Gazetting and Advertising
June 2008
Introduction
Gazetting
i What is the Gazette and why does the official receiver use it?
The London Gazette is a daily publication (Monday to Friday) produced by the Stationery Office, which carries legal and other notices of general interest for circulation. The Insolvency Act 1986 and Insolvency Rules 1986 require the official receiver to advertise specific matters in the London Gazette and this is what is known as ’gazetting’.
ii Which matters does the official receiver have to gazette?
Those matters which must be gazetted by the official receiver are:
a. the making of a winding-up order
b. the making of a bankruptcy order
c. correction of any previous notice where the court order has been varied significantly
d. where there was a mistake in the original notice
iii Other matters which may be gazetted
The official receiver can seek the court’s direction to gazette when applying to the court to amend the title of bankruptcy proceedings. A number of amendments of title have become routine applications where the changes introduced are minimal or will make no difference to the administration of the case. If there is no benefit to be gained following the minor amendment, it should not be gazetted as a matter of routine.
Where an order of annulment or discharge is made, such orders may be gazetted when the former bankrupt requests it but only at the former bankrupt’s expense. In such circumstances, the official receiver should take no steps to gazette until the necessary funds have been received from the former bankrupt.
In cases where a bankruptcy order was made on or after 1 April 2004, and the early discharge process has been applied, an order of discharge must not be gazetted or advertised until form EDNOT – ‘Notice of Discharge Form 6.82’ has been endorsed by the court and returned to the official receiver.
iv How does the official receiver arrange for the gazetting of an insolvency order?
The electronic system for producing gazettes means that the official receiver is only indirectly responsible for the production of gazette notices. Once the official receiver has been notified of the insolvency order, the usual initial notices should be produced via LOIS, (DO73). The gazette notice does not form part of this initial notices package and must be generated separately via LOIS, (CA03) and (DO73). Having been created and forwarded electronically, the gazette notice is automatically downloaded to a file that is monitored by CUST. This file is populated by users throughout the day, then at 0500 hours each day the file is automatically formatted. It is then available for the Fees & Data Management (F&DM) team within Estate Accounts Services (EAS) to access and deal with the gazette notices as appropriate. Gazette notices will usually be published two working days after being dealt with by the F&DM team.
v One gazette notice ONLY to be generated and printed off
Only one print of the gazette notice must be made and this should immediately be placed on the office file. If, for any reason, a gazette notice is duplicated via LOIS, the information will be automatically downloaded and forwarded electronically again, which will result in another gazette entry of the same information. If this should occur, contact by e-mail must be made with the F&DM team gpt.gazettestays@insolvency.gsi.gov.uk as soon as possible, to notify them of the error and request that the second entry be removed.
vi What happens in a case where a director, partner or a bankrupt etc. has obtained an order for a stay of advertisement or a stay of proceedings?
It is essential that the official receiver obeys a court order for a ‘stay’. If not, it is possible that the company, partnership, or bankrupt concerned, may subsequently seek damages from the official receiver for failing to obey an order of the court.
For more information, see Case Help Manual (CHM) parts – Stay of Advertisement or Stay of Proceedings
vii Transfer cases
Where a winding-up or bankruptcy order is transferred from one official receiver’s office to another immediately upon the making of the order, it is the responsibility of the receiving or ‘new’ official receivers office to arrange for the gazetting of the order. Once aware of the transfer and where the gazette notice has not yet been published, the ‘new’ official receivers office should immediately notify the F&DM team of the transfer, by e-mail or by telephone. If the gazette entry has already been made using the old court and number, there is no need to re-gazette it simply because of the new court details, or to notify any change to the F&DM team.
viii What if an Insolvency Practitioner (IP) was appointed by the court immediately, when the order was made?
Where an IP is appointed liquidator or trustee by the court at the time the order is made, the official receiver is still responsible for the gazetting of the order. The official receiver should amend a standard gazette form, L72.12 – ‘Gazette Notice - Winding-up order’ or B37.17 – ‘Gazette Notice - Bankruptcy order’ to include details of the relevant insolvency practitioner, printing off one copy in the normal way. The gazette notice will then be generated and forwarded electronically and published in the usual way.
ix Prison references, victims of domestic violence, etc.
Particular care should be taken to ensure that, where a bankrupt is in prison at the date the petition is presented, no reference to the prison address is included in the bankruptcy order description. The court should remove the address to prevent the gazetted order including the prison address. If this has not been done prior to the official receiver receiving the bankruptcy order, the official receiver should draw to the court’s attention the general authority to amend proceedings at any time, and ask for the order to be amended accordingly.
This is equally valid where a bankrupt has been a victim of domestic violence and requests that their location should not be advertised. There may also be other cases where such information should not be published. If in doubt, the situation should be drawn to the examiner’s attention.
Advertising
x Why does the official receiver advertise?
As well as the requirement to issue gazette notices, the legislation also places on the official receiver the obligation to advertise certain insolvency events in newspapers. For this purpose, any publication registered as a newspaper with the Post Office can be used, and this includes free papers. The official receiver’s objective in advertising should be to reach as many of the insolvent’s potential creditors (and contributories) as possible and the advertisement should be placed in a publication with the largest circulation, or close to the largest, circulation, in the relevant area. This could be a national newspaper, for instance, where the insolvent traded across the country and has a large number of creditors spread over a wide area. However, generally speaking, the newspaper advertisement will appear in a local newspaper.
xi What does the official receiver have to advertise?
Those matters which the official receiver must advertise are as follows:
a. the making of a winding-up order;
b. the making of a bankruptcy order
c. first meetings of creditors and contributories in a winding up
d. first meeting of creditors in a bankruptcy
e. first dividend to non-preferential creditors in those cases where the official receiver, as liquidator or trustee, has not previously invited creditors by public advertisement to prove their debts. This will be true in most cases, as invitations to claim are normally only made in a voluntary winding up.
xii What may the official receiver choose to advertise
There are matters where the official receiver may choose to advertise at his or her discretion. These include:
a. where there is an amendment of title, the official receiver may be obliged to advertise the amendment if the court orders that he do so. (As with gazette notices, there is no point in the official receiver seeking permission to advertise an amendment of title unless the amended description is significantly different to the original)
b. a general meeting of creditors (and contributories), other than a first meeting, may be advertised at the official receiver’s discretion
c. in both winding up and bankruptcy, the official receiver may advertise a public examination ordered by the court, where deemed appropriate;
d. where a bankruptcy is annulled, the former bankrupt can make a written request that the order is advertised. The former bankrupt will have to pay for the advertisement and the official receiver should take no steps to place the advert until the funds have been received
e. when a bankrupt obtains discharge, he may request that the discharge be advertised, for which he will be liable for the cost
xiii The Service’s advertising agents – MKH Advertising Limited
The Service has an agreed Service Level Agreement (SLA) with Michael K Howard (MKH Advertising Limited) which has operated since 2002.The agents use a list of preferred publications and all notices will appear in those newspapers unless the official receiver specifically requests otherwise.
The SLA is available to view on the Intranet, Service Level Agreement with Michael K Howard, and includes a full list of regional and local office contacts.
The contact details are: MKH Advertising Limited, Opal Drive, Fox Milne, Milton Keynes, MK15 0DF (DX – M K Howard, DX 54454, Milton Keynes 1) telephone number 01908 572456.
xiv How does the official receiver prepare and place an advertisement
(September 2008)
It is the official receiver’s staff who prepare the advertisement in LOIS, (DO73) by completing forms NFN 3, NFN 2 or NFN 1 – (selecting the appropriate text infill), and then forwarding them to The Services’ agents, MKH Advertising Limited (MKH). Advertisement requests are to be e-mailed in one batch, towards the end of each day, regardless of how many advertisement requests the batch contains. All e-mails should contain the name of the office from which the requests are being sent within the subject bar, i.e. ‘OR Southend – advertisement requests’.
All advertisement request (NFN) forms are to be prepared as Word document attachments, and a form LCAD, LOIS (DO73) – ‘Letter covering advertisement’ must be prepared for each individual advertisement, and also attached as a Word document to the batch e-mail, with its relevant NFN form. For more information on this process see Procedure step 17.
Official receiver staff should e-mail their batched advertisement requests to the MKH contact listed for their office. A full list of offices and relevant MKH contacts appears at the end of the SLA, and can be viewed via the link in paragraph xiii above.
In an emergency, the agents will accept requests for advertisement over the telephone although this method should be confined to those cases where e-mail is not available and speed is imperative, e.g. to meet a publication deadline. Telephone requests should not be made as a matter of course and on occasion where one is necessary, the agents will require follow up confirmation by e-mail.
xv What if the agents identify ‘apparent’ mistakes in the advertisement?
On receipt of the request, the agent will check the advertisement for mistakes. If there are any mistakes in the original court order, such as the incorrect spelling of a name in the bankruptcy description, for example, the official receiver should highlight the error by underlining it. This will let the agents know that the official receiver is aware of the error but that it is to be published as it stands. If mistakes other than those highlighted are found, the agent will e-mail or telephone the originating official receiver to check whether a correction is required. Any such checks via e-mail will be headed up to indicate the urgency of the matter.
xvi Publication of the advertisements
On receipt of the request, the agents will arrange for the advertisements to be published. The agent will confirm to the local official receiver’s offices those advertisements that have been received by them via e-mail. If any are missing from this receipt, it may be as a result of the timing of the agent’s inputting, but it may be worth checking that any omitted advert has been received by the agents.
Advertisements for new winding-up orders or bankruptcy orders should be published within 8 days of receipt of the request, all other adverts should be published within 10 days of receipt of the request. Where the official receiver requires an advertisement to be published on a specific date, such request should be included on forms NFN 3, NFN 2 or NFN 1. If there is a problem in complying with such a request, the agent will contact the official receiver without delay.
xvii Invoicing
Invoices are forwarded by the agents directly to Official Receiver Operations Section (OROS) on a weekly basis. Payment of invoices has been centralised and is generated by OROS. Payment is made from a centralised cost centre and account code. The invoices will be issued only after the agent has received proof of publication of the advertisement which will generally be within 21 days of publication. Local official receiver’s offices will receive a copy of all invoices with 2 copies of a ‘certificate of publication’ for each case listed.
xviii What is a ‘certificate of publication’?
The certificates of publication are sent with the invoices and will show the case name and number, date of publication, the newspaper in which the advertisement was published and will include a copy of the printed advertisement. Where the notice appeared as part of a composite advertisement, the relevant notice will be highlighted.
The advertisements must be proof read for any errors, see paragraph xx and any errors found should be notified to the agents as soon as possible. Otherwise, the official receiver will make payment on the invoices within 30 days of receipt.
A copy of the advertisement included in the certificate of publication should be forwarded to the appropriate local court accompanied by form FAC – ‘Filing at court’ LOIS (DO73).
xix What happens where there is an order for a stay of advertisement or a stay of proceedings?
(September 2008)
As with gazetting, the official receiver may not place any newspaper advertisements relating to cases where a director, partner or a bankrupt etc. has obtained a stay of advertisement or a stay of proceedings. Where the agents have already been asked to place a newspaper advertisement, they should be contacted immediately so that the necessary steps can be taken to withdraw it.
Requests to the agents for cancellation should be made by e-mail, but, in an emergency, when e-mail is not available, cancellations can be made by telephone provided they are confirmed later by e-mail. The agents will treat cancellation requests as a matter of urgency and where the advert has not been sent to the publisher and has not been typeset or prepared for publication, no charge will be made.
Any paper copy of the advertisement already placed on the file should be removed and destroyed immediately to prevent any later misunderstanding.
xx What happens where an advertisement is incorrect?
Once the official receiver receives the certificate of publication from the agent, the advertisements must be checked for any errors. Any errors of a material kind, such as incorrect name or incorrect address will need to be rectified by publication of a correct notice.
Where the errors are the fault of the official receiver, the details should be published again, correctly, at the official receiver’s expense. Where the error can be attributed to the agent or the particular newspaper, the agents will notify the originating official receiver of the error and arrange for the notice to be re-advertised at no cost to the official receiver.
xxi Can notice of the insolvency order and first meeting advertisements be combined?
Where there is a possibility that a decision regarding the holding of a first meeting can be made quickly, the order and meeting advertisements may be combined. In such circumstances, a short delay of no more than 10 days in advertising the insolvency order is acceptable. However, if a decision on calling the first meeting cannot be made quickly, the advertisement of the winding-up order or bankruptcy order must not be further delayed .
xxii Can creditors be given notice of a meeting by public advertisement rather than by individual notices?
Generally, where meetings are called by the official receiver, each creditor (and contributory) is entitled to an individual notice. However, the official receiver has the right to ask the court to order that the requirement for individual notices be dispensed with and that the notice be given by public advertisement. This may be appropriate in a case with a large number of creditors, particularly where the debts outstanding are small and the immediately realisable assets are of little value.
xxiii Advertising public examinations
In both winding up and bankruptcy cases, the decision whether or not to advertise a public examination is left to the discretion of the official receiver, having considered the circumstances of the case. Generally, advertising is more likely where there is a lack of co-operation by the examinee and there are likely to be more creditors who have not been disclosed, or where useful information may be provided by known creditors as a result of the publicity.
xxiv Official receivers general discretion to advertise
The official receiver is not limited to those matters covered by the insolvency legislation as far as gazetting or advertising is concerned. If the official receiver feels that either a notice in the London Gazette or a newspaper advertisement would be of some benefit, then it can be done even where the Act or Rules do not specifically provide for it. This may be true, for instance, where the official receiver is appointed as provisional liquidator or interim receiver by the court and wishes to notify persons dealing with the insolvent, of the position. However, no action to place such a notice should be taken without specific instructions from the examiner.
Notes
a Where a bankrupt applies for annulment on the grounds of payment in full and the official receiver or other trustee reports to court that not all of the creditors have proved, the court may order that the annulment application be advertised so that creditors can lodge their claims.
b MKH Advertising Limited will provide estimates for the costs for advertisements if requested to do so (mainly for annulments and discharge). The request should be made to the agents with the request for the advertisement. It must be made clear to the agents that an estimate is required before publication.
c As both gazette notices and advertisements are produced from LOIS, ensure that abbreviations are not used when entering the insolvency details onto the system in the initial stages. For further information see CHM part – Initial Notices and Letters. Where there appears to be inaccuracies in what has been input to LOIS, check the file, with the court or with the petitioner for clarification, before taking any further action.
Where can I find out more?
Insolvency Act 1986
Section 133 – Public examination of officers
Section 140 – Appointment by the court following administration or voluntary arrangement
Section 279 – Duration (to discharge)
Section 280 – Discharge by order of the court
Section 282 – Court’s power to annul bankruptcy order
Section 290 – Public examination of bankrupt
Section 297 – Special cases (of trustee in bankruptcy)
Insolvency Rules 1986
Rule 4.21(4) – Advertisement - (Gazetting and advertisement of a winding up order)
Rule 4.50(5) – Public advertisement - (Meeting notices, winding up)
Rule 6.34(2) – Official receiver to send notice etc - (Gazetting and advertising etc, of a bankruptcy order)
Rule 6.35(2) – Where amendment order made - (Gazetting and advertising an amendment order of title)
Rule 6.46(2) – Official receiver to send notice etc - (Gazetting and advertising a stay of any proceedings, bankruptcy order)
Rule 6.47(2) – Where amendment order made - (Gazetting and advertising an amendment of title
Rule 6.79(5) – Public advertisement - (meeting notices, bankruptcy)
Rule 6.213(3) – Requiring advertisement of order - (Gazetting and advertising an annulment)
Rule 6.220(2) – Requiring advertisement of discharge - (Gazetting and advertising discharge from bankruptcy)
Rule 7.32(1) – Filing by officer of the court – (Provision of gazette notices for the court file)
Rule 11.2(1A) – Public advertisement - (Notice of intended dividend)
Technical Manual
Chapter 5 – Gazetting and Advertising
Case Help Manual
Management Notice
OROS Intranet Site:
Service Level Agreement with Michael K Howard
OROS Bulletin
January 2008
OROS News Item
August 2008 – New procedure for advertisement requests (and OROS update of 2 September 2008)
Forms to be used
L72.12 – Gazette Notice – W-up order
L72.23 – Gazette Notice Winding-up order (Partnership case - Corporate member)
L72.24 – Gazette Notice Winding-up order (Partnership case - Partnership)
B37.17 – Gazette notice – Bankruptcy Order
B37.18 – Gazette notice – Amendment of title of proceedings
B37.19 – Gazette notice – Annulment of proceedings
B37.20 – Gazette notice – Discharge order
B37.34 – Gazette notice Bankruptcy Order (partnership case [creditor’s petition])
B37.35 – Gazette notice – Bankruptcy Order (partnership case [debtor’s petition])
NFN 1 – Notice for Newspaper (1) - ‘Notice for newspaper covering advertisement of various bankruptcy matters’
NFN 2 – Notice for Newspaper (2) - ‘A newspaper advertisement directing creditors who have not proved their debts to do so by a specified date, either generally, or in relation to dividend intended to be declared by the official receiver’
NFN 3 – Notice for Newspaper (3) - ‘Notice for newspaper variously covering advertisement of, winding-up order, calling of meetings, a call on contributories, and public examination’
LCAD – Letter Covering Advertisement - ‘A letter to advertising agents from the official receiver, enclosing an advertisement for publication. Advert type referred to in the letter is to remind the agents to forward to the issuing office, one copy (London) or two Copies (outside London) of the ‘certificate of publication’
FAC – Filing at Court - ‘This letter covers various documents regularly filed at court, i.e., copies of newspaper advertisements and certificates relating to the appointment, release, removal, resignation or loss of qualification of IPs’
Click HERE to view the Flowchart for Gazetting
Click HERE to view the Flowchart for Advertising
Procedure
Gazetting
1 Receive details of a new winding-up or bankruptcy order.
2 Check the order for accuracy and spelling, etc.
3 If not already done, record full details on LOIS, (CA02 & CA03). See CHM part – Initial Notices and Letters for full information on the inputting of information and preparation of notices and letters.
4 If a prison address or a vulnerable bankrupt’s address etc. appears in the full description, or any other material information is incorrect, seek guidance from the examiner.
5 If appropriate, contact the court and request them to amend the order.
6 Once the order is accurate, produce forms L72.12 – ‘Gazette Notice - Winding-up Order’ or B37.18 – ‘Gazette Notice - Bankruptcy Order’ in LOIS, (DO73). Check for accuracy of detail and typing errors.
7 Print off one copy of the gazette notice separately as it does not form part of the initial notices package.
8 In the event that a duplicate print of the gazette notice is taken from LOIS in error, which could lead to another publication of the same gazette notice, contact the F&DM team immediately to notify them of the mistake and request that the second entry be removed.
9 Where the official receiver becomes aware that a valid stay of advertisement or stay of proceedings is in force, contact the F&DM team immediately gpt.gazettestays@insolvency.gsi.gov.uk to prevent publication of the gazette notice. Remove the paper copy of the gazette notice from the file and destroy it.
10 If an IP was appointed by the court at the time the order was made, prepare and generate the gazette notice on LOIS in the usual way, amending the relevant gazette form to incorporate the IP’s details.
11 In a transfer case, the receiving or ‘new’ official receiver should notify the F&DM Team immediately the new court number is known, if the gazette notice has not already been published.
12 Where the title of bankruptcy proceedings is amended and the court orders gazetting of the amended title, type up in the usual way on form B37.18, LOIS (DO73). Print off one copy only and place in the office file.
13 Where a bankrupt requests that an order of annulment or discharge be gazetted, ensure that the appropriate remittance is received from the bankrupt before taking any further action.
14 Once the cost of placing the gazette has been received, type up in the standard format on form B37.19 or B37.20 as appropriate, LOIS (DO73). Print off one copy only and place on the office file.
Advertising
15 To advertise the making of an order, produce either form NFN 3 or NFN 1 – (selecting the appropriate text infill), with the other initial notices in LOIS, (DO73).
16 Check the documents produced for accuracy and typing errors.
17 Send the appropriate forms NFN and LCAD to the advertising agents (batched daily) by e-mail, as attachments. When the form NFN or LCAD has been produced it will appear as a Word document in ‘document production’. Go to the ‘file’ tab on the toolbar and choose the option ‘send to mail recipient (as attachment)’.
18 When confirmation of receipt is received from the advertising agents, which is sent weekly by e-mail, check that all expected adverts have been included. In the event that an advertisement appears to have been omitted, check with the agents that it has been received.
19 If the official receiver becomes aware of an order for a stay of advertisement or a stay of proceedings being in force, contact the agents immediately to withdraw the advertisement. If the advertisement can be stopped, remove any paper copy of the notice that may have been placed on the office file and destroy it.
20 Once the advertisement has been placed in the newspaper, await the appropriate certificate of publication that is forwarded by the agents.
21 Proof read the advertisement. If there are no errors, forward a copy to the local court with form FAC – ‘Filing at court’. Place another copy on the office file.
22 Where the published advert contains any mistakes, establish whether the mistake resulted from an error by the official receiver, by the agent or newspaper. If the error was caused by the official receiver, prepare and send another advertisement for publication. Where the mistake was caused by either the agent or the newspaper, the agents will re-insert the advert correctly.
23 If the title of bankruptcy proceedings has been amended and the court has ordered advertising of the amendment, prepare form NFN1 (selecting the appropriate text infill) and send to agents with form LCAD. Place a copy on the case file.
24 Where a decision regarding the holding of a first meeting is likely to be made quickly, in less than 10 days, a combined notice, form NFN 3 or NFN 1 – (selecting the appropriate text infill), should be considered. Check with the examiner in the event of uncertainty. Do not hold up the advertisement of the order unless specifically instructed to do so.
25 In the case of a first meeting of creditors (and contributories), prepare an advertisement on form NFN 3 or NFN 1 – (selecting the appropriate text infill), and despatch by e-mail to the advertising agents with form LCAD. For more information see CHM part – Meetings
26 Note the date the advert was sent on LOIS, (CA21). When a copy of the published advertisement is received, check that the printed advert is correct and if it is, place a copy on the office file.
27 If the advert is incorrect, contact the agents to discuss and rectify the matter.
28 Forward a copy of the advertisement to court with form FAC.
29 In a case where a decision has been made for a meeting, but it is apparent that there are a large number of creditors with low value debts, and there are no realisable assets, seek a decision from the examiner as to whether to dispense with individual notices to creditors and give notice by advertisement instead.
30 Where a decision has been made to advertise a public examination, prepare the appropriate form NFN 3 or NFN 1 – (selecting the appropriate text infill), and forward it by e-mail to the agents with form LCAD.
31 Where a bankruptcy order has been annulled or a bankrupt has obtained discharge and requests in either case, that it be advertised, take no steps to place the advertisement until the bankrupt provides the official receiver with funds to cover the cost of the advert.
32 Prepare form NFN 1, (selecting the appropriate text infill for annulment or discharge), and send it by e-mail to the advertising agents with form LCAD.