June 2006

Introduction

i What is the purpose of a description?

Descriptions are relevant to bankruptcy matters only. The description is used for identification purposes, so that creditors can easily recognise the individual against whom the order has been made. The description of a bankrupt forms part of the bankruptcy order and is the title of the proceedings. It is first used at the bankruptcy petition stage.

The description of a bankrupt should be included on all statutory forms, notices and, advertisements. It must be as full and accurate as reasonably possible and can only be changed by the court.  The procedure for making any amendments to the description is known as “Application to Amend Title of Proceedings.”

 

ii What information should be included in the description?

The Insolvency Rules set out those details which should be covered in the description for the purpose of identifying the bankrupt. In summary, they are:

1. name, place of residence and occupation (if any)
2. all business names and whether he/she carried on business alone or with others
3. the nature of the business and all addresses at which it operated from during the period that the debts were incurred, and
4. any aliases used by the debtor.

 

This is not meant to be a definitive list, in particular, the provisions for debtors’ petitions are different to that for creditors’ petitions and thus it is important to refer any concerns to an examiner for their attention.

 

iii Who is responsible for creating the description?

With a creditor’s petition, the petitioning creditor's solicitor will have drawn up the description based upon the information available. In the case of a debtor’s petition, the court clerk is responsible for completing the description from details supplied by the bankrupt when the petition is filed. For this purpose, the court clerk may contact the official receiver for assistance in preparing the description, where necessary.

Once a bankruptcy order is made it then becomes the official receiver  (or trustee) who is obliged to apply to court for any alterations to be made where there are errors or omissions in the description.

 

iv Why would the description be incomplete?

The description may be incomplete for several reasons. For instance, where only the bankrupt’s initials are quoted rather than his/her full name or if his occupation is stated as “unknown” when in fact he has been trading.  If an address has been omitted from which the bankrupt incurred debts, that will also need to be incorporated in the description.

Care needs to be taken when altering a description as the official receiver does not want to appear to be pedantic in making this assessment. For this reason, any queries that you may have regarding whether or not a description needs amending should be referred in the first instance to the examiner.

 

v How will I know if a description needs amending?

Generally, the examiner who interviews the bankrupt will decide whether an amended description is required and will draft this accordingly.  If it is your local office practice for administrative staff to provide the amended description, then it should be approved by the examiner/Assistant Official Receiver before application is made to the court.

 

vi How is a description amended?

A description may only be amended by the court and until such an order is made, the original title of the proceedings must be used.  Generally, most amendments of title are routine and as such notice of the application is not served on any other person so that the court can consider the application immediately without fixing a date or venue.

An amendment of title can be made at any time after the bankruptcy order is made. The official receiver should apply to court soon after becoming aware of any mistakes or omissions.

When making an application the official receiver must decide whether the amendment is such that it will need to be gazetted and/or advertised again. Where the alteration is minor, the official receiver should choose not to re-advertise but where the correction is significant then he/she must seek the court's permission to re-advertise the bankruptcy order with the correct description. The official receiver may only advertise any amendment of title where the court has ordered that it should be done. The examiner is responsible for deciding whether or not the amendment should be advertised. When making this decision, the examiner ought to be aware of the costs involved in re-advertising, possibly for no real benefit to the creditors/estate. For more information on this subject, please refer to the Case Help Manual: Gazetting and Advertising.

 

vii What happens when an order amending the description is made?

Once the court has ordered that the title be amended, the official receiver must inform the Land Registry of the amendments made by completing form LRRABO. The new description must be entered on LOIS(CA01,CA03) and used in all further notices, advertisements and correspondence, where necessary. If the court has also ordered for the amendment to be advertised, the official receiver must produce the relevant forms: Bankruptcy Gazette notice (form GAZBKY) and the appropriate notice for the newspaper (NFN1) and arrange for their publication. At the time of writing, form GAZBKY is currently being tested for use on the new document production system.

 

viii Which details should never be included?

The following details must never be included in a description for the reasons given:

a An incorrect name, house number, street, address or trading style.

This can lead to complaints or even legal action by third parties with similar names or who actually live at the incorrect address.

b Inclusion of a prison address or similar for the bankrupt.

Where the official receiver receives notice of a bankruptcy order including a prison address, he/she should immediately refer it back to the court for amendment. The address should not be mentioned in the Gazette or in any subsequent notices, so as to avoid causing any embarrassment, particularly as the bankrupt may have since been released from prison.

This is equally valid in the case of a battered wife or a witness in protective custody, for instance, where their location should not be advertised. Any matters relating to this should be brought to the attention of the examiner.  

c Inclusion of a third party’s name. 

A partner or former partner should be referred to as “another” and not by name, unless the partner is also bankrupt when his/her name can be mentioned.

d Inclusion of a company’s name.

A bankrupt may be described as a “company director” but the company must never be named, even if it is in liquidation, as it is a separate legal entity from the bankrupt.  

Where a former business is sold on to new owners, e.g. a nursing home or a hotel, great care should be taken in the wording so as not to connect the new business with the bankruptcy. Any matters relating to this would be dealt with by the examiner.

If any of a to d above appear in a description and you have not been asked to apply for an amendment of title you should refer the matter to your B1. 

Notes:

1. There is no corresponding procedure in company liquidation. But where the company’s name is wrong, it can be changed by order of the court.
2. The court should delete any prison address which may appear in a petition  under its general authority to amend proceedings at any time, so that the gazetted order will not contain reference to the prison address. It is, however, acceptable for the address of a prison to appear in a petition for the purpose of bringing proceedings within the jurisdiction of a particular court.

                       

Where can I find out more?

Insolvency Rules:      

6.7      Identification of debtor

6.35    Amendment of title of proceedings

6.38    Identification of debtor (debtor's petition)

6.47    Amendment of title of proceedings  

Technical Manual:           

paras  5.2       Other matters to be gazetted

5.14     Bankrupt in prison

5.15     Amendment of order

5.20     Amendment of title of proceedings

Case Help Manual:

Gazetting and Advertising

OROS Bulletins:

OROS Bulletin 3 of 2005, para 1: Amended title - LOIS case name

Forms to be used:

AMOT Amendment of Title
LRRABO Land Registry Registration of a Bankruptcy Order
NFN1 Notice for newspaper
GAZBKCY Gazette Notice bankruptcy

 

Click HERE to view the Flowchart of Application for Amended Description

 

Procedure

LOIS screen references are given in brackets e.g. (DO73).

 

1. Receive approved request for amended description from examiner with a draft of the new description, if appropriate. Otherwise, draft amended description and have approved by examiner/AOR (CA35).

2. Prepare application to amend order by the court, form AMOT on LOIS (DO73).

3. Leave the date of the order blank for the court to complete.

4. Sign the application or have the form signed as per your local office procedure.

5. Send the forms to court for sealing and ask for one copy to be filed on the court file and the remaining copy to be returned to you.

 

On receipt of the sealed order of the court. 

 

6. Enter the new description onto LOIS (CAO1,CA03- PU08).

7. Prepare form LRRABO and after careful checking despatch to HM Land Registry (DO73).

8. Where there is no order for the amended description to be gazetted or advertised, no further action has to be taken.

9. If the order directs that the amended description be advertised and provided there is no order for a stay of advertisement in force, prepare on LOIS (DO73):  

Bankruptcy Gazette notice (form GAZBKY) and the appropriate notice for the newspaper (NFN1). At the time of writing, form GAZBKY is currently being tested for use on the new document production system and as such may not be available.

The text of the amended description must be carefully checked for absolute accuracy.

10. Send form NFN1 to the advertising agents. The Gazette notice will be sent electronically. For more information on this procedure please refer to the Case Help Manual part: Gazetting and Advertising.