C5PART IINTRODUCTORY

Annotations:
Modifications etc. (not altering text)

Title and commencement1

1

This Order may be cited as the Insolvency (Northern Ireland) Order 1989.

2

This Order shall come into operation on such day or days as the Head of the Department may by order appointF1.

3

An order under paragraph (2) may contain such transitional and supplementary provisions as appear to the Head of the Department to be necessary or expedient.

Annotations:
Amendments (Textual)
F1

partly exercised, SRs 1990/177; 1991/294, 300, 411; 2002/126

General interpretationC62

1

The Interpretation Act (Northern Ireland) 1954F2 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly.

2 F3

In this Order—

  • F4“the Bankruptcy Acts” means the Bankruptcy Acts (Northern Ireland) 1857 to 1980;

  • F37“body corporate” includes a body incorporated outside Northern Ireland, but does not include—

    1. a

      a corporation sole, or

    2. b

      a partnership that, whether or not a legal person, is not regarded as a body corporate under the law by which it is governed;

  • “business” includes a trade or profession;

  • F35“the Companies Acts” means the Companies Acts (as defined in section 2 of the Companies Act 2006) as they have effect in Northern Ireland;

  • F38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • “conditional sale agreement” and“hire‐purchase agreement” have the same meanings as in the Consumer Credit Act 1974F5;

  • F4“corporate member” means an insolvent member which is a company;

  • “the Department” means the Department of Economic Development;

  • F86“the EU Regulation” means Regulation (EU) 2015/848 of the European Parliament and of the Council F72as it forms part of domestic law on and after exit day;

  • F34“EEA State” means a state that is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993;

  • F39“employees' share scheme” means a scheme for encouraging or facilitating the holding of shares in or debentures of a company by or for the benefit of—

    1. a

      the bona fide employees or former employees of—

      1. i

        the company,

      2. ii

        any subsidiary of the company, or

      3. iii

        the company's holding company or any subsidiary of the company's holding company, or

    2. b

      the spouses, civil partners, surviving spouses, surviving civil partners, or minor children or step-children of such employees or former employees;

  • F83...

  • F4“individual member” means an insolvent member who is an individual;

  • “insolvent member” means a member of an insolvent partnership, against whom an insolvency petition is being or has been presented;

  • “insolvency order” means—

    1. a

      in the case of an insolvent partnership or a corporate member, a winding-up order; and

    2. b

      in the case of an individual member, a bankruptcy order;

  • “insolvency petition” means—

    1. a

      in the case of a petition presented against a corporate member, a petition for its winding up by the High Court; and

    2. b

      in the case of a petition presented against an individual member, a petition to the Court for a bankruptcy order to be made against the individual,

    where the petition is presented in conjunction with a petition for the winding up of the partnership by the Court as an unregistered company under the Order;

  • “liability” means (subject to paragraph (4)) a liability to pay money or money's worth, including any liability under a statutory provision, any liability for breach of trust, any liability in contract, tort or bailment and any liability arising out of an obligation to make restitution;

  • F83...

  • “modifications” includes additions, alterations and omissions;

  • F40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • “the official receiver” means, in relation to any bankruptcyF32, winding up F54, individual voluntary arrangement, debt relief order or application for such an order, any officer of the Department who by virtue of Article 355 or 357 is authorised to act as the official receiver in relation to that bankruptcyF32, winding up F54, individual voluntary arrangement, debt relief order or application for such an order;

  • “prescribed”

    1. a

      in Articles 48(3), 95(1)F77... and in Part XII, means prescribed by regulations; and

    2. b

      except as provided in sub‐paragraph (a)F33 in Article 150A(9) and in paragraph 3 of Schedule 4, means prescribed by rules;

  • “property” includes money, goods, things in action, land and every description of property wherever situated and also obligations and every description of interest, whether present or future or vested or contingent, arising out of, or incidental to, property;

  • “records” includes computer records and other non‐documentary records;

  • “regulations” means regulations made by the Department subject (except in F88Part 1A, Article 148A(6),F82Article 197C and Article 359(5) F64... F68and paragraph 61A of Schedule B1) to negative resolution;

  • F4“responsible insolvency practitioner” means—

    1. a

      in winding up, the liquidator; and

    2. b

      in bankruptcy, the trustee,

    and in either case includes the official receiver when so acting.

  • “rules”, except in Article 350, means rules made under Article 359;

  • “statutory provision” has the meaning assigned to it by section 1(f) of the Interpretation Act (Northern Ireland) 1954F6;

  • “transaction” includes a gift, agreement or arrangement, and references to entering into a transaction shall be construed accordingly.

F412A

The following expressions have the same meaning in this Order as in the Companies Acts—

  • “articles”, in relation to a company (see section 18 of the Companies Act 2006);

  • “debenture” (see section 738 of that Act);

  • “holding company” (see sections 1159 and 1160 of, and Schedule 6 to, that Act);

  • “the Joint Stock Companies Acts” (see section 1171 of that Act);

  • “overseas company” (see section 1044 of that Act);

  • “paid up” (see section 583 of that Act);

  • “private company” and “public company” (see section 4 of that Act);

  • “share” (see section 540 of that Act);

  • “subsidiary” (see sections 1159 and 1160 of, and Schedule 6 to, that Act).

F853

In determining for the purposes of any provision of this Order whether any liability in tort is a bankruptcy debt, the bankrupt is deemed to become subject to that liability by reason of an obligation incurred at the time when the cause of action accrued.

3A

In determining for the purposes of any provision in this Order whether any liability in tort is a debt provable in the winding up of a company or where a company is in administration, that liability is provable if either—

a

the cause of action has accrued—

i

in the case of a winding up which was not immediately preceded by an administration, at the date on which the company went into liquidation;

ii

in the case of a winding up which was immediately preceded by an administration, at the date on which the company entered administration;

iii

in the case of an administration which was not immediately preceded by a winding up, at the date on which the company entered administration;

iv

in the case of an administration which was immediately preceded by a winding up, at the date on which the company went into liquidation; or

b

all the elements necessary to establish the cause of action exist at that date except for actionable damage.

4

For the purposes of references in any provision of this Order to a debt or liability, it is immaterial whether the debt or liability is present or future, whether it is certain or contingent or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed criteria or as a matter of opinion; and references in any such provision to owing a debt are to be read accordingly.

5

In this Order (except Article 355(1)) references to the official receiver include an officer of the Department appointed under Article 357(1) as deputy official receiver.

6

For the purposes of any provision in this Order whereby an officer of a company who is in default shall be guilty of an offence,“officer who is in default” means an officer of the company who knowingly and wilfully authorises or permits the default, refusal or contravention mentioned in the provision.

Proceedings under EU Regulation: modified definition of propertyF622A

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“Act as insolvency practitioner”C33

1

A person acts as an insolvency practitioner in relation to a company by acting—

a

as its liquidator, provisional liquidator, administrator F73, administrative receiver or monitor, or

F7b

where a voluntary arrangement in relation to the company is proposed or approved under Part II, as nominee or supervisor.

2 F8

A person acts as an insolvency practitioner in relation to an individual by acting—

a

as his trustee in bankruptcy or interim receiver of his property; or

F66b

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F7c

where a voluntary arrangement in relation to the individual is proposed or approved under Part VIII, as nominee or supervisor;

d

in the case of a deceased individual to the administration of whose estate this Article applies by virtue of an order under Article 365 (application of provisions of this Order to insolvent estates of deceased persons), as administrator of that estate.

F93 F8

A person acts as an insolvency practitioner in relation to an insolvent partnership by acting—

a

as its liquidator, provisional liquidator or administrator, or

b

as trustee of the partnership under Article 11 of the Insolvent Partnerships Order (Northern Ireland) 1995, or

F10c

where a voluntary arrangement in relation to the insolvent partnership is proposed or approved under Part II, as nominee or supervisor.

F73A

In relation to a voluntary arrangement proposed under Part II or VIII, a person acts as nominee if he performs any of the functions conferred on nominees under the Part in question.

4 F8

In this Article—

“administrative receiver” has the meaning given by Article 5(1);

F42“company” means—

a

a company registered under the Companies Act 2006 in Northern Ireland, or

b

a company that may be wound up under Part 6 of this Order (unregistered companies).

F67“monitor” has the same meaning as in Part 1A (moratorium).

5

Nothing in this Article applies to anything done by the official receiver.

F696

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“Associate”C1C44

1

For the purposes of this Order any question whether a person is an associate of another person is to be determined in accordance with the following provisions of this Article (any provision that a person is an associate of another person being taken to mean that they are associates of each other).

F112

A person is an associate of an individual if that person is—

a

the individual's husband or wife or civil partner,

b

a relative of—

i

the individual, or

ii

the individual's husband or wife or civil partner, or

c

the husband or wife or civil partner of a relative of—

i

the individual, or

ii

the individual's husband or wife or civil partner.

3

A person is an associate of any person with whom he is in partnership, and of the husband or wifeF11 or civil partner or a relative of any individual with whom he is in partnership; and a Scottish firm is an associate of any person who is a member of the firm.

F124

A person is an associate of any person whom he employs or by whom he is employed.

5

A person in his capacity as trustee of a trust other than—

a

a trust arising under Parts VIII to X F93... of this Order, Parts VIII to IX of the Insolvency Act 1986F13 or the Bankruptcy (Scotland) Act F612016, or

b

a pension scheme or an employees' share scheme F43. . . ,

is an associate of another person if the beneficiaries of the trust include, or the terms of the trust confer a power that may beexercised for the benefit of, that other person or an associate of that other person.

6

A company is an associate of another company—

a

if the same person has control of both, or a person has control of one and persons who are his associates, or he and persons who are his associates, have control of the other, or

b

if a group of 2 or more persons has control of eachcompany, and the groups either consist of the same personsor could be regarded as consisting of the same persons by treating (in one or more cases) a member of either group as replaced by a person of whom he is an associate.

7

A company is an associate of another person if that person has control of it or if that person and persons who are his associates together have control of it.

8

For the purposes of this Article a person is a relative of an individual if he is that individual's brother, sister, uncle, aunt, nephew, niece, lineal ancestor or lineal descendant, treating—

a

any relationship of the half blood as a relationship of the whole blood and the stepchild or adopted child of any person as his child, and

b

an illegitimate child as the legitimate child of his mother and reputed father;

and references in this Article to a husband and wife include a former husband or wife and reputed husband or wifeF11 and references to a civil partner include a former civil partnerF14 and a reputed civil partner.

9

For the purposes of this Article any director of other officer of a company is to be treated as employed by that company.

10

For the purposes of this Article a person is to be taken as having control of a company if—

a

the directors of the company or of another company which has control of it (or any of them) are accustomed to act in accordance with his directions or instructions, or

b

he is entitled to exercise, or control the exercise of, one‐third or more of the voting power at any general meeting of the company or of another company which has control of it;

and where 2 or more persons together satisfy either of the conditions mentioned in sub‐paragraph (a) or (b), they are to be taken as having control of the company.

11 F12

In this Article“company” includes any body corporate (whether incorporated in Northern Ireland or elsewhere); and references to directors and other officers of a company and to voting power at any general meeting of a company have effect with any necessary modifications.

Interpretation for F80Parts 1A to 7

Annotations:
Amendments (Textual)
F80

Words in art. 5 cross-heading substituted (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 7 para. 2 (with ss. 2(2), 5(2))

Interpretation5

1 F15

In F78Parts 1A to 7—

  • F26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • F26. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

  • “administrative receiver” means—

    1. a

      a receiver or manager of the whole (or substantially the whole) of a company's property appointed by or on behalf of the holders of any debentures of the company secured by a charge which, as created, was a floating charge, or by such a charge and one or more other securities; or

    2. b

      a person who would be such a receiver or manager but for the appointment of some other person as the receiver of part of the company's property;

  • F44“agent” does not include a person's counsel acting as such;

  • F45“books and papers” and “books or papers” includes accounts, deeds, writing and documents;

  • “business day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday in Northern Ireland under the Banking and Financial Dealings Act 1971F16;

  • “chattel leasing agreement” means an agreement for the bailment of goods which is capable of subsisting for more than 3 months;

  • “debt”, in relation to the winding up of a company F27or where a company is in administration, means (subject to F90Article 2(3A) ) any of the following—

    1. a

      any debt or liability to which the company is subject at the F70relevant date;

    2. b

      any debt or liability to which the company may become subject after F81the relevant date by reason of any obligation incurred before that date; and

    3. c

      any interest on a debt proved in the liquidation F28or in the administration which bears interest, except in so far as it is payable in respect of any period after the F89relevant date;

  • “director” includes any person occupying the position of director, by whatever name called;

  • F46“document” includes summons, notice, order and other legal process, and registers;

  • “floating charge” means a charge which, as created, was a floating charge;

  • F92...

  • F47“officer”, in relation to a body corporate, includes a director, manager or secretary;

  • “the official rate”, in relation to interest, means the rate payable under Article 160(4);

  • F48“the registrar” means the registrar of companies for Northern Ireland;

  • “a resolution for voluntary winding up” means a resolution passed under F36either of the sub-paragraphs of Article 70(1);

  • “retention of title agreement” means an agreement for the sale of goods to a company being an agreement—

    1. a

      which does not constitute a charge on the goods, but

    2. b

      under which, if the seller is not paid and the company is wound up, the seller will have priority over all other creditors of the company as respects the goods or any property representing the goods;

  • “secured creditor”, in relation to a company, means a creditor of the company who holds in respect of his debt a security over property of the company, and“unsecured creditor” is to be read accordingly;

  • “security” means any mortgage, charge, lien or other security;

  • “shadow director”, in relation to a company, means a person in accordance with whose directions or instructions the directors of the company are accustomed to act F63, but so that a person is not deemed a shadow director by reason only that the directors act—

    1. a

      on advice given by that person in a professional capacity;

    2. b

      in accordance with instructions, a direction, guidance or advice given by that person in the exercise of a function conferred by or under a statutory provision;

    3. c

      in accordance with guidance or advice given by that person in that person's capacity as a Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975);

  • “supervisor” means a person acting as defined in Article 20(2);

  • “voluntary arrangement” means an arrangement as defined in Article 14(1).

F791A

For the purposes of the definition of “debt” in paragraph (1), “the relevant date” means—

a

in the case of a winding up which was not immediately preceded by an administration, the date on which the company went into liquidation;

b

in the case of a winding up which was immediately preceded by an administration, the date on which the company entered administration;

c

in the case of an administration which was not immediately preceded by a winding up, the date on which the company entered administration;

d

in the case of an administration which was immediately preceded by a winding up, the date on which the company went into liquidation.

2

F49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“Insolvency” and“go into liquidation”6

1

In F76Parts 1A to 7, “insolvency”, in relation to a company, includes F75the coming into force of a moratorium for the company under Part 1A, the approval of a voluntary arrangement under Part II,F29or the appointment of an administrator or administrative receiver.

2 F17

For the purposes of any provision in F76Parts 1A to 7, a company goes into liquidation if it passes a resolution for voluntary winding up or an order for its winding up is made by the High Court at a time when it has not already gone into liquidation by passing such a resolution.

F303

The reference to a resolution for voluntary winding up in paragraph (2) includes a reference to a resolution which is deemed to occur by virtue of—

a

paragraph 84(5)(b) of Schedule B1, F71...

F71b

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“Connected with a company”F18C27

For the purposes of any provision in F74Parts 1A to 7, a person is connected with a company if—

a

he is a director or shadow director of the company or an associate of such a director or shadow director, or

b

he is an associate of the company.

“Member of a company”8 F19

For the purposes of any provision in F87Parts 1A to 7, a person who is not a member of a company but to whom shares in the company have been transferred, or transmitted by operation of law, is to be regarded as a member of the company, and references to a member or members are to be read accordingly.

F55Parts 7A to 10

Annotations:
Amendments (Textual)

Interpretation9 F20

1

In F56Parts 7A to 10—

  • “bankrupt” means an individual who has been adjudged bankrupt and, in relation to a bankruptcy order, it means the individual adjudged bankrupt by that order;

  • “bankruptcy debt”, in relation to a bankrupt, means (subject to Article 2(3)) any of the following—

    1. a

      any debt or liability to which he is subject at the commencement of the bankruptcy,

    2. b

      any debt or liability to which he may become subject after the commencement of the bankruptcy (including after his discharge from bankruptcy) by reason of any obligation incurred before the commencement of the bankruptcy, and

    3. c

      any interest provable as mentioned in Article 295(2);

    and“debt” shall be construed accordingly;

  • “bankruptcy order” means an order adjudging an individual bankrupt;

  • “bankruptcy petition” means a petition to the High Court for a bankruptcy order;

  • “creditor”

    1. a

      in relation to a bankrupt, means a person to whom any of the bankruptcy debts is owed, and

    2. b

      in relation to an individual to whom a bankruptcy petition relates, means a person who would be a creditor in the bankruptcy if a bankruptcy order were made on that petition;

  • F65...

  • “creditor's petition” means a bankruptcy petition under Article 238(1)(a);

  • “the debtor”

    1. za

      F57in relation to a debt relief order or an application for such an order, has the same meaning as in Part 7A,

    2. a

      in relation to a proposal for the purposes of Part VIII, means the individual making or intending to make that proposal, and

    3. b

      in relation to a bankruptcy petition, means the individual to whom the petition relates;

  • “debtor's petition” means a bankruptcy petition presented by the debtor himself under Article 238(1)(b);

  • F58“debt relief order” means an order made by the official receiver under Part 7A;

  • F65...

  • “dwelling house” includes any building or part of a building which is occupied as a dwelling and any yard, garden, garage or outhouse belonging to the dwelling house and occupied with it;

  • “family” in relation to a bankrupt, means the persons (if any) who are living with him and are dependent on him;

  • F21“insolvency administration” means the administration in bankruptcy of the insolvent estate of a deceased person;

  • “insolvency administration order” means an order for the administration in bankruptcy of the insolvent estate of a deceased debtor (being an individual at the date of his death);

  • “insolvency administration petition” means a petition for an insolvency administration order;

  • “interim order” means an order under Article 226;

  • F21“the Judgments Enforcement Order” means the Judgments Enforcement (Northern Ireland) Order 1981;

  • “the Land Registration Act” means the Land Registration Act (Northern Ireland) 1970;

  • F65...

  • F65...

  • F21“the Registration of Deeds Act” means the Registration of Deeds Act (Northern Ireland) 1970; and

    “the Rules” means the Insolvency Rules (Northern Ireland) 1999;

  • “the trustee” in relation to a bankruptcy and the bankrupt, means the trustee of the bankrupt's estate;

  • “voluntary arrangement” means an arrangement as defined in Article 227(1).

2

References in F59Parts 7A to 10 to a person's affairs include his business, if any.

F843

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F915

Liability under the Child Support (Northern Ireland) Order 1991 to pay child support maintenance to any person is not a debt or liability for the purposes of Part 8.

“Security”, etc.10 F22

1

Subject to paragraphs (2) and (3) and any provision of the rules requiring a creditor to give up his security for the purposes of proving a debt, a debt is secured for the purposes of F60Parts 7A to 10 to the extent that the person to whom the debt is owed holds any security for the debt (whether a mortgage, charge, lien or other security) over any property of the person by whom the debt is owed.

2

Where a statement such as is mentioned in Article 243(1)(a) has been made by a secured creditor for the purposes of any bankruptcy petition and a bankruptcy order is subsequently made on that petition, the creditor is deemed for the purposes of Parts VIII to X to have given up the security specified in the statement.

3

In paragraph (1) the reference to a security does not include a lien on books, papers or other records, except to the extent that they consist of documents which give a title to property and are held as such.

“Bankrupt's estate”11 F23

1

Subject to the following provisions of this Article, a bankrupt's estate for the purposes of any of Parts VIII to X comprises—

a

all property belonging to or vested in the bankrupt at the commencement of the bankruptcy, and

b

any property which by virtue of any of the provisions of Part IX of this Order or Article 88(3) or 90(3) of the Judgments Enforcement (Northern Ireland) Order 1981F24 (effect of bankruptcy or winding up on enforcement of judgments and proceeds of such enforcement) is comprised in that estate or is treated as falling within sub‐paragraph (a).

2

Subject to Article 281 (certain excluded property reclaimable by trustee), paragraph (1) does not apply to—

a

such tools, books, vehicles and other items of equipment as are necessary to the bankrupt for use personally by him in his employment, business or vocation;

b

such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of the bankrupt and his family.

3

Paragraph (1) does not apply to property held by the bankrupt on trust for any other person.

4

References in any of Parts VIII to X to property, in relation to a bankrupt, include references to any power exercisable by him over or in respect of property except in so far as the power is exercisable over or in respect of property not for the time being comprised in the bankrupt's estate and—

a

is so exercisable at a time after either the official receiver has had his release in respect of that estate under Article 272(2) or a meeting summoned by the trustee of that estate under Article 304 has been held, or

b

cannot be so exercised for the benefit of the bankrupt;

and a power exercisable over or in respect of property is deemed for the purposes of any of Parts VIII to X to vest in the person entitled to exercise it at the time of the transaction or event by virtue of which it is exercisable by that person (whether or not it becomes so exercisable at that time).

5

For the purposes of any such provision in Parts VIII to X, property comprised in a bankrupt's estate is so comprised subject to the rights of any person other than the bankrupt (whether as a secured creditor of the bankrupt or otherwise) in relation thereto, but disregarding—

a

any rights in relation to which a statement such as is required by Article 243(1)(a) was made in the petition on which the bankrupt was adjudged bankrupt, and

b

any rights which have been otherwise given up in accordance with the rules.

F315A

This Article has effect subject to Article 256A.

6

This Article has effect subject to the provisions of any statutory provision not contained in this Order under which any property is to be excluded from a bankrupt's estate.

Interpretation for this Order F50. . .

Annotations:
Amendments (Textual)

“Receiver or manager”12

In this Order F51. . . —

a

any reference to a receiver or manager of the property of a company, or to a receiver of it, includes a receiver or manager, or (as the case may be) a receiver of part only of that property and a receiver only of the income arising from the property or from part of it; and

b

any reference to the appointment of a receiver or manager under powers contained in an instrument includes an appointment made under powers which, by virtue of any statutory provision are implied in and have effect as if contained in an instrument.

“Contributory”13

1 F25

In this Order F52. . . “contributory” means every person liable to contribute to the assets of a company in the event of its being wound up, and for the purposes of all proceedings for determining, and all proceedings prior to the final determination of, the persons who are to be deemed contributories, includes any person alleged to be a contributory.

2 F25

The reference in paragraph (1) to persons liable to contribute to the assets does not include a person so liable by virtue of a declaration by the High Court under Article 177 (imputed responsibility for company's fraudulent trading) or Article 178 (wrongful trading).

3 F25

A reference in a company's articles to a contributory does not (unless the context requires) include a person who is a contributory only by virtue of Article 63 (liability of past directors and shareholders).

4

F53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .