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The Insolvency (Northern Ireland) Order 1989, PART XI is up to date with all changes known to be in force on or before 27 June 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
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F1Words in Pt. 11 heading inserted (19.12.2018) by The Banks and Building Societies (Priorities on Insolvency) Order 2018 (S.I. 2018/1244), arts. 1(2), 28 (with art. 3)
Modifications etc. (not altering text)
C1Pts. 1-5, 7, 11-14 modified by S.R. 2004/307 (as amended (1.10.2006) by Limited Liability Partnerships (Amendment) Regulations (Northern Ireland) 2006 (S.R. 2006/377), reg. 3, Sch. 2; (temp.) (27.4.2020 retrospective) by virtue of Corporate Insolvency and Governance Act 2020 (c. 12), Sch. 11 para. 8(1)(2), 14 (with ss. 2(2), 5(2)))
346.—(1 )F2 A reference in this Order to the preferential debts of a company or an individual is to the debts listed in Schedule 4[F3 (contributions to occupational pension schemes; remuneration, &c. of employees; levies on coal and steel production [F4; debts owed to the Financial Services Compensation Scheme] [F5; deposits covered by the Financial Services Compensation Scheme; other deposits])]; and references to preferential creditors are to be read accordingly.
[F6(1A) A reference in this Order to the “ordinary preferential debts” of a company or an individual is to the preferential debts listed in any of paragraphs 8 to 18 of Schedule 4 to this Order.
(1B) A reference in this Order to the “secondary preferential debts” of a company or an individual is to the preferential debts listed in paragraphs 19 or 20 of Schedule 4 to this Order.]
(2 )F2 In Schedule 4 “the debtor” means the company or the individual concerned.
(3) Schedule 4 is to be read with Schedule 4 to the Social Security Pensions (Northern Ireland) Order 1975F7 (occupational pension scheme contributions).
F2mod. by SR 2004/307
F3Words in art. 346(1) substituted (27.3.2006) by Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455 (N.I. 10)), arts. 1(3), 6(2) (with art. 4); S.R. 2006/21, art. 2 (with S.R. 2006/22, arts. 2 - 7)
F4Words in art. 346(1) inserted (26.3.2015) by The Deposit Guarantee Scheme Regulations 2015 (S.I. 2015/486), regs. 1(2), 15(2)
F5Words in art. 346(1) inserted (1.1.2015) by The Banks and Building Societies (Depositor Preference and Priorities) Order 2014 (S.I. 2014/3486), arts. 1(2), 20(2) (with art. 3)
F6Art. 346(1A)(1B) inserted (1.1.2015) by The Banks and Building Societies (Depositor Preference and Priorities) Order 2014 (S.I. 2014/3486), arts. 1(2), 20(3) (with art. 3)
347.—(1) This Article explains references in Schedule 4 to the relevant date (being the date which determines the existence and amount of a preferential debt).
(2) For the purposes of Article 17 (meetings to consider company voluntary arrangement), the relevant date in relation to a company which is not being wound up is—
[F8(a)if the company is in administration, the date on which it entered administration, and
(b)if the company is not in administration, the date on which the voluntary arrangement takes effect.]
[F9(2A) For the purposes of paragraph 41 of Schedule A1 (meetings to consider company voluntary arrangement where a moratorium under Article 14A is in force), the relevant date in relation to a company is the date of filing.]
(3) In relation to a company which is being wound up, the following applies—
(a)if the winding up is by the High Court, and the winding‐up order was made immediately upon the discharge of an administration order, the relevant date is[F10the date on which the company entered administration];
[F11(aa)if the winding up is by the Court and the winding-up order was made following conversion of administration into winding up by virtue of [F12Article 51 of the EU Regulation], the relevant date is[F10the date on which the company entered administration];
(ab )F13if the company is deemed to have passed a resolution for voluntary winding up by virtue of an order following conversion of administration into winding up under [F14Article 51 of the EU Regulation], the relevant date is[F10the date on which the company entered administration];]
(b)if the case does not fall within sub‐paragraph (a)[F11, (aa) or (ab)] and the company—
(i)is being wound up by the Court, and
(ii)had not commenced to be wound up voluntarily before the date of the making of the winding‐up order,
the relevant date is the date of the appointment (or first appointment) of a provisional liquidator or, if no such appointment has been made, the date of the winding‐up order;
[F15(ba)if the case does not fall within sub-paragraph (a), (aa), (ab) or (b) and the company is being wound up following administration pursuant to paragraph 84 of Schedule B1, the relevant date is the date on which the company entered administration;]
(c )F13if the case does not fall within[F16 sub-paragraph (a), (aa), (ab), (b) or (ba)], the relevant date is the date of the passing of the resolution for the winding up of the company.
[F17(3A) In relation to a company which is in administration (and to which no other provision of this Article applies) the relevant date is the date on which the company enters administration.]
(4) In relation to a company in receivership (where Article 50 applies), the relevant date is the date of the appointment of the receiver by debenture‐holders.
(5 )F13 For the purposes of Article 232 (meeting to consider individual voluntary arrangements), the relevant date is, in relation to a debtor who is not an undischarged bankrupt
[F18(a)where an interim order has been made under Article 226 with respect to his proposal, the date of that order, and
(b)in any other case, the date on which the voluntary arrangement takes effect.]
(6 )F13 In relation to a bankrupt, the following applies—
(a)where at the time the bankruptcy order was made there was an interim receiver appointed under Article 259, the relevant date is the date on which the interim receiver was first appointed after the presentation of the bankruptcy petition;
(b)otherwise, the relevant date is the date of the making of the bankruptcy order.
[F19(7) Nothing in this Article affects the definition of “the relevant date” in Article 5(1A).]
F8Art. 347(2)(a)(b) substituted (27.3.2006) by Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455 (N.I. 10)), arts. 1(3), 3(3), Sch. 2 para. 42(2) (with art. 4); S.R. 2006/21, art. 2 (with S.R. 2006/22, arts. 2 - 7)
F10Words in art. 347(3)(a)(aa)(ab) substituted (27.3.2006) by Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455 (N.I. 10)), arts. 1(3), 3(3), Sch. 2 para. 42(3)(a) (with art. 4); S.R. 2006/21, art. 2 (with S.R. 2006/22, arts. 2 - 7)
F11SR 2002/334
F12Words in art. 347(3)(aa) substituted (26.6.2017) by The Insolvency Amendment (EU 2015/848) Regulations 2017 (S.I. 2017/702), reg. 1, Sch. para. 114 (with reg. 3)
F13mod. by SR 2004/307
F14Words in art. 347(3)(ab) substituted (26.6.2017) by The Insolvency Amendment (EU 2015/848) Regulations 2017 (S.I. 2017/702), reg. 1, Sch. para. 114 (with reg. 3)
F15Art. 347(3)(ba) inserted (27.3.2006) by Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455 (N.I. 10)), arts. 1(3), 3(3), Sch. 2 para. 42(3)(b) (with art. 4); S.R. 2006/21, art. 2 (with S.R. 2006/22, arts. 2 - 7)
F16Words in art. 347(3)(c) substituted (27.3.2006) by Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455 (N.I. 10)), arts. 1(3), 3(3), Sch. 2 para. 42(3)(c) (with art. 4); S.R. 2006/21, art. 2 (with S.R. 2006/22, arts. 2 - 7)
F17Art. 347(3A) inserted (27.3.2006) by Insolvency (Northern Ireland) Order 2005 (S.I. 2005/1455 (N.I. 10)), arts. 1(3), 3(3), Sch. 2 para. 42(4) (with art. 4); S.R. 2006/21, art. 2 (with S.R. 2006/22, arts. 2 - 7)
F19Art. 347(7) inserted (1.4.2016) by Insolvency (Amendment) Act (Northern Ireland) 2016 (c. 2), ss. 9(5), 28(2) (with Sch. 2 paras. 6-10); S.R. 2016/203, art. 2
347A.—(1) In this Order “relevant financial institution” means any of the following—
(a)a credit institution,
(b)an investment firm,
(c)a financial holding company,
(d)a mixed financial holding company.
(e)a financial institution which is—
(i)a subsidiary of an entity referred to in sub-paragraphs (a) to (d), and
(ii)covered by the supervision of that entity on a consolidated basis in accordance with Articles 6 to 17 of Regulation (EU) No 575/2013, or
(f)a mixed-activity holding company.
(2) The definitions in Article 4 of Regulation (EU) No. 575/2013 apply for the purposes of paragraph (1).
(3) In this Order, in relation to a relevant financial institution—
(a)“ordinary non-preferential debts” means non-preferential debts which are neither secondary non-preferential debts nor tertiary non-preferential debts;
(b)“secondary non-preferential debts” means non-preferential debts issued under an instrument where—
(i)the original contractual maturity of the instrument is of at least one year,
(ii)the instrument is not a derivative and contains no embedded derivative, and
(iii)the relevant contractual documentation and where applicable the prospectus related to the issue of the debts explain the priority of the debts under this Order, and
(c)“tertiary non-preferential debts” means all subordinated debts, including (but not limited to) debts under Common Equity Tier 1 instruments, Additional Tier 1 instruments and Tier 2 instruments (all within the meaning of Part 1 of the Banking Act 2009).
(4) In paragraph(3)(b), “derivative” has the same meaning as in Article 2(5) of Regulation (EU) No 648/2012.
(5) For the purposes of paragraph (3)(b)(ii) an instrument does not contain an embedded derivative merely because—
(a)it provides for a variable interest rate derived from a broadly used reference rate, or
(b)it is not denominated in the domestic currency of the person issuing the debt (provided that the principal, repayment and interest are denominated in the same currency).]
F20Art. 347A inserted (19.12.2018) by The Banks and Building Societies (Priorities on Insolvency) Order 2018 (S.I. 2018/1244), arts. 1(2), 29 (with art. 3)
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