The Insolvency (Northern Ireland) Order 1989

[F1 CHAPTER 3 N.I. Length of moratorium

F1 Pt. 1A inserted (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), ss. 4(1), 49(1) (with ss. 2(2), 5(2))

Initial period N.I.

End of the moratorium N.I.

13C.— (1) A moratorium ends at the end of the initial period unless it is extended, or comes to an end sooner, under or by virtue of a provision mentioned in paragraph (3) or (4).

(2) In this Chapter “the initial period”, in relation to a moratorium, means the period of 20 business days beginning with the business day after the day on which the moratorium comes into force.

(3) For provision under or by virtue of which a moratorium is or may be extended, see—

• Article 13CA (extension by directors without creditor consent);

• Article 13CB (extension by directors with creditor consent);

• Article 13CD (extension by High Court on application of directors);

• Article 13CE (extension while proposal for CVA pending);

• Article 13CF (extension by High Court in course of other proceedings).

(4) For provision under or by virtue of which the moratorium is or may be terminated, see—

• Article 13CG (termination on entry into insolvency procedure etc);

• Article 13ED (termination by monitor);

• Article 13F or 13FB (termination by High Court).

(5) A moratorium may not be extended under a provision mentioned in paragraph (3) once it has come to an end.

(6) Where the application of two or more of the provisions mentioned in paragraphs (3) and (4) would produce a different length of moratorium, the provision that applies last is to prevail (irrespective of whether that results in a shorter or longer moratorium).

Extension of moratorium N.I.

Extension by directors without creditor consent N.I.

13CA.— (1) During the initial period, but after the first 15 business days of that period, the directors may extend the moratorium by filing with the High Court—

(a) a notice that the directors wish to extend the moratorium,

(b) a statement from the directors that all of the following that have fallen due have been paid or otherwise discharged—

(i) moratorium debts, and

(ii) pre-moratorium debts for which the company does not have a payment holiday during the moratorium (see Article 13D),

(c) a statement from the directors that, in their view, the company is, or is likely to become, unable to pay its pre-moratorium debts, and

(d) a statement from the monitor that, in the monitor’s view, it is likely that the moratorium will result in the rescue of the company as a going concern.

(2) The rules may make provision about the date on which a statement mentioned in paragraph (1) must be made.

(3) On the filing with the Court of the documents mentioned in paragraph (1), the moratorium is extended so that it ends at the end of the period—

(a) beginning immediately after the initial period ends, and

(b) ending with the 20th business day after the initial period ends.

Modifications etc. (not altering text)

C1 Art. 13CA(1)(d) modified (temp.) (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 8 para. 8(2) (with ss. 2(2), 5(2), Sch. 8 para. 1)

Extension by directors with creditor consent N.I.

13CB.— (1) At any time after the first 15 business days of the initial period the directors may, if they have obtained creditor consent, extend the moratorium by filing with the High Court—

(a) a notice that the directors wish to extend the moratorium,

(b) a statement from the directors that all of the following that have fallen due have been paid or otherwise discharged—

(i) moratorium debts, and

(ii) pre-moratorium debts for which the company does not have a payment holiday during the moratorium (see Article 13D),

(c) a statement from the directors that, in their view, the company is, or is likely to become, unable to pay its pre-moratorium debts,

(d) a statement from the monitor that, in the monitor’s view, it is likely that the moratorium will result in the rescue of the company as a going concern, and

(e) a statement from the directors that creditor consent has been obtained, and of the revised end date for which that consent was obtained.

(2) The rules may make provision about the date on which a statement mentioned in paragraph (1) must be made.

(3) On the filing with the Court of the documents mentioned in paragraph (1), the moratorium is extended so that it ends with the revised end date mentioned in the statement under paragraph (1)(e).

(4) A moratorium may be extended under this Article more than once.

Modifications etc. (not altering text)

C2 Art. 13CB(1)(d) modified (temp.) (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 8 para. 8(2) (with ss. 2(2), 5(2), Sch. 8 para. 1)

Creditor consent for the purposes of Article 13CB N.I.

13CC.— (1) References in Article 13CB to creditor consent are to the consent of pre-moratorium creditors to a revised end date for the moratorium.

(2) The decision as to consent is to be made at a meeting of pre-moratorium creditors.

(3) A meeting under paragraph (2)—

(a) is to be held at such time, date and place as the directors think fit, and

(b) is to be conducted in accordance with the rules.

(4) The revised end date must be a date before the end of the period of one year beginning with the first day of the initial period.

(5) In this Article “pre-moratorium creditor” means a creditor in respect of a pre-moratorium debt—

(a) for which the company has a payment holiday during the moratorium (see Article 13D), and

(b) which has not been paid or otherwise discharged.

(6) In determining for the purposes of paragraph (5) what counts as a pre-moratorium debt for which the company has a payment holiday during the moratorium, Articles 13D(3) and 13HD(1)(b) apply as if the references to the moratorium were to the moratorium as proposed to be extended.

(7) Regulations may amend this Article for the purposes of changing the definition of “pre-moratorium creditor”.

(8) Regulations may not be made under paragraph (7) unless a draft of the regulations has been laid before, and approved by a resolution of, the Assembly.

Extension by High Court on application of directors N.I.

13CD.— (1) At any time after the first 15 business days of the initial period, the directors may apply to the High Court for an order that the moratorium be extended.

(2) The application must be accompanied by—

(a) a statement from the directors that all of the following that have fallen due have been paid or otherwise discharged—

(i) moratorium debts, and

(ii) pre-moratorium debts for which the company does not have a payment holiday during the moratorium (see Article 13D),

(b) a statement from the directors that, in their view, the company is, or is likely to become, unable to pay its pre-moratorium debts,

(c) a statement from the directors as to whether pre-moratorium creditors (as defined by Article 13CC(5) and (6)) have been consulted about the application and if not why not, and

(d) a statement from the monitor that, in the monitor’s view, it is likely that the moratorium will result in the rescue of the company as a going concern.

(3) The rules may make provision about the date on which a statement mentioned in paragraph (2) must be made.

(4) On hearing the application the Court may—

(a) make an order that the moratorium be extended to such date as is specified in the order, or

(b) make any other order which the Court thinks appropriate.

(5) In deciding whether to make an order under paragraph (4)(a) the Court must, in particular, consider the following—

(a) the interests of pre-moratorium creditors, as defined by Article 13CC(5) and (6), and

(b) the likelihood that the extension of the moratorium will result in the rescue of the company as a going concern.

(6) Paragraph (7) applies where—

(a) an application under this Article is made, and

(b) apart from that paragraph, the moratorium would end at a time before the application has been disposed of.

(7) The moratorium—

(a) does not end at the time mentioned in paragraph (6)(b), and

(b) instead, ends—

(i) in a case in which the Court makes an order under paragraph (4)(a), in accordance with the order;

(ii) otherwise, when the application is withdrawn or disposed of.

(8) A moratorium may be extended under this Article more than once.

Modifications etc. (not altering text)

C3 Art. 13CD(2)(d) modified (temp.) (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 8 para. 8(3) (with ss. 2(2), 5(2), Sch. 8 para. 1)

Extension while proposal for CVA pending N.I.

13CE.— (1) Paragraph (2) applies where—

(a) at any time, the directors make a proposal under Part 2 (company voluntary arrangements), and

(b) apart from that paragraph, the moratorium would end at a time before the proposal is disposed of.

(2) The moratorium—

(a) does not end at the time mentioned in paragraph (1)(b), and

(b) instead, ends when the proposal is disposed of.

(3) For the purposes of this Article a proposal under Part 2 is “disposed of” when any of the following takes place—

(a) the company and its creditors both decide under Article 17 not to approve the voluntary arrangement contained in the proposal;

(b) the decisions taken by the company and its creditors under Article 17 differ, and—

(i) the period for making an application under Article 17A(3) expires and either no application has been made within that period or any application made within that period has been withdrawn, or

(ii) an application is made under Article 17A(3) and that application is disposed of, or it is withdrawn after the expiry of the period for making an application under Article 17A(3);

(c) the voluntary arrangement contained in the proposal takes effect under Article 18;

(d) the proposal is withdrawn.

Extension by High Court in the course of other proceedings N.I.

13CF.— (1) Paragraph (2) applies where—

(a) an application is made under section 896 or 901C(1) of the Companies Act 2006 (arrangements and reconstructions: court order for holding of meeting) in respect of a company, and

(b) during proceedings before the High Court in connection with the application, a moratorium for the company is in force.

(2) The High Court may make an order that the moratorium be extended to such date as is specified in the order.

Early termination on certain grounds N.I.

Company enters into insolvency procedure etc N.I.

13CG.— (1) A moratorium comes to an end at any time at which the company—

(a) enters into a compromise or arrangement (see paragraph (2)), or

(b) enters into a relevant insolvency procedure (see paragraph (3)).

(2) For the purposes of this Article a company enters into a compromise or arrangement if an order under section 899 or 901F of the Companies Act 2006 (court sanction for compromise or arrangement) comes into effect in relation to the company.

(3) For the purposes of this Article a company enters into a relevant insolvency procedure if—

(a) a voluntary arrangement takes effect under Article 18 in relation to the company,

(b) the company enters administration (within the meaning of Schedule B1 (see paragraph 2(2)(b) of that Schedule)),

(c) paragraph 45 of Schedule B1 (administration: interim moratorium) begins to apply in relation to the company, or

(d) the company goes into liquidation (see Article 6).

Obligations to notify change in end of moratorium N.I.

Obligations to notify change in end of moratorium N.I.

13CH.— (1) The table imposes obligations on the directors of a company to notify the monitor where a moratorium for the company is extended or comes to an end.

	Where a moratorium is extended or comes to an end under or by virtue of the following provision	the directors must
1	Article 13CA	Notify the monitor of the extension.
2	Article 13CB	Notify the monitor of the extension and of the revised end date.
3	Article 13CD(4)	Notify the monitor of the extension and provide the monitor with the court order under Article 13CD(4).
4	Article 13CD(7)(a)	Notify the monitor of the extension.
5	Article 13CD(7)(b)(ii)	Notify the monitor that the moratorium has come to an end and of the date that it ended.
6	Article 13CE(2)(a)	Notify the monitor of the extension.
7	Article 13CE(2)(b)	Notify the monitor that the moratorium has come to an end and of the date that it ended.
8	Article 13CF	Notify the monitor of the extension and provide the monitor with any court order under Article 13CF.
9	Article 13CG	Notify the monitor that the moratorium has come to an end.
10	Article 13F	Notify the monitor that the moratorium has come to an end and provide the monitor with the court order under Article 13F.
11	Article 13FB	Notify the monitor that the moratorium has come to an end and provide the monitor with the court order under Article 13FB.

(2) After receiving a notice under paragraph (1), other than a notice under entry 4 or 6 of the table, the monitor must notify the relevant persons of when the moratorium ended or, subject to any alteration under or by virtue of any of the provisions mentioned in Article 13C(3) or (4), the moratorium will come to an end.

(3) After receiving a notice under entry 4 or 6 of the table, the monitor must notify the relevant persons.

(4) If a moratorium comes to an end under Article 13ED (termination by monitor), the monitor must notify the company and the relevant persons of when the moratorium ended.

(5) The rules may—

(a) make further provision about the timing of a notice required to be given under this Article;

(b) require a notice to be accompanied by other documents.

(6) If the directors fail to comply with paragraph (1), any director who did not have a reasonable excuse for the failure commits an offence.

(7) If the monitor without reasonable excuse fails to comply with any of paragraphs (2) to (4), the monitor commits an offence.

(8) In this Article “the relevant persons” means—

(a) the registrar,

(b) every creditor of the company of whose claim the monitor is aware,

(c) in a case where the company is or has been an employer in respect of an occupational pension scheme that is not a money purchase scheme, the Pensions Regulator, and

(d) in a case where the company is an employer in respect of such a pension scheme that is an eligible scheme within the meaning given by Article 110 of the Pensions (Northern Ireland) Order 2005, the Board of the Pension Protection Fund.]