1. Review your cases – countdown to expiry of Conditional Fee Agreements
Readers will not doubt be aware that the exemption for recoverability of success fees and insurance premiums in insolvency litigation is due to expire on 1 April 2015. Whilst R3 are currently urging a government rethink on bringing the insolvency exemption to an end, prudent office holders should ensure that they don’t miss the boat in the event R3’s efforts are unsuccessful. If you believe you have a case that may be a suitable candidate for a CFA, take advice now!
2. The devil is in the detail – provide better detail and narrative when recording time costs
Value, value, value! That’s what office holder remuneration is all about. What has been done for the time expended? Has it been of value to the creditors? As many commentators have noted, and as highlighted by the Insolvency Service consultation in 2014 and in the proposed Small Business, Enterprise and Employment Bill 2014, the costs for dealing with administering insolvency processes are under increasing scrutiny. Whether this means there will be more applications to Court for approval of remuneration remains to be seen but there is no time like the present to get into good habits. The better the contemporaneous time narrative is, the easier it will be to clearly evidence the value provided – revisiting time recording months or years down the line is unlikely to be an enjoyable (or indeed, particularly accurate) task! Until such time as it may become more commonplace (or even required by law) to charge on a percentage of realisations (and/or fixed fee) only, it wouldn’t hurt to have more detail – you never know when you may need it.
3. Become a meter reader…. and provide notice of vacation to utility providers
If only we suggested this resolution last year, the case of Laverty and others v British Gas Trading Limited  EWHC 2721 (Ch) may have been avoided!Although the case noted that utility costs under a statutory deemed electricity and gas contract were provable debts (and not expenses), where the utilities were used after vacation of the premises (and not for the benefit of the administration), it was unclear why utilities continued to be consumed post-vacation. Had meter readings been taken and notice of vacation of the units been given to the utility providers (with consent to disconnect supplies given), then it may well have minimised the need to litigate the point. Whilst Laverty is one to note, it was a decision on a preliminary issue only so it may very well be back before the Court in 2015.
4. Hold your horses – don’t jump the gun on threatening litigation on misfeasance/ antecedent transactions
Under the powers enshrined in the Insolvency Act 1986 (e.g. sections 234 and 236 etc.), office holders have some unique tools at their disposal for gathering information prior to the commencement of litigation. However, these tools are not always fully utilised before the threat of litigation is raised. Take all the time a case will allow to use the powers available as, once litigation is threatened, the possibility of utilising the same can quickly diminish – the Court may consider it oppressive on a potential respondent and will not allow an office holder to utilise those powers to gain a special advantage – In short, use them or lose them.
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