PART IN.I.INTRODUCTORY

Modifications etc. (not altering text)

N.I.

Title and commencementN.I.

1.—(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.

F1partly exercised, SRs 1990/177; 1991/294, 300, 411; 2002/126

General interpretationN.I.

2.—(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—

[F24(2A) 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).]

[F25(3) 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.

F3mod. by SR 2004/307

F4SR 1991/366

F15Words in art. 2(2) in definition of "the official receiver" substituted (27.3.2006) by Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455 (N.I. 10)), arts. 1(3), 25, Sch. 8 para. 2 (with art. 4); S.R. 2006/21, art. 2 (with S.R. 2006/22, arts. 2 - 7)

F16Art. 2(2): words in definition of "official receiver" substituted (30.6.2011) by Debt Relief Act (Northern Ireland) 2010 (c. 16), ss. 6, 7(1), Sch. para. 4(2); S.R. 2011/13, art. 2

F18Words in art. 2(2) in para. (b) of the definition of "prescribed" inserted (27.3.2006) by Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455 (N.I. 10)), arts. 1(3), 7(2), (with art. 4); S.R. 2006/21, art. 2 (with S.R. 2006/22, arts. 2 - 7)

Modifications etc. (not altering text)

Proceedings under EU Regulation: modified definition of propertyN.I.

F262A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“Act as insolvency practitioner”N.I.

3.—(1) A person acts as an insolvency practitioner in relation to a company by acting—

(a)as its liquidator, provisional liquidator, administrator [F27, administrative receiver or monitor], or

[F28(b)where a voluntary arrangement in relation to the company is proposed or approved under Part II, as nominee or supervisor.]

(2 )F29 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

F30(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F28(c)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.

[F31(3 )F29 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

[F32(c)where a voluntary arrangement in relation to the insolvent partnership is proposed or approved under Part II, as nominee or supervisor.]]

[F28(3A) 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 )F29 In this Article—

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

[F33“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).]

[F34“monitor” has the same meaning as in Part 1A (moratorium).]

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

F35(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F29mod. by SR 2004/307

F31SR 1995/225

F32SR 2003/550

Modifications etc. (not altering text)

“Associate”N.I.

4.—(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).

[F36(2) 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 wife[F36 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.

F37(4) 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 F38... of this Order, Parts VIII to IX of the Insolvency Act 1986F39 or the Bankruptcy (Scotland) Act [F402016], or

(b)a pension scheme or an employees' share scheme F41. . . ,

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 wife[F36 and references to a civil partner include a former civil partner][F42 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 )F37 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.

F37mod. by SR 2004/307

F42SR 2005/479

Modifications etc. (not altering text)

Interpretation for [F43Parts 1A to 7] N.I.

F43Words 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))

InterpretationN.I.

5.—(1 )F44 In [F45Parts 1A to 7]—

[F62(1A) 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) F63. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F44mod. by SR 2004/307

F46Art. 5(1): definitions of "administrator" and "administration order" repealed (27.3.2006) by Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455 (N.I. 10)), arts. 1(3), 3(3), 31, Sch. 2 para. 19, Sch. 9 (with art. 4); S.R. 2006/21, art. 2 (with S.R. 2006/22, arts. 2-7)

“Insolvency” and“go into liquidation”N.I.

6.—(1) In [F64Parts 1A to 7], “insolvency”, in relation to a company, includes [F65the coming into force of a moratorium for the company under Part 1A,] the approval of a voluntary arrangement under Part II,[F66or the appointment of an administrator or administrative receiver].

(2 )F67 For the purposes of any provision in [F64Parts 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.

[F68(3) 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, F69...

F69(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F67mod. by SR 2004/307

“Connected with a company”N.I.

F707.  For the purposes of any provision in [F71Parts 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.

F70mod. by SR 2004/307

Modifications etc. (not altering text)

“Member of a company”N.I.

8 .F72  For the purposes of any provision in [F73Parts 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.

F72mod. by SR 2004/307

[F74Parts 7A to 10]N.I.

InterpretationN.I.

9 .F75—(1) In [F76Parts 7A to 10]—

(2) References in [F81Parts 7A to 10] to a person's affairs include his business, if any.

F82(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F83(5) 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.]

F75mod. by SR 2004/307

F78Art. 9(1): words in definition of "the debtor" inserted (30.6.2011) by Debt Relief Act (Northern Ireland) 2010 (c. 16), ss. 6, 7(1), Sch. para. 4(4)(a)(ii); S.R. 2011/13, art. 2

F80SR 1991/365

“Security”, etc.N.I.

10 .F84—(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 [F85Parts 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.

F84mod. by SR 2004/307

“Bankrupt's estate”N.I.

11 .F86—(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 1981F87 (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.

[F88(5A) 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.

F86mod. by SR 2004/307

Interpretation for this Order F89. . . N.I.

“Receiver or manager”N.I.

12.  In this Order F90. . . —

(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”N.I.

13.—(1 )F91 In this Order F92. . . “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 )F91 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 )F91 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) F93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F91mod. by SR 2004/307