business centre. As a first step in the process the business centres at Salford and Hayward’s Heath have been been processing money claims on behalf of 92 courts. The business centre at Hayward’s Heath closes on 9 December when all work will be carried out at Salford. The move to a centralised business centre operations has helped HMCTS save £2 million in operating costs and these savings will increase further with the creation of the national money claims service in March 2012.

Expansion of the Business Centre

The business centre has been expanding rapidly to absorb the work from Hayward’s Heath and in readiness for national money claims in March 2012. There has been a major recruitment and training exercise. We currently have 106 staff (a figure which has doubled in the last 4 months) and will double again by March 2012 when there will be 220 people working at the centre. The number of courts covered by Salford has increased from 43 to 92 between September and December.

where we are now

Due to implementation difficulties during the early part of the summer, arrears of outstanding work

did increase and did result in a consequent delay in processing the work. However, in the last four months the business centre has undertaken a considerable amount of work to improve systems and address the arrears with the result it is currently processing work within four working days of receipt with the aim of getting to one working day in the coming months. This will ensure that parties are notified of a claim being issued within five working days.In terms of workload the centre is currently processing around 5,000 claims; 2,000 defences and 2,000 judgments each week on behalf of the courts.

How to contact the Business Centre• By e-mail: [email protected].

gov.uk.

In response to feedback the business centre has now set up an e-mail address for customers to use to send their queries - Staff at the business centre will respond to email queries within 48 hours. Documents such as acknowledgements of service, certificates of service, defences and requests for judgment can also be sent this way

• By fax: 0161-743-4023• By Post: The National Business Centre, PO BOX

527, Salford, M5 OBY (DX: 702634 Salford 5Customers can also contact their local county court by phone with any queries they may have.

How you can help the Business Centre

• Duplicate Documents – there has been a noted increase in duplicate documents, in particular a large number of duplicate defences

being sent to the business centre. This adds delay to processing claims and documents, which we are asking for your support to help us remove, by sending the business centre just one copy of the defence or correspondence using one of the methods of communication;

• When you e-mail the court it would help if the subject line of your mail contained the claim/matter number, the title of the claim/matter (abbreviated if necessary) and the subject matter (e.g. defence)

• Solicitor Service – when sending in claims which you would like returning for service it would be helpful if the claim form was clearly marked ‘Solicitor Service’

National Money Claims Service

When the National Money Claims Service comes into effect in March 2012 it will operate in the name of a single county court. Customers will send Part 7 money claims direct to the business centre to be issued. The business centre will manage the preliminary stages of defended claims up to and including the filing of Allocation Questionnaires when the cases will then be transferred to the appropriate county court for hearing. The County Court Bulk Centre at Northampton will continue to deal with Money Claims Online users and issuers of bulk money claims. Judgments and warrants of execution will also be processed at the business centre. The business centre will be supported by a dedicated telephone contact team who will deal with all queries relating to cases being processed at the business centre. The contact team will resolve over 90% of queries at

the first point of contact with remaining queries passed to the business centre which will then contact the customer direct. The business centre will also continue to operate dedicated email services for customers with queries and for the service of documents to the business centre. More information on the National Money Claims Service will be available in the New Year.

If any one would like any further information or have any queries or feedback regarding the Salford Business Centre and the service we provide please let us know at [email protected].

Martin Huddleston Lead Operational Manager, HMCTS

The team at Salford

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Homework is not just for schoolchildrenIn an editorial of an industry magazine I recently read, it stated “There is a natural tendency in the UK to assume that government has little understanding of the ‘real world’ and in particular of the credit industry and its role….But sometimes government lives up to the stereotype and this can mean trouble for us all.”

I completely agree with this view and want to share two, perhaps three examples with you that highlight not only the danger of Government not doing its homework properly but as important, of losing the confidence of the sector of industry about whom the statement is made.

At the Conservative Party Conference this year we now know that the Prime Minister had to change some of the wording of his speech relating to UK citizens paying up their credit card debts now. Interestingly I understand it was because it did not make economic sense rather than the fact that it would have been a very insensitive thing to say unless qualified by some important caveats.

Why may I ask do politicians believe they can make such generalist statements without making allowance for those to whom such a statement could be offensive? There are indeed plenty of people who indeed should and could settle their debts now, but equally there is a growing number, who may like to but who cannot. At a time when Government’s understandable policy to cut the deficit has brought in its wake a vast increase in unemployment thus increasing the number of people in serious debt, why do they alienate so many of the electorate by not being careful with their language. I suggest they are not doing their homework.

Equally it now seems that because, incredibly, it was built into the Tory manifesto at the last election, we may well be burdened with the nonsense of a threshold

of £25,000, below which Orders for Sale will not be allowed. At the Association’s Conference in September this year I asked the question of the Question Time panel in relation to this proposal as to whether the Government had lost faith in the Judiciary- perhaps it is worth reminding ourselves that the granting of an Order for Sale is the decision of The District Judge alone. You will be pleased to learn, I am sure, that the response I got from The Ministry of Justice was that apparently Government has not lost such confidence, but they are probably going to do it anyway!

Last year there were apparently 507 such orders made. Please read that figure again. Why therefore is Government going to waste everyone’s time legislating to stop abuse that does not and will not be allowed to exist? Get real!

Citizens Advice, whose 2009 Report ‘Out of Order’ sparked the issue off in the first place, has now conceded that if such a threshold is introduced, it could well lead to an increase in creditor led bankruptcies. One of the first assets to be considered for sale is the house! Ooops!

Of course I have not mentioned the subject of the regulation of bailiffs have I- no don’t go there Sharp, you might blow a gasket and that would be a horrible sight! I will just add that apparently Government’s reaction to the issue of “aggressive bailiffs” and The Exposure Programme on bailiffs of a few weeks ago is to ’tweak’ the voluntary National Standards for Enforcement Agents that was produced in 2002. Well that is all right then, we can all relax and enjoy Christmas!!!

If Government really wants to be trusted, believed and supported in its work in our industry, then it must do its homework- properly. At the moment it most certainly is not.

Anthony Sharp owns Anthony Sharp Associates and is Chair of the CCUA Central Region

Louise Kirby, Advocate with LPC Law, summarises the Insolvency Service consultation paper and gives her own personal view upon the proposals. Whether you agree with Louise, disagree or have your own thoughts please get in touch with the Legal & Technical Committee to enable the Association to respond fully.

Background

On 7 November 2011 Edward Davey, Business Minister, issued a consultation paper which proposed radical changes to the current application process for bankruptcy and compulsory winding up in England and Wales. This article will focus on the proposed changes to the personal bankruptcy regime.

The paper proposes that the present court based route for bankruptcy is replaced with an administrative procedure. Uncontested applications would be determined by an Adjudicator. The role of the court would not be entirely relegated, however; contested applications would be decided by the courts. The paper contends that the vast majority of bankruptcy petitions (around 85%) are presented by the debtors themselves and are therefore not contested. Further, only around 5% of those bankruptcy petitions made by third parties involve a contested court hearing.

The government considers the proposed bankruptcy process as a means of alleviating the volume of work currently carried out by the courts when dealing with bankruptcy petitions and reducing the cost and time accrued by the current litigation process.

key Changes

1. Parties would be able to make electronic applications to an Adjudicator, whose office would be within the Insolvency Service. Broadly speaking, where there is no disagreement between the parties the Adjudicator would decide the outcome of each application. In the event that there is a dispute, the

matter would be referred to the County Court for adjudication.

2. Debtors who want to apply for bankruptcy have the choice of submitting electronic or paper applications, and the option of making the requisite payment to enter the process by instalments.

3. Where creditors are looking to instigate proceedings, a new mandatory pre-action process would incentivise debtors and creditors to communicate with each other to thereby reach a mutually satisfactory solution without recourse to a bankruptcy application. Non compliance with the pre-action process could include either cost or criminal sanctions.

4. Where parties were not satisfied with the Adjudicator’s decision, they would have the right to request a review of the decision and to appeal to the court.

In Detail

1. The court’s role

The effect of the administrative regime would be two-fold, albeit limited to undisputed cases: the court would no longer hear undisputed applications; documents relating to bankruptcy would no longer be filed routinely at court. The person required to produce the key documents (the official receiver or an appointed insolvency practitioner) would also be the person required to keep a copy for inspection, thereby, the paper contends, significantly lowering the cost of bankruptcy applications as lawyers would not be needed to effect applications.

Where no agreement can be reached between the parties, the court would become involved in the dispute.

Consultancy: Reform of the process to apply for Bankruptcy and Compulsory Winding Up

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2. The Adjudicator

The Adjudicator’s role would be akin to that of an industry expert arbitrating non-disputed cases.

Applicants would complete an on-line form and then submit it electronically, together with payment, to the Adjudicator. Debtors would have the option of applying by post.

The Adjudicator would be appointed by the Secretary of State and would sit within The Insolvency Service. Adjudicators would, however, be completely separate from Official Receivers to ensure independence.

3. Application fees

The costs incurred in processing an application would be borne by the fees charged and not by the tax payer. Present court fees would be replaced by application fees, which would be significantly lower, possibly between £69 and £121.

The consultation paper proposes that the official receiver’s administration fee would continue to be payable. An applicant would have to pay in full both the fee for processing the application and the deposit before the application would be considered by the Adjudicator. However, debtors would have the option of paying both of these sums by instalments. In contrast, third party applicants for bankruptcy would not have the facility to make payments by instalments since most are likely to be businesses and therefore unlikely to be disenfranchised.

Debtors would also have a choice about whether to make their application electronically or on paper, with the application fee being the same for either method.

4. Pre-application process

A new mandatory pre-action process would be specifically tailored to bankruptcy applications and would operate alongside the existing pre-petition

requirements. It would set out in clear and plain English what steps the debtor could take in order to resolve the situation.

Non-compliance with the pre-action process could result in consequences for the non-compliant party which include costs awards and a new criminal offence for submitting false information in support of an application.

5. Third party applications for bankruptcy

The Adjudicator would only make a bankruptcy order in cases where he is satisfied that the application process has been complied with. The burden of proof would be on third party applicants to adduce evidence supporting their contention that the debtor was correctly served with a statutory demand. An application that is made without such evidence would be rejected.

The Adjudicator’s role would be limited to determining whether or not the criteria for making a bankruptcy order are met. A bankruptcy application by a third party would result in one of three potential scenarios: consent by the debtor to the application, the application being opposed by the debtor, there being neither consent nor opposition to the application by the debtor. Where there has been consent to the application, the Adjudicator would check that the eligibility criteria are met and, if appropriate, make a bankruptcy order.

Where an application is opposed, the Adjudicator would consider all representations made by the debtor and if satisfied that the criteria for making a bankruptcy order were met, a bankruptcy order would be made unless the debtor made an application for referral to the court. Where the Adjudicator was not satisfied that the criteria for making a bankruptcy order was met, the debtor and creditor would be notified of this and given reasons. Where the creditor disputed the conclusion reached by the Adjudicator, it would have the option of referring the application to court.

Louise kirbyAdvocate LPC Law

Rob Burke meets Caroline Knowles-Ley, Practice Manager, Dispute Resolution & Contentious Regulatory (Retail Legal), Lloyds Banking Group.

Q. How did you first get involved in the CCUA?

A. Some years ago I attended the annual conference.

Lloyds were members and I have taken over attending the regional meetings and conference.

Q. Lloyds Banking group has a number of offices that handle litigation. what does your team deal with?

A. Unsecured Recoveries cases – bank accounts, loans and credit cards. We deal with pre-action work through to the enforcement of a judgment and we handle all the cases which are defended internally too.

Q. You are a busy person, how do you switch off?

A. My partner and I love to go out and eat at nice places. I also have a dog which means we get out walking a lot. I am also a volunteer with Social Services helping families who have children with difficulties and the rest of the time I spend with the Territorial Army as a reservist, this is my 22nd year!

Q. You were a speaker at the CCUA Annual Conference last year. How did that compare with leading a platoon in a NATO exercise?

A. Potentially I could have been dodging bullets of a verbal nature but it seemed to have been well received

and some lovely comments were made! Dealing with solicitors is much like dealing with army officers though – sometimes you have to point them in the right direction!

Q. Is it Sargeant or Sarjeant?

A. Actually it’s Staff Sergeant!

Q. If you were in charge of HMCTS for a day what would you do?

A. Improve customer service - set a process in place to clear the backlog of post which seem to hound us at every turn and ensure the phones are answered promptly! We don’t mind paying for a service so long as we get a decent service.

Q. If you could work shadow anyone in the world who would it be and why?

A. I would work shadow the President of the United Nations Council – my TA role is that of stabilisation so the way decisions are reached and how the Council interacts intrigues me and it’s so far removed from what I do every day!

Thanks

You’re welcome!

Member Profile - Caroline Knowles-Ley

18 19


If I could Change one law –Tanzeela Aslam

The law I wish to change is Section 99 of the Road Traffic Act 1988 c.52. Under this section

it is an offence not to surrender your licence to update the photograph after 10 years. The

licence holder is liable to pay a fine of up to £1000 upon conviction. The police will be re-

sponsible for the prosecution of this offence. The ability to fine a customer who does not

update his or her photograph is captured under Section 99(5) of the Road Traffic Act 1988

c.52

Now the legal bit is out of the way let me get back to why I want it changed.

Quite simple really, vanity. Admittedly, over the years mother nature has not been good to

me. University life, 3 kids and the stress of the last 10 years has taken its toll. I am reminded

of this every morning when I look into the mirror and wonder who that woman is staring

back at me. Notwithstanding the fact that it takes longer and longer to put on my make-

up. No, seriously I feel resentful that I have to change, what is a perfectly fine picture (of

me looking both youthful and radiant) to one which is showing evidence of wear and tear.

Not only am I deprived of the opportunity to have a youthful photo but I now have the

privilege to pay for the same. £17.50 every 10 years to be exact. (Talk about rubbing salt

into the wound.) So I would abolish the above section of law to enable me to keep the cur-

rent picture on my driving licence.

(For those of you who may not have been aware of the above requirement if the photo-

graph has expired on the driving licence the customer is still entitled to drive.)

Tanzeela Aslam

At the Northern Region meeting in Leeds on 1st December members were advised of the imminent retirement of Jeremy Sutcliffe.

Jeremy was chairman of the Association for 13 years and remains an honorary vice chairman. During his period of office he oversaw the Associations’ expansion to represent the interests of court users and he was instrumental in promoting a closer relationship with The Association of Her Majesty’s Association of District Judges.

Current chairman, Brian Havercroft, commented “I hope Jeremy will maintain his contact with us. We have a great deal to thank him for including all of the hard work he put in on members’ behalf and the status that the association has attained. We wish him a very happy retirement.”

At the meeting he was presented with a gift as an appreciation of his efforts by Simon Hardy, Regional Chairman.

Retirement –Jeremy Sutcliffe

20 21


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Dates for your Diary –make a note and don’t miss out

NORTHERN REgION gLSE REgION

CENTRAL REgION SOUTH wEST REgION

Thursday 23rd February 2012

Thursday 7th June 2012

Thursday 15th November 2012

Thursday 1st March 2012

Thursday 14th June 2012

Thursday 13th September 2012

Thursday 6th December 2012

Tuesday 27th March 2012

Tuesday 26th June 2012

Tuesday 25th September 2012

Tuesday 11th December 2012

HOUSE Of LORDS DINNER 2012

THURSDAY 8TH MARCH

gUEST SPEAkER: THE MASTER Of THE ROLLS

Wednesday 1st February 2012

All further dates to be confirmed

22 23

CCUA Newsletter

To all Members and Contacts of the Civil Court Users Association

I am writing on behalf of the National Council of the CCUA to wish each and every one of you a Merry Christmas and a Happy and Prosperous

New Year.

Those of you who have been involved with the CCUA will know that for the last few years, we have given a donation to charity instead of buying

and sending Christmas cards to CCUA members and our valuable contacts within the Industry.

This year is no different and the National Council has decided to make two donations, one to Marie Curie Cancer Care and the other to

Cauldwell Children who aim to brighten the lives of young children living with a disability.

We are sure you will agree that these are incredibly worthwhile causes that will help brighten the future for a number of families.

Thank you for your support in 2011

Brian Havercroft, Chairman

24

CCCUA Newsletter Winter 2011

Documents

Transcript of CCCUA Newsletter Winter 2011