The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Suspension of Liability for Wrongful Trading) Regulations (Northern Ireland) 2021

Regulations made by the Department for the Economy under section 28(1) of the Corporate Insolvency and Governance Act 2020 (c.12), and laid before the Assembly under section 34(2) of that Act, for approval of the Assembly within forty days beginning with the day on which the instrument is made, subject to extension for periods of dissolution or recess for more than four days or adjournment for more than six days

Statutory Rules of Northern Ireland

2021 No. 106

Insolvency

The Corporate Insolvency and Governance Act 2020 (Coronavirus) (Suspension of Liability for Wrongful Trading) Regulations (Northern Ireland) 2021

Made

21st April 2021

Coming into operation

29th April 2021

The Department for the Economy makes the following Regulations in exercise of the power conferred by section 28(1)(c) of the Corporate Insolvency and Governance Act 2020(1).

In accordance with section 29(2) of that Act, the Department(2) is satisfied that these Regulations are expedient for the purpose of securing that the duties of persons with corporate responsibility, or the liability of those persons to any sanction, take due account of the effects of coronavirus on businesses or on the economy of the United Kingdom.

In accordance with section 30(1) of that Act, the Department has considered the effect of these Regulations on persons likely to be affected by them.

In accordance with section 30(2) of that Act, the Department is satisfied—

(a)

that the need for the provision made by these Regulations is urgent;

(b)

that the provision made by these Regulations is proportionate to the purpose for which it is made;

(c)

that is it not practicable without legislation to bring about the result intended to be brought about by these Regulations; and

(d)

that neither a Northern Ireland Department nor the Secretary of State can make the same provision in exercise of power under a statutory provision other than section 28 of that Act.

Citation and commencement

1.  These Regulations may be cited as the Corporate Insolvency and Governance Act 2020 (Coronavirus) (Suspension of Liability for Wrongful Trading) Regulations (Northern Ireland) 2021 and come into operation on 29th April 2021.

Suspension of liability for wrongful trading

2.—(1) In determining for the purposes of Article 178 of the Insolvency (Northern Ireland) Order 1989(3) (wrongful trading) the contribution (if any) to a company’s assets that it is proper for a person to make, the High Court is to assume that the person is not responsible for any worsening of the financial position of the company or its creditors that occurs during the relevant period.

(2) In this regulation the “relevant period” is the period which—

(a) begins with 1st May 2021, and

(b) ends with 30th June 2021.

(3) Paragraph (1) does not apply if at any time during the relevant period the company concerned is excluded from being eligible for the purposes of Part 1A of the Insolvency (Northern Ireland) Order 1989 by any of the paragraphs of Schedule ZA1 to that Order listed in paragraph (4), as they apply for the purposes of this paragraph (see paragraph (5)).

(4) The paragraphs of Schedule ZA1 to the Insolvency (Northern Ireland) Order 1989 are—

(a) paragraph 3 (insurance companies),

(b) paragraph 4 (banks),

(c) paragraph 5 (electronic money institutions),

(d) paragraph 6 (investment banks and investment firms),

(e) paragraph 9 (payment institutions),

(f) paragraph 10 (operators of payment systems, infrastructure providers etc),

(g) paragraph 11 (recognised investment exchanges, clearing houses and CSDs),

(h) paragraph 12 (securitisation companies),

(i) paragraph 13 (parties to capital market arrangement),

(j) paragraph 15 (public-private partnership project companies), and

(k) paragraph 18 (overseas companies with corresponding functions).

(5) In their application for the purposes of paragraph (3)—

(a) paragraph 13 of Schedule ZA1 to the Insolvency (Northern Ireland) Order 1989 has effect as if in sub-paragraph (1)—

(i) the words “, on the filing date” were omitted, and

(ii) paragraph (b) were omitted;

(b) paragraph 15 of Schedule ZA1 to the Insolvency (Northern Ireland) Order 1989 has effect as if in sub-paragraph (1)—

(i) the words “, on the filing date,” were omitted, and

(ii) paragraph (b) were omitted, and

(c) paragraph 18 of that Schedule has effect as if for “paragraph 2”, in both places, there were substituted “paragraphs 2, 7 and 8”.

(6) Paragraph (1) also does not apply if at any time during the relevant period the company concerned—

(a) has permission under Part 4A of the Financial Services and Markets Act 2000(4) to carry on a regulated activity, and

(b) is not subject to a requirement imposed under that Act to refrain from holding money for clients.

(7) Subject to paragraph (8), this regulation has effect as if it were contained in Part 5 of the Insolvency (Northern Ireland) Order 1989.

(8) This regulation does not have effect in relation to the following bodies (which are bodies to which provisions contained in Part 5 of the Insolvency (Northern Ireland) Order 1989 apply)—

(a) a registered society within the meaning of the Co-operative and Community Benefit Societies Act (Northern Ireland) 1969(5) that at any time during the relevant period carries on the regulated activity of effecting or carrying out contracts of insurance;

(b) a society that is registered within the meaning of the Friendly Societies Act 1974(6) and that at any time during the relevant period carries on the regulated activity of effecting or carrying out contracts of insurance;

(c) a building society within the meaning of the Building Societies Act 1986(7);

(d) a credit union within the meaning of the Credit Unions (Northern Ireland) Order 1985(8);

(e) a society that is incorporated under the Friendly Societies Act 1992(9).

(9) In this regulation “regulated activity” has the meaning given by section 22 of the Financial Services and Markets Act 2000, taken with Schedule 2 to that Act and any order under that section.

Sealed with the Official Seal of the Department for the Economy on 21 April 2021

(L.S.)

Colin Jack

A senior officer of the Department for the Economy

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations temporarily suspend liability under wrongful trading provisions in the Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)): specifically, Article 178 (wrongful trading).

Regulation 3 provides for the suspension of wrongful trading. Paragraph (1) of that regulation provides that, for the purposes of Article 178 of the Insolvency (Northern Ireland) Order 1989, the High Court is not to hold a person liable for any worsening of a company’s financial position during the “relevant period”. Paragraph (2) defines the “relevant period” as the period beginning on 1^st May 2021 and ending on 30th June 2021. Paragraphs (3) to (6) and (8) specify cases where, (or types of corporate entity in respect of which), the suspension of wrongful trading is not to apply. Accordingly, Article 178 continues to apply in those cases, (or, in respect of those entities), during the relevant period. Paragraph (7) provides that regulation 3 has effect as if it is part of the Insolvency (Northern Ireland) Order 1989.

No impact assessment has been prepared for these Regulations. An Explanatory Memorandum has been published alongside this instrument at www.legislation.gov.uk.

(1)

2020 c. 12, as amended by S.R. 2020 No. 320.

(2)

The Department for the Economy is a relevant authority by virtue of section 28(4) of the Corporate Insolvency and Governance Act 2020.

(3)

S.I. 1989/2405 (N.I. 19).

(4)

2000 c. 8.

(5)

1969 c. 24 (N.I.)

(6)

1974 c. 46.

(7)

1986 c. 53.

(8)

S.I. 1985/1205 (N.I. 12).

(9)

1992 c. 40.