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[Note: deemed consent cannot be used to decide on remuneration, or where the Act/Rules requires a decision by a decision procedure.]
The Deemed Consent procedure is set out in sections 246ZF (corporate insolvency) and 379ZB (personal insolvency) of the Insolvency Act 1986, as inserted by the Small Business, Enterprise and Employment Act 2015, and rule 15.7 of the Insolvency Rules 2016.
The deemed consent procedure is that relevant creditors/contributories are given notice:
- Of the matter about which they are to make a decision
- Of the decision that is proposed
- That if less than the number of relevant creditors/contributories object to the proposed decision, the creditors are treated as having made the decision
- That if more than the number of relevant creditors/contributories object to the proposed decision, the decision is treated as not having been made
- That if the same decision is sought, it must be using a qualifying decision procedure, and
- Of the procedure for objecting to the proposed decision.
The number of relevant creditors is 10% in value.
“Relevant creditors” and "relevant contributories" means creditors/contributories who, if the decision were to be made by a decision procedure, would be entitled to vote.
A notice seeking deemed consent must comply with the Act, as well as rule 15.8 (notices to creditors of decision procedure), so far as applicable, and contain statements that:
- For a creditor to object, they must deliver a notice before the decision date with proof of their claim, otherwise it will be disregarded
- The IP will collate any objections to determine if the threshold has been met to reject the decision as being made, and
- If threshold is met, then no decision is made, and if sought again, will be by a decision procedure.
Rules 15.31(2) (calculation of voting rights), 15.32 (calculation of voting rights: special cases) and 15.33 (procedure for admitting creditors' claims for voting) apply to the admission or rejection of a claim in deciding whether an objection should count towards the total objections.
The IP's decision under this rule is subject to appeal under rule 15.35 (Appeals against decisions under this Chapter).