As of 25 April 2017, for courts within the Chancery division of the High Court in London, the filing of all applications, forms and documents must be performed electronically. This includes the Bankruptcy and Companies Courts within Greater London. It does not apply to the High Courts outside London.

Where once a lawyer might expect to physically go to court to have their documents stamped, the entire process is now controlled by the courts’ new CE-Filing process. An update to Practice Directive 510 (PD510) that governs electronic filings is due to be published imminently. The Courts working out of the Rolls Building have attempted to provide a service that operates 24 hours a day, 365 days a year which will not only incidentally do away with the need for out of hours filings but is intended to streamline the entire process of filings at court.Once registered, lawyers will have the ability to open files, pay the relevant court fees and upload necessary documentation without needing to travel to the court. The exceptions are applications which are precluded from forms of online payments for example windings up petitions. The clerks who will deal with electronic filings are being trained to not reject filings for their invalidity against CPR procedures and the Insolvency Rules but only if they do not meet court filing standards. In the case of other minor issues, file holders will be contacted with a view to ‘ironing out’ any potential issues to prevent rejection.

Whilst this process seems to be making the same advances for the restructuring community as Companies House made for banking industry by accepting online registration of security charges, it is not without potential issues:

The implications and possible problems 

Timing

Much has been made of the courts’ assurances that all important filings will be approved within 90 minutes but there are still timing points that must be touched upon. Firstly, the system allows for three levels of priority with increasing time scales. To ensure your application is treated as urgent may still require a telephone call to the court to ensure the clerks understand the urgency of the situation. Furthermore although the service itself is available 24 hours a day, if you need a filing to be approved on the same day, you are required to submit that filing no later than 3p.m. It is worth noting that once filings have been approved and payment accepted the approval will be back dated to the time when payment was made (if required) or the time of filing the application (if it was not).

Downtime

As access to the counter service will now be greatly reduced, the court plans on giving advance notice of scheduled maintenance or downtime for the system, with the provision of an external email address to send documentation to whilst the system is unavailable. However, as with any new system it remains to be seen what contingency plans are in place for any unplanned or unexpected downtime. If counter service is reduced to a minimum and the filing system suddenly became unavailable what will happen in the case of an urgent application? The external email may provide little comfort in the case of a pressing administration.

Impact

Although much more subjective, there is also a point to be made about the impact that receiving an electronically stamped set of documents may have. It would be fair to say that a hard copy order stamped boldly in red with a court seal is hard to ignore. However, this is no longer the intended output from the court, with applicants now receiving email confirmations and electronically stamped forms which maybe do not demand the same degree of  attention. It is not hard to imagine the reduction in impact, especially to those in other jurisdictions who are used to seeing documents with an official court seal;  there is potential for an email to go unheeded.

Conclusions 

It is hard to argue against the upside to streamlining any process where timing can be so crucial. As we have seen in the UK with the new Insolvency Rules, the general trend has been towards accepting the necessity of digital and electronic aids in the restructuring and insolvency process. That being said, this is still a system in its infancy and as with such things- even after completion of the pilot scheme- there are bound to be unforeseen consequences. Forcing near 100 per cent reliance on technology, having potential pauses between the online filing of a document and its approval and measuring the impact of removing hard copy stamped and sealed court documents are all unknown quantities that will warrant close scrutiny in the future. It remains to be seen if the computer will cope or crash.

Philip Congdon is co-author of this article.