12.01.—(1) Pursuant to paragraph 27 of Schedule 5 to the Order, and paragraph 28 of Schedule 6 to the Order, the Department may, subject to the Order and the Rules, make regulations with respect to any matter provided for in the Rules as relates to deeds of arrangement, the Insolvency Account or the carrying out of the functions of a liquidator, provisional liquidator, administrator or administrative receiver of a company, an interim receiver appointed under Article 259, of the official receiver while acting as receiver or manager under Article 260 or of a trustee of a bankrupt's estate, including, without prejudice to the generality of the foregoing, provision with respect to the matters arising in companies winding up and individual bankruptcy set out in paragraph (2) and the matters arising in deeds of arrangement set out in paragraph (3).
(2) The matters arising in companies winding up and individual insolvency referred to in paragraph (1) are—
(a)the preparation and keeping by liquidators, trustees, provisional liquidators, interim receivers and the official receiver, of books, accounts and other records, and their production to such persons as may be authorised or required to inspect them;
(b)the auditing of liquidators' and trustees' accounts;
(c)the manner in which liquidators and trustees are to act in relation to the insolvent company's or bankrupt's books, papers and other records, and the manner of their disposal by the responsible insolvency practitioner or others;
(d)the supply—
(i)in company insolvency, by the liquidator to creditors and members of the company, contributories in its winding up and the liquidation commitee, and
(ii)in individual insolvency, by the trustee to creditors and the creditors' committee,
of copies of documents relating to the insolvency and the affairs of the insolvent company or individual (on payment, in such cases as may be specified by the regulations, of the specified fee);
(e)the manner in which insolvent estates are to be distributed by liquidators and trustees, including provision with respect to unclaimed funds and dividends;
(f)the manner in which moneys coming into the hands of a liquidator or trustee in the course of his administration are to be handled and, in the case of a liquidator, invested, and the payment of interest on sums which, in pursuance of regulations made by virtue of this sub-paragraph, have been paid into the Insolvency Account;
(g)the amount (or the manner of determining the amount) to be paid to the official receiver by way of remuneration when acting as provisional liquidator, liquidator, interim receiver or trustee.
(3) The matters arising in deeds of arrangement referred to in paragraph (1) are—
(a)the endorsement, execution and certification of the deed;
(b)the assent of creditors required by Article 215;
(c)the preparation and keeping of financial records by trustees and the production and inspection of such records by the Department;
(d)the statement to be sent to creditors pursuant to Article 222(1)(a);
(e)the dispensing by a majority of creditors with the giving of security by the trustee;
(f)the auditing of trustees' accounts.
(4) Any reference in paragraphs (1) and (2) to a trustee includes a reference to the official receiver when acting as receiver and manager under Article 260.
(5) Regulations made pursuant to paragraph (1) may—
(a)confer a discretion on the court;
(b)make non-compliance with any of the regulations a criminal offence;
(c)make different provision for different cases; and
(d)contain such incidental, supplemental and transitional provisions as may appear to the Department necessary or expedient.
[E.R.12.1]
12.02. All costs incurred in the course of winding up or bankruptcy proceedings are to be regarded as expenses of the winding up or, as the case may be, of the bankruptcy.
[E.R.12.2]
12.03.—(1) Subject to paragraphs (2) to (5), in both winding up and bankruptcy, all claims by creditors are provable as debts against the company or, as the case may be, the bankrupt, whether they are present or future, certain or contingent, ascertained or sounding only in damages.
(2) The following are not provable—
(a)in bankruptcy, any fine imposed for an offence, and any obligation arising under an order made in family or domestic proceedings;
(b)in winding up or bankruptcy, any obligation arising under a confiscation order made under Article 4 or 5 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (1).
(3) In paragraph (2), “fine”, “domestic proceedings” and “family proceedings” have the meanings given by Article 255(8).
(4) The following are not provable except at a time when all other claims of creditors in the insolvency proceedings (other than any of a kind mentioned in this paragraph) have been paid in full with interest under Article 160(2) or, as the case may be, Article 300(4)—
(a)in a winding up or a bankruptcy, any claim arising by virtue of—
(i)section 6(3)(a) of the Financial Services Act 1986 (2), not being a claim also arising by virtue of section 6(3)(b) of that Act, or
(ii)section 61(3)(a) of that Act, not being a claim also arising by virtue of section 61(3)(b) of that Act;
(b)in a winding up or a bankruptcy, any claim arising by virtue of section 49 of the Banking Act 1987 (3);
(c)in a winding up, any claim which by virtue of the Order or any other enactment is a claim the payment of which in a bankruptcy or a winding up is to be postponed.
(5) Nothing in this Rule prejudices any enactment or rule of law under which a particular kind of debt is not provable, whether on grounds of public policy or otherwise.
[E.R.12.3]
12.04.—(1) All notices required or authorised by or under the Order or the Rules to be given must be in writing, unless it is otherwise provided, or the court allows the notice to be given in some other way.
(2) Where in any proceedings a notice is required to be sent or given by the official receiver or by the responsible insolvency practitioner, the sending or giving of it may be proved by means of a certificate—
(a)in the case of the official receiver, by him or a member of his staff, and
(b)in the case of the responsible insolvency practitioner, by him, or his solicitor, or a partner or an employee of either of them,
that the notice was duly posted.
(3) In the case of a notice to be sent or given by a person other than the official receiver or responsible insolvency practitioner, the sending or giving of it may be proved by means of a certificate by that person that he posted the notice, or instructed another person (naming him) to do so.
(4) A certificate under this Rule may be endorsed on a copy or specimen of the notice to which it relates.
[E.R.12.4]
12.05.—(1) Any meeting of creditors or contributories in insolvency proceedings is competent to act if a quorum is present.
(2) Subject to paragraph (3), a quorum is—
(a)in the case of a creditors' meeting, at least one creditor entitled to vote;
(b)in the case of a meeting of contributories, at least two contributories so entitled, or all the contributories, if their number does not exceed two.
(3) For the purposes of this Rule, the reference to the creditor or contributories necessary to constitute a quorum is to those persons present or represented by proxy by any person (including the chairman) and in the case of any proceedings under Parts II-VII of the Order includes persons duly represented under Article 383 of the Companies Order.
(4) Where at any meeting of creditors or contributories—
(a)the provisions of this Rule as to a quorum being present are satisfied by the attendance of—
(i)the chairman alone, or
(ii)one other person in addition to the chairman, and
(b)the chairman is aware, by virtue of proofs and proxies received or otherwise, that one or more additional persons would, if attending, be entitled to vote,
the meeting shall not commence until at least the expiry of 15 minutes after the time appointed for its commencement.
[E.R.12.4A]
12.06.—(1) A minute of proceedings at a meeting (held under the Order or the Rules) of a person's creditors, or of the members of a company, or of the contributories in a company's liquidation, signed by a person describing himself as, or appearing to be, the chairman of that meeting is admissible in insolvency proceedings without further proof.
(2) The minute is prima facie evidence that—
(a)the meeting was duly convened and held,
(b)all resolutions passed at the meeting were duly passed, and
(c)all proceedings at the meeting duly took place.
[E.R.12.5]
12.07.—(1) Any document purporting to be, or to contain, any order, directions or certificate issued by the Department shall be received in evidence and deemed to be or (as the case may be) contain that order or certificate, or those directions, without further proof, unless the contrary in shown.
(2) Without prejudice to the foregoing, a certificate by the Department confirming—
(a)the making of any order,
(b)the issuing of any document, or
(c)the exercise of any discretion, power or obligation arising or imposed under the Order or the Rules,
is conclusive evidence of the matters dealt with in the certificate.
[E.R.12.6]
12.08. The forms contained in Schedule 2 shall be used in, and in connection with, insolvency proceedings.
[E.R.12.7(1)]
12.09.—(1) Wherever under the Rules any person has to appoint, or certify the appointment of, an insolvency practitioner to any office, he is under a duty to satisfy himself that the person appointed or to be appointed has security for the proper performance of his functions.
(2) It is the duty—
(a)of the creditors' committee in companies administration, administrative receivership and bankruptcy,
(b)of the liquidation committee in companies winding up, and
(c)of any committee of creditors established for the purposes of a voluntary arrangement under Part II or VIII of the Order,
to review from time to time the adequacy of the responsible insolvency practitioner's security.
(3) In any insolvency proceedings the cost of the responsible insolvency practitioner's security shall be defrayed as an expense of the proceedings.
[E.R.12.8]
12.10. The provisions of Order 3 of the Supreme Court Rules, except rules 3 and 6, apply as regards computation, extension and abridgment of time in respect of anything required or authorised by the Rules to be done.
[E.R.12.9]
12.11.—(1) For a document to be properly served by post, it must be contained in an envelope addressed to the person on whom service is to be effected, and pre-paid for either first or second class post.
(2) A document to be served by post may be sent to the last known address of the person to be served.
(3) Where first class post is used, the document is treated as served on the second business day after the date of posting, unless the contrary is shown.
(4) Where second class post is used, the document is treated as served on the fourth business day after the date of posting, unless the contrary is shown.
(5) The date of posting is presumed, unless the contrary is shown, to be the date shown in the post-mark on the envelope in which the document is contained.
[E.R.12.10]
12.12.—(1) Subject to Rule 12.11 and paragraphs (2) and (3), Order 65 of the Supreme Court Rules applies as regards any matter relating to the service of documents and the giving of notice in insolvency proceedings.
(2) In Order 65, rule 7, the expression “other originating process” does not include any application in insolvency proceedings.
(3) Order 65, rule 9 does not apply.
[E.R.12.11]
12.13.—(1) Order 11 of the Supreme Court Rules, does not apply in insolvency proceedings.
(2) A bankruptcy petition may, with the leave of the court, be served outside Northern Ireland in such manner as the court may direct.
(3) Where for the purposes of insolvency proceedings any process or order of the court, or other document, is required to be served on a person who is not in Northern Ireland, the court may order service to be effected within such time, on such person, at such place and in such manner as it thinks fit, and may also require such proof of service as it thinks fit.
(4) An application under this Rule shall be supported by an affidavit stating—
(a)the grounds on which the application is made, and
(b)in what place or country the person to be served is, or probably may be found.
[E.R.12.12]
12.14.—(1) Where in insolvency proceedings the responsible insolvency practitioner considers, in the case of a document forming part of the records of the insolvency, that—
(a)it should be treated as confidential, or
(b)it is of such a nature that its disclosure would be calculated to be injurious to the interests of the insolvent's creditors or, in the case of a company's insolvency, its members or the contributories in its winding up,
he may decline to allow it to be inspected by a person who would otherwise be entitled to inspect it.
(2) The persons to whom the responsible insolvency practitioner may under this Rule refuse inspection include the members of a liquidation committee or a creditors' committee.
(3) Where under this Rule the responsible insolvency practitioner determines to refuse inspection of a document, the person wishing to inspect it may apply to the court for that determination to be overruled; and the court may either overrule it altogether, or sustain it subject to such conditions (if any) as it thinks fit to impose.
(4) Nothing in this Rule entitles the responsible insolvency practitioner to decline to allow the inspection of any proof or proxy.
[E.R.12.13]
12.15. Where under the Order or the Rules a document of any description is to be sent to a person (whether or not as a member of a class of persons to whom that same document is to be sent), it may be sent as an accompaniment to any other document or information which the person is to receive, with or without modification or adaptation of the form applicable to that document.
[E.R.12.14]
12.16. Where the Order or the Rules confer a right for any person to inspect documents, the right includes that of taking copies of those documents, on payment—
(a)in the case of documents on the court's file of proceedings, of the fee chargeable under any order made under section 116 of the Judicature (Northern Ireland) Act 1978(4), and
(b)otherwise, of the appropriate fee.
[E.R.12.15]
12.17. Where the responsible insolvency practitioner or the official receiver is requested by a creditor, member, contributory or member of a liquidation or creditors' committee to supply copies of any documents he is entitled to require the payment of the appropriate fee in respect of the supply of the documents.
[E.R.12.15A]
12.18. Where in accordance with the Order or the Rules a meeting of creditors or other persons is summoned by notice, the meeting is presumed to have been duly summoned and held, notwithstanding that not all those to whom the notice is to be given have received it.
[E.R.12.16]
12.19.—(1) This Rule applies in any of the following proceedings—
(a)proceedings under Part III of the Order (company administration),
(b)a creditors' voluntary winding up, or a winding up by the court, and
(c)proceedings in bankruptcy.
(2) In any such proceedings a creditor who under the Rules has the right to inspect documents on the court file also has the right, subject to paragraph (3), to require the responsible insolvency practitioner to furnish him with a list of the insolvent's creditors and the amounts of their respective debts.
(3) Paragraph (2) does not apply if a statement of the insolvent's affairs has been filed in court or, in the case of a creditors' voluntary winding up, been delivered to the registrar of companies.
(4) The responsible insolvency practitioner, on being required by any person to furnish the list, shall send it to him, but is entitled to charge the appropriate fee for doing so.
[E.R.12.17]
12.20.—(1) Where the Rules provide for creditors, members of a company or contributories in a company's winding up a right to inspect any documents, whether on the court's file or in the hands of a responsible insolvency practitioner or other person, it is an offence for a person, with the intention of obtaining a sight of documents which he has not under the Rules any right to inspect, falsely to claim a status which would entitle him to inspect them.
(2) A person guilty of an offence under this Rule is liable to imprisonment or a fine, or both.
[E.R.12.18]
12.21.—(1) A copy of the Gazette containing any notice required by the Order or the Rules to be gazetted is evidence of any facts stated in the notice.
(2) In the case of an order of the court notice of which is required by the Order or the Rules to be gazetted, a copy of the Gazette containing the notice may in any proceedings be produced as conclusive evidence that the order was made on the date specified in the notice.
(3) Where an order of the court which is gazetted has been varied, and where any matter has been erroneously or inaccurately gazetted, the person whose responsibility it was to procure the requisite entry in the Gazette shall forthwith cause the variation of the order to be gazetted or, as the case may be, a further entry to be made in the Gazette for the purpose of correcting the error or inaccuracy.
[E.R.12.20]
12.22.—(1) Schedule 3 has effect with respect to the way in which contraventions of the Rules are punishable on conviction.
(2) In relation to an offence under a provision of the Rules specified in the first column of the Schedule (the general nature of the offence being described in the second column), the third column shows whether the offence is punishable on conviction on indictment, or on summary conviction, or either in the one way or the other.
(3) The fourth column shows, in relation to an offence, the maximum punishment by way of fine or imprisonment which may be imposed on a person convicted of the offence in the way specified in relation to it in the third column (that is to say, on indictment or summarily), a reference to a period of years or months being to a term of imprisonment of that duration.
(4) The fifth column shows (in relation to an offence for which there is an entry in that column) that a person convicted of the offence after continued contravention is liable to a daily default fine; that is to say, he is liable on a second or subsequent conviction of the offence to the fine specified in that column for each day on which the contravention is continued (instead of the penalty specified for the offence in the fourth column of the Schedule).
(5) Article 374 (summary proceedings) has effect in relation to offences under the Rules as to offences under the Order.
[E.R.12.21]