The First Group of Parts Company Insolvency; Companies Winding Up
Part I Company Voluntary Arrangements
The Proposal
1 Those who may propose an arrangement.
(1)
The directors of a company F1(other than one which is in administration or being wound up) may make a proposal under this Part to the company and to its creditors for a composition in satisfaction of its debts or a scheme of arrangement of its affairs (from here on referred to, in either case, as a “voluntary arrangement”).
(2)
A proposal under this Part is one which provides for some person (“the nominee”) to act in relation to the voluntary arrangement either as trustee or otherwise for the purpose of supervising its implementation; and the nominee must be a person who is qualified to act as an insolvency practitioner F2or authorised to act as nominee, in relation to the voluntary arrangement.
(3)
Such a proposal may also be made—
F3(a)
where the company is in administration, by the administrator,
(b)
where the company is being wound up, by the liquidator.
F4(4)
In this Part “company” means—
F5(a)
a company registered under the Companies Act 2006 in England and Wales or Scotland;
(b)
a company incorporated in an EEA State other than the United Kingdom; or
(c)
a company not incorporated in an EEA State but having its centre of main interests in a member State other than Denmark.
(5)
In subsection (4), in relation to a company, “centre of main interests” has the same meaning as in the EC Regulation and, in the absence of proof to the contrary, is presumed to be the place of its registered office (within the meaning of that Regulation).
(6)
If a company incorporated outside the United Kingdom has a principal place of business in Northern Ireland, no proposal under this Part shall be made in relation to it unless it also has a principal place of business in England and Wales or Scotland (or both in England and Wales or Scotland).
F61A Moratorium.
(1)
Where the directors of an eligible company intend to make a proposal for a voluntary arrangement, they may take steps to obtain a moratorium for the company.
(2)
The provisions of Schedule A1 to this Act have effect with respect to—
(a)
companies eligible for a moratorium under this section,
(b)
the procedure for obtaining such a moratorium,
(c)
the effects of such a moratorium, and
(d)
the procedure applicable (in place of sections 2 to 6 and 7) in relation to the approval and implementation of a voluntary arrangement where such a moratorium is or has been in force.
2 Procedure where nominee is not the liquidator or administrator.
(1)
This section applies where the nominee under section 1 is not the liquidator or administrator of the company F7and the directors do not propose to take steps to obtain a moratorium under section 1A for the company.
(2)
The nominee shall, within 28 days (or such longer period as the court may allow) after he is given notice of the proposal for a voluntary arrangement, submit a report to the court stating—
(a)
F8whether, in his opinion, the proposed voluntary arrangement has a reasonable prospect of being approved and implemented,
F8(aa)
whether, in his opinion, meetings of the company and of its creditors should be summoned to consider the proposal, and
(b)
if in his opinion such meetings should be summoned, the date on which, and time and place at which, he proposes the meetings should be held.
(3)
For the purposes of enabling the nominee to prepare his report, the person intending to make the proposal shall submit to the nominee—
(a)
a document setting out the terms of the proposed voluntary arrangement, and
(b)
a statement of the company’s affairs containing—
(i)
such particulars of its creditors and of its debts and other liabilities and of its assets as may be prescribed, and
(ii)
such other information as may be prescribed.
F9(4)
The court may—
(a)
on an application made by the person intending to make the proposal, in a case where the nominee has failed to submit the report required by this section or has died, or
(b)
on an application made by that person or the nominee, in a case where it is impracticable or inappropriate for the nominee to continue to act as such,
direct that the nominee be replaced as such by another person qualified to act as an insolvency practitioner, or authorised to act as nominee, in relation to the voluntary arrangement.
3 Summoning of meetings.
(1)
Where the nominee under section 1 is not the liquidator or administrator, and it has been report to the court that such meetings as are mentioned in section 2(2) should be summoned, the person making the report shall (unless the court otherwise directs) summon those meetings for the time, date and place proposed in the report.
(2)
Where the nominee is the liquidator or administrator, he shall summon meetings of the company and of its creditors to consider the proposal for such a time, date and place as he thinks fit.
(3)
The persons to be summoned to a creditors’ meeting under this section are every creditor of the company of whose claim and address the person summoning the meeting is aware.
Consideration and implementation of proposal
4 Decisions of meetings.
(1)
The meetings summoned under section 3 shall decide whether to approve the proposed voluntary arrangement (with or without modifications).
(2)
The modifications may include one conferring the functions proposed to be conferred on the nominee on another person qualified to act as an insolvency practitioner F10or authorised to act as nominee, in relation to the voluntary arrangement.
But they shall not include any modification by virtue of which the proposal ceases to be a proposal such as is mentioned in section 1.
(3)
A meeting so summoned shall not approve any proposal or modification which affects the right of a secured creditor of the company to enforce his security, except with the concurrence of the creditor concerned.
(4)
Subject as follows, a meeting so summoned shall not approve any proposal or modification under which—
(a)
any preferential debt of the company is to be paid otherwise than in priority to such of its debts as are not preferential debts, or
(b)
a preferential creditor of the company is to be paid an amount in respect of a preferential debt that bears to that debt a smaller proportion than is borne to another preferential debt by the amount that is to be paid in respect of that other debt.
However, the meeting may approve such a proposal or modification with the concurrence of the preferential creditor concerned.
(5)
Subject as above, each of the meetings shall be conducted in accordance with the rules.
(6)
After the conclusion of either meeting in accordance with the rules, the chairman of the meeting shall report the result of the meeting to the court, and, immediately after reporting to the court, shall give notice of the result of the meeting to such persons as may be prescribed.
(7)
References in this section to preferential debts and preferential creditors are to be read in accordance with section 386 in Part XII of this Act.
F114A Approval of arrangement.
(1)
This section applies to a decision, under section 4, with respect to the approval of a proposed voluntary arrangement.
(2)
The decision has effect if, in accordance with the rules—
(a)
it has been taken by both meetings summoned under section 3, or
(b)
(subject to any order made under subsection (4)) it has been taken by the creditors’ meeting summoned under that section.
(3)
If the decision taken by the creditors’ meeting differs from that taken by the company meeting, a member of the company may apply to the court.
(4)
An application under subsection (3) shall not be made after the end of the period of 28 days beginning with—
(a)
the day on which the decision was taken by the creditors’ meeting, or
(b)
where the decision of the company meeting was taken on a later day, that day.
(5)
Where a member of a regulated company, within the meaning given by paragraph 44 of Schedule A1, applies to the court under subsection (3), the Financial Services Authority is entitled to be heard on the application.
(6)
On an application under subsection (3), the court may—
(a)
order the decision of the company meeting to have effect instead of the decision of the creditors’ meeting, or
(b)
make such other order as it thinks fit.
5 Effect of approval.
F12(1)
This section applies where a decision approving a voluntary arrangement has effect under section 4A.
(2)
The F13. . . voluntary arrangement—
(a)
takes effect as if made by the company at the creditors’ meeting, and
F14(b)
binds every person who in accordance with the rules—
(i)
was entitled to vote at that meeting (whether or not he was present or represented at it), or
(ii)
would have been so entitled if he had had notice of it,
as if he were a party to the voluntary arrangement.
(2A)
If—
(a)
when the arrangement ceases to have effect any amount payable under the arrangement to a person bound by virtue of subsection (2)(b)(ii) has not been paid, and
(b)
the arrangement did not come to an end prematurely,
the company shall at that time become liable to pay to that person the amount payable under the arrangement.
(3)
Subject as follows, if the company is being wound up or F15is in administration, the court may do one or both of the following, namely—
(a)
by order stay or sist all proceedings in the winding up or F15provide for the appointment of the administrator to cease to have effect;
(b)
give such directions with respect to the conduct of the winding up or the administration as it thinks appropriate for facilitating the implementation of the F13. . . voluntary arrangement.
(4)
The court shall not make an order under subsection (3)(a)—
(a)
at any time before the end of the period of 28 days beginning with the first day on which each of the reports required by section 4(6) has been made to the court, or
(b)
at any time when an application under the next section or an appeal in respect of such an application is pending, or at any time in the period within which such an appeal may be brought.
F16(5)
Where the company is in energy administration, the court shall not make an order or give a direction under subsection (3) unless—
(a)
the court has given the Secretary of State or the Gas and Electricity Markets Authority a reasonable opportunity of making representations to it about the proposed order or direction; and
(b)
the order or direction is consistent with the objective of the energy administration.
(6)
In subsection (5) “in energy administration” and “objective of the energy administration” are to be construed in accordance with Schedule B1 to this Act, as applied by Part 1 of Schedule 20 to the Energy Act 2004.
6 Challenge of decisions.
(1)
Subject to this section, an application to the court may be made, by any of the persons specified below, on one or both of the following grounds, namely—
(a)
that a voluntary arrangement F17which has effect under section 4A unfairly prejudices the interests of a creditor, member or contributory of the company;
(b)
that there has been some material irregularity at or in relation to either of the meetings.
(2)
The persons who may apply under F18subsection (1) are—
(a)
a person entitled, in accordance with the rules, to vote at either of the meetings;
F19(aa)
a person who would have been entitled, in accordance with the rules, to vote at the creditors’ meeting if he had had notice of it
(b)
the nominee or any person who has replaced him under section 2(4) or 4(2); and
(c)
if the company is being wound up or F20is in administration, the liquidator or administrator.
F21(2A)
Subject to this section, where a voluntary arrangement in relation to a company in energy administration is approved at the meetings summoned under section 3, an application to the court may be made—
(a)
by the Secretary of State, or
(b)
with the consent of the Secretary of State, by the Gas and Electricity Markets Authority,
on the ground that the voluntary arrangement is not consistent with the achievement of the objective of the energy administration.
(3)
An application under this section shall not be madeF22(a)after the end of the period of 28 days beginning with the first day on which each of the reports required by section 4(6) has been made to the court F23or
(b)
in the case of a person who was not given notice of the creditors’ meeting, after the end of the period of 28 days beginning with the day on which he became aware that the meeting had taken place,
but (subject to that) an application made by a person within subsection (2)(aa) on the ground that the voluntary arrangement prejudices his interests may be made after the arrangement has ceased to have effect, unless it came to an end prematurely.
(4)
Where on such an application the court is satisfied as to either of the grounds mentioned in subsection (1) F24or, in the case of an application under subsection (2A), as to the ground mentioned in that subsection, it may do one or both of the following, namely—
(a)
(b)
give a direction to any person for the summoning of further meetings to consider any revised proposal the person who made the original proposal may make or, in the case falling within subsection (1)(b), a further company or (as the case may be) creditors’ meeting to reconsider the original proposal.
(5)
Where at any time after giving a direction under subsection (4)(b) for the summoning of meetings to consider a revised proposal the court is satisfied that the person who made the original proposal does not intend to submit a revised proposal, the court shall revoke the direction and revoke or suspend any F27decision approving the voluntary arrangement which has effect under section 4A.
(6)
In a case where the court, on an application under this section with respect to any meeting—
(a)
gives a direction under subsection (4)(b), or
(b)
revokes or suspends an approval under subsection (4)(a) or (5),
the court may give such supplemental directions as it thinks fit and, in particular, directions with respect to things done F28under the voluntary arrangement since it took effect.
(7)
Except in pursuance of the preceding provisions of this section, F29a decision taken at a meeting summoned under section 3 is not invalidated by any irregularity at or in relation to the meeting.
F30(8)
In this section “in energy administration” and “objective of the energy administration” are to be construed in accordance with Schedule B1 to this Act, as applied by Part 1 of Schedule 20 to the Energy Act 2004.
F316A False representations, etc.
(1)
If, for the purpose of obtaining the approval of the members or creditors of a company to a proposal for a voluntary arrangement, a person who is an officer of the company—
(a)
makes any false representation, or
(b)
fraudulently does, or omits to do, anything,
he commits an offence.
(2)
Subsection (1) applies even if the proposal is not approved.
(3)
For purposes of this section “officer” includes a shadow director.
(4)
A person guilty of an offence under this section is liable to imprisonment or a fine, or both.
7 Implementation of proposal.
(1)
This section applies where a voluntary arrangement F32has effect under section 4A.
(2)
The person who is for the time being carrying out in relation to the voluntary arrangement the functions conferred—
F33(a)
on the nominee by virtue of the approval given at one or both of the meetings summoned under section 3
(b)
by virtue of section 2(4) or 4(2) on a person other than the nominee,
shall be known as the supervisor of the voluntary arrangement.
(3)
If any of the company’s creditors or any other person is dissatisfied by any act, omission or decision of the supervisor, he may apply to the court; and on the application the court may—
(a)
confirm, reverse or modify any act or decision of the supervisor,
(b)
give him directions, or
(c)
make such other order as it thinks fit.
(4)
The supervisor—
(a)
may apply to the court for directions in relation to any particular matter arising under the voluntary arrangement, and
(b)
is included among the persons who may apply to the court for the winding up of the company or for an administration order to be made in relation to it.
(5)
The court may, whenever—
(a)
it is expedient to appoint a person to carry out the functions of the supervisor, and
(b)
it is inexpedient, difficult or impracticable for an appointment to be made without the assistance of the court,
make an order appointing a person who is qualified to act as an insolvency practitioner F34or authorised to act as supervisor, in relation to the voluntary arrangement, either in substitution for the existing supervisor or to fill a vacancy.
(6)
The power conferred by subsection (5) is exercisable so as to increase the number of persons exercising the functions of supervisor or, where there is more than one person exercising those functions, so as to replace one or more of those persons.
F357A Prosecution of delinquent officers of company.
(1)
This section applies where a moratorium under section 1A has been obtained for a company or the approval of a voluntary arrangement in relation to a company has taken effect under section 4A or paragraph 36 of Schedule A1.
(2)
If it appears to the nominee or supervisor that any past or present officer of the company has been guilty of any offence in connection with the moratorium or, as the case may be, voluntary arrangement for which he is criminally liable, the nominee or supervisor shall forthwith—
(a)
report the matter to the appropriate authority, and
(b)
provide the appropriate authority with such information and give the authority such access to and facilities for inspecting and taking copies of documents (being information or documents in the possession or under the control of the nominee or supervisor and relating to the matter in question) as the authority requires.
In this subsection, “the appropriate authority” means—
- (i)
in the case of a company registered in England and Wales, the Secretary of State, and
- (ii)
in the case of a company registered in Scotland, the Lord Advocate.
(3)
Where a report is made to the Secretary of State under subsection (2), he may, for the purpose of investigating the matter reported to him and such other matters relating to the affairs of the company as appear to him to require investigation, exercise any of the powers which are exercisable by inspectors appointed under section 431 or 432 of the F36the Companies Act 1985 to investigate a company’s affairs.
(4)
For the purpose of such an investigation any obligation imposed on a person by any provision of the F37the Companies Acts to produce documents or give information to, or otherwise to assist, inspectors so appointed is to be regarded as an obligation similarly to assist the Secretary of State in his investigation.
(5)
An answer given by a person to a question put to him in exercise of the powers conferred by subsection (3) may be used in evidence against him.
(6)
However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the answer may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(7)
Subsection (6) applies to any offence other than—
(a)
an offence under section 2 or 5 of the M1Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath), or
(b)
an offence under section 44(1) or (2) of the M2Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath).
(8)
Where a prosecuting authority institutes criminal proceedings following any report under subsection (2), the nominee or supervisor, and every officer and agent of the company past and present (other than the defendant or defender), shall give the authority all assistance in connection with the prosecution which he is reasonably able to give.
For this purpose—
“agent” includes any banker or solicitor of the company and any person employed by the company as auditor, whether that person is or is not an officer of the company,
“prosecuting authority” means the Director of Public Prosecutions, the Lord Advocate or the Secretary of State.
(9)
The court may, on the application of the prosecuting authority, direct any person referred to in subsection (8) to comply with that subsection if he has failed to do so.
F387B Arrangements coming to an end prematurely.
For the purposes of this Part, a voluntary arrangement the approval of which has taken effect under section 4A or paragraph 36 of Schedule A1 comes to an end prematurely if, when it ceases to have effect, it has not been fully implemented in respect of all persons bound by the arrangement by virtue of section 5(2)(b)(i) or, as the case may be, paragraph 37(2)(b)(i) of Schedule A1.
F39Part IIadministration
8 Administration
Schedule B1 to this Act (which makes provision about the administration of companies) shall have effect.
F40Part II Administration Orders
Making etc. of administration order
9 Application for order.
(1)
An application to the court for an administration order shall be by petition presented either by the company or the directors, or by a creditor or creditors (including any contingent or prospective creditor or creditors), F41or by the clerk of a magistrates’ court in the exercise of the power conferred by section 87A of the Magistrates’ Courts Act 1980 (enforcement of fines imposed on companies) or by all or any of those parties, together or separately.
(2)
Where a petition is presented to the court—
(a)
notice of the petition shall be given forthwith to any person who has appointed, or is or may be entitled to appoint, an administrative receiver of the company, and to such other persons as may be prescribed, and
(b)
the petition shall not be withdrawn except with the leave of the court.
(3)
Where the court is satisfied that there is an administrative receiver of the company, the court shall dismiss the petition unless it is also satisfied either—
(a)
that the person by whom or on whose behalf the receiver was appointed has consented to the making of the order, or
(b)
that, if an administration order were made, any security by virtue of which the receiver was appointed would—
F42(i)
be void against the administrator to any extent by virtue of the provisions of Part XII of the Companies Act 1985 (registration of company charges),
F42(i)(ii)
be liable to be released or discharged under sections 238 to 240 in Part VI (transactions at an undervalue and preferences),
F42(ii)(iii)
be avoided under section 245 in that Part (avoidance of floating charges), or
F42(iii)(iv)
be challengeable under section 242 (gratuitous alienations) or 243 (unfair preferences) in that Part, or under any rule of law in Scotland.
(4)
Subject to subsection (3), on hearing a petition the court may dismiss it, or adjourn the hearing conditionally or unconditionally, or make an interim order or any other order that it thinks fit.
(5)
Without prejudice to the generality of subsection (4), an interim order under that subsection may restrict the exercise of any powers of the directors or of the company (whether by reference to the consent of the court or of a person qualified to act as an insolvency practitioner in relation to the company, or otherwise).
10 Effect of application.
(1)
During the period beginning with the presentation of a petition for an administration order and ending with the making of such an order or the dismissal of the petition—
(a)
no resolution may be passed or order made for the winding up of the company;
F43(aa)
no landlord or other person to whom rent is payable may exercise any right of forfeiture by peaceable re-entry in relation to premises let to the company in respect of a failure by the company to comply with any term or condition of its tenancy of such premises, except with the leave of the court and subject to such terms as the court may impose
(b)
no steps may be taken to enforce any security over the company’s property, or to repossess goods in the company’s possession under any hire-purchase agreement, except with the leave of the court and subject to such terms as the court may impose; and
(c)
no other proceedings and no execution or other legal process may be commenced or continued, and no distress may be levied, against the company or its property except with the leave of the court and subject to such terms as aforesaid.
(2)
Nothing in subsection (1) requires the leave of the court—
(a)
for the presentation of a petition for the winding up of the company,
(b)
for the appointment of an administrative receiver of the company, or
(c)
for the carrying out by such a receiver (whenever appointed) of any of his functions.
(3)
Where—
(a)
a petition for an administration order is presented at a time when there is an administrative receiver of the company, and
(b)
the person by or on whose behalf the receiver was appointed has not consented to the making of the order,
the period mentioned in subsection (1) is deemed not begin unless and until that person so consents.
(4)
References in this section and the next to hire-purchase agreements include conditional sale agreements, chattel leasing agreements and retention of title agreements.
(5)
In the application of this section and the next to Scotland, references to execution being commenced or continued include references to diligence being carried out or continued, and references to distress being levied shall be omitted.
11 Effect of order.
(1)
On the making of an administration order—
(a)
any petition for the winding up of the company shall be dismissed, and
(b)
any administrative receiver of the company shall vacate office.
(2)
Where an administration order has been made, any receiver of part of the company’s property shall vacate office on being required to do so by the administrator.
(3)
During the period for which an administration order is in force—
(a)
no resolution may be passed or order made for the winding up of the company;
(b)
no administrative receiver of the company may be appointed;
F44(ba)
no landlord or other person to whom rent is payable may exercise any right of forfeiture by peaceable re-entry in relation to premises let to the company in respect of a failure by the company to comply with any term or condition of its tenancy of such premises, except with the consent of the administrator or the leave of the court and subject (where the court gives leave) to such terms as the court may impose
(c)
no other steps may be taken to enforce any security over the company’s property, or to repossess goods in the company’s possession under any hire-purchase agreement, except with the consent of the administrator or the leave of the court and subject (where the court gives leave) to such terms as the court may impose; and
(d)
no other proceedings and no execution or other legal process may be commenced or continued, and no distress may be levied, against the company or its property except with the consent of the administrator or the leave of the court and subject (where the court gives leave) to such terms as aforesaid.
(4)
Where at any time an administrative receiver of the company has vacated office under subsection (1)(b), or a receiver of part of the company’s property has vacated office under subsection (2)—
(a)
his remuneration and any expenses properly incurred by him, and
(b)
any indemnity to which he is entitled out of the assets of the company.
shall be charged on and (subject to subsection (3) above) paid out of any property of the company which was in his custody or under his control at that time in priority to any security held by the person by or on whose behalf he was appointed.
(5)
Neither an administrative receiver who vacates office under subsection (1)(b) nor a receiver who vacates office under subsection (2) is required on or after so vacating office to take any steps for the purpose of complying with any duty imposed on him by section 40 or 59 of this Act (duty to pay preferential creditors).
12 Notification of order.
(1)
Every invoice, order for goods or business letter which, at a time when an administration order is in force in relation to a company, is issued by or on behalf of the company or the administrator, being a document on or in which the company’s name appears, shall also contain the administrator’s name and a statement that the affairs, business and property of the company are being managed by the administrator.
(2)
If default is made in complying with this section, the company and any of the following persons who without reasonable excuse authorises or permits the default, namely, the administrator and any officer of the company, is liable to a fine.
Administrators
13 Appointment of administrator.
(1)
The administrator of a company shall be appointed either by the administration order or by an order under the next subsection.
(2)
If a vacancy occurs by death, resignation or otherwise in the office of the administrator, the court may by order fill the vacancy.
(3)
An application for an order under subsection (2) may be made—
(a)
by any continuing administrator of the company; or
(b)
where there is no such administrator, by a creditors’ committee established under section 26 below; or
(c)
where there is no such administrator and no such committee, by the company or the directors or by any creditor or creditors of the company.
14 General powers.
(1)
The administrator of a company—
(a)
may do all such things as may be necessary for the management of the affairs, business and property of the company, and
(b)
without prejudice to the generality of paragraph (a), has the powers specified in Schedule 1 to this Act;
and in the application of that Schedule to the administrator of a company the words “he” and “him” refer to the administrator.
(2)
The administrator also has power—
(a)
to remove any director of the company and to appoint any person to be a director of it, whether to fill a vacancy or otherwise, and
(b)
to call any meeting of the members or creditors of the company.
(3)
The administrator may apply to the court for directions in relation to any particular matter arising in connection with the carrying out of his functions.
(4)
Any power conferred on the company or its officers, whether by this Act or the Companies Act or by the memorandum or articles of association, which could be exercised in such a way as to interfere with the exercise by the administrator of his powers is not exercisable except with the consent of the administrator, which may be given either generally or in relation to particular cases.
(5)
In exercising his powers the administrator is deemed to act as the company’s agent.
(6)
A person dealing with the administrator in good faith and for value is not concerned to inquire whether the administrator is acting within his powers.
15 Power to deal with charged property, etc.
(1)
The administrator of a company may dispose of or otherwise exercise his powers in relation to any property of the company which is subject to a security to which this subsection applies as if the property were not subject to the security.
(2)
Where, on an application by the administrator, the court is satisifed that the disposal (with or without other assets) of—
(a)
any property of the company subject to a security to which this subsection applies, or
(b)
any goods in the possession of the company under a hire-purchase agreement,
would be likely to promote the purpose or one or more of the purposes specified in the administration order, the court may by order authorise the administrator to dispose of the property as if it were not subject to the security or to dispose of the goods as if all rights of the owner under the hire-purchase agreement were vested in the company.
(3)
Subsection (1) applies to any security which, as created, was a floating charge; and subsection (2) applies to any other security.
(4)
Where property is disposed of under subsection (1), the holder of the security has the same priority in respect of any property of the company directly or indirectly representing the property disposed of as he would have had in respect of the property subject to the security.
(5)
It shall be a condition of an order under subsection (2) that—
(a)
the net proceeds of the disposal, and
(b)
where those proceeds are less than such amount as may be determined by the court to be the net amount which would be realised on a sale of the property or goods in the open market by a willing vendor, such sums as may be required to make good the deficiency,
shall be applied towards discharging the sums secured by the security or payable under the hire-purchase agreement.
(6)
Where a condition imposed in pursuance of subsection (5) relates to two or more securities, that condition requires the net proceeds of the disposal and, where paragraph (b) of that subsection applies, the sums mentioned in that paragraph to be applied towards discharging the sums secured by those securities in the order of their priorities.
(7)
An office copy of an order under subsection (2) shall, within 14 days after the making of the order, be sent by the administrator to the registrar of companies.
(8)
If the administrator without reasonable excuse fails to comply with subsection (7), he is liable to a fine and, for continued contravention, to a daily default fine.
(9)
References in this section to hire-purchase agreements include conditional sale agreements, chattel leasing agreements and retention of title agreements.
16 Operation of s. 15 in Scotland.
(1)
Where property is disposed of under section 15 in its application to Scotland, the administrator shall grant to the disponee an appropriate document of transfer or conveyance of the property, and—
(a)
that document, or
(b)
where any recording, intimation or registration of the document is a legal requirement for completion of title to the property, that recording, intimation or registration,
has the effect of disencumbering the property of or, as the case may be, freeing the property from the security.
(2)
Where goods in the possession of the company under a hire-purchase agreement, conditional sale agreement, chattel leasing agreement or retention of title agreement are disposed of under section 15 in its application to Scotland, the disposal has the effect of extinguishing, as against the disponee, all rights of the owner of the goods under the agreement.
17 General duties.
(1)
The administrator of a company shall, on his appointment, take into his custody or under his control all the property to which the company is or appears to be entitled.
(2)
The administrator shall manage the affairs, business and property of the company—
(a)
at any time before proposals have been approved (with or without modifications) under section 24 below, in accordance with any directions given by the court, and
(b)
at any time after proposals have been so approved, in accordance with those proposals as from time to time revised, whether by him or a predecessor of his.
(3)
The administrator shall summon a meeting of the company’s creditors if—
(a)
he is requested, in accordance with the rules, to do so by one-tenth, in value, of the company’s creditors, or
(b)
he is directed to do so by the court.
18 Discharge or variation of administration order.
(1)
The administrator of a company may at any time apply to the court for the administration order to be discharged, or to be varied so as to specify an additional purpose.
(2)
The administrator shall make an application under this section if—
(a)
it appears to him that the purpose or each of the purposes specified in the order either has been achieved or is incapable of achievement, or
(b)
he is required to do so by a meeting of the company’s creditors summoned for the purpose in accordance with the rules.
(3)
On the hearing of an application under this section, the court may by order discharge or vary the administration order and make such consequential provision as it thinks fit, or adjourn the hearing conditionally or unconditionally, or make an interim order or any other order it thinks fit.
(4)
Where the administration order is discharged or varied the administrator shall, within 14 days after the making of the order effecting the discharge or variation, send an office copy of that order to the registrar of companies.
(5)
If the administrator without reasonable excuse fails to comply with subsection (4), he is liable to a fine and, for continued contravention, to a daily default fine.
19 Vacation of office.
(1)
The administrator of a company may at any time be removed from office by order of the court and may, in the prescribed circumstances, resign his office by giving notice of his resignation to the court.
(2)
The administrator shall vacate office if—
(a)
he ceases to be qualified to act as an insolvency practitioner in relation to the company, or
(b)
the administration order is discharged.
(3)
Where at any time a person ceases to be administrator, the F45following subsections apply.
(4)
His remuneration and any expenses properly incurred by him shall be charged on and paid out of any property of the company which is in his custody or under his control at that time in priority to any security to which section 15(1) then applies.
(5)
Any sums payable in respect of debts or liabilities incurred, while he was administrator, under contracts entered into F46. . . by him or a predecessor of his in the carrying out of his or the predecessor’s functions shall be charged on and paid out of any such property as is mentioned in subsection (4) in priority to any charge arising under that subsection.
(6) F47
Any sums payable in respect of liabilities incurred, while he was administrator, under contracts of employment adopted by him or a predecessor of his in the carrying out of his or the predecessor’s functions shall, to the extent that the liabilities are qualifying liabilities, be charged on and paid out of any such property as is mentioned in subsection (4) and enjoy the same priority as any sums to which subsection (5) applies.
F48For this purpose, the administrator is not to be taken to have adopted a contract of employment by reason of anything done or omitted to be done within 14 days after his appointment.
F49(7)
For the purposes of subsection (6), a liability under a contract of employment is a qualifying liability if—
(a)
it is a liability to pay a sum by way of wages or salary or contribution to an occupational pension scheme, and
(b)
it is in respect of services rendered wholly or partly after the adoption of the contract.
(8)
There shall be disregarded for the purposes of subsection (6) so much of any qualifying liability as represents payment in respect of services rendered before the adoption of the contract.
(9)
For the purposes of subsections (7) and (8)—
(a)
wages or salary payable in respect of a period of holiday or absence from work through sickness or other good cause are deemed to be wages or (as the case may be) salary in respect of services rendered in that period, and
(b)
a sum payable in lieu of holiday is deemed to be wages or (as the case may be) salary in respect of services rendered in the period by reference to which the holiday entitlement arose.
(10)
In subsection (9)(a), the reference to wages or salary payable in respect of a period of holiday includes any sums which, if they had been paid, would have been treated for the purposes of the enactments relating to social security as earnings in respect of that period.
20 Release of administrator.
(1)
A person who has ceased to be the administrator of a company has his release with effect from the following time, that is to say—
(a)
in the case of a person who has died, the time at which notice is given to the court in accordance with the rules that he has ceased to hold office;
(b)
in any other case, such time as the court may determine.
(2)
Where a person has his release under this section, he is, with effect from the time specified above, discharged from all liability both in respect of acts or omissions of his in the administration and otherwise in relation to his conduct as administrator.
(3)
However, nothing in this section prevents the exercise, in relation to a person who has had his release as above, of the court’s powers under section 212 in Chapter X of Part IV (summary remedy against delinquent directors, liquidators, etc.).
Ascertainment and investigation of company’s affairs
21 Information to be given by administrator.
(1)
Where an administration order has been made, the administrator shall—
(a)
forthwith send to the company and publish in the prescribed manner a notice of the order, and
(b)
within 28 days after the making of the order, unless the court otherwise directs, send such a notice to all creditors of the company (so far as he is aware of their addresses).
(2)
Where an administration order has been made, the administrator shall also, within 14 days after the making of the order, send an office copy of the order to the registrar of companies and to such other persons as may be prescribed.
(3)
If the administrator without reasonable excuse fails to comply with this section, he is liable to a fine and, for continued contravention, to a daily default fine.
22 Statement of affairs to be submitted to administrator.
(1)
Where an administration order has been made, the administrator shall forthwith require some or all of the persons mentioned below to make out and submit to him a statement in the prescribed form as to the affairs of the company.
(2)
The statement shall be verified by affidavit by the persons required to submit it and shall show—
(a)
particulars of the company’s assets, debts and liabilities;
(b)
the names and addresses of its creditors;
(c)
the securities held by them respectively;
(d)
the dates when the securities were respectively given; and
(e)
such further or other information as may be prescribed.
(3)
The persons referred to in subsection (1) are—
(a)
those who are or have been officers of the company;
(b)
those who have taken part in the company’s formation at any time within one year before the date of the administration order;
(c)
those who are in the company’s employment or have been in its employment within that year, and are in the administrator’s opinion capable of giving the information required;
(d)
those who are or have been within that year officers of or in the employment of a company which is, or within that year was, an officer of the company.
In this subsection “employment” includes employment under a contract for services.
(4)
Where any persons are required under this section to submit a statement of affairs to the administrator, they shall do so (subject to the next subsection) before the end of the period of 21 days beginning with the day after that on which the prescribed notice of the requirement is given to them by the administrator.
(5)
The administrator, if he thinks fit, may—
(a)
at any time release a person from an obligation imposed on him under subsection (1) or (2), or
(b)
either when giving notice under subsection (4) or subsequently, extend the period so mentioned;
and where the administrator has refused to exercise a power conferred by this subsection, the court, if it thinks fit, may exercise it.
(6)
If a person without reasonable excuse fails to comply with any obligation imposed under this section, he is liable to a fine and, for continued contravention, to a daily default fine.
Administrator’s proposals
23 Statement of proposals.
(1)
Where an administration order has been made, the administrator shall, within 3 months (or such longer period as the court may allow) after the making of the order—
(a)
send to the registrar of companies and (so far as he is aware of their addresses) to all creditors a statement of his proposals for achieving the purpose or purposes specified in the order, and
(b)
lay a copy of the statement before a meeting of the company’s creditors summoned for the purpose on not less than 14 days’ notice.
(2)
The administrator shall also, within 3 months (or such longer period as the court may allow) after the making of the order, either—
(a)
send a copy of the statement (so far as he is aware of their addresses) to all members of the company, or
(b)
publish in the prescribed manner a notice stating an address to which members of the company should write for copies of the statement to be sent to them free of charge.
(3)
If the administrator without reasonable excuse fails to comply with this section, he is liable to a fine and, for continued contravention, to a daily default fine.
24 Consideration of proposals by creditors’ meeting.
(1)
A meeting of creditors summoned under section 23 shall decide whether to approve the administrator’s proposals.
(2)
The meeting may approve the proposals with modifications, but shall not do so unless the administrator consents to each modification.
(3)
Subject as above, the meeting shall be conducted in accordance with the rules.
(4)
After the conclusion of the meeting in accordance with the rules, the administrator shall report the result of the meeting to the court and shall give notice of that result to the registrar of companies and to such persons as may be prescribed.
(5)
If a report is given to the court under subsection (4) that the meeting has declined to approve the administrator’s proposals (with or without modifications), the court may by order discharge the administration order and make such consequential provision as it thinks fit, or adjourn the hearing conditionally or unconditionally, or make an interim order or any other order that it thinks fit.
(6)
Where the administration order is discharged, the administrator shall, within 14 days after the making of the order effecting the discharge, send an office copy of that order to the registrar of companies.
(7)
If the administrator without reasonable excuse fails to comply with subsection (6), he is liable to a fine and, for continued contravention, to a daily default fine.
25 Approval of substantial revisions.
(1)
This section applies where—
(a)
proposals have been approved (with or without modifications) under section 24, and
(b)
the administrator proposes to make revisions of those proposals which appear to him substantial.
(2)
The administrator shall—
(a)
send to all creditors of the company (so far as he is aware of their addresses) a statement in the prescribed form of his proposed revisions, and
(b)
lay a copy of the statement before a meeting of the company’s creditors summoned for the purpose on not less than 14 days’ notice;
and he shall not make the proposed revisions unless they are approved by the meeting.
(3)
The administrator shall also either—
(a)
send a copy of the statement (so far as he is aware of their addresses) to all members of the company, or
(b)
publish in the prescribed manner a notice stating an address to which members of the company should write for copies of the statement to be sent to them free of charge.
(4)
The meeting of creditors may approve the proposed revisions with modifications, but shall not do so unless the administrator consents to each modification.
(5)
Subject as above, the meeting shall be conducted in accordance with the rules.
(6)
After the conclusion of the meeting in accordance with the rules, the administrator shall give notice of the result of the meeting to the registrar of companies and to such persons as may be prescribed.
Miscellaneous
26 Creditors’ committee.
(1)
Where a meeting of creditors summoned under section 23 has approved the administrator’s proposals (with or without modifications), the meeting may, if it thinks fit, establish a committee (“the creditors’ committee”) to exercise the functions conferred on it by or under this Act.
(2)
If such a committee is established, the committee may, on giving not less than 7 days’ notice, require the administrator to attend before it at any reasonable time and furnish it with such information relating to the carrying out of his functions as it may reasonably require.
27 Protection of interests of creditors and members.
(1)
At any time when an administration order is in force, a creditor or member of the company may apply to the court by petition for an order under this section on the ground—
(a)
that the company’s affairs, business and property are being or have been managed by the administrator in a manner which is unfairly prejudicial to the interests of its creditors or members generally, or of some part of its creditors or members (including at least himself), or
(b)
that any actual or proposed act or omission of the administrator is or would be so prejudicial.
(2)
On an application for an order under this section the court may, subject as follows, make such order as it thinks fit for giving relief in respect of the matters complained of, or adjourn the hearing conditionally or unconditionally, or make an interim order or any other order that it thinks fit.
(3)
An order under this section shall not prejudice or prevent—
(a)
the implementation of a voluntary arrangement approved under F50. . . Part I, or any compromise or arrangement sanctioned under section 425 of the Companies Act; or
(b)
where the application for the order was made more than 28 days after the approval of any proposals or revised proposals under section 24 or 25, the implementation of those proposals or revised proposals
(4)
Subject as above, an order under this section may in particular—
(a)
regulate the future management by the administrator of the company’s affairs, business and property;
(b)
require the administrator to refrain from doing or continuing an act complained of by the petitioner, or to do an act which the petitioner has complained he has omitted to do.
(c)
require the summoning of a meeting of creditors or members for the purpose of considering such matters as the court may direct;
(d)
discharge the administration order and make such consequential provision as the court thinks fit.
(5)
Nothing in section 15 or 16 is to be taken as prejudicing applications to the court under this section.
(6)
Where the administration order is discharged, the administrator shall, within 14 days after the making of the order effecting the discharge, send an office copy of that order to the registrar of companies; and if without reasonable excuse he fails to comply with this subsection, he is liable to a fine and, for continued contravention, to a daily default fine.
Part III Receivership
Chapter I Receivers and Managers (England and Wales)
Preliminary and general provisions
F5128 Extent of this Chapter.
(1)
In this Chapter “company” means a company registered under the Companies Act 2006 in England and Wales or Scotland.
(2)
This Chapter does not apply to receivers appointed under Chapter 2 of this Part (Scotland).
29 Definitions.
(1)
It is hereby declared that, except where the context otherwise requires—
(a)
any reference in F52. . . this Act 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 in F52. . . this Act 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 enactment, are implied in and have effect as if contained in an instrument.
(2)
In this Chapter “administrative receiver” means—
(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
(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.
30 Disqualification of body corporate from acting as receiver.
A body corporate is not qualified for appointment as receiver of the property of a company, and any body corporate which acts as such a receiver is liable to a fine.
F5431 Disqualification of bankrupt F53 or person in respect of whom a debt relief order is made
(1)
A person commits an offence if he acts as receiver or manager of the property of a company on behalf of debenture holders while—
(a)
he is an undischarged bankrupt,
F55(aa)
a moratorium period under a debt relief order applies in relation to him, or
(b)
a bankruptcy restrictions order F56or a debt relief restrictions order is in force in respect of him.
(2)
A person guilty of an offence under subsection (1) shall be liable to imprisonment, a fine or both.
(3)
This section does not apply to a receiver or manager acting under an appointment made by the court.
32 Power for court to appoint official receiver.
Where application is made to the court to appoint a receiver on behalf of the debenture holders or other creditors of a company which is being wound up by the court, the official receiver may be appointed.
Receivers and managers appointed out of court
33 Time from which appointment is effective.
(1)
The appointment of a person as a receiver or manager of a company’s property under powers contained in an instrument—
(a)
is of no effect unless it is accepted by that person before the end of the business day next following that on which the instrument of appointment is received by him or on his behalf, and
(b)
subject to this, is deemed to be made at the time at which the instrument of appointment is so received.
(2)
This section applies to the appointment of two or more persons as joint receivers or managers of a company’s property under powers contained in an instrument, subject to such modifications as may be prescribed by the rules.
34 Liability for invalid appointment.
Where the appointment of a person as the receiver or manager of a company’s property under powers contained in an instrument is discovered to be invalid (whether by virtue of the invalidity of the instrument or otherwise), the court may order the person by whom or on whose behalf the appointment was made to indemnify the person appointed against any liability which arises solely by reason of the invalidity of the appointment.
35 Application to court for directions.
(1)
A receiver or manager of the property of a company appointed under powers contained in an instrument, or the persons by whom or on whose behalf a receiver or manager has been so appointed, may apply to the court for directions in relation to any particular matter arising in connection with the performance of the functions of the receiver or manager.
(2)
On such an application, the court may give such directions, or may make such order declaring the rights of persons before the court or otherwise, as it thinks just.
36 Court’s power to fix remuneration.
(1)
The court may, on an application made by the liquidator of a company, by order fix the amount to be paid by way of remuneration to a person who, under powers contained in an instrument, has been appointed receiver or manager of the company’s property.
(2)
The court’s power under subsection (1), where no previous order has been made with respect thereto under the subsection—
(a)
extends to fixing the remuneration for any period before the making of the order or the application for it,
(b)
is exercisable notwithstanding that the receiver or manager has died or ceased to act before the making of the order or the application, and
(c)
where the receiver or manager has been paid or has retained for his remuneration for any period before the making of the order any amount in excess of that so fixed for that period, extends to requiring him or his personal representatives to account for the excess or such part of it as may be specified in the order.
But the power conferred by pararaph (c) shall not be exercised as respects any period before the making of the application for the order under this section, unless in the court’s opinion there are special circumstances making it proper for the power to be exercised.
(3)
The court may from time to time on an application made either by the liquidator or by the receiver or manager, vary or amend an order made under subsection (1).
37 Liability for contracts, etc.
(1)
A receiver or manager appointed under powers contained in an instrument (other than an administrative receiver) is, to the same extent as if he had been appointed by order of the court—
(a)
personally liable on any contract entered into by him in the performance of his functions (except in so far as the contract otherwise provides) and on any contract of employment adopted by him in the performance of those functions, and
(b)
entitled in respect of that liability to indemnity out of the assets.
(2)
For the purposes of subsection (1)(a), the receiver or manager is not to be taken to have adopted a contract of employment by reason of anything done or omitted to be done with 14 days after his appointment.
(3)
Subsection (1) does not limit any right to indemnity which the receiver or manager would have apart from it, nor limit his liability on contracts entered into without authority, nor confer any right to indemnity in respect of that liability.
(4)
Where at any time the receiver or manager so appointed vacates office—
(a)
his remuneration and any expenses properly incurred by him, and
(b)
any indemnity to which he is entitled out of the assets of the company,
shall be charged on and paid out of any property of the company which is in his custody or under his control at that time in priority to any charge or other security held by the person by or on whose behalf he was appointed.
38 Receivership accounts to be delivered to registrar.
(1)
Except in the case of an adminstrative receiver, every receiver or manager of a company’s property who has been appointed under powers contained in an instrument shall deliver to the registrar of companies for registration the requisite accounts of his receipts and payments.
(2)
The accounts shall be delivered within one month (or such longer period as the registrar may allow) after the expiration of 12 months from the date of his appointment and of every subsequent period of 6 months, and also within one month after he ceases to act as receiver or manager.
(3)
The requisite accounts shall be an abstract in the prescribed form showing—
(a)
receipts and payments during the relevant period of 12 or 6 months, or
(b)
where the receiver or manager ceases to act, receipts and payments during the period from the end of the period of 12 or 6 months to which the last preceding abstract related (or, if no preceding abstract has been delivered under this section, from the date of his appointment) up to the date of his so ceasing, and the aggregate amount of receipts and payments during all preceding periods since his appointment.
(4)
In this section “prescribed” means prescribed by regulations made by statutory instrument by the Secretary of State.
(5)
A receiver or manager who makes default in complying with this section is liable to a fine and, for continued contravention, to a daily default fine.
Provisions applicable to every receivership
39 Notification that receiver or manager appointed.
F57(1)
Where a receiver or manager of the property of a company has been appointed—
(a)
every invoice, order for goods or services, business letter or order form (whether in hard copy, electronic or any other form) issued by or on behalf of the company or the receiver or manager or the liquidator of the company; and
(b)
all the company's websites,
must contain a statement that a receiver or manager has been appointed.
(2)
If default is made in complying with this section, the company and any of the following persons, who knowingly and wilfully authorises or permits the default, namely, any officer of the company, any liquidator of the company and any receiver or manager, is liable to a fine.
40 Payment of debts out of assets subject to floating charge.
(1)
The following applies in the case of a company, where a receiver is appointed on behalf of the holders of any debentures of the company secured by a charge which, as created, was a floating charge.
(2)
If the company is not at the time in course of being wound up, its preferential debts (within the meaning given to that expression by section 386 in Part XII) shall be paid out of the assets coming to the hands of the receiver in priority to any claims for principal or interest in respect of the debentures.
(3)
Payments made under this section shall be recouped, as far as may be, out of the assets of the company available for payment of general creditors.
41 Enforcement of duty to make returns.
(1)
If a receiver or manager of a company’s property—
(a)
having made default in filing, delivering or making any return, account or other document, or in giving any notice, which a receiver or manager is by law required to file, deliver, make or give, fails to make good the default within 14 days after the service on him of a notice requiring him to do so, or
(b)
having been appointed under powers contained in an instrument, has, after being required at any time by the liquidator of the company to do so, failed to render proper accounts of his receipts and payments and to vouch them and pay over to the liquidator the amount properly payable to him,
the court may, on an application made for the purpose, make an order directing the receiver or manager (as the case may be) to make good the default within such time as may be specified in the order.
(2)
In the case of the default mentioned in subsection (1)(a), application to the court may be made by any member or creditor of the company or by the registrar of companies; and in the case of the default mentioned in subsection (1)(b), the application shall be made by the liquidator.
In either case the court’s order may provide that all costs of and incidental to the application shall be borne by the receiver or manager, as the case may be.
(3)
Nothing in this section prejudices the operation of any enactment imposing penalties on receivers in respect of any such default as is mentioned in subsection (1).
Administrative receivers: general
42 General powers.
(1)
The powers conferred on the administrative receiver of a company by the debentures by virtue of which he was appointed are deemed to include (except in so far as they are inconsistent with any of the provisions of those debentures) the powers specified in Schedule 1 to this Act.
(2)
In the application of Schedule 1 to the administrative receiver of a company—
(a)
the words “he” and “him” refer to the administrative receiver, and
(b)
references to the property of the company are to the property of which he is or, but for the appointment of some other person as the receiver of part of the company’s property, would be the receiver or manager.
(3)
A person dealing with the administrative receiver in good faith and for value is not concerned to inquire whether the receiver is acting within his powers.
43 Power to dispose of charged property, etc.
(1)
Where, on an application by the administrative receiver, the court is satisfied that the disposal (with or without other assets) of any relevant property which is subject to a security would be likely to promote a more advantageous realisation of the company’s assets than would otherwise be effected, the court may by order authorise the administrative receiver to dispose of the property as if it were not subject to the security.
(2)
Subsection (1) does not apply in the case of any security held by the person by or on whose behalf the administrative receiver was appointed, or of any security to which a security so held has priority.
(3)
It shall be a condition of an order under this section that—
(a)
the net proceeds of the disposal, and
(b)
where those proceeds are less than such amount as may be determined by the court to be the net amount which would be realised on a sale of the property in the open market by a willing vendor, such sums as may be required to make good the deficiency,
shall be applied towards discharging the sums secured by the security.
(4)
Where a condition imposed in pursuance of subsection (3) relates to two or more securities, that condition shall require the net proceeds of the disposal and, where paragraph (b) of that subsection applies, the sums mentioned in that paragraph to be applied towards discharging the sums secured by those securities in the order of their priorities.
(5)
F58A copy of an order under this section shall, within 14 days of the making of the order, be sent by the administrative receiver to the registrar of companies.
(6)
If the administrative receiver without reasonable excuse fails to comply with subsection (5), he is liable to a fine and, for continued contravention, to a daily default fine.
(7)
In this section “relevant property”, in relation to the administrative receiver, means the property of which he is or, but for the appointment of some other person as the receiver of part of the company’s property, would be the receiver or manager.
44 Agency and liability for contracts.
(1)
The administrative receiver of a company—
(a)
is deemed to be the company’s agent, unless and until the company goes into liquidation;
(b)
is personally liable on any contract entered into by him in the carrying out of his functions (except in so far as the contract otherwise provides) and F59, to the extent of any qualifying liability,on any contract of employment adopted by him in the carrying out of those functions; and
(c)
is entitled in respect of that liability to an indemnity out of the assets of the company.
(2)
For the purposes of subsection (1)(b) the administrative receiver is not to be taken to have adopted a contract of employment by reason of anything done or omitted to be done within 14 days after his appointment.
F60(2A)
For the purposes of subsection (1)(b), a liability under a contract of employment is a qualifying liability if—
(a)
it is a liability to pay a sum by way of wages or salary or contribution to an occupational pension scheme,
(b)
it is incurred while the administrative receiver is in office, and
(c)
it is in respect of services rendered wholly or partly after the adoption of the contract.
(2B)
Where a sum payable in respect of a liability which is a qualifying liability for the purposes of subsection (1)(b) is payable in respect of services rendered partly before and partly after the adoption of the contract, liability under subsection (1)(b) shall only extend to so much of the sum as is payable in respect of services rendered after the adoption of the contract.
(2C)
For the purposes of subsections (2A) and (2B)—
(a)
wages or salary payable in respect of a period of holiday or absence from work through sickness or other good cause are deemed to be wages or (as the case may be) salary in respect of services rendered in that period, and
(b)
a sum payable in lieu of holiday is deemed to be wages or (as the case may be) salary in respect of services rendered in the period by reference to which the holiday entitlement arose.
(2D)
In subsection (2C)(a), the reference to wages or salary payable in respect of a period of holiday includes any sums which, if they had been paid, would have been treated for the purposes of the enactments relating to social security as earnings in respect of that period.
(3)
This section does not limit any right to indemnity which the administrative receiver would have apart from it, nor limit his liability on contracts entered into or adopted without authority, nor confer any right to indemnity in respect of that liability.
45 Vacation of office.
(1)
An administrative receiver of a company may at any time be removed from office by order of the court (but not otherwise) and may resign his office by giving notice of his resignation in the prescribed manner to such persons as may be prescribed.
(2)
An administrative receiver shall vacate office if he ceases to be qualified to act as an insolvency practitioner in relation to the company.
(3)
Where at any time an administrative receiver vacates office—
(a)
his remuneration and any expenses properly incurred by him, and
(b)
any indemnity to which he is entitled out of the assets of the company,
shall be charged on and paid out of any property of the company which is in his custody or under his control at that time in priority to any security held by the person by or on whose behalf he was appointed.
(4)
Where an administrative receiver vacates office otherwise than by death, he shall, within 14 days after his vacation of office, send a notice to that effect to the registrar of companies.
(5)
If an administrative receiver without reasonable excuse fails to comply with subsection (4), he is liable to a fine F61and, for continued contravention, to a daily default fine.
Administrative receivers: ascertainment and investigation of company’s affairs
46 Information to be given by administrative receiver.
(1)
Where an administrative receiver is appointed, he shall—
(a)
forthwith send to the company and publish in the prescribed manner a notice of his appointment, and
(b)
within 28 days after his appointment, unless the court otherwise directs, send such a notice to all the creditors of the company (so far as he is aware of their addresses).
(2)
This section and the next do not apply in relation to the appointment of an administrative receiver to act—
(a)
with an existing administrative receiver, or
(b)
in place of an administrative receiver dying or ceasing to act,
except that, where they apply to an administrative receiver who dies or ceases to act before they have been fully complied with, the references in this section and the next to the administrative receiver include (subject to the next subsection) his successor and any continuing administrative receiver.
(3)
If the company is being wound up, this section and the next apply notwithstanding that the administrative receiver and the liquidator are the same person, but with any necessary modifications arising from that fact.
(4)
If the administrative receiver without reasonable excuse fails to comply with this section, he is liable to a fine and, for continued contravention, to a daily default fine.
47 Statement of affairs to be submitted.
(1)
Where an administrative receiver is appointed, he shall forthwith require some or all of the persons mentioned below to make out and submit to him a statement in the prescribed form as to the affairs of the company.
(2)
A statement submitted under this section shall be verified by affidavit by the persons required to submit it and shall show—
(a)
particulars of the company’s assets, debts and liabilities;
(b)
the names and addresses of its creditors;
(c)
the securities held by them respectively;
(d)
the dates when the securities were respectively given; and
(e)
such further or other information as may be prescribed.
(3)
The persons referred to in subsection (1) are—
(a)
those who are or have been officers of the company;
(b)
those who have taken part in the company’s formation at any time within one year before the date of the appointment of the administrative receiver;
(c)
those who are in the company’s employment, or have been in its employment within that year, and are in the administrative receiver’s opinion capable of giving the information required;
(d)
those who are or have been within that year officers of or in the employment of a company which is, or within that year was, an officer of the company.
In this subsection “employment” includes employment under a contract for services.
(4)
Where any persons are required under this section to submit a statement of affairs to the administrative receiver, they shall do so (subject to the next subsection) before the end of the period of 21 days beginning with the day after that on which the prescribed notice of the requirement is given to them by the administrative receiver.
(5)
The administrative receiver, if he thinks fit, may—
(a)
at any time release a person from an obligation imposed on him under subsection (1) or (2), or
(b)
either when giving notice under subsection (4) or subsequently, extend the period so mentioned;
and where the administrative receiver has refused to exercise a power conferred by this subsection, the court, if it thinks fit, may exercise it.
(6)
If a person without reasonable excuse fails to comply with any obligation imposed under this section, he is liable to a fine and, for continued contravention, to a daily default fine.
48 Report by administrative receiver.
(1)
Where an administrative receiver is appointed, he shall, within 3 months (or such longer period as the court may allow) after his appointment, send to the registrar of companies, to any trustees for secured creditors of the company and (so far as he is aware of their addresses) to all such creditors a report as to the following matters, namely—
(a)
the events leading up to his appointment, so far as he is aware of them;
(b)
the disposal or proposed disposal by him of any property of the company and the carrying on or proposed carrying on by him of any business of the company;
(c)
the amounts of principal and interest payable to the debenture holders by whom or on whose behalf he was appointed and the amounts payable to preferential creditors; and
(d)
the amount (if any) likely to be available for the payment of other creditors.
(2)
The administrative receiver shall also, within 3 months (or such longer period as the court may allow) after his appointment, either—
(a)
send a copy of the report (so far as he is aware of their addresses) to all unsecured creditors of the company; or
(b)
publish in the prescribed manner a notice stating an address to which unsecured creditors of the company should write for copies of the report to be sent to them free of charge,
and (in either case), unless the court otherwise directs, lay a copy of the report before a meeting of the company’s unsecured creditors summoned for the purpose on not less than 14 days’ notice.
(3)
The court shall not give a direction under subsection (2) unless—
(a)
the report states the intention of the administrative receiver to apply for the direction, and
(b)
a copy of the report is sent to the persons mentioned in paragraph (a) of that subsection, or a notice is published as mentioned in paragraph (b) of that subsection, not less than 14 days before the hearing of the application.
(4)
Where the company has gone or goes into liquidation, the administrative receiver—
(a)
shall, within 7 days after his compliance with subsection (1) or, if later, the nomination or appointment of the liquidator, send a copy of the report to the liquidator, and
(b)
where he does so within the time limited for compliance with subsection (2), is not required to comply with that subsection.
(5)
A report under this section shall include a summary of the statement of affairs made out and submitted to the administrative receiver under section 47 and of his comments (if any) upon it.
(6)
Nothing in this section is to be taken as requiring any such report to include any information the disclosure of which would seriously prejudice the carrying out by the administrative receiver of his functions.
(7)
Section 46(2) applies for the purposes of this section also.
(8)
If the administrative receiver without reasonable excuse fails to comply with this section, he is liable to a fine and, for continued contravention, to a daily default fine.
49 Committee of creditors.
(1)
Where a meeting of creditors is summoned under section 48, the meeting may, if it thinks fit, establish a committee (“the creditors’ committee”) to exercise the functions conferred on it by or under this Act.
(2)
If such a committee is established, the committee may, on giving not less than 7 days’ notice, require the administrative receiver to attend before it at any reasonable time and furnish it with such information relating to the carrying out by him of his functions as it may reasonably require.
Chapter II Receivers (Scotland)
50 Extent of this Chapter.
This Chapter extends to Scotland only.
51 Power to appoint receiver.
(1)
It is competent under the law of Scotland for the holder of a floating charge over all or any part of the property (including uncalled capital), which may from time to time be comprised in the property and undertaking of an incorporated company (whether F62a company registered under the Companies Act 2006 or not) which the Court of Session has jurisdiction to wind up, to appoint a receiver of such part of the property of the company as is subject to the charge.
(2)
It is competent under the law of Scotland for the court, on the application of the holder of such a floating charge, to appoint a receiver of such part of the property of the company as is subject to the charge.
F63(2A)
Subsections (1) and (2) are subject to section 72A.
(3)
The following are disqualified from being appointed as receiver—
(a)
a body corporate;
(b)
an undischarged bankrupt; and
F64(ba)
a person subject to a bankruptcy restrictions order;
(c)
a firm according to the law of Scotland.
(4)
A body corporate or a firm according to the law of Scotland which acts as a receiver is liable to a fine.
(5)
An undischarged bankrupt F65or a person subject to a bankruptcy restrictions order who so acts is liable to imprisonment or a fine, or both.
(6)
In this section, “receiver” includes joint receivers F66; and
“bankruptcy restrictions order” means—
(a)
a bankruptcy restrictions order made under section 56A of the Bankruptcy (Scotland) Act 1985 (c. 66);
(b)
a bankruptcy restrictions undertaking entered into under section 56G of that Act;
(c)
a bankruptcy restrictions order made under paragraph 1 of Schedule 4A to this Act; or
(d)
a bankruptcy restrictions undertaking entered into under paragraph 7 of that Schedule.
.
52 Circumstances justifying appointment.
(1)
A receiver may be appointed under section 51(1) by the holder of the floating charge on the occurrence of any event which, by the provisions of the instrument creating the charge, entitles the holder of the charge to make that appointment and, in so far as not otherwise provided for by the instrument, on the occurrence of any of the following events, namely—
(a)
the expiry of a period of 21 days after the making of a demand for payment of the whole or any part of the principal sum secured by the charge, without payment having been made;
(b)
the expiry of a period of 2 months during the whole of which interest due and payable under the charge has been in arrears;
(c)
the making of an order or the passing of a resolution to wind up the company;
(d)
the appointment of a receiver by virtue of any other floating charge created by the company.
(2)
A receiver may be appointed by the court under section 51(2) on the occurrence of any event which, by the provisions of the instrument creating the floating charge, entitles the holder of the charge to make that appointment and, in so far as not otherwise provided for by the instrument, on the occurrence of any of the following events, namely—
(a)
where the court, on the application of the holder of the charge, pronounces itself satisfied that the position of the holder of the charge is likely to be prejudiced if no such appointment is made;
(b)
any of the events referred to in paragraphs (a) to (c) of subsection (1).
53 Mode of appointment by holder of charge.
(1)
The appointment of a receiver by the holder of the floating charge under section 51(1) shall be by means of F67an instrument subscribed in accordance with the Requirements of Writing (Scotland) Act 1995 (“the instrument of appointment”), a copy (certified in the prescribed manner to be a correct copy) whereof shall be delivered by or on behalf of the person making the appointment to the registrar of companies for registration within 7 days of its execution and shall be accompanied by a notice in the prescribed form.
(2)
If any person without reasonable excuse makes default in complying with the requirements of subsection (1), he is liable to a fine F68and, for continued contravention, to a daily default fine.
F69(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F70(4)
If the receiver is to be appointed by the holders of a series of secured debentures, the instrument of appointment may be executed on behalf of the holders of the floating charge by any person authorised by resolution of the debenture-holders to execute the instrument.
(5)
On receipt of the certified copy of the instrument of appointment in accordance with subsection (1), the registrar shall, on payment of the prescribed fee, enter the particulars of the appointment in the register of charges.
(6)
The appointment of a person as a receiver by an instrument of appointment in accordance with subsection (1)—
(a)
is of no effect unless it is accepted by that person before the end of the business day next following that on which the instrument of appointment is received by him or on his behalf, and
(b)
subject to paragraph (a), is deemed to be made on the day on and at the time at which the instrument of appointment is so received, as evidenced by a written docquet by that person or on his behalf;
and this subsection applies to the appointment of joint receivers subject to such modifications as may be prescribed.
(7)
On the appointment of a receiver under this section, the floating charge by virtue of which he was appointed attaches to the property then subject to the charge; and such attachment has effect as if the charge was a fixed security over the property to which it has attached.
54 Appointment by court.
(1)
Application for the appointment of a receiver by the court under section 51(2) shall be by petition to the court, which shall be served on the company.
(2)
On such an application, the court shall, if it thinks fit, issue an interlocutor making the appointment of the receiver.
(3)
A copy (certified by the clerk of the court to be a correct copy) of the court’s interlocutor making the appointment shall be delivered by or on behalf of the petitioner to the registrar of companies for registration, accompanied by a notice in the prescribed form, within 7 days of the date of the interlocutor or much longer period as the court may allow.
If any person without reasonable excuse makes default in complying with the requirements of this subsection, he is liable to a fine F71and, for continued contravention, to a daily default fine.
(4)
On receipt of the certified copy interlocutor in accordance with subsection (3), the registrar shall, on payment of the prescribed fee, enter the particulars of the appointment in the register of charges.
(5)
The receiver is to be regarded as having been appointed on the date of his being appointed by the court.
(6)
On the appointment of a receiver under this section, the floating charge by virtue of which he was appointed attaches to the property then subject to the charge; and such attachment has effect as if the charge were a fixed security over the property to which it has attached.
(7)
In making rules of court for the purposes of this section, the Court of Session shall have regard to the need for special provision for cases which appear to the court to require to be dealt with as a matter of urgency.
55 Powers of receiver.
(1)
Subject to the next subsection, a receiver has in relation to such part of the property of the company as is attached by the floating charge by virtue of which he was appointed, the powers, if any, given to him by the instrument creating that charge.
(2)
In addition, the receiver has under this Chapter the powers as respects that property (in so far as these are not inconsistent with any provision contained in that instrument) which are specified in Schedule 2 to this Act.
(3)
Subsections (1) and (2) apply—
(a)
subject to the rights of any person who has effectually executed diligence on all or any part of the property of the company prior to the appointment of the receiver, and
(b)
subject to the rights of any person who holds over all or any part of the property of the company a fixed security or floating charge having priority, over, or ranking pari passu with, the floating charge by virtue of which the receiver was appointed.
(4)
A person dealing with a receiver in good faith and for value is not concerned to enquire whether the receiver is acting within his powers.
56 Precedence among receivers.
(1)
Where there are two or more floating charges subsisting over all or any part of the property of the company, a receiver may be appointed under this Chapter by virtue of each such charge; but a receiver appointed by, or on the application of, the holder of a floating charge having priority of ranking over any other floating charge by virtue of which a receiver has been appointed has the powers given to a receiver by section 55 and Schedule 2 to the exclusion of any other receiver.
(2)
Where two or more floating charges rank with one another equally, and two or more receivers have been appointed by virtue of such charges, the receivers so appointed are deemed to have been appointed as joint receivers.
(3)
Receivers appointed, or deemed to have been appointed, as joint receivers shall act jointly unless the instrument of appointment or respective instruments of appointment otherwise provide.
(4)
Subject to subsection (5) below, the powers of a receiver appointed by, or on the application of, the holder of a floating charge are suspended by, and as from the date of, the appointment of a receiver by, or on the application of, the holder of a floating charge having priority of ranking over that charge to such extent as may be necessary to enable the receiver second mentioned to exercise his powers under section 55 and Schedule 2; and any powers so suspended take effect again when the floating charge having priority of ranking ceases to attach to the property then subject to the charge, whether such cessation is by virtue of section 62(6) or otherwise.
(5)
The suspension of the powers of a receiver under subsection (4) does not have the effect of requiring him to release any part of the property (including any letters or documents) of the company from his control until he receives from the receiver superseding him a valid indemnity (subject to the limit of the value of such part of the property of the company as is subject to the charge by virtue of which he was appointed) in respect of any expenses, charges and liabilities he may have incurred in the performance of his functions as receiver.
(6)
The suspension of the powers of a receiver under subsection (4) does not cause the floating charge by virtue of which he was appointed to cease to attach to the property to which it attached by virtue of section 53(7) or 54(6).
(7)
Nothing in this section prevents the same receiver being appointed by virtue of two or more floating charges.
57 Agency and liability of receiver for contracts.
(1)
A receiver is deemed to be the agent of the company in relation to such property of the company as is attached by the floating charge by virtue of which he was appointed.
F72(1A)
Without prejudice to subsection (1), a receiver is deemed to be the agent of the company in relation to any contract of employment adopted by him in the carrying out of his functions.
(2)
A receiver (including a receiver whose powers are subsequently suspended under section 56) is personally liable on any contract entered into by him in the performance of his functions, except in so far as the contract otherwise provides, and F73, to the extent of any qualifying liability,on any contract of employment adopted by him in the carrying out of those functions.
F74(2A)
For the purposes of subsection (2), a liability under a contract of employment is a qualifying liability if—
(a)
it is a liability to pay a sum by way of wages or salary or contribution to an occupational pension scheme,
(b)
it is incurred while the receiver is in office, and
(c)
it is in respect of services rendered wholly or partly after the adoption of the contract.
(2B)
Where a sum payable in respect of a liability which is a qualifying liability for the purposes of subsection (2) is payable in respect of services rendered partly before and partly after the adoption of the contract, liability under that subsection shall only extend to so much of the sum as is payable in respect of services rendered after the adoption of the contract.
(2C)
For the purposes of subsections (2A) and (2B)—
(a)
wages or salary payable in respect of a period of holiday or absence from work through sickness or other good cause are deemed to be wages or (as the case may be) salary in respect of services rendered in that period, and
(b)
a sum payable in lieu of holiday is deemed to be wages or (as the case may be) salary in respect of services rendered in the period by reference to which the holiday entitlement arose.
(2D)
In subsection (2C)(a), the reference to wages or salary payable in respect of a period of holiday includes any sums which, if they had been paid, would have been treated for the purposes of the enactments relating to social security as earnings in respect of that period.
(3)
A receiver who is personally liable by virtue of subsection (2) is entitled to be indemnified out of the property in respect of which he was appointed.
(4)
Any contract entered into by or on behalf of the company prior to the appointment of a receiver continues in force (subject to its terms) notwithstanding that appointment, but the receiver does not by virtue only of his appointment incur any personal liability on any such contract.
(5)
For the purposes of subsection (2), a receiver is not to be taken to have adopted a contract of employment by reason of anything done or omitted to be done within 14 days after his appointment.
(6)
This section does not limit any right to indemnity which the receiver would have apart from it, nor limit his liability on contracts entered into or adopted without authority, nor confer any right to indemnity in respect of that liability.
(7)
Any contract entered into by a receiver in the performance of his functions continues in force (subject to its terms) although the powers of the receiver are subsequently suspended under section 56.
58 Remuneration of receiver.
(1)
The remuneration to be paid to a receiver is to be determined by agreement between the receiver and the holder of the floating charge by virtue of which he was appointed.
(2)
Where the remuneration to be paid to the receiver has not been determined under subsection (1), or where it has been so determined but is disputed by any of the persons mentioned in paragraphs (a) to (d) below, it may be fixed instead by the Auditor of the Court of Session on application made to him by—
(a)
the receiver;
(b)
the holder of any floating charge or fixed security over all or any part of the property of the company;
(c)
the company; or
(d)
the liquidator of the company.
(3)
Where the receiver has been paid or has retained for his remuneration for any period before the remuneration has been fixed by the Auditor of the Court of Session under subsection (2) any amount in excess of the remuneration so fixed for that period, the receiver or his personal representatives shall account for the excess.
59 Priority of debts.
(1)
Where a receiver is appointed and the company is not at the time of the appointment in course of being wound up, the debts which fall under subsection (2) of this section shall be paid out of any assets coming to the hands of the receiver in priority to any claim for principal or interest by the holder of the floating charge by virtue of which the receiver was appointed.
(2)
Debts falling under this subsection are preferential debts (within the meaning given by section 386 in Part XII) which, by the end of a period of 6 months after advertisement by the receiver for claims in the Edinburgh Gazette and in a newspaper circulating in the district where the company carries on business either—
(i)
have been intimated to him, or
(ii)
have become known to him.
(3)
Any payments made under this section shall be recouped as far as may be out of the assets of the company available for payment of ordinary creditors.
60 Distribution of moneys.
(1)
Subject to the next section, and to the rights of any of the following categories of persons (which rights shall, except to the extent otherwise provided in any instrument, have the following order of priority), namely—
(a)
the holder of any fixed security which is over property subject to the floating charge and which ranks prior to, or pari passu with, the floating charge;
(b)
all persons who have effectually executed diligence on any part of the property of the company which is subject to the charge by virtue of which the receiver was appointed;
(c)
creditors in respect of all liabilities, charges and expenses incurred by or on behalf of the receiver;
(d)
the receiver in respect of his liabilities, expenses and remuneration, and any indemnity to which he is entitled out of the property of the company; and
(e)
the preferential creditors entitled to payment under section 59,
the receiver shall pay moneys received by him to the holder of the floating charge by virtue of which the receiver was appointed in or towards satisfaction of the debt secured by the floating charge.
(2)
Any balance of moneys remaining after the provisions of subsection (1) and section 61 below have been satisfied shall be paid in accordance with their respective rights and interests to the following persons, as the case may require—
(a)
any other receiver;
(b)
the holder of a fixed security which is over property subject to the floating charge;
(c)
the company or its liquidator, as the case may be.
(3)
Where any question arises as to the person entitled to a payment under this section, or where a receipt or a discharge of a security cannot be obtained in respect of any such payment, the receiver shall consign the amount of such payment in any joint stock bank of issue in Scotland in name of the Accountant of Court for behoof of the person or persons entitled thereto.
61 Disposal of interest in property.
(1)
Where the receiver sells or disposes, or is desirous of selling or disposing, or any property or interest in property of the company which is subject to the floating charge by virtue of which the receiver was appointed and which is—
(a)
subject to any security or interest of, or burden or encumbrance in favour of, a creditor the ranking of which is prior to, or pari passu with, or postponed to the floating charge, or
(b)
property or an interest in property affected or attached by effectual diligence executed by any person,
and the receiver is unable to obtain the consent of such creditor or, as the case may be, such person to such a sale or disposal, the receiver may apply to the court for authority to sell or dispose of the property or interest in property free of such security, interest, burden, encumbrance or diligence.
F75(1A)
For the purposes of subsection (1) above, an inhibition which takes effect after the creation of the floating charge by virtue of which the receiver was appointed is not an effectual diligence.
(2)
Subject to the next subsection, on such an application the court may, if it thinks fit, authorise the sale or disposal of the property or interest in question free of such security, interest, burden, encumbrance or diligence, and such authorisation may be on such terms or conditions as the court thinks fit.
(3)
In the case of an application where a fixed security over the property or interest in question which ranks prior to the floating charge has not been met or provided for in full, the court shall not authorise the sale or disposal of the property or interest in question unless it is satisfied that the sale or disposal would be like to provide a more advantageous realisation of the company’s assets than would otherwise be effected.
(4)
It shall be a condition of an authorisation to which subsection (3) applies that—
(a)
the net proceeds of the disposal, and
(b)
where those proceeds are less than such amount as may be determined by the court to be the net amount which would be realised on a sale of the property or interest in the open market by a willing seller, such sums as may be required to make good the deficiency,
shall be applied towards discharging the sums secured by the fixed security.
(5)
Where a condition imposed in pursuance of subsection (4) relates to two or more such fixed securities, that condition shall require the net proceeds of the disposal and, where paragraph (b) of that subsection applies, the sums mentioned in that paragraph to be applied towards discharging the sums secured by those fixed securities in the order of their priorities.
(6)
A copy of an authorisation under subsection (2) F76. . . shall, within 14 days of the granting of the authorisation, be sent by the receiver to the registrar of companies.
(7)
If the receiver without reasonable excuse fails to comply with subsection (6), he is liable to a fine and, for continued contravention, to a daily default fine.
(8)
Where any sale or disposal is effected in accordance with the authorisation of the court under subsection (2), the receiver shall grant to the purchaser or disponee an appropriate document of transfer or conveyance of the property or interest in question, and that document has the effect, or, where recording, intimation or registration of that document is a legal requirement for completion of title to the property or interest, then that recording, intimation or registration (as the case may be) has the effect, of—
(a)
disencumbering the property or interest of the security, interest, burden or encumbrance affecting it, and
(b)
freeing the property or interest from the diligence executed upon it.
(9)
Nothing in this section prejudices the right of any creditor of the company to rank for his debt in the winding up of the company.
62 Cessation of appointment of receiver.
(1)
A receiver may be removed from office by the court under subsection (3) below and may resign his office by giving notice of his resignation in the prescribed manner to such persons as may be prescribed.
(2)
A receiver shall vacate office if he ceases to be qualified to act as an insolvency practitioner in relation to the company.
(3)
Subject to the next subsection, a receiver may, on application to the court by the holder of the floating charge by virtue of which he was appointed, be removed by the court on cause shown.
(4)
Where at any time a receiver vacates office—
(a)
his remuneration and any expenses properly incurred by him, and
(b)
any indemnity to which he is entitled out of the property of the company,
shall be paid out of the property of the company which is subject to the floating charge and shall have priority as provided for in section 60(1).
(5)
When a receiver ceases to act as such otherwise than by death he shall, and, when a receiver is removed by the court, the holder of the floating charge by virtue of which he was appointed shall, within 14 days of the cessation or removal (as the case may be) given the registrar of companies notice to that effect, and the registrar shall enter the notice in the register of charges.
If the receiver or the holder of the floating charge (as the case may require) makes default in complying with the requirements of this subsection, he is liable to a fine and, for continued contravention, to a daily default fine.
(6)
If by the expiry of a period of one month following upon the removal of the receiver or his ceasing to act as such no other receiver has been appointed, the floating charge by virtue of which the receiver was appointed—
(a)
thereupon ceases to attach to the property then subject to the charge, and
(b)
again subsists as a floating charge;
63 Powers of court.
(1)
The court on the application of—
(a)
the holder of a floating charge by virtue of which a receiver was appointed, or
(b)
a receiver appointed under section 51,
may give directions to the receiver in respect of any matter arising in connection with the performance by him of his functions.
(2)
Where the appointment of a person as a receiver by the holder of a floating charge is discovered to be invalid (whether by virtue of the invalidity of the instrument or otherwise), the court may order the holder of the floating charge to indemnify the person appointed against any liability which arises solely by reason of the invalidity of the appointment.
64 Notification that receiver appointed.
F79(1)
Where a receiver has been appointed—
(a)
every invoice, order for goods or services, business letter or order form (whether in hard copy, electronic or any other form) issued by or on behalf of the company or the receiver or the liquidator of the company; and
(b)
all the company's websites,
must contain a statement that a receiver has been appointed.
(2)
If default is made in complying with the requirements of this section, the company and any of the following persons who knowingly and wilfully authorises or permits the default, namely any officer of the company, any liquidator of the company and any receiver, is liable to a fine.
65 Information to be given by receiver.
(1)
Where a receiver is appointed, he shall—
(a)
forthwith send to the company and publish notice of his appointment, and
(b)
within 28 days after his appointment, unless the court otherwise directs, send such notice to all the creditors of the company (so far as he is aware of their addresses).
(2)
This section and the next do not apply in relation to the appointment of a receiver to act—
(a)
with an existing receiver, or
(b)
in place of a receiver who has died or ceased to act,
except that, where they apply to a receiver who dies or ceases to act before they have been fully complied with, the references in this section and the next to the receiver include (subject to subsection (3) of this section) his successor and any continuing receiver.
(3)
If the company is being wound up, this section and the next apply notwithstanding that the receiver and the liquidator are the same person, but with any necessary modifications arising from that fact.
(4)
If a person without reasonable excuse fails to comply with this section, he is liable to a fine and, for continued contravention, to a daily default fine.
66 Company’s statement of affairs.
(1)
Where a receiver of a company is appointed, the receiver shall forthwith require some or all of the persons mentioned in subsection (3) below to make out and submit to him a statement in the prescribed form as to the affairs of the company.
(2)
A statement submitted under this section shall be verified by affidavit by the persons required to submit it and shall show—
(a)
particulars of the company’s assets, debts and liabilities;
(b)
the names and addresses of its creditors;
(c)
the securities held by them respectively;
(d)
the dates when the securities were respectively given; and
(e)
such further or other information as may be prescribed.
(3)
The persons referred to in subsection (1) are—
(a)
those who are or have been officers of the company;
(b)
those who have taken part in the company’s formation at any time within one year before the date of the appointment of the receiver;
(c)
those who are in the company’s employment or have been in its employment within that year, and are in the receiver’s opinion capable of giving the information required;
(d)
those who are or have been within that year officers of or in the employment of a company which is, or within that year was, an officer of the company.
In this subsection “employment” includes employment under a contract for services.
(4)
Where any persons are required under this section to submit a statement of affairs to the receiver they shall do so (subject to the next subsection) before the end of the period of 21 days beginning with the day after that on which the prescribed notice of the requirement is given to them by the receiver.
(5)
The receiver, if he thinks fit, may—
(a)
at any time release a person from an obligation imposed on him under subsection (1) or (2), or
(b)
either when giving the notice mentioned in subsection (4) or subsequently extend the period so mentioned,
and where the receiver has refused to exercise a power conferred by this subsection, the court, if it thinks fit, may exercise it.
(6)
If a person without reasonable excuse fails to comply with any obligation imposed under this section, he is liable to a fine and, for continued contravention to a daily default fine.
67 Report by receiver.
(1)
Where a receiver is appointed under section 51, he shall within 3 months (or such longer period as the court may allow) after his appointment, send to the registrar of companies, to the holder of the floating charge by virtue of which he was appointed and to any trustees for secured creditors of the company and (so far as he is aware of their addresses) to all such creditors a report as to the following matters, namely—
(a)
the events leading up to his appointment, so far as he is aware of them;
(b)
the disposal or proposed disposal by him of any property of the company and the carrying on or proposed carrying on by him of any business of the company;
(c)
the amounts of principal and interest payable to the holder of the floating charge by virtue of which he was appointed and the amounts payable to preferential creditors; and
(d)
the amount (if any) likely to be available for the payment of other creditors.
(2)
The receiver shall also, within 3 months (or such longer period as the court may allow) after his appointment, either—
(a)
send a copy of the report (so far as he is aware of their addresses) to all unsecured creditors of the company, or
(b)
publish in the prescribed manner a notice stating an address to which unsecured creditors of the company should write for copies of the report to be sent to them free of charge,
and (in either case), unless the court otherwise directs, lay a copy of the report before a meeting of the company’s unsecured creditors summoned for the purpose on not less than 14 days’ notice.
(3)
The court shall not give a direction under subsection (2) unless—
(a)
the report states the intention of the receiver to apply for the direction, and
(b)
a copy of the report is sent to the persons mentioned in paragraph (a) of that subsection, or a notice is published as mentioned in paragraph (b) of that subsection, not less than 14 days before the hearing of the application.
(4)
Where the company has gone or goes into liquidation, the receiver—
(a)
shall, within 7 days after his compliance with subsection (1) or, if later, the nomination or appointment of the liquidator, send a copy of the report to the liquidator, and
(b)
where he does so within the time limited for compliance with subsection (2), is not required to comply with that subsection.
(5)
A report under this section shall include a summary of the statement of affairs made out and submitted under section 66 and of his comments (if any) on it.
(6)
Nothing in this section shall be taken as requiring any such report to include any information the disclosure of which would seriously prejudice the carrying out by the receiver of his functions.
(7)
Section 65(2) applies for the purposes of this section also.
(8)
If a person without reasonable excuse fails to comply with this section, he is liable to a fine and, for continued contravention, to a daily default fine.
(9)
In this section “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” shall be construed accordingly.
68 Committee of creditors
(1)
Where a meeting of creditors is summoned under section 67, the meeting may, if it thinks fit, establish a committee (“the creditors’ committee”) to exercise the functions conferred on it by or under this Act.
(2)
If such a committee is established, the committee may on giving not less than 7 days’ notice require the receiver to attend before it at any reasonable time and furnish it with such information relating to the carrying out by him of his functions as it may reasonably require.
69 Enforcement of receiver’s duty to make returns, etc.
(1)
If any receiver—
(a)
having made default in filing, delivering or making any return, account or other document, or in giving any notice, which a receiver is by law required to file, deliver, make or give, fails to make good the default within 14 days after the service on him of a notice requiring him to do so; or
(b)
has, after being required at any time by the liquidator of the company so to do, failed to render proper accounts of his receipts and payments and to vouch the same and to pay over to the liquidator the amount properly payable to him,
the court may, on an application made for the purpose, make an order directing the receiver to make good the default within such time as may be specified in the order.
(2)
In the case of any such default as is mentioned in subsection (1)(a), an application for the purposes of this section may be made by any member or creditor of the company or by the registrar of companies; and, in the case of any such default as is mentioned in subsection (1)(b), the application shall be made by the liquidator; and, in either case, the order may provide that all expenses of and incidental to the application shall be borne by the receiver.
(3)
Nothing in this section prejudices the operation of any enactments imposing penalties on receivers in respect of any such default as is mentioned in subsection (1).
70 Interpretation for Chapter II.
(1)
In this Chapter, unless the contrary intention appears, the following expressions have the following meanings respectively assigned to them—
“company” means an incorporated company (whether or not F80a company registered under the Companies Act 2006) which the Court of Session has jurisdiction to wind up;
“fixed security”, in relation to any property of a company, means any security, other than a floating charge or a charge having the nature of a floating charge, which on the winding up of the company in Scotland would be treated as an effective security over that property, and (without prejudice to that generality) includes a security over that property, being a heritable security within the meaning of the M3Conveyancing and Feudal Reform (Scotland) Act 1970;
“instrument of appointment” has the meaning given by section 53(1);
“prescribed” means prescribed by regulations made under this Chapter by the Secretary of State;
“receiver” means a receiver of such part of the property of the company as is subject to the floating charge by virtue of which he has been appointed under section 51;
“register of charges” means the register kept by the registrar of companies for the purposes of F81Chapter 2 of Part 25 of the Companies Act 2006;
“secured debenture” means a bond, debenture, debenture stock or other security which, either itself or by reference to any other instrument, creates a floating charge over all or any part of the property of the company, but does not include a security which creates no charge other than a fixed security; and
“series of secured debentures” means two or more secured debentures created as a series by the company in such a manner that the holders thereof are entitled pari passu to the benefit of the floating charge.
(2)
Where a floating charge, secured debenture or series of secured debentures has been created by the company, then, except where the context otherwise requires, any reference in this Chapter to the holder of the floating charge shall—
(a)
where the floating charge, secured debenture or series of secured debentures provides for a receiver to be appointed by any person or body, be construed as a reference to that person or body;
(b)
where, in the case of a series of secured debentures, no such provision has been made therein but—
(i)
there are trustees acting for the debenture-holders under and in accordance with a trust deed, be construed as a reference to those trustees, and
(ii)
where no such trustees are acting, be construed as a reference to—
(aa)
a majority in nominal value of those present or represented by proxy and voting at a meeting of debenture-holders at which the holders of at least one-third in nominal value of the outstanding debentures of the series are present or so represented, or
(bb)
where no such meeting is held, the holders of at least one-half in nominal value of the outstanding debentures of the series.
(3)
Any reference in this Chapter to a floating charge, secured debenture, series of secured debentures or instrument creating a charge includes, except where the context otherwise requires, a reference to that floating charge, debenture, series of debentures or instrument as varied by any instrument.
(4)
References in this Chapter to the instrument by which a floating charge was created are, in the case of a floating charge created by words in a bond or other written acknowledgement, references to the bond or, as the case may be, the other written acknowledgement.
71 Prescription of forms, etc.; regulations.
(1)
The notice referred to in section 62(5), and the notice referred to in section 65(1)(a) shall be in such form as may be prescribed.
(2)
Any power conferred by this Chapter on the Secretary of State to make regulations is exercisable by statutory instrument; and a statutory instrument made in the exercise of the power so conferred to prescribe a fee is subject to annulment in pursuance of a resolution of either House of Parliament.
Chapter III Receivers’ Powers in Great Britain as a Whole
72 Cross-border operation of receivership provisions.
(1)
A receiver appointed under the law of either part of Great Britain in respect of the whole or any part of any property or undertaking of a company and in consequence of the company having created a charge which, as created, was a floating charge may exercise his powers in the other part of Great Britain so far as their exercise is not inconsistent with the law applicable there.
(2)
In subsection (1) “receiver” includes a manager and a person who is appointed both receiver and manager.
F82CHAPTER IV PROHIBITION OF APPOINTMENT OF ADMINISTRATIVE RECEIVER
72A Floating charge holder not to appoint administrative receiver
(1)
The holder of a qualifying floating charge in respect of a company’s property may not appoint an administrative receiver of the company.
(2)
In Scotland, the holder of a qualifying floating charge in respect of a company’s property may not appoint or apply to the court for the appointment of a receiver who on appointment would be an administrative receiver of property of the company.
(3)
In subsections (1) and (2)—
“holder of a qualifying floating charge in respect of a company’s property” has the same meaning as in paragraph 14 of Schedule B1 to this Act, and
“administrative receiver” has the meaning given by section 251.
(4)
This section applies—
(a)
to a floating charge created on or after a date appointed by the Secretary of State by order made by statutory instrument, and
(b)
in spite of any provision of an agreement or instrument which purports to empower a person to appoint an administrative receiver (by whatever name).
(5)
An order under subsection (4)(a) may—
(a)
make provision which applies generally or only for a specified purpose;
(b)
make different provision for different purposes;
(c)
make transitional provision.
(6)
This section is subject to the exceptions specified in F83sections 72B to 72GA .
72B First exception: capital market
(1)
Section 72A does not prevent the appointment of an administrative receiver in pursuance of an agreement which is or forms part of a capital market arrangement if—
(a)
a party incurs or, when the agreement was entered into was expected to incur, a debt of at least £50 million under the arrangement, and
(b)
the arrangement involves the issue of a capital market investment.
(2)
In subsection (1)—
“capital market arrangement” means an arrangement of a kind described in paragraph 1 of Schedule 2A, and
“capital market investment” means an investment of a kind described in paragraph 2 or 3 of that Schedule.
72C Second exception: public-private partnership
(1)
Section 72A does not prevent the appointment of an administrative receiver of a project company of a project which—
(a)
is a public-private partnership project, and
(b)
includes step-in rights.
(2)
In this section “public-private partnership project” means a project—
(a)
the resources for which are provided partly by one or more public bodies and partly by one or more private persons, or
(b)
which is designed wholly or mainly for the purpose of assisting a public body to discharge a function.
(3)
In this section—
“step-in rights” has the meaning given by paragraph 6 of Schedule 2A, and
“project company” has the meaning given by paragraph 7 of that Schedule.
72D Third exception: utilities
(1)
Section 72A does not prevent the appointment of an administrative receiver of a project company of a project which—
(a)
is a utility project, and
(b)
includes step-in rights.
(2)
In this section—
(a)
“utility project” means a project designed wholly or mainly for the purpose of a regulated business,
(b)
“regulated business” means a business of a kind listed in paragraph 10 of Schedule 2A,
(c)
“step-in rights” has the meaning given by paragraph 6 of that Schedule, and
(d)
“project company” has the meaning given by paragraph 7 of that Schedule.
F8472DAException in respect of urban regeneration projects
(1)
Section 72A does not prevent the appointment of an administrative receiver of a project company of a project which—
(a)
is designed wholly or mainly to develop land which at the commencement of the project is wholly or partly in a designated disadvantaged area outside Northern Ireland, and
(b)
includes step-in rights.
(2)
In subsection (1) “develop” means to carry out—
(a)
building operations,
(b)
any operation for the removal of substances or waste from land and the levelling of the surface of the land, or
(c)
engineering operations in connection with the activities mentioned in paragraph (a) or (b).
(3)
In this section—
“building” includes any structure or erection, and any part of a building as so defined, but does not include plant and machinery comprised in a building,
“building operations” includes—
(a)
demolition of buildings,
(b)
filling in of trenches,
(c)
rebuilding,
(d)
structural alterations of, or additions to, buildings and
(e)
other operations normally undertaken by a person carrying on business as a builder,
“designated disadvantaged area” means an area designated as a disadvantaged area under section 92 of the Finance Act 2001,
“engineering operations” includes the formation and laying out of means of access to highways,
“project company” has the meaning given by paragraph 7 of Schedule 2A,
“step-in rights” has the meaning given by paragraph 6 of that Schedule,
“substance” means any natural or artificial substance whether in solid or liquid form or in the form of a gas or vapour, and
“waste” includes any waste materials, spoil, refuse or other matter deposited on land.
72E Fourth exception: project finance
(1)
Section 72A does not prevent the appointment of an administrative receiver of a project company of a project which—
(a)
is a financed project, and
(b)
includes step-in rights.
(2)
In this section—
(a)
a project is “financed” if under an agreement relating to the project a project company incurs, or when the agreement is entered into is expected to incur, a debt of at least £50 million for the purposes of carrying out the project,
(b)
“project company” has the meaning given by paragraph 7 of Schedule 2A, and
(c)
“step-in rights” has the meaning given by paragraph 6 of that Schedule.
72F Fifth exception: financial market
Section 72A does not prevent the appointment of an administrative receiver of a company by virtue of—
(a)
a market charge within the meaning of section 173 of the Companies Act 1989 (c. 40),
(b)
a system-charge within the meaning of the Financial Markets and Insolvency Regulations 1996 (S.I. 1996/1469),
(c)
a collateral security charge within the meaning of the Financial Markets and Insolvency (Settlement Finality) Regulations 1999 (S.I. 1999/2979).
72G Sixth exception: F85social landlords
Section 72A does not prevent the appointment of an administrative receiver of a company which is F86—
(a)
a private registered provider of social housing, or
(b)
registered as a social landlord under Part I of the Housing Act 1996 (c. 52) or under Part 3 of the Housing (Scotland) Act 2001 (asp 10).
F8772GAException in relation to protected railway companies etc.
Section 72A does not prevent the appointment of an administrative receiver of—
(a)
a company holding an appointment under Chapter I of Part II of the Water Industry Act 1991,
(b)
a protected railway company within the meaning of section 59 of the Railways Act 1993(including that section as it has effect by virtue of section 19 of the Channel Tunnel Rail Link Act 1996, or
(c)
a licence company within the meaning of section 26 of the Transport Act 2000.
F8872H Sections 72A to 72G: supplementary
(1)
Schedule 2A (which supplements sections 72B to 72G) shall have effect.
(2)
The Secretary of State may by order—
(a)
insert into this Act provision creating an additional exception to section 72A(1) or (2);
(b)
provide for a provision of this Act which creates an exception to section 72A(1) or (2) to cease to have effect;
(c)
amend section 72A in consequence of provision made under paragraph (a) or (b);
(d)
amend any of sections 72B to 72G;
(e)
amend Schedule 2A.
(3)
An order under subsection (2) must be made by statutory instrument.
(4)
An order under subsection (2) may make—
(a)
provision which applies generally or only for a specified purpose;
(b)
different provision for different purposes;
(c)
consequential or supplementary provision;
(d)
transitional provision.
(5)
An order under subsection (2)—
(a)
in the case of an order under subsection (2)(e), shall be subject to annulment in pursuance of a resolution of either House of Parliament,
(b)
in the case of an order under subsection (2)(d) varying the sum specified in section 72B(1)(a) or 72E(2)(a) (whether or not the order also makes consequential or transitional provision), shall be subject to annulment in pursuance of a resolution of either House of Parliament, and
(c)
in the case of any other order under subsection (2)(a) to (d), may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
Part IV Winding Up of Companies Registered under the Companies Acts
Chapter I Preliminary
F89Introductory
F9073Scheme of this Part
(1)
This Part applies to the winding up of a company registered under the Companies Act 2006 in England and Wales or Scotland.
(2)
The winding up may be either—
(a)
voluntary (see Chapters 2 to 5), or
(b)
by the court (see Chapter 6).
(3)
This Chapter and Chapters 7 to 10 relate to winding up generally, except where otherwise stated.
Contributories
74 Liability as contributories of present and past members.
(1)
When a company is wound up, every present and past member is liable to contribute to its assets to any amount sufficient for payment of its debts and liabilities, and the expenses of the winding up, and for the adjustment of the rights of the contributories among themselves.
(2)
This is subject as follows—
(a)
a past member is not liable to contribute if he has ceased to be a member for one year or more before the commencement of the winding up;
(b)
a past member is not liable to contribute in respect of any debt or liability of the company contracted after he ceased to be a member;
(c)
a past member is not liable to contribute, unless it appears to the court that the existing members are unable to satisfy the contributions required to be made by them F91. . . ;
(d)
in the case of a company limited by shares, no contribution is required from any member exceeding the amount (if any) unpaid on the shares in respect of which he is liable as a present or past member;
(e)
nothing in F92the Companies Acts or this Act invalidates any provision contained in a policy of insurance or other contract whereby the liability of individual members on the policy or contract is restricted, or whereby the funds of the company are alone made liable in respect of the policy or contract;
(f)
a sum due to any member of the company (in his character of a member) by way of dividends, profits or otherwise is not deemed to be a debt of the company, payable to that member in a case of competition between himself and any other creditor not a member of the company, but any such sum may be taken into account for the purpose of the final adjustment of the rights of the contributories among themselves.
(3)
In the case of a company limited by guarantee, no contribution is required from any member exceeding the amount undertaken to be contributed by him to the company’s assets in the event of its being wound up; but if it is a company with a share capital, every member of it is liable (in addition to the amount so undertaken to be contributed to the assets), to contribute to the extent of any sums unpaid on shares held by him.
75 Directors, etc. with unlimited liability.
F93. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
76 Liability of past directors and shareholders.
(1)
This section applies where a company is being wound up and—
(a)
it has under F94Chapter 5 of Part 18 of the Companies Act 2006 (acquisition by limited company of its own shares: redemption or purchase by private company out of capital) made a payment out of capital in respect of the redemption or purchase of any of its own shares (the payment being referred to below as “the relevant payment”), and
(b)
the aggregate amount of the company’s assets and the amounts paid by way of contribution to its assets (apart from this section) is not sufficient for payment of its debts and liabilities, and the expenses of the winding up.
(2)
If the winding up commenced within one year of the date on which the relevant payment was made, then—
(a)
the person from whom the shares were redeemed or purchased, and
(b)
the directors who signed the statutory declaration made in accordance with F95section 714(1) to (3) of the Companies Act 2006 for purposes of the redemption or purchase (except a director who shows that he had reasonable grounds for forming the opinion set out in the declaration,
are, so as to enable that insufficiency to be met, liable to contribute to the following extent to the company’s assets.
(3)
A person from whom any of the shares were redeemed or purchased is liable to contribute an amount not exceeding so much of the relevant payment as was made by the company in respect of his shares; and the directors are jointly and severally liable with that person to contribute that amount.
(4)
A person who has contributed any amount to the assets in pursuance of this section may apply to the court for an order directing any other person jointly and severally liable in respect of that amount to pay him such amount as the court thinks just and equitable.
(5)
F96Section 74 does not apply in relation to liability accruing by virtue of this section.
(6)
F97. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
77 Limited company formerly unlimited.
(1)
This section applies in the case of a company being wound up which was at some former time registered as unlimited but has F98re-registered as a limited company.
(2)
Notwithstanding section 74(2)(a) above, a past member of the company who was a member of it at the time of re-registration, if the winding up commences within the period of 3 years beginning with the day on which the company was re-registered, is liable to contribute to the assets of the company in respect of debts and liabilities contracted before that time.
(3)
If no persons who were members of the company at that time are existing members of it, a person who at that time was a present or past member is liable to contribute as above notwithstanding that the existing members have satisfied the contributions required to be made by them F99. . .
This applies subject to section 74(2)(a) above and to subsection (2) of this section, but notwithstanding section 74(2)(c).
(4)
Notwithstanding section 74(2)(d) and (3), there is no limit on the amount which a person who, at that time, was a past or present member of the company is liable to contribute as above.
78 Unlimited company formerly limited.
(1)
This section applies in the case of a company being wound up which was at some former time registered as limited but has been re-registered as unlimited F100. . . .
(2)
A person who, at the time when the application for the company to be re-registered was lodged, was a past member of the company and did not after that again become a member of it is not liable to contribute to the assets of the company more than he would have been liable to contribute had the company not been re-registered.
79 Meaning of “contributory”.
(1)
In this Act F101. . . the expression “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)
The reference in subsection (1) to persons liable to contribute to the assets does not include a person so liable by virtue of a declaration by the court under section 213 (imputed responsibility for company’s fraudulent trading) or section 214 (wrongful trading) in Chapter X of this Part.
(3)
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 section 76.
F102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
80 Nature of contributory’s liability.
The liability of a contributory creates a debt (in England and Wales in the nature of F103an ordinary contract debt) accruing due from him at the time when his liability commenced, but payable at the times when calls are made for enforcing the liability.
81 Contributories in case of death of a member.
(1)
If a contributory dies either before or after he has been placed on the list of contributories, his personal representatives, and the heirs and legatees of heritage of his heritable estate in Scotland, are liable in a due course of administration to contribute to the assets of the company in discharge of his liability and are contributories accordingly.
(2)
Where the personal representatives are placed on the list of contributories, the heirs or legatees of heritage need not be added, but they may be added as and when the court thinks fit.
(3)
If in England and Wales the personal representatives make default in paying any money ordered to be paid by them, proceedings may be taken for administering the estate of the deceased contributory and for compelling payment out of it of the money due.
82 Effect of contributory’s bankruptcy.
(1)
The following applies if a contributory becomes bankrupt, either before or after he has been placed on the list of contributories.
(2)
His trustee in bankruptcy represents him for all purposes of the winding up, and is a contributory accordingly.
(3)
The trustee may be called on to admit to proof against the bankrupt’s estate, or otherwise allow to be paid out of the bankrupt’s assets in due course of law, any money due from the bankrupt in respect of his liability to contribute to the company’s assets.
(4)
There may be proved against the bankrupt’s estate the estimated value of his liability to future calls as well as calls already made.
83F104Companies registered but not formed under the Companies Act 2006
(1)
The following applies in the event of a company being wound up which F105is registered but not formed under the Companies Act 2006..
(2)
Every person is a contributory, in respect of the company’s debts and liabilities contracted before registration, who is liable—
(a)
to pay, or contribute to the payment of, any debt or liability so contracted, or
(b)
to pay, or contribute to the payment of, any sum for the adjustment of the rights of the members among themselves in respect of any such debt or liability, or
(c)
to pay, or contribute to the amount of, the expenses of winding up the company, so far as relates to the debts or liabilities above mentioned.
(3)
Every contributory is liable to contribute to the assets of the company, in the course of the winding up, all sums due from him in respect of any such liability.
(4)
In the event of the death, bankruptcy or insolvency of any contributory, provisions of this Act, with respect to the personal representatives, to the heirs and legatees of heritage of the heritable estate in Scotland of deceased contributories and to the trustees of bankrupt or insolvent contributories respectively, apply.
Chapter II Voluntary Winding Up (Introductory and General)
Resolutions for, and commencement of, voluntary winding up
84 Circumstances in which company may be wound up voluntarily.
(1)
A company may be wound up voluntarily—
(a)
when the period (if any) fixed for the duration of the company by the articles expires, or the event (if any) occurs, on the occurrence of which the articles provide that the company is to be dissolved, and the company in general meeting has passed a resolution requiring it be wound up voluntarily;
(b)
if the company resolves by special resolution that it be wound up voluntarily;
(c)
F106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)
In this Act the expression “a resolution for voluntary winding up” means a resolution passed under F107either of the paragraphs of subsection (1).
F108(2A)
Before a company passes a resolution for voluntary winding up it must give written notice of the resolution to the holder of any qualifying floating charge to which section 72A applies.
(2B)
Where notice is given under subsection (2A) a resolution for voluntary winding up may be passed only—
(a)
after the end of the period of five business days beginning with the day on which the notice was given, or
(b)
if the person to whom the notice was given has consented in writing to the passing of the resolution.
F109(3)
Chapter 3 of Part 3 of the Companies Act 2006 (resolutions affecting a company's constitution) applies to a resolution under paragraph (a) of subsection (1) as well as a special resolution under paragraph (b).
F110(4)
This section has effect subject to section 43 of the Commonhold and Leasehold Reform Act 2002.
85 Notice of resolution to wind up.
(1)
When a company has passed a resolution for voluntary winding up, it shall, within 14 days after the passing of the resolution, give notice of the resolution by advertisement in the Gazette.
(2)
If default is made in complying with this section, the company and every officer of it who is in default is liable to a fine and, for continued contravention, to a daily default fine.
For purposes of this subsection the liquidator is deemed an officer of the company.
86 Commencement of winding up.
A voluntary winding up is deemed to commence at the time of the passing of the resolution for voluntary winding up.
Consequences of resolution to wind up
87
(1)
In case of a voluntary winding up, the company shall from the commencement of the winding up cease to carry on its business, except so far as may be required for its beneficial winding up.
(2)
However, the corporate state and corporate powers of the company, notwithstanding anything to the contrary in its articles, continue until the company is dissolved.
88 Avoidance of share transfers, etc. after winding-up resolution.
Any transfer of shares, not being a transfer made to or with the sanction of the liquidator, and any alteration in the status of the company’s members, made after the commencement of a voluntary winding up, is void.
Declaration of solvency
89 Statutory declaration of solvency.
(1)
Where it is proposed to wind up a company voluntarily, the directors (or, in the case of a company having more than two directors, the majority of them) may at a directors’ meeting make a statutory declaration to the effect that they have made a full inquiry into the company’s affairs and that, having done so, they have formed the opinion that the company will be able to pay its debts in full, together with interest at the official rate (as defined in section 251), within such period, not exceeding 12 months from the commencement of the winding up, as may be specified in the declaration.
(2)
Such a declaration by the directors has no effect for purposes of this Act unless—
(a)
it is made within the 5 weeks immediately preceding the date of the passing of the resolution for winding up, or on that date but before the passing of the resolution, and
(b)
it embodies a statement of the company’s assets and liabilities as at the latest practicable date before the making of the declaration.
(3)
The declaration shall be delivered to the registrar of companies before the expiration of 15 days immediately following the date on which the resolution for winding up is passed.
(4)
A director making a declaration under this section without having reasonable grounds for the opinion that the company will be able to pay its debts in full, together with interest at the official rate, within the period specified is liable to imprisonment or a fine, or both.
(5)
If the company is wound up in pursuance of a resolution passed within 5 weeks after the making of the declaration, and its debts (together with interest at the official rate) are not paid or provided for in full within the period specified, it is to be presumed (unless the contrary is shown) that the director did not have reasonable grounds for his opinion.
(6)
If a declaration required by subsection (3) to be delivered to the registrar is not so delivered within the time prescribed by that subsection, the company and every officer in default is liable to a fine and, for continued contravention, to a daily default fine.
90 Distinction between “members’” and “creditors’” voluntary winding up.
A winding up in the case of which a directors’ statutory declaration under section 89 has been made is a “members’ voluntary winding up”; and a winding up in the case of which such a declaration has not been made is a “creditors’ voluntary winding up”.
Chapter III Members’ Voluntary Winding Up
91 Appointment of liquidator.
(1)
In a members’ voluntary winding up, the company in general meeting shall appoint one or more liquidators for the purpose of winding up the company’s affairs and distributing its assets.
(2)
On the appointment of a liquidator all the powers of the directors cease, except so far as the company in general meeting or the liquidator sanctions their continuance.
92 Power to fill vacancy in office of liquidator.
(1)
If a vacancy occurs by death resignation or otherwise in the office of liquidator appointed by the company, the company in general meeting may, subject to any arrangement with its creditors, fill the vacancy.
(2)
For that purpose a general meeting may be convened by any contributory or, if there were more liquidators than one, by the continuing liquidators.
(3)
The meeting shall be held in manner provided by this Act or by the articles, or in such manner as may, on application by any contributory or by the continuing liquidators, be determined by the court.
F11192AProgress report to company at year's end (England and Wales)
(1)
Subject to sections 96 and 102, in the event of the winding up of a company registered in England and Wales continuing for more than one year, the liquidator must—
(a)
for each prescribed period produce a progress report relating to the prescribed matters; and
(b)
within such period commencing with the end of the period referred to in paragraph (a) as may be prescribed send a copy of the progress report to—
(i)
the members of the company; and
(ii)
such other persons as may be prescribed.
(2)
A liquidator who fails to comply with this section is liable to a fine.
93 General company meeting at each year’s end.
(1)
Subject to sections 96 and 102, in the event of the winding up continuing for more than one year, the liquidator shall summon a general meeting of the company at the end of the first year from the commencement of the winding up, and of each succeeding year, or at the first convenient date within 3 months from the end of the year or such longer period as the Secretary of State may allow.
(2)
The liquidator shall lay before the meeting an account of his acts and dealings, and of the conduct of the winding up, during the preceding year.
(3)
If the liquidator fails to comply with this section, he is liable to a fine.
94 Final meeting prior to dissolution.
(1)
As soon as the company’s affairs are fully wound up, the liquidator shall make up an account of the winding up showing how it has been conducted and the company’s property has been disposed of, and thereupon shall call a general meeting of the company for the purpose of laying before it the account, and giving an explanation of it.
(2)
The meeting shall be called by advertisement in the Gazette, specifying its time, place and object and published at least one month before the meeting.
(3)
Within one week after the meeting, the liquidator shall send to the registrar of companies a copy of the account, and shall make a return to him of the holding of the meeting and of its date.
(4)
If the copy is not sent or the return is not made in accordance with subsection (3), the liquidator is liable to a fine and, for continued contravention, to a daily default fine.
(5)
If a quorum is not present at the meeting, the liquidator shall, in lieu of the return mentioned above, make a return that the meeting was duly summoned and that no quorum was present; and upon such a return being made, the provisions of subsection (3) as to the making of the return are deemed complied with.
(6)
If the liquidator fails to call a general meeting of the company as required by subsection (1), he is liable to a fine.
95 Effect of company’s insolvency.
(1)
This section applies where the liquidator is of the opinion that the company will be unable to pay its debts in full (together with interest at the official rate) within the period stated in the directors’ declaration under section 89.
(2)
F112In the case of the winding up of a company registered in Scotland, the liquidator shall—
(a)
summon a meeting of creditors for a day not later than the 28th day after the day on which he formed that opinion;
(b)
send notices of the creditors’ meeting to the creditors by post not less than 7 days before the day on which that meeting is to be held;
(c)
cause notice of the creditors’ meeting to be adertvised once in the Gazette and once at least in 2 newspapers circulating in the relevant locality (that is to say the locality in which the company’s principal place of business in Great Britain was situated during the relevant period); and
(d)
during the period before the day on which the creditors’ meeting is to be held, furnish creditors free of charge with such information concerning the affairs of the company as they may reasonably require;
and the notice of the creditors’ meeting shall state the duty imposed by paragraph (d) above.
F113(2A)
In the case of the winding up of a company registered in England and Wales, the liquidator—
(a)
shall summon a meeting of creditors for a day not later than the 28th day after the day on which he formed that opinion;
(b)
shall send notices of the creditors' meeting to the creditors by post not less than 7 days before the day on which that meeting is to be held;
(c)
shall cause notice of the creditors' meeting to be advertised once in the Gazette;
(d)
may cause notice of the meeting to be advertised in such other manner as he thinks fit; and
(e)
shall during the period before the day on which the creditors' meeting is to be held, furnish creditors free of charge with such information concerning the affairs of the company as they may reasonably require;
and the notice of the creditors' meeting shall state the duty imposed by paragraph (e) above.
(3)
The liquidator shall also—
(a)
make out a statement in the prescribed form as to the affairs of the company;
(b)
lay that statement before the creditors’ meeting; and
(c)
attend and preside at that meeting.
(4)
The statement as to the affairs of the company shall be verified by affidavit by the liquidator and shall show—
(a)
particulars of the company’s assets, debts and liabilities;
(b)
the names and addresses of the company’s creditors;
(c)
the securities held by them respectively;
(d)
the dates when the securities were respectively given; and
(e)
such further or other information as may be prescribed.
(5)
Where the company’s principal place of business in Great Britain was situated in different localities at different times during the relevant period, the duty imposed by subsection (2)(c) applies separately in relation to each of those localities.
(6)
Where the company had no place of business in Great Britain during the relevant period, references in subsections (2)(c) and (5) to the company’s principal place of business in Great Britain are replaced by references to its registered office.
(7)
In this section “the relevant period” means the period of 6 months immediately preceding the day on which were sent the notices summoning the company meeting at which it was resolved that the company be wound up voluntarily.
(8)
If the liquidator without reasonable excuse fails to comply with this section, he is liable to a fine.
96 Conversion to creditors’ voluntary winding up.
As from the day on which the creditors’ meeting is held under section 95, this Act has effect as if—
(a)
the directors’ declaration under section 89 had not been made; and
(b)
the creditors’ meeting and the company meeting at which it was resolved that the company be wound up voluntarily were the meetings mentioned in section 98 in the next Chapter;
and accordingly the winding up becomes a creditors’ voluntary winding up.
Chapter IV Creditors’ Voluntary Winding Up
97 Application of this Chapter.
(1)
Subject as follows, this Chapter applies in relation to a creditors’ voluntary winding up.
(2)
Sections 98 and 99 do not apply where, under section 96 in Chapter III, a members’ voluntary winding up has become a creditors’ voluntary winding up.
98 Meeting of creditors.
(1)
F114In the case of the winding up of a company registered in Scotland, the company shall—
(a)
cause a meeting of its creditorsto be summoned for a day not later than the 14th day after the day on which there is to be held the company meeting at which the resolution for voluntary winding up is to be proposed;
(b)
cause the notices of the creditors’ meeting to be sent by post to the creditors not less than 7 days before the day on which that meeting is to be held; and
(c)
cause notice of the creditors’ meeting to be advertised once in the Gazette and once at least in two newspapers circulating in the relevant locality (that is to say the locality in which the company’s principal place of business in Great Britain was situated during the relevant period).
F115(1A)
In the case of the winding up of a company registered in England and Wales, the company—
(a)
shall cause a meeting of its creditors to be summoned for a day not later than the 14th day after the day on which there is to be held the company meeting at which the resolution for voluntary winding up is to be proposed;
(b)
shall cause the notices of the creditors' meeting to be sent by post to the creditors not less than 7 days before the day on which that meeting is to be held;
(c)
shall cause notice of the creditors' meeting to be advertised once in the Gazette; and
(d)
may cause notice of the meeting to be advertised in such other manner as the directors think fit.
(2)
The notice of the creditors’ meeting shall state either—
(a)
the name and address of a person qualified to act as an insolvency practitioner in relation to the company who, during the period before the day on which that meeting is to be held, will furnish creditors free of charge with such information concerning the company’s affairs as they may reasonably require; or
(b)
a place in the relevant locality where, on the two business days falling next before the day on which that meeting is to be held, a list of the names and addresses of the company’s creditors will be available for inspection free of charge.
(3)
Where the company’s principal place of business in Great Britain was situated in different localities at different times during the relevant period, the duties imposed by subsections (1)(c) and (2)(b) above apply separately in relation to each of those localities.
(4)
Where the company had no place of business in Great Britain during the relevant period, references in subsections (1)(c) and (3) to the company’s principal place of business in Great Britain are replaced by references to its registered office.
(5)
In this section “the relevant period” means the period of 6 months immediately preceding the day on which were sent the notices summoning the company meeting at which it was resolved that the company be wound up voluntarily.
(6)
If the company without reasonable excuse fails to comply with subsection (1) F116, (1A) or (2), it is guilty of an offence and liable to a fine.
99 Directors to lay statement of affairs before creditors.
(1)
The directors of the company shall—
(a)
make out a statement in the prescribed formas to the affairs of the company;
(b)
cause that statement to be laid before the creditors’ meeting under section 98; and
(c)
appoint one of their number to preside at that meeting;
and it is the duty of the director so appointed to attend the meeting and preside over it.
(2)
The statement as to the affairs of the company shall be verified by affidavit by some or all of the directors and shall show—
(a)
particulars of the company’s assets, debts and liabilities;
(b)
the names and addresses of the company’s creditors;
(c)
the securities held by them respectively;
(d)
the dates when the securities were respectively given; and
(e)
such further or other information as may be prescribed.
(3)
If—
(a)
the directors without reasonable excuse fail to comply with subsection (1) or (2); or
(b)
any director without reasonable excuse fails to comply with subsection (1), so far as requiring him to attend and preside at the creditors’ meeting,
the directors are or (as the case may be) the director is guilty of an offence and liable to a fine.
100 Appointment of liquidator.
(1)
The creditors and the company at their respective meetings mentioned in section 98 may nominate a person to be liquidator for the purpose of winding up the company’s affairs and distributing its assets.
(2)
The liquidator shall be the person nominated by the creditors or, where no person has been so nominated, the person (if any) nominated by the company.
(3)
In the case of different persons being nominated, any director, member or creditor of the company may, within 7 days after the date on which the nomination was made by the creditors, apply to the court for an order either—
(a)
directing that the person nominated as liquidator by the company shall be liquidator instead of or jointly with the person nominated by the creditors, or
(b)
appointing some other person to be liquidator instead of the person nominated by the creditors.
101 Appointment of liquidation committee.
(1)
The creditors at the meeting to be held under section 98 or at any subsequent meeting may, if they think fit, appoint a committee (“the liquidation committee”) of not more than 5 persons to exercise the functions conferred on it by or under this Act.
(2)
If such a committee is appointed, the company may, either at the meeting at which the resolution for voluntary winding up is passed or at any time subsequently in general meeting, appoint such number of persons as they think fit to act as members of the committee, not exceeding 5.
(3)
However, the creditors may, if they think fit, resolve that all or any of the persons so appointed by the company ought not to be members of the liquidation committee; and if the creditors so resolve—
(a)
the persons mentioned in the resolution are not then, unless the court otherwise directs, qualified to act as members of the committee; and
(b)
on any application to the court under this provision the court may, if it thinks fit, appoint other persons to act as such members in place of the persons mentioned in the resolution.
(4)
In Scotland, the liquidation committee has, in addition to the powers and duties conferred and imposed on it by this Act, such of the powers and duties of commissioners on a bankrupt estate as may be conferred and imposed on liquidation committees by the rules.
102 Creditors’ meeting where winding up converted under s. 96.
Where, in the case of a winding up which was under section 96 in Chapter III, converted to a creditors’ voluntary winding up, a creditors’ meeting is held in accordance with section 95, any appointment made or committee established by that meeting is deemed to have been made or established by a meeting held in accordance with section 98 in this Chapter.
103 Cesser of directors’ powers.
On the appointment of a liquidator, all the powers of the directors cease, except so far as the liquidation committee (or, if there is no such committee, the creditors) sanction their continuance.
104 Vacancy in office of liquidator.
If a vacancy occurs, by death, resignation or otherwise, in the office of a liquidator (other than a liquidator appointed by, or by the direction of, the court), the creditors may fill the vacancy.
F117104AProgress report to company and creditors at year's end (England and Wales)
(1)
If the winding up of a company registered in England and Wales continues for more than one year, the liquidator must—
(a)
for each prescribed period produce a progress report relating to the prescribed matters; and
(b)
within such period commencing with the end of the period referred to in paragraph (a) as may be prescribed send a copy of the progress report to—
(i)
the members and creditors of the company; and
(ii)
such other persons as may be prescribed.
(2)
A liquidator who fails to comply with this section is liable to a fine.
105 Meetings of company and creditors at each year’s end.
(1)
If the winding up continues for more than one year, the liquidator shall summon a general meeting of the company and a meeting of the creditors at the end of the first year from the commencement of the winding up, and of each succeeding year, or at the first convenient date within 3 months from the end of the year or such longer period as the Secretary of State may allow.
(2)
The liquidator shall lay before each of the meetings an account of his acts and dealings and of the conduct of the winding up during the preceding year.
(3)
If the liquidator fails to comply with this section, he is liable to a fine.
(4)
Where under section 96 a members’ voluntary winding up has become a creditors’ voluntary winding up, and the creditors’ meeting under section 95 is held 3 months or less before the end of the first year from the commencement of the winding up, the liquidator is not required by this section to summon a meeting of creditors at the end of that year.
106 Final meeting prior to dissolution.
(1)
As soon as the company’s affairs are fully wound up, the liquidator shall make up an account of the winding up, showing how it has been conducted and the company’s property has been disposed of, and thereupon shall call a general meeting of the company and a meeting of the creditors for the purpose of laying the account before the meetings and giving an explanation of it.
(2)
Each such meeting shall be called by advertisement in the Gazette specifying the time, place and object of the meeting, and published at least one month before it.
(3)
Within one week after the date of the meetings (or, if they are not held on the same date, after the date of the later one) the liquidator shall send to the registrar of companies a copy of the account, and shall make a return to him of the holding of the meetings and of their dates.
(4)
If the copy is not sent or the return is not made in accordance with subsection (3), the liquidator is liable to a fine and, for continued contravention, to a daily default fine.
(5)
However, if a quorum is not present at either such meeting, the liquidator shall, in lieu of the return required by subsection (3), make a return that the meeting was duly summoned and that no quorum was present; and upon such return being made the provisions of that subsection as to the making of the return are, in respect of that meeting, deemed complied with.
(6)
If the liquidator fails to call a general meeting of the company or a meeting of the creditors as required by this section, he is liable to a fine.
Chapter V Provisions Applying to both kinds of Voluntary Winding Up
107 Distribution of company’s property.
Subject to the provisions of this Act as to preferential payments, the company’s property in a voluntary winding up shall on the winding up be applied in satisfaction of the company’s liabilities pari passu and, subject to that application, shall (unless the articles otherwise provide) be distributed among the members according to their rights and interests in the company.
108 Appointment or removal of liquidator by the court.
(1)
If from any cause whatever there is not liquidator acting, the court may appoint a liquidator.
(2)
The court may, on cause shown, remove a liquidator and appoint another.
109 Notice by liquidator of his appointment.
(1)
The liquidator shall, within 14 days after his appointment, publish in the Gazette and deliver to the registrar of companies for registration a notice of his appointment in the form prescribed by statutory instrument made by the Secretary of State.
(2)
If the liquidator fails to comply with this section, he is liable to a fine and, for continued contravention, to a daily default fine.
110 Acceptance of shares, etc., as consideration for sale of company property.
(1)
This section applies, in the case of a company proposed to be, or being, wound up voluntarily, where the whole or part of the company’s business or property is proposed to be transferred or sold
F118(a)
(b)
to a limited liability partnership (the “transferee limited liability partnership").
(2)
With the requisite sanction, the liquidator of the company being, or proposed to be, wound up (“the transferor company") may receive, in compensation or part compensation for the transfer or F120sale—
(a)
in the case of the transferee company, shares, policies or other like interests in the transferee company for distribution among the members of the transferor company, or
(b)
in the case of the transferee limited liability partnership, membership in the transferee limited liability partnership for distribution among the members of the transferor company.
(3)
The sanction requisite under subsection (2) is—
(a)
in the case of a members’ voluntary winding up, that of a special resolution of the company, conferring either a general authority on the liquidator or an authority in respect of any particular arrangement, and
(b)
in the case of a creditors’ voluntary winding up, that of either the court or the liquidation committee.
(4)
Alternatively to subsection (2), the liquidator may (with that sanction) enter into any other arrangement whereby the members of the transferor F121company may—
(a)
in the case of the transferee company, in lieu of receiving cash, shares, policies or other like interests (or in addition thereto) participate in the profits of, or receive any other benefit from, the transferee company, or
(b)
in the case of the transferee limited liability partnership, in lieu of receiving cash or membership (or in addition thereto), participate in some other way in the profits of, or receive any other benefit from, the transferee limited liability partnership.
(5)
A sale or arrangement in pursuance of this section is binding on members of the transferor company.
(6)
A special resolution is not invalid for purposes of this section by reason that it is passed before or concurrently with a resolution for voluntary winding up or for appointing liquidators; but, if an order is made within a year for winding up the company by the court, the special resolution is not valid unless sanctioned by the court.
110 Acceptance of shares, etc., as consideration for sale of company property.
(1)
This section applies, in the case of a company proposed to be, or being, wound up voluntarily, where the whole or part of the company’s business or property is proposed to be transferred or sold
(a)
to another company (“the transferee company”), whether or not the latter is a company registered under the Companies Act 2006, or
(b)
to a limited liability partnership (the “transferee limited liability partnership”).
(2)
With the requisite sanction, the liquidator of the company being, or proposed to be, wound up (“the transferor company”) may receive, in compensation or part compensation for the transfer or sale–
(a)
in the case of the transferee company, shares, policies or other like interests in the company for distribution among the members of the transferor company, or
(b)
in the case of the transferee limited liability partnership, membership in the limited liability partnership for distribution among the members of the transferor company.
(3)
The sanction requisite under subsection (2) is—
(a)
in the case of a members’ voluntary winding up, that of a special resolution of the company, conferring either a general authority on the liquidator or an authority in respect of any particular arrangement, and
(b)
in the case of a creditors’ voluntary winding up, that of either the court or the liquidation committee.
(4)
Alternatively to subsection (2), the liquidator may-
(a)
in the case of the transferee company, in lieu of receiving cash, shares, policies or other like interests (or in addition thereto) participate in the profits of, or receive any other benefit from, the company, or
(b)
in the case of the transferee limited liability partnership, in lieu of receiving cash, or membership (or in addition thereto) participate in some other way in the profits of, or receive any other benefit from, the limited liability partnership.
(5)
A sale or arrangement in pursuance of this section is binding on members of the transferor company.
(6)
A special resolution is not invalid for purposes of this section by reason that it is passed before or concurrently with a resolution for voluntary winding up or for appointing liquidators; but, if an order is made within a year for winding up the company by the court, the special resolution is not valid unless sanctioned by the court.
111 Dissent from arrangement under s. 110.
(1)
This section applies in the case of a voluntary winding up where, for the purposes of section 110(2) or (4), there has been passed a special resolution of the transferor company providing the sanction requisite for the liquidator under that section.
(2)
If a member of the transferor company who did not vote in favour of the special resolution expresses his dissent from it in writing, addressed to the liquidator and left at the company’s registered office within 7 days after the passing of the resolution, he may require the liquidator either to abstain from carrying the resolution into effect or to purchase his interest at a price to be determined by agreement or by arbitration under this section.
(3)
If the liquidator elects to purchase the member’s interest, the purchase money must be paid before the company is dissolved and be raised by the liquidator in such manner as may be determined by special resolution.
(4)
For purposes of an arbitration under this section, the provisions of the M4Companies Clauses Consolidation Act 1845 or, in the case of a winding up in Scotland, the M5Companies Clauses Consolidation (Scotland) Act 1845 with respect to the settlement of disputes by arbitration are incorporated with this Act, and—
(a)
in the construction of those provisions this Act is deemed the special Act and “the company” means the transferor company, and
(b)
any appointment by the incorporated provisions directed to be made under the hand of the secretary or any two of the directors may be made in writing by the liquidator (or, if there is more than one liquidator, then any two or more of them).
112 Reference of questions to court.
(1)
The liquidator or any contributory or creditor may apply to the court to determine any question arising in the winding up of a company, or to exercise, as respects the enforcing of calls or any other matter, all or any of the powers which the court might exercise if the company were being wound up by the court.
(2)
The court, if satisfied that the determination of the question or the required exercise of power will be just and beneficial, may accede wholly or partially to the application on such terms and conditions as it thinks fit, or may make such other order on the application as it thinks just.
(3)
A copy of an order made by virtue of this section staying the proceedings in the winding up shall forthwith be forwarded by the company, or otherwise as may be prescribed, to the registrar of companies, who shall enter it in his records relating to the company.
113 Court’s power to control proceedings (Scotland).
If the court, on the application of the liquidator in the winding up of a company registered in Scotland, so directs, no action or proceeding shall be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court may impose.
114 No liquidator appointed or nominated by company.
(1)
This section applies where, in the case of a voluntary winding up, no liquidator has been appointed or nominated by the company.
(2)
The powers of the directors shall not be exercised, except with the sanction of the court or (in the case of a creditors’ voluntary winding up) so far as may be necessary to secure compliance with sections 98 (creditors’ meeting) and 99 (statement of affairs), during the period before the appointment or nomination of a liquidator of the company.
(3)
Subsection (2) does not apply in relation to the powers of the directors—
(a)
to dispose of perishable goods and other goods the value of which is likely to diminish if they are not immediately disposed of, and
(b)
to do all such other things as may be necessary for the protection of the company’s assets.
(4)
If the directors of the company without reasonable excuse fail to comply with this section, they are liable to a fine.
115 Expenses of voluntary winding up.
All expenses properly incurred in the winding up, including the remuneration of the liquidator, are payable out of the company’s assets in priority to all other claims.
116 Saving for certain rights.
The voluntary winding up of a company does not bar the right of any creditor or contributory to have it wound up by the court; but in the case of an application by a contributory the court must be satisfied that the rights of the contributories will be prejudiced by a voluntary winding up.
Chapter VI Winding Up by the Court
Jurisdiction (England and Wales)
117 High Court and county court jurisdiction.
(1)
The High Court has jurisdiction to wind up any company registered in England and Wales.
(2)
Where the amount of a company’s share capital paid up or credited as paid up does not exceed £120,000, then (subject to this section) the county court of the district in which the company’s registered office is situated has concurrent jurisdiction with the High Court to wind up the company.
(3)
The money sum for the time being specified in subsection (2) is subject to increase or reduction by order under section 416 in Part XV.
(4)
The Lord Chancellor F122may, with the concurrence of the Lord Chief Justice, by order in a statutory instrument exclude a county court from having winding-up jurisdiction, and for the purposes of that jurisdiction may attach its district, or any part thereof, to any other county court, and may by statutory instrument revoke or vary any such order.
In exercising the powers of this section, the Lord Chancellor shall provide that a county court is not to have winding-up jurisdiction unless it has for the time being jurisdiction for the purposes of Parts VIII to XI of this Act (individual insolvency).
(5)
Every court in England and Wales having winding-up jurisdiction has for the purposes of that jurisdiction all the powers of the High Court; and every prescribed officer of the court shall perform any duties which an officer of the High Court may discharge by order of a judge of that court or otherwise in relation to winding up.
(6)
For the purposes of this section, a company’s “registered office” is the place which has longest been its registered office during the 6 months immediately preceding the presentation of the petition for winding up.
F123(7)
This section is subject to Article 3 of the EC Regulation (jurisdiction under EC Regulation).
F124(8)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
118 Proceedings taken in wrong court.
(1)
Nothing in section 117 invalidates a proceeding by reason of its being taken in the wrong court.
(2)
The winding up of a company by the court in England and Wales, or any proceedings in the winding up, may be retained in the court in which the proceedings were commenced, although it may not be the court in which they ought to have been commenced.
119 Proceedings in county court; case stated for High Court.
(1)
If any question arises in any winding-up proceedings in a county court which all the parties to the proceedings, or which one of them and the judge of the court, desire to have determined in the first instance in the High Court, the judge shall state the facts in the form of a special case for the opinion of the High Court.
(2)
Thereupon the special case and the proceedings (or such of them as may be required) shall be transmitted to the High Court for the purposes of the determination.
Jurisdiction (Scotland)
120 Court of Session and sheriff court jurisdiction.
(1)
The Court of Session has jurisdiction to wind up any company registered in Scotland.
(2)
When the Court of Session is in vacation, the jurisdiction conferred on that court by this section may (subject to the provisions of this Part) be exercised by the judge acting as vacation judge F125in pursuance of section 4 of the Admnistration of Justice (Scotland) Act 1933.
(3)
Where the amount of a company’s share capital paid up or credited as paid up does not exceed £120,000, the sheriff court of the sheriffdom in which the company’s registered office is situated has concurrent jurisdiction with the Court of Session to wind up the company; but—
(a)
the Court of Session may, if it thinks expedient having regard to the amount of the company’s assets to do so—
(i)
remit to a sheriff court any petition presented to the Court of Session for winding up such a company, or
(ii)
require such a petition presented to a sheriff court to be remitted to the Court of Session; and
(b)
the Court of Session may require any such petition as above mentioned presented to one sheriff court to be remitted to another sheriff court; and
(c)
in a winding up in the sheriff court the sheriff may submit a stated case for the opinion of the Court of Session on any question of law arising in that winding up.
(4)
For purposes of this section, the expression “registered office” means the place which has longest been the company’s registered office during the 6 months immediately preceding the presentation of the petition for winding up.
(5)
The money sum for the time being specified in subsection (3) is subject to increase or reduction by order under section 416 in Part XV.
F126(6)
This section is subject to Article 3 of the EC Regulation (jurisdiction under EC Regulation).
121 Power to remit winding up to Lord Ordinary.
(1)
The Court of Session may, by Act of Sederunt, make provision for the taking of proceedings in a winding up before one of the Lords Ordinary; and, where provision is so made, the Lord Ordinary has, for the purposes of the winding up all the powers and jurisdiction of the court.
(2)
However, the Lord Ordinary may report to the Inner House any matter which may arise in the course of a winding up.
Grounds and effect of winding-up petition
122 Circumstances in which company may be wound up by the court.
(1)
A company may be wound up by the court if—
(a)
the company has by special resolution resolved that the company be wound up by the court,
(b)
being a public company which was registered as such on its original incorporation, the company has not been issued with F127a trading certificate under section 761 of the Companies Act 2006 (requirement as to minimum share capital) and more than a year has expired since it was so registered,
(c)
it is an old public company, within the meaning of the F128Schedule 3 to the Companies Act 2006 (Consequential Amendments, Transitional Provisions and Savings) Order 2009,
(d)
the company does not commence its business within a year from its incorporation or suspends its business for a whole year;
(e)
F129except in the case of a private company limited by shares or by guarantee, the number of members is reduced below 2,
(f)
the company is unable to pay its debts,
F130(fa)
at the time at which a moratorium for the company under section 1A comes to an end, no voluntary arrangement approved under Part I has effect in relation to the company
(g)
the court is of the opinion that it is just and equitable that the company should be wound up.
(2)
In Scotland, a company which the Court of Session has jurisdiction to wind up may be wound up by the Court if there is subsisting a floating charge over property comprised in the company’s property and undertaking, and the court is satisfied that the security of the creditor entitled to the benefit of the floating charge is in jeopardy.
For this purpose a creditor’s security is deemed to be in jeopardy if the Court is satisfied that events have occurred or are about to occur which render it unreasonable in the creditor’s interests that the company should retain power to dispose of the property which is subject to the floating charge.
123 Definition of inability to pay debts.
(1)
A company is deemed unable to pay its debts—
(a)
if a creditor (by assignment or otherwise) to whom the company is indebted in a sum exceeding £750 then due has served on the company, by leaving it at the company’s registered office, a written demand (in the prescribed form) requiring the company to pay the sum so due and the company has for 3 weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor, or
(b)
if, in England and Wales, execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part, or
(c)
if, in Scotland, the induciae of a charge for payment on an extract decree, or an extract registered bond, or an extract registered protest, have expired without payment being made, or
(d)
if, in Northern Ireland, a certificate of unenforceability has been granted in respect of a judgment against the company, or
(e)
if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due.
(2)
A company is also deemed unable to pay its debts if it is proved to the satisfaction of the court that the value of the company’s assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.
(3)
The money sum for the time being specified in subsection (1)(a) is subject to increase or reduction by order under section 416 in Part XV.
124 Application for winding up.
(1)
Subject to the provisions of this section, an application to the court for the winding up of a company shall be by petition presented either by the company, or the directors, or by any creditor or creditors (including any contingent or prospective creditor or creditors), contributory or contributories F131, or by a liquidator (within the meaning of Article 2(b) of the EC Regulation) appointed in proceedings by virtue of Article 3(1) of the EC Regulation or a temporary administrator (within the meaning of Article 38 of the EC Regulation)F132or by F133the designated officer for a magistrates' court in the exercise of the power conferred by section 87A of the Magistrates’ Courts Act 1980 (enforcement of fines imposed on companies), or by all or any of those parties, together or separately.
(2)
Except as mentioned below, a contributory is not entitled to present a winding-up petition unless either—
(a)
the number of members is reduced below 2, or
(b)
the shares in respect of which he is a contributory, or some of them, either were originally allotted to him, or have been held by him, and registered in his name, for at least 6 months during the 18 months before the commencement of the winding up, or have devolved on him through the death of a former holder.
(3)
A person who is liable under section 76 to contribute to a company’s assets in the event of its being wound up may petition on either of the grounds set out in section 122(1)(f) and (g), and subsection (2) above does not then apply; but unless the person is a contributory otherwise than under section 76, he may not in his character as contributory petition on any other ground.
F134. . .
F135(3A)
A winding-up petition on the ground set out in section 122(1)(fa) may only be presented by one or more creditors
(4)
A winding-up petition may be presented by the Secretary of State—
(a)
if the ground of the petition is that in section 122(1)(b) or (c), or
F138(4AA)
A winding up petition may be presented by the Financial Services Authority in a case falling within section 124C(1) or (2).
F139(4A)
A winding-up petition may be presented by the Regulator of Community Interest Companies in a case falling within section 50 of the Companies (Audit, Investigations and Community Enterprise) Act 2004.
(5)
Where a company is being wound up voluntarily in England and Wales, a winding-up petition may be presented by the official receiver attached to the court as well as by any other person authorised in that behalf under the other provisions of this section; but the court shall not make a winding-up order on the petition unless it is satisfied that the voluntary winding up cannot be continued with due regard to the interests of the creditors or contributories.
F140124A Petition for winding up on grounds of public interest.
(1)
Where it appears to the Secretary of State from—
(a)
any report made or information obtained under Part XIV F141(except section 448A) of the M6 Companies Act 1985 (company investigations, &c.),
F142(b)
any report made by inspectors under—
(i)
section 167, 168, 169 or 284 of the Financial Services and Markets Act 2000, or
(ii)
where the company is an open-ended investment company (within the meaning of that Act), regulations made as a result of section 262(2)(k) of that Act;
(bb)
any information or documents obtained under section 165, 171, 172, 173 or 175 of that Act,
(c)
any information obtained under section 2 of the M7 Criminal Justice Act 1987 or F143section 28 of the Criminal Law (Consolidation) (Scotland) Act 1995 (fraud investigations), or
(d)
any information obtained under section 83 of the Companies Act 1989 (powers exercisable for purpose of assisting overseas regulatory authorities),
that it is expedient in the public interest that a company should be wound up, he may present a petition for it to be wound up if the court thinks it just and equitable for it to be so.
(2)
This section does not apply if the company is already being wound up by the court.
F144124B Petition for winding up of SE
(“(1))
Where—
(a)
an SE whose registered office is in Great Britain is not in compliance with Article 7 of Council Regulation (EC) No 2157/2001 on the Statute for a European company (the “EC Regulation”)(location of head office and registered office), and
(b)
it appears to the Secretary of State that the SE should be wound up, he may present a petition for it to be wound up if the court thinks it is just and equitable for it to be so.
(2)
This section does not apply if the SE is already being wound up by the court.
(3)
In this section “SE” has the same meaning as in the EC Regulation.
F145124CPetition for winding up of SCE
(1)
Where, in the case of an SCE whose registered office is in Great Britain—
(a)
there has been such a breach as is mentioned in Article 73(1) of Council Regulation (EC) No 1435/2003 on the Statute for a European Cooperative Society (SCE)(the “European Cooperative Society Regulation”)(winding up by the court or other competent authority), and
(b)
it appears to the Financial Services Authority that the SCE should be wound up,
the Authority may present a petition for the SCE to be wound up if the court thinks it is just and equitable for it to be so.
(2)
Where, in the case of an SCE whose registered office is in Great Britain—
(a)
the SCE is not in compliance with Article 6 of the European Cooperative Society Regulation (location of head office and registered office, and
(b)
it appears to the Financial Service Authority that the SCE should be wound up,
the Authority may present a petition for the SCE to be wound up if the court thinks it is just and equitable for it to be so.
(3)
This section does not apply if the SCE is already being wound up by the court.
(4)
In this section “SCE” has the same meaning as in the European Cooperative Society Regulation.
125 Powers of court on hearing of petition.
(1)
On hearing a winding-up petition the court may dismiss it, or adjourn the hearing conditionally or unconditionally, or make an interim order, or any other order that it thinks fit; but the court shall not refuse to make a winding-up order on the ground only that the company’s assets have been mortgaged to an amount equal to or in excess of those assets, or that the company has no assets.
(2)
If the petition is presented by members of the company as contributories on the ground that it is just and equitable that the company should be wound up, the court, if it is of opinion—
(a)
that the petitioners are entitled to relief either by winding up the company or by some other means, and
(b)
that in the absence of any other remedy it would be just and equitable that the company should be wound up,
shall make a winding-up order; but this does not apply if the court is also of the opinion both that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy.
126 Power to stay or restrain proceedings against company.
(1)
At any time after the presentation of a winding-up petition, and before a winding-up order has been made, the company, or any creditor or contributory, may—
(a)
where any action or proceeding against the company is pending in the High Court or Court of Appeal in England and Wales or Northern Ireland, apply to the court in which the action or proceeding is pending for a stay of proceedings therein, and
(b)
where any other action or proceeding is pending against the company, apply to the court having jurisdiction to wind up the company to restrain further proceedings in the action or proceeding;
and the court to which the application is so made may (as the case may be) stay, sist or restrain the proceedings accordingly on such terms as it thinks fit.
(2)
In the case of F146a company registered but not formed under the Companies Act 2006, where the application to stay, sist or restrain is by a creditor, this section extends to actions and proceedings against any contributory of the company.
127 Avoidance of property dispositions, etc.
F147(1)
In a winding up by the court, any disposition of the company’s property, and any transfer of shares, or alteration in the status of the company’s members, made after the commencement of the winding up is, unless the court otherwise orders, void.
F147(2)
This section has no effect in respect of anything done by an administrator of a company while a winding-up petition is suspended under paragraph 40 of Schedule B1.
128 Avoidance of attachments, etc.
(1)
Where a company registered in England and Wales is being wound up by the court, any attachment, sequestration, distress or execution put in force against the estate or effects of the company after the commencement of the winding up is void.
(2)
This section, so far as relates to any estate or effects of the company situated in England and Wales, applies in the case of a company registered in Scotland as it applies in the case of a company registered in England and Wales.
Commencement of winding up
129 Commencement of winding up by the court.
(1)
If, before the presentation of a petition for the winding up of a company by the court, a resolution has been passed by the company for voluntary winding up, the winding up of the company is deemed to have commenced at the time of the passing of the resolution; and unless the court, on proof of fraud or mistake, directs otherwise, all proceedings taken in the voluntary winding up are deemed to have been validly taken.
F148(1A)
Where the court makes a winding-up order by virtue of paragraph 13(1)(e) of Schedule B1, the winding up is deemed to commence on the making of the order.
(2)
In any other case, the winding up of a company by the court is deemed to commence at the time of the presentation of the petition for winding up.
130 Consequences of winding-up order.
(1)
On the making of a winding-up order, a copy of the order must forthwith be forwarded by the company (or otherwise as may be prescribed) to the registrar of companies, who shall enter it in his records relating to the company.
(2)
When a winding-up order has been made or a provisional liquidator has been appointed, no action or proceeding shall be proceeded with or commenced against the company or its property, except by leave of the court and subject to such terms as the court may impose.
(3)
When an order has been made for winding up a company F149registered but not formed under the Companies Act 2006, no action or proceeding shall be commenced or proceeded with against the company or its property or any contributory of the company, in respect of any debt of the company, except by leave of the court, and subject to such terms as the court may impose.
(4)
An order for winding up a company operates in favour of all the creditors and of all contributories of the company as if made on the joint petition of a creditor and of a contributory.
Investigation procedures
131 Company’s statement of affairs.
(1)
Where the court has made a winding-up order or appointed a provisional liquidator, the official receiver may require some or all of the persons mentioned in subsection (3) below to make out and submit to him a statement in the prescribed form as to the affairs of the company.
(2)
The statement shall be verified by affidavit by the persons required to submit it and shall show—
(a)
particulars of the company’s assets, debts and liabilities;
(b)
the names and addresses of the company’s creditors;
(c)
the securities held by them respectively;
(d)
the dates when the securities were respectively given; and
(e)
such further or other information as may be prescribed or as the official receiver may require
(3)
The persons referred to in subsection (1) are—
(a)
those who are or have been officers of the company;
(b)
those who have taken part in the formation of the company at any time within one year before the relevant date;
(c)
those who are in the company’s employment, or have been in its employment within that year, and are in the official receiver’s opinion capable of giving the information required;
(d)
those who are or have been within that year officers of, or in the employment of, a company which is, or within that year was, an officer of the company.
(4)
Where any persons are required under this section to submit a statement of affairs to the official receiver, they shall do so (subject to the next subsection) before the end of the period of 21 days beginning with the day after that on which the prescribed notice of the requirement is given to them by the official receiver.
(5)
The official receiver, if he thinks fit, may—
(a)
at any time release a person from an obligation imposed on him under subsection (1) or (2) above; or
(b)
either when giving the notice mentioned in subsection (4) or subsequently, extend the period so mentioned;
and where the official receiver has refused to exercise a power conferred by this subsection, the court, if it thinks fit, may exercise it.
(6)
In this section—
“employment” includes employment under a contract for services; and
“the relevant date” means—
(a)
in a case where a provisional liquidator is appointed, the date of his appointment; and
(b)
in a case where no such appointment is made, the date of the winding-up order.
(7)
If a person without reasonable excuse fails to comply with any obligation imposed under this section, he is liable to a fine and, for continued contravention, to a daily default fine.
(8)
In the application of this section to Scotland references to the official receiver are to the liquidator or, in a case where a provisional liquidator is appointed, the provisional liquidator.
132 Investigation by official receiver.
(1)
Where a winding-up order is made by the court in England and Wales, it is the duty of the official receiver to investigate—
(a)
if the company has failed, the causes of the failure; and
(b)
generally, the promotion, formation, business, dealings and affairs of the company,
and to make such report (if any) to the court as he thinks fit.
(2)
The report is, in any proceedings, prima facie evidence of the facts stated in it.
133 Public examination of officers
(1)
Where a company is being wound up by the court, the official receiver or, in Scotland, the liquidator may at any time before the dissolution of the company apply to the court for the public examination of any person who—
(a)
is or has been an officer of the company; or
(b)
has acted as liquidator or administrator of the company or as receiver or manager or, in Scotland, receiver of its property; or
(c)
not being a person falling within paragraph (a) or (b), is or has been concerned, or has taken part, in the promotion, formation or management of the company.
(2)
Unless the court otherwise orders, the official receiver or, in Scotland, the liquidator shall make an application under subsection (1) if he is requested in accordance with the rules to do so by—
(a)
one-half, in value, of the company’s creditors; or
(b)
three-quarters, in value, of the company’s contributories.
(3)
On an application under subsection (1), the court shall direct that a public examination of the person to whom the application relates shall be held on a day appointed by the court; and that person shall attend on that day and be publicly examined as to the promotion, formation or management of the company or as to the conduct of its business and affairs, or his conduct or dealings in relation to the company.
(4)
The following may take part in the public examination of a person under this section and may question that person concerning the matters mentioned in subsection (3), namely—
(a)
the official receiver;
(b)
the liquidator of the company;
(c)
any person who has been appointed as special manager of the company’s property or business;
(d)
any creditor of the company who has tendered a proof or, in Scotland, submitted a claim in the winding up;
(e)
any contributory of the company.
134 Enforcement of s. 133.
(1)
If a person without reasonable excuse fails at any time to attend his public examination under section 133, he is guilty of a contempt of court and liable to be punished accordingly.
(2)
In a case where a person without reasonable excuse fails at any time to attend his examination under section 133 or there are reasonable grounds for believing that a person has absconded, or is about to abscond, with a view to avoiding or delaying his examination under that section, the court may cause a warrant to be issued to a constable or prescribed officer of the court—
(a)
for the arrest of that person; and
(b)
for the seizure of any books, papers, records, money or goods in that person’s possession.
(3)
In such a case the court may authorise the person arrested under the warrant to be kept in custody, and anything seized under such a warrant to be held, in accordance with the rules, until such time as the court may order.
Appointment of liquidator
135 Appointment and powers of provisional liquidator.
(1)
Subject to the provisions of this section, the court may, at any time after the presentation of a winding-up petition, appoint a liquidator provisionally.
(2)
In England and Wales, the appointment of a provisional liquidator may be made at any time before the making of a winding-up order; and either the official receiver or any other fit person may be appointed.
(3)
In Scotland, such an appointment may be made at any time before the first appointment of liquidators.
(4)
The provisional liquidator shall carry out such functions as the court may confer on him.
(5)
When a liquidator is provisionally appointed by the court, his powers may be limited by the order appointing him.
136 Functions of official receiver in relation to office of liquidator.
(1)
The following provisions of this section have effect, subject to section 140 below, on a winding-up order being made by the court in England and Wales.
(2)
The official receiver, by virtue of his office, becomes the liquidator of the company and continues in office until another person becomes liquidator under the provisions of this Part.
(3)
The official receiver is, by virtue of his office, the liquidator during any vacancy.
(4)
At any time when he is the liquidator of the company, the official receiver may summon separate meetings of the company’s creditors and contributories for the purpose of choosing a person to be liquidator of the company in place of the official receiver.
(5)
It is the duty of the official receiver—
(a)
as soon as practicable in the period of 12 weeks beginning with the day on which the winding-up order was made, to decide whether to exercise his power under sub-section (4) to summon meetings, and
(b)
if in pursuance of paragraph (a) he decides not to exercise that power, to give notice of his decision, before the end of that period, to the court and to the company’s creditors and contributories, and
(c)
(whether or not he has decided to exercise that power) to exercise his power to summon meetings under subsection (4) if he is at any time requested, in accordance with rules, to do so by one-quarter, in value, of the company’s creditors;
and accordingly, where the duty imposed by paragraph (c) arises before the official receiver has performed a duty imposed by paragraph (a) or (b), he is not required to perform the latter duty.
(6)
A notice given under subsection (5)(b) to the company’s creditors shall contain an explanation of the creditors’ power under subsection (5)(c) to require the official receiver to summon meetings of the company’s creditors and contributories.
137 Appointment by Secretary of State.
(1)
In a winding up by the court in England and Wales the official receiver may, at any time when he is the liquidator of the company, apply to the Secretary of State for the appointment of a person as liquidator in his place.
(2)
If meetings are held in pursuance of a decision under section 136(5)(a), but no person is chosen to be liquidator as a result of those meetings, it is the duty of the official receiver to decide whether to refer the need for an appointment to the Secretary of State.
(3)
On an application under subsection (1), or a reference made in pursuance of a decision under subsection (2), the Secretary of State shall either make an appointment or decline to make one.
(4)
Where a liquidator has been appointed by the Secretary of State under subsection (3), the liquidator shall give notice of his appointment to the company’s creditors or, if the court so allows, shall advertise his appointment in accordance with the directions of the court.
(5)
In that notice or advertisement the liquidator shall—
(a)
state whether he proposes to summon a general meeting of the company’s creditors under section 141 below for the purpose of determining (together with any meeting of contributories) whether a liquidation committee should be established under that section, and
(b)
if he does not propose to summon such a meeting, set out the power of the company’s creditors under that section to require him to summon one.
138 Appointment of liquidator in Scotland.
(1)
Where a winding-up order is made by the court in Scotland, a liquidator shall be appointed by the court at the time when the order is made.
(2)
The liquidator so appointed (here referred to as “the interim liquidator”) continues in office until another person becomes liquidator in his place under this section or the next.
(3)
The interim liquidator shall (subject to the next subsection) as soon as practicable in the period of 28 days beginning with the day on which the winding-up order was made or such longer period as the court may allow, summon separate meetings of the company’s creditors and contributories for the purpose of choosing a person (who may be the person who is the interim liquidator) to be liquidator of the company in place of the interim liquidator.
(4)
If it appears to the interim liquidator, in any case where a company is being wound up on grounds including its inability to pay its debts, that it would be inappropriate to summon under subsection (3) a meeting of the company’s contributories, he may summon only a meeting of the company’s creditors for the purpose mentioned in that subsection.
(5)
If one or more meetings are held in pursuance of this section but no person is appointed or nominated by the meeting or meetings, the interim liquidator shall make a report to the court which shall appoint either the interim liquidator or some other person to be liquidator of the company.
(6)
A person who becomes liquidator of the company in place of the interim liquidator shall, unless he is appointed by the court, forthwith notify the court of that fact.
139 Choice of liquidator at meetings of creditors and contributories.
(1)
This section applies where a company is being wound up by the court and separate meetings of the company’s creditors and contributories are summoned for the purpose of choosing a person to be liquidator of the company.
(2)
The creditors and the contributories at their respective meetings may nominate a person to be liquidator.
(3)
The liquidator shall be the person nominated by the creditors or, where no person has been so nominated, the person (if any) nominated by the contributories.
(4)
In the case of different persons being nominated, any contributory or creditor may, within 7 days after the date on which the nomination was made by the creditors, apply to the court for an order either—
(a)
appointing the person nominated as liquidator by the contributories to be a liquidator instead of, or jointly with, the person nominated by the creditors; or
(b)
appointing some other person to be liquidator instead of the person nominated by the creditors.
140 Appointment by the court following administration or voluntary arrangement.
F150(1)
Where a winding-up order is made immediately upon the appointment of an administrator ceasing to have effect, the court may appoint as liquidator of the company the person whose appointment as administrator has ceased to have effect.
(2)
Where a winding-up order is made at a time when there is a supervisor of a voluntary arrangement approved in relation to the company under Part I, the court may appoint as liquidator of the company the person who is the supervisor at the time when the winding-up order is made.
(3)
Where the court makes an appointment under this section, the official receiver does not become the liquidator as otherwise provided by section 136(2), and he has no duty under section 136(5)(a) or (b) in respect of the summoning of creditors’ or contributories’ meetings.
Liquidation committees
141 Liquidation committee (England and Wales).
(1)
Where a winding-up order has been made by the court in England and Wales and separate meetings of creditors and contributories have been summoned for the purpose of choosing a person to be liquidator, those meetings may establish a committee (“the liquidation committee”) to exercise the functions conferred on it by or under this Act.
(2)
The liquidator (not being the official receiver) may at any time, if he thinks fit, summon separate general meetings of the company’s creditors and contributories for the purpose of determining whether such a committee should be established and, if it is so determined, of establishing it.
The liquidator (not being the official receiver) shall summon such a meeting if he is requested, in accordance with the rules, to do so by one-tenth, in value, of the company’s creditors.
(3)
Where meetings are summoned under this section, or for the purpose of choosing a person to be liquidator, and either the meeting of creditors or the meeting of contributories decides that a liquidation committee should be established, but the other meeting does not so decide or decides that a committee should not be established, the committee shall be established in accordance with the rules, unless the court otherwise orders.
(4)
The liquidation committee is not to be able or required to carry out its functions at any time when the official receiver is liquidator; but at any such time its functions are vested in the Secretary of State except to the extent that the rules otherwise provide.
(5)
Where there is for the time being no liquidation committee, and the liquidator is a person other than the official receiver, the functions of such a committee are vested in the Secretary of State except to the extent that the rules otherwise provide.
142 Liquidation committee (Scotland).
(1)
Where a winding-up order has been made by the court in Scotland and separate meetings of creditors and contributories have been summoned for the purpose of choosing a person to be liquidator or, under section 138(4), only a meeting of creditors has been summoned for that purpose, those meetings or (as the case may be) that meeting may establish a committee (“the liquidation committee”) to exercise the functions conferred on it by or under this Act.
(2)
The liquidator may at any time, if he thinks fit, summon separate general meetings of the company’s creditors and contributories for the purpose of determining whether such a committee should be established and, if it is so determined, of establishing it.
(3)
The liquidator, if appointed by the court otherwise than under section 139(4)(a), is required to summon meetings under subsection (2) if he is requested, in accordance with the rules, to do so by one-tenth, in value, of the company’s creditors.
(4)
Where meetings are summoned under this section, or for the purpose of choosing a person to be liquidator, and either the meeting of creditors or the meeting of contributories decides that a liquidation committee should be established, but the other meeting does not so decide or decides that a committee should not be established, the committee shall be established in accordance with the rules, unless the court otherwise orders.
(5)
Where in the case of any winding up there is for the time being no liquidation committee, the functions of such a committee are vested in the court except to the extent that the rules otherwise provide.
(6)
In addition to the powers and duties conferred and imposed on it by this Act, a liquidation committee has such of the powers and duties of commissioners in a sequestration as may be conferred and imposed on such committees by the rules.
The liquidator’s functions
143 General functions in winding up by the court.
(1)
The functions of the liquidator of a company which is being wound up by the court are to secure that the assets of the company are got in, realised and distributed to the company’s creditors and, if there is a surplus, to the persons entitled to it.
(2)
It is the duty of the liquidator of a company which is being wound up by the court in England and Wales, if he is not the official receiver—
(a)
to furnish the official receiver with such information,
(b)
to produce to the official receiver, and permit inspection by the official receiver of, such books, papers and other records, and
(c)
to give the official receiver such other assistance,
as the official receiver may reasonably require for the purposes of carrying out his functions in relation to the winding up.
144 Custody of company’s property.
(1)
When a winding-up order has been made, or where a provisional liquidator has been appointed, the liquidator or the provisional liquidator (as the case may be) shall take into his custody or under his control all the property and things in action to which the company is or appears to be entitled.
(2)
In a winding up by the court in Scotland, if and so long as there is no liquidator, all the property of the company is deemed to be in the custody of the court.
145 Vesting of company property in liquidator.
(1)
When a company is being wound up by the court, the court may on the application of the liquidator by order direct that all or any part of the property of whatsoever description belonging to the company or held by trustees on its behalf shall vest in the liquidator by his official name; and thereupon the property to which the order relates vests accordingly.
(2)
The liquidator may, after giving such indemnity (if any) as the court may direct, bring or defend in his official name any action or other legal proceeding which relates to that property or which it is necessary to bring or defend for the purpose of effectually winding up the company and recovering its property.
146 Duty to summon final meeting.
(1)
Subject to the next subsection, if it appears to the liquidator of a company which is being wound up by the court that the winding up of the company is for practical purposes complete and the liquidator is not the official receiver, the liquidator shall summon a final general meeting of the company’s creditors which—
(a)
shall receive the liquidator’s report of the winding up, and
(b)
shall determine whether the liquidator should have his release under section 174 in Chapter VII of this Part.
(2)
The liquidator may, if he thinks fit, give the notice summoning the final general meeting at the same time as giving notice of any final distribution of the company’s property but, if summoned for an earlier date, that meeting shall be adjourned (and, if necessary, further adjourned) until a date on which the liquidator is able to report to the meeting that the winding up of the company is for practical purposes complete.
(3)
In the carrying out of his functions in the winding up it is the duty of the liquidator to retain sufficient sums from the company’s property to cover the expenses of summoning and holding the meeting required by this section.
General powers of court
147 Power to stay or sist winding up.
(1)
The court may at any time after an order for winding up, on the application either of the liquidator or the official receiver or any creditor or contributory, and on proof to the satisfaction of the court that all proceedings in the winding up ought to be stayed or sisted, make an order staying or sisting the proceedings, either altogether or for a limited time, on such terms and conditions as the court thinks fit.
(2)
The court may, before making an order, require the official receiver to furnish to it a report with respect to any facts or matters which are in his opinion relevant to the application.
(3)
A copy of every order made under this section shall forthwith be forwarded by the company, or otherwise as may be prescribed, to the registrar of companies, who shall enter it in his records relating to the company.
148 Settlement of list of contributories and application of assets.
(1)
As soon as may be after making a winding-up order, the court shall settle a list of contributories, with power to rectify the register of members in all cases where rectification is required F151. . . , and shall cause the company’s assets to be collected, and applied in discharge of its liabilities.
(2)
If it appears to the court that it will not be necessary to make calls on or adjust the rights of contributories, the court may dispense with the settlement of a list of contributories.
(3)
In settling the list, the court shall distinguish between persons who are contributories in their own right and persons who are contributories as being representatives of or liable for the debts of others.
149 Debts due from contributory to company.
(1)
The court may, at any time after making a winding-up order, make an order on any contributory for the time being on the list of contributories to pay, in manner directed by the order, any money due from him (or from the estate of the person who he represents) to the company, exclusive of any money payable by him or the estate by virtue of any call F152. . . .
(2)
The court in making such an order may—
(a)
in the case of an unlimited company, allow to the contributory by way of set-off any money due to him or the estate which he represents from the company on any independent dealing or contract with the company, but not any money due to him as a member of the company in respect of any dividend or profit, and
(b)
in the case of a limited company, make to any director or manager whose liability is unlimited or to his estate the like allowance.
(3)
In the case of any company, whether limited or unlimited, when all the creditors are paid in full (together with interest at the official rate) any money due on any account whatever to a contributory from the company may be allowed to him by way of set-off against any subsequent call.
150 Power to make calls.
(1)
The court may, at any time after making a winding-up order, and either before or after it has ascertained the sufficiency of the company’s assets, make calls on all or any of the contributories for the time being settled on the list of the contributories to the extent of their liability, for payment of any money which the court considers necessary to satisfy the company’s debts and liabilities, and the expenses of winding up, and for the adjustment of the rights of the contributories among themselves, and make an order for payment of any calls so made.
(2)
In making a call the court may take into consideration the probability that some of the contributories may partly or wholly fail to pay it.
151 Payment into bank of money due to company.
(1)
The court may order any contributory, purchaser or other person from whom money is due to the company to pay the amount due into the Bank of England (or any branch of it) to the account of the liquidator instead of to the liquidator, and such an order may be enforced in the same manner as if it had directed payment to the liquidator.
(2)
All money and securities paid or delivered into the Bank of England (or branch) in the event of a winding up by the court are subject in all respects to the orders of the court.
152 Order on contributory to be conclusive evidence.
(1)
An order made by the court on a contributory is conclusive evidence that the money (if any) thereby appearing to be due or ordered to be paid is due, but subject to any right of appeal.
(2)
All other pertinent matters stated in the order are to be taken as truly stated as against all persons and in all proceedings except proceedings in Scotland against the heritable estate of a deceased contributory; and in that case the order is only prima facie evidence for the purpose of charging his heritable estate, unless his heirs or legatees of heritage were on the list of contributories at the time of the order being made.
153 Power to exclude creditors not proving in time.
The court may fix a time or times within which creditors are to prove their debts or claims or to be excluded from the benefit of any distribution made before those debts are proved.
154 Adjustment of rights of contributories.
The court shall adjust the rights of the contributories among themselves and distribute any surplus among the persons entitled to it.
155 Inspection of books by creditors, etc.
(1)
The court may, at any time after making a winding-up order, make such order for inspection of the company’s books and papers by creditors and contributories as the court thinks just; and any books and papers in the company’s possession may be inspected by creditors and contributories accordingly, but not further or otherwise.
(2)
Nothing in this section excludes or restricts any statutory rights of a government department or person acting under the authority of a government department.
F153(3)
For the purposes of subsection (2) above, references to a government department shall be construed as including references to any part of the Scottish Administration.
156 Payment of expenses of winding up.
The court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the assets of the expenses incurred in the winding up in such order of priority as the court thinks just.
157 Attendance at company meetings (Scotland).
In the winding up by the court of a company registered in Scotland, the court has power to require the attendance of any officer of the company at any meeting of creditors or of contributories, or of a liquidation committee, for the purpose of giving information as to the trade, dealings, affairs or property of the company.
158 Power to arrest absconding contributory.
The court, at any time either before or after making a winding-up order, on proof of probable cause for believing that a contributory is about to quit the United Kingdom or otherwise to abscond or to remove or conceal any of his property for the purpose of evading payment of calls, may cause the contributory to be arrested and his books and papers and moveable personal property to be seized and him and them to be kept safely until such time as the court may order.
159 Powers of court to be cumulative.
Powers conferred F154on the court by this Act are in addition to, and not in restriction of, any existing powers of instituting proceedings against a contributory or debtor of the company, or the estate of any contributory or debtor, for the recovery of any call or other sums.
160 Delegation of powers to liquidator (England and Wales).
(1)
Provision may be made by rules for enabling or requiring all or any of the powers and duties conferred and imposed on the court in England and Wales F155. . . in respect of the following matters—
(a)
the holding and conducting of meetings to ascertain the wishes of creditors and contributories,
(b)
the settling of lists of contributories and the rectifying of the register of members where required, and the collection and application of the assets,
(c)
the payment, delivery, conveyance, surrender or transfer of money, property, books or papers to the liquidator,
(d)
the making of calls,
(e)
the fixing of a time within which debts and claims must be proved,
to be exercised or performed by the liquidator as an officer of the court, and subject to the court’s control.
(2)
But the liquidator shall not, without the special leave of the court, rectify the register of members, and shall not make any call without either that special leave or the sanction of the liquidation committee.
Enforcement of, and appeal from, orders
161 Orders for calls on contributories (Scotland).
(1)
In Scotland, where an order, interlocutor or decree has been made for winding up a company by the court, it is competent to the court, on production by the liquidators of a list certified by them of the names of the contributories liable in payment of any calls, and of the amount due by each contributory, and of the date when that amount became due, to pronounce forthwith a decree against those contributories for payment of the sums so certified to be due, with interest from that date until payment (at 5 per cent. per annum) in the same way and to the same effect as if they had severally consented to registration for execution, on a charge of 6 days, of a legal obligation to pay those calls and interest.
(2)
The decree may be extracted immediately, and no suspension of it is competent, except on caution or consignation, unless with special leave of the court.
162 Appeals from orders in Scotland.
(1)
Subject to the provision of this section and to rules of court, an appeal from any order or decision made or given in the winding up of a company by the court in Scotland under this Act lies in the same manner and subject to the same conditions as an appeal from an order or decision of the court in cases within its ordinary jurisdiction.
(2)
In regard to orders of judgments pronounced by the judge acting as vacation judge F156in pursuance of section 4 of the M8Administration of Justice (Scotland) Act 1933—
(a)
none of the orders specified in Part I of Schedule 3 to this Act are subject to review, reduction, suspension or stay of execution, and
(b)
every other order or judgment (except as mentioned below) may be submitted to review by the Inner House by reclaiming motion enrolled within 14 days from the date of the order or judgment.
(3)
However, an order being one of those specified in Part II of that Schedule shall, from the date of the order and notwithstanding that it has been submitted to review as above, be carried out and receive effect until the Inner House have disposed of the matter.
(4)
In regard to orders or judgments pronounced in Scotland by a Lord Ordinary before whom proceedings in a winding up are being taken, any such order or judgment may be submitted to review by the Inner House by reclaiming motion enrolled within 14 days from its date; but should it not be so submitted to review during session, the provisions of this section in regard to orders or judgments pronounced by the judge acting as vacation judge apply.
(5)
Nothing in this section affects provisions of F157the Companies Acts or this Act in reference to decrees in Scotland for payment of calls in the winding up of companies, whether voluntary or by the court.
Chapter VII Liquidators
Preliminary
163 Style and title of liquidators.
The liquidator of a company shall be described—
(a)
where a person other than the official receiver is liquidator, by the style of “the liquidator” of the particular company, or
(b)
where the official receiver is liquidator, by the style of “the official receiver and liquidator” of the particular company;
and in neither case shall he be described by an individual name.
164 Corrupt inducement affecting appointment.
A person who gives, or agrees or offers to give, to any member or creditor of a company any valuable consideration with a view to securing his own appointment or nomination, or to securing or preventing the appointment or nomination of some person other than himself, as the company’s liquidator is liable to a fine.
Liquidator’s powers and duties
165 Voluntary winding up.
(1)
This section has effect where a company is being wound up voluntarily, but subject to section 166 below in the case of a creditor’s voluntary winding up.
(2)
The liquidator may—
(a)
in the case of a members’ voluntary winding up, with the sanction of an F158special resolution of the company, and
(b)
in the case of a creditor’s voluntary winding up, with the sanction of the court or the liquidation committee (or, if there is no such committee, a meeting of the company’s creditors),
exercise any of the powers specified in Part I of Schedule 4 to this Act (payment of debts, compromise of claims, etc.).
(3)
The liquidator may, without sanction exercise either of the powers specified in Part II of that Schedule (institution and defence of proceedings; carrying on the business of the company) and any of the general powers specified in Part III of that Schedule.
(4)
The liquidator may—
(a)
exercise the court’s power of settling a list of contributories (which list is prima facie evidence of the liability of the persons named in it to be contributories),
(b)
exercise the court’s power of making calls,
(c)
summon general meetings of the company for the purpose of obtaining its sanction by F159special resolution or for any other purpose he may think fit.
(5)
The liquidator shall pay the company’s debts and adjust the rights of the contributories among themselves.
(6)
Where the liquidator in exercise of the powers conferred on him by this Act disposes of any property of the company to a person who is connected with the company (within the meaning of section 249 in Part VII), he shall, if there is for the time being a liquidation committee, give notice to the committee of that exercise of his powers.
166 Creditors’ voluntary winding up.
(1)
This section applies where, in the case of a creditors’ voluntary winding up, a liquidator has been nominated by the company.
F160(1A)
The exercise by the liquidator of the power specified in paragraph 6 of Schedule 4 to this Act (power to sell any of the company's property) shall not be challengeable on the ground of any prior inhibition.
(2)
The powers conferred on the liquidator by section 165 shall not be exercised, except with the sanction of the court, during the period before the holding of the creditors’ meeting under section 98 in Chapter IV.
(3)
Subsection (2) does not apply in relation to the power of the liquidator—
(a)
to take into his custody or under his control all the property to which the company is or appears to be entitled;
(b)
to dispose of perishable goods and other goods the value of which is likely to diminish if they are not immediately disposed of; and
(c)
to do all such other things as may be necessary for the protection of the company’s assets.
(4)
The liquidator shall attend the creditors’ meeting held under section 98 and shall report to the meeting on any exercise by him of his powers (whether or not under this section or under section 112 or 165).
(5)
If default is made—
(a)
by the company in complying with subsection (1) F161, (1A) or (2) of section 98, or
(b)
by the directors in complying with subsection (1) or (2) of section 99,
the liquidator shall, within 7 days of the relevant day, apply to the court for directions as to the manner in which that default is to be remedied.
(6)
“The relevant day” means the day on which the liquidator was nominated by the company or the day on which he first became aware of the default, whichever is the later.
(7)
If the liquidator without reasonable excuse fails to comply with this section, he is liable to a fine.
167 Winding up by the court.
(1)
Where a company is being wound up by the court, the liquidator may—
(a)
with the sanction of the court or the liquidation committee, exercise any of the powers specified in Parts I and II of Schedule 4 to this Act (payment of debts; compromise of claims, etc., institution and defence of proceedings; carrying on of the business of the company), and
(b)
with or without that sanction, exercise any of the general powers specified in Part III of that Schedule.
(2)
Where the liquidator (not being the official receiver), in exercise of the powers conferred on him by this Act—
(a)
disposes of any property of the company to a person who is connected with the company (within the meaning of section 249 in Part VII) or
(b)
employs a solicitor to assist him in the carrying out of his functions,
he shall, if there is for the time being a liquidation committee, give notice to the committee of that exercise of his powers.
(3)
The exercise by the liquidator in a winding up by the court of the powers conferred by this section is subject to the control of the court, and any creditor or contributory may apply to the court with respect to any exercise or proposed exercise of any of those powers.
168 Supplementary powers (England and Wales).
(1)
This section applies in the case of a company which is being wound up by the court in England and Wales.
(2)
The liquidator may summon general metings of the creditors or contributories for the purpose of ascertaining their wishes; and it is his duty to summon meetings at such times as the creditors or contributories by resolution (either at the meeting appointing the liquidator or otherwise) may direct, or whenever requested in writing to do so by one-tenth in value of the creditors or contributories (as the case may be).
(3)
The liquidator may apply to the court (in the prescribed manner) for directions in relation to any particular matter arising in the winding up.
(4)
Subject to the provisions of this Act, the liquidator shall use his own discretion in the management of the assets and their distribution among the creditors.
(5)
If any person is aggrieved by an act or decision of the liquidator, that person may apply to the court; and the court may confirm, reverse or modify the act or decision complained of, and make such order in the case as it thinks just.
F162(5A)
Where at any time after a winding-up petition has been presented to the court against any person (including an insolvent partnership or other body which may be wound up under Part V of the Act as an unregistered company), whether by virtue of the provisions of the M9Insolvent Partnerships Order 1994 or not, the attention of the court is drawn to the fact that the person in question is a member of an insolvent partnership, the court may make an order as to the future conduct of the insolvency proceedings and any such order may apply any provisions of that Order with any necessary modifications.
(5B)
Any order or directions under subsection (5A) may be made or given on the application of the official receiver, any responsible insolvency practitioner, the trustee of the partnership or any other interested person and may include provisions as to the administration of the joint estate of the partnership, and in particular how it and the separate estate of any member are to be administered.
F163(5C)
Where the court makes an order for the winding up of an insolvent partnership under—
(a)
section 72(1)(a) of the Financial Services Act 1986;
(b)
section 92(1)(a) of the Banking Act 1987; or
(c)
section 367(3)(a) of the Financial Services and Markets Act 2000,
the court may make an order as to the future conduct of the winding up proceedings, and any such order may apply any provisions of the Insolvent Partnerships Order 1994 with any necessary modifications.
169 Supplementary powers (Scotland).
(1)
In the case of a winding up in Scotland, the court may provide by order that the liquidator may, where there is no liquidation committee, exercise any of the following powers, namely—
(a)
to bring or defend any action or other legal proceeding in the name and on behalf of the company, or
(b)
to carry on the business of the company so far as may be necessary for its beneficial winding up,
without the sanction or intervention of the court.
(2)
In a winding up by the court in Scotland, the liquidator has (subject to the rules) the same powers as a trustee on a bankrupt estate.
170 Enforcement of liquidator’s duty to make returns, etc.
(1)
If a liquidator who has made any default—
(a)
in filing, delivering or making any return, account or other document, or
(b)
in giving any notice which he is by law required to file, deliver, make or give,
fails to make good the default within 14 days after the service on him of a notice requiring him to do so, the court has the following powers.
(2)
On an application made by any creditor or contributory of the company, or by the registrar of companies, the court may make an order directing the liquidator to make good the default within such time as may be specified in the order.
(3)
The court’s order may provide that all costs of and incidental to the application shall be borne by the liquidator.
(4)
Nothing in this section prejudices the operation of any enactment imposing penalties on a liquidator in respect of any such default as is mentioned above.
Removal; vacation of office
171 Removal, etc. (voluntary winding up).
(1)
This section applies with respect to the removal from office and vacation of office of the liquidator of a company which is being wound up voluntarily.
(2)
Subject to the next subsection, the liquidator may be removed from office only by an order of the court or—
(a)
in the case of a members’ voluntary winding up, by a general meeting of the company summoned specially for that puropose, or
(b)
in the case of a creditors’ voluntary winding up, by a general meeting of the company’s creditors summoned specially for that purpose in accordance with the rules.
(3)
Where the liquidator was appointed by the court under section 108 in Chapter V, a meeting such as is mentioned in subsection (2) above shall be summoned for the purpose of replacing him only if he thinks fit or the court so directs or the meeting is requested, in accordance with the rules—
(a)
in the case of a members’ voluntary winding up, by members representing not less than one-half of the total voting rights of all the members having at the date of the request a right to vote at the meeting, or
(b)
in the case of a creditors’ voluntary winding up, by not less than one-half, in value, of the company’s creditors.
(4)
A liquidator shall vacate office if he ceases to be a person who is qualified to act as an insolvency practitioner in relation to the company.
(5)
A liquidator may, in the prescribed circumstances, resign his office by giving notice of his resignation to the registrar of companies.
(6)
Where—
(a)
in the case of a members’ voluntary winding up, a final meeting of the company has been held under section 94 in Chapter III, or
(b)
in the case of a creditors’ voluntary winding up, final meetings of the company and of the creditors have been held under section 106 in Chapter IV,
the liquidator whose report was considered at the meeting or meetings shall vacate office as soon as he has complied with subsection (3) of that section and has given notice to the registrar of companies that the meeting or meetings have been held and of the decisions (if any) of the meeting or meetings.
172 Removal, etc. (winding up by the court).
(1)
This section applies with respect to the removal from office and vacation of office of the liquidator of a company which is being wound up by the court, or of a provisional liquidator.
(2)
Subject as follows, the liquidator may be removed from office only by an order of the court or by a general meeting of the company’s creditors summoned specially for that purpose in accordance with the rules; and a provisional liquidator may be removed from office only by an order of the court.
(3)
Where—
(a)
the official receiver is liquidator otherwise than in succession under section 136(3) to a person who held office as a result of a nomination by a meeting of the company’s creditors or contributories, or
(b)
the liquidator was appointed by the court otherwise than under section 139(4)(a) or 140(1), or was appointed by the Secretary of State,
a general meeting of the company’s creditors shall be summoned for the purpose of replacing him only if he thinks fit, or the court so directs, or the meeting is requested, in accordance with the rules, by not less than one-quarter, in value, of the creditors.
(4)
If appointed by the Secretary of State, the liquidator may be removed from office by a direction of the Secretary of State.
(5)
A liquidator or provisional liquidator, not being the official receiver, shall vacate office if he ceases to be a person who is qualified to act as an insolvency practitioner in relation to the company.
(6)
A liquidator may, in the prescribed circumstances, resign his office by giving notice of his resignation to the court.
(7)
Where an order is made under section 204 (early dissolution in Scotland) for the dissolution of the company, the liquidator shall vacate office when the dissolution of the company takes effect in accordance with that section.
(8)
Where a final meeting has been held under section 146 (liquidator’s report on completion of winding up), the liquidator whose report was considered at the meeting shall vacate office as soon as he has given notice to the court and the registrar of companies that the meeting has been held and of the decisions (if any) of the meeting.
Release of liquidator
173 Release (voluntary winding up).
(1)
This section applies with respect to the release of the liquidator of a company which is being wound up voluntarily.
(2)
A person who has ceased to be a liquidator shall have his release with effect from the following time, that is to say—
(a)
in the case of a person who has been removed from office by a general meeting of the company or by a general meeting of the company’s creditors that has not resolved against his release or who has died, the time at which notice is given to the registrar of companies in accordance with the rules that that person has ceased to hold office;
(b)
in the case of a person who has been removed from office by a general meeting of the company’s creditors that has resolved against his release, or by the court, or who has vacated office under section 171(4) above, such time as the Secretary of State may, on the application of that person, determine;
(c)
in the case of a person who has resigned, such time as may be prescribed;
(d)
in the case of a person who has vacated office under subsection (6)(a) of section 171, the time at which he vacated office;
(e)
in the case of a person who has vacated office under subsection (6)(b) of that section—
(i)
if the final meeting of the creditors referred to in that subsection has resolved against that person’s release, such time as the Secretary of State may, on an application by that person, determine, and
(ii)
if that meeting has not resolved against that person’s release, the time at which he vacated office.
(3)
In the application of subsection (2) to the winding up of a company registered in Scotland, the references to a determination by the Secretary of State as to the time from which a person who has ceased to be liquidator shall have his release are to be read as references to such a determination by the Accountant of Court.
(4)
Where a liquidator has his release under subsection (2), he is, with effect from the time specified in that subsection, discharged from all liability both in respect of acts or omissions of his in the winding up and otherwise in relation to his conduct as liquidator.
But nothing in this section prevents the exercise, in relation to a person who has had his release under subsection (2), of the court’s powers under section 212 of this Act (summary remedy against delinquent directors, liquidators, etc.).
174 Release (winding up by the court).
(1)
This section applies with respect to the release of the liquidator of a company which is being wound up by the court, or of a provisional liquidator.
(2)
Where the official receiver has ceased to be liquidator and a person becomes liquidator in his stead, the official receiver has his release with effect from the following time, that is to say—
(a)
in a case where that person was nominated by a general meeting of creditors or contributories, or was appointed by the Secretary of State, the time at which the official receiver gives notice to the court that he has been replaced;
(b)
in a case where that person is appointed by the court, such time as the court may determine.
(3)
If the official receiver while he is a liquidator gives notice to the Secretary of State that the winding up is for practical purposes complete, he has his release with effect from such time as the Secretary of State may determine.
(4)
A person other than the official receiver who has ceased to be a liquidator has his release with efect from the following time, that is to say—
(a)
in the case of a person who has been removed from office by a general meeting of creditors that has not resolved against his release or who has died, the time at which notice is given to the court in accordance with the rules that that person has ceased to hold office;
(b)
in the case of a person who has been removed from office by a general meeting of creditors that has resolved against his release, or by the court or the Secretary of State, or who has vacated office under section 172(5) or (7), such time as the Secretary of State may, on an application by that person, determine;
(c)
in the case of a person who has resigned, such time as may be prescribed;
(d)
in the case of a person who has vacated office under section 172(8)—
(i)
if the final meeting referred to in that subsection has resolved against that person’s release, such time as the Secretary of State may, on an application by that person, determine, and
(ii)
if that meeting has not so resolved, the time at which that person vacated office.
(5)
A person who has ceased to hold office as a provisional liquidator has his release with effect from such time as the court may, on an application by him, determine.
(6)
Where the official receiver or a liquidator or provisional liquidator has his release under this section, he is, with effect from the time specified in the preceding provisions of this section, discharged from all liability both in respect of acts or omissions of his in the winding up and otherwise in relation to his conduct as liquidator or provisional liquidator.
But nothing in this section prevents the exercise, in relation to a person who has had his release under this section, of the court’s powers under section 212 (summary remedy against delinquent directors, liquidators, etc.).
(7)
In the application of this section to a case where the order for winding up has been made by the court in Scotland, the references to a determination by the Secretary of State as to the time from which a person who has ceased to be liquidator has his release are to such a determination by the Accountant of Court.
Chapter VIII Provisions of General Application in Winding Up
Preferential debts
175 Preferential debts (general provision).
(1)
In a winding up the company’s preferential debts (within the meaning given by section 386 in Part XII) shall be paid in priority to all other debts.
(2)
Preferential debts—
(a)
rank equally among themselves after the expenses of the winding up and shall be paid in full, unless the assets are insufficient to meet them, in which case they abate in equal proportions; and
(b)
so far as the assets of the company available for payment of general creditors are insufficient to meet them, have priority over the claims of holders of debentures secured by, or holders of, any floating charge created by the company, and shall be paid accordingly out of any property comprised in or subject to that charge.
176 Preferential charge on goods distrained.
(1)
This section applies where a company is being wound up by the court in England and Wales, and is without prejudice to section 128 (avoidance of attachments, etc.).
(2)
Where any person (whether or not a landlord or person entitled to rent) has distrained upon the goods or effects of the company in the period of 3 months ending with the date of the winding-up order, those goods or effects, or the proceeds of their sale, shall be charged for the benefit of the company with the preferential debts of the company to the extent that the company’s property is for the time being insufficient for meeting them.
(3)
Where by virtue of a charge under subsection (2) any person surrenders any goods or effects to a company or makes a payment to a company, that person ranks, in respect of the amount of the proceeds of sale of those goods or effects by the liquidator or (as the case may be) the amount of the payment, as a preferential creditor of the company, except as against so much of the company’s property as is available for the payment of preferential creditors by virtue of the surrender or payment.
F164Property subject to floating charge
F165176ZAF165Payment of expenses of winding up (England and Wales)
(1)
The expenses of winding up in England and Wales, so far as the assets of the company available for payment of general creditors are insufficient to meet them, have priority over any claims to property comprised in or subject to any floating charge created by the company and shall be paid out of any such property accordingly.
(2)
In subsection (1)—
(a)
the reference to assets of the company available for payment of general creditors does not include any amount made available under section 176A(2)(a);
(b)
the reference to claims to property comprised in or subject to a floating charge is to the claims of—
(i)
the holders of debentures secured by, or holders of, the floating charge, and
(ii)
any preferential creditors entitled to be paid out of that property in priority to them.
(3)
Provision may be made by rules restricting the application of subsection (1), in such circumstances as may be prescribed, to expenses authorised or approved—
(a)
by the holders of debentures secured by, or holders of, the floating charge and by any preferential creditors entitled to be paid in priority to them, or
(b)
by the court.
(4)
References in this section to the expenses of the winding up are to all expenses properly incurred in the winding up, including the remuneration of the liquidator.
F166176A Share of assets for unsecured creditors
(1)
This section applies where a floating charge relates to property of a company—
(a)
which has gone into liquidation,
(b)
which is in administration,
(c)
of which there is a provisional liquidator, or
(d)
of which there is a receiver.
(2)
The liquidator, administrator or receiver—
(a)
shall make a prescribed part of the company’s net property available for the satisfaction of unsecured debts, and
(b)
shall not distribute that part to the proprietor of a floating charge except in so far as it exceeds the amount required for the satisfaction of unsecured debts.
(3)
Subsection (2) shall not apply to a company if—
(a)
the company’s net property is less than the prescribed minimum, and
(b)
the liquidator, administrator or receiver thinks that the cost of making a distribution to unsecured creditors would be disproportionate to the benefits.
(4)
Subsection (2) shall also not apply to a company if or in so far as it is disapplied by—
(a)
a voluntary arrangement in respect of the company, or
(b)
a compromise or arrangement agreed under F167Part 26 of the Companies Act 2006 (arrangements and reconstructions) .
(5)
Subsection (2) shall also not apply to a company if—
(a)
the liquidator, administrator or receiver applies to the court for an order under this subsection on the ground that the cost of making a distribution to unsecured creditors would be disproportionate to the benefits, and
(b)
the court orders that subsection (2) shall not apply.
(6)
In subsections (2) and (3) a company’s net property is the amount of its property which would, but for this section, be available for satisfaction of claims of holders of debentures secured by, or holders of, any floating charge created by the company.
(7)
An order under subsection (2) prescribing part of a company’s net property may, in particular, provide for its calculation—
(a)
as a percentage of the company’s net property, or
(b)
as an aggregate of different percentages of different parts of the company’s net property.
(8)
An order under this section—
(a)
must be made by statutory instrument, and
(b)
shall be subject to annulment pursuant to a resolution of either House of Parliament.
(9)
In this section—
“floating charge” means a charge which is a floating charge on its creation and which is created after the first order under subsection (2)(a) comes into force, and
“prescribed” means prescribed by order by the Secretary of State.
(10)
An order under this section may include transitional or incidental provision.
Special managers
177 Power to appoint special manager.
(1)
Where a company has gone into liquidation or a provisional liquidator has been appointed, the court may, on an application under this section, appoint any person to be the special manager of the business or property of the company.
(2)
The application may be made by the liquidator or provisional liquidator in any case where it appears to him that the nature of the business or property of the company, or the interests of the company’s creditors or contributories or members generally, require the appointment of another to manage the company’s business or property.
(3)
The special manager has such powers as may be entrusted to him by the court.
(4)
The court’s power to entrust powers to the special manager includes power to direct that any provision of this Act that has effect in relation to the provisional liquidator or liquidator of a company shall have the like effect in relation to the special manager for the purposes of the carrying out by him of any of the functions of the provisional liquidator or liquidator.
(5)
The special manager shall—
(a)
give such security or, in Scotland, caution, as may be prescribed;
(b)
prepare and keep such accounts as may be prescribed; and
(c)
produce those accounts in accordance with the rules to the Secretary of State or to such other persons as may be prescribed.
Disclaimer (England and Wales only)
178 Power to disclaim onerous property.
(1)
This and the next two sections apply to a company that is being wound up in England and Wales.
(2)
Subject as follows, the liquidator may, by the giving of the prescribed notice, disclaim any onerous property and may do so notwithstanding that he has taken possession of it, endeavoured to sell it, or otherwise exercised rights of ownership in relation to it.
(3)
The following is onerous property for the purposes of this section—
(a)
any unprofitable contract, and
(b)
any other property of the company which is unsaleable or not readily saleable or is such that it may give rise to a liability to pay money or perform any other onerous act.
(4)
A disclaimer under this section—
(a)
operates so as to determine, as from the date of the disclaimer, the rights, interests and liabilities of the company in or in respect of the property disclaimed; but
(b)
does not, except so far as is necessary for the purpose of releasing the company from any liability, affect the rights or liabilities of any other person.
(5)
A notice of disclaimer shall not be given under this section in respect of any property if—
(a)
a person interested in the property has applied in writing to the liquidator or one of his predecessors as liquidator requiring the liquidator or that predecessor to decide whether he will disclaim or not, and
(b)
the period of 28 days beginning with the day on which that application was made, or such longer period as the court may allow, has expired without a notice of disclaimer having been given under this section in respect of that property.
(6)
Any person sustaining loss or damage in consequence of the operation of a disclaimer under this section is deemed a creditor of the company to the extent of the loss or damage and accordingly may prove for the loss or damage in the winding up.
179 Disclaimer of leaseholds.
(1)
The disclaimer under section 178 of any property of a leasehold nature does not take effect unless a copy of the disclaimer has been served (so far as the liquidator is aware of their addresses) on every person claiming under the company as underlessee or mortgagee and either—
(a)
no application under section 181 below is made with respect to that property before the end of the period of 14 days beginning with the day on which the last notice served under this subsection was served; or
(b)
where such an application has been made, the court directs that the disclaimer shall take effect.
(2)
Where the court gives a direction under subsection (1)(b) it may also, instead of or in addition to any order it makes under section 181, make such orders with respect to fixtures, tenant’s improvements and other matters arising out of the lease as it thinks fit.
180 Land subject to rentcharge.
(1)
The following applies where, in consequence of the disclaimer under section 178 of any land subject to a rentcharge, that land vests by operation of law in the Crown or any other person (referred to in the next subsection as “the proprietor”).
(2)
The proprietor and the successors in title of the proprietor are not subject to any personal liability in respect of any sums becoming due under the rentcharge except sums becoming due after the proprietor, or some person claiming under or through the proprietor, has taken possession or control of the land or has entered into occupation of it.
181 Powers of court (general).
(1)
This section and the next apply where the liquidator has disclaimed property under section 178.
(2)
An application under this section may be made to the court by—
(a)
any person who claims an interest in the disclaimed property, or
(b)
any person who is under any liability in respect of the disclaimed property, not being a liability discharged by the disclaimer.
(3)
Subject as follows, the court may on the application make an order, on such terms as it thinks fit, for the vesting of the disclaimed property in, or for its delivery to—
(a)
a person entitled to it or a trustee for such a person, or
(b)
a person subject to such a liability as is mentioned in subsection (2)(b) or a trustee for such a person.
(4)
The court shall not make an order under subsection (3)(b) except where it appears to the court that it would be just to do so for the purpose of compensating the person subject to the liability in respect of the disclaimer.
(5)
The effect of any order under this section shall be taken into account in assessing for the purpose of section 178(6) the extent of any loss or damage sustained by any person in consequence of the disclaimer.
(6)
An order under this section vesting property in any person need not be completed by conveyance, assignment or transfer.
182 Powers of court (leaseholds).
(1)
The court shall not make an order under section 181 vesting property of a leasehold nature in any person claiming under the company as underlessee or mortgagee except on terms making that person—
(a)
subject to the same liabilities and obligations as the company was subject to under the lease at the commencement of the winding up, or
(b)
if the court thinks fit, subject to the same liabilities and obligations as that person would be subject to if the lease had been assigned to him at the commencement of the winding up.
(2)
For the purposes of an order under section 181 relating to only part of any property comprised in a lease, the requirements of subsection (1) apply as if the lease comprised only the property to which the order relates.
(3)
Where subsection (1) applies and no person claiming under the company as underlessee or mortgagee is willing to accept an order under section 181 on the terms required by virtue of that subsection, the court may, by order under that section, vest the company’s estate or interest in the property in any person who is liable (whether personally or in a representative capacity, and whether alone or jointly with the company) to perform the lessee’s covenants in the lease.
The court may vest that estate and interest in such a person freed and discharged from all estates, incumbrances and interests created by the company.
(4)
Where subsection (1) applies and a person claiming under the company as underlessee or mortgagee declines to accept an order under section 181, that person is excluded from all interest in the property.
Execution, attachment and the Scottish equivalents
183 Effect of execution or attachment (England and Wales).
(1)
Where a creditor has issued execution against the goods or land of a company or has attached any debt due to it, and the company is subsequently wound up, he is not entitled to retain the beneift of the execution or attachment against the liquidator unless he has completed the execution or attachment before the commencement of the winding up.
(2)
However—
(a)
if a creditor has had notice of a meeting having been called at which a resolution for voluntary winding up is to be proposed, the date on which he had notice is substituted, for the purpose of subsection (1), for the date of commencement of the winding up;
(b)
a person who purchases in good faith under a sale by the F168enforcement officer or other officer charged with the execution of the writ any goods of a company on which execution has been levied in all cases acquires a good title to them against the liquidator; and
(c)
the rights conferred by subsection (1) on the liquidator may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court thinks fit.
(3)
For purposes of this Act—
(a)
an execution against goods is completed by seizure and sale, or by making of a charging order under section 1 of the M10Charging Orders Act 1979;
(b)
an attachment of a debt is completed by receipt of the debt; and
(c)
an execution against land is completed by seizure, by the appointment of a receiver, or by the making of a charging order under section 1 of the Act above-mentioned.
(4)
In this section “goods” includes all chattels personal; and F169“enforcement officer” means an individual who is authorised to act as an enforcement officer under the Courts Act2003.
(5)
This section does not apply in the case of a winding up in Scotland.
184 Duties of F170officers charged with execution of writs and other processes (England and Wales).
(1)
The following applies where a company’s goods are taken in execution and, before their sale or the completion of the execution (by the receipt or recovery of the full amount of the levy), notice is served on the F171enforcement officer, or other officer, charged with execution of the writ or other process, that a provisional liquidator has been appointed or that a winding-up order has been made, or that a resolution for voluntary winding up has been passed.
(2)
The F172enforcement officer or other officer shall, on being so required, deliver the goods and any money seized or received in part satisfaction of the execution to the liquidator; but the costs of execution are a first charge on the goods or money so delivered, and the liquidator may sell the goods, or a sufficient part of them for the purpose of satisfying the charge.
(3)
If under an execution in respect of a judgement for a sum exceeding F173£500 a company’s goods are sold or money is paid in order to avoid sale, the F174enforcement officer or other officer shall deduct the costs of the execution from the proceeds of sale or the money paid and retain the balance for 14 days.
(4)
If within that time notice is served on the F174enforcement officer or other officer of a petition for the winding up of the company having been presented, or of a meeting having been called at which there is to be proposed a resolution for voluntary winding up, and an order is made or a resolution passed (as the case may be), the F174enforcement officer or other officer shall pay the balance to the liquidator, who is entitled to retain it as against the execution creditor.
(5)
The rights conferred by this section on the liquidator may be set aside by the court in favour of the creditor to such extent and subject to such terms as the court thinks fit.
(6)
In this section, “goods” includes all chattels personal; and F175“enforcement officer” means an individual who is authorised to act as an enforcement officer under the Courts Act 2003.
(7)
The money sum for the time being specified in subsection (3) is subject to increase or reduction by order under section 416 in Part XV.
(8)
This section does not apply in the case of a winding up in Scotland.
185 Effect of diligence (Scotland)
(1)
In the winding up of a company registered in Scotland, the following provisions of the M11Bankruptcy (Scotland) Act 1985—
(a)
subsections (1) to (6) of section 37 (effect of sequestration on diligence); and
(b)
subsections (3), (4), (7) and (8) of section 39 (realisation of estate),
apply so far as consistent with this Act, in like manner as they apply in the sequestration of a debtor’s estate, with the substitutions specified below and with any other necessary modifications.
(2)
The substitutions to be made in those sections of the Act of 1985 are as follows—
(a)
for references to the debtor, substitute references to the company;
(b)
for references to the sequestration, substitute references to the winding up;
(c)
for references to the date of sequestration, substitute references to the commencement of the winding up of the company; and
(d)
for references to the F176permanent trustee, substitute references to the liquidator.
(3)
In this section, “the commencement of the winding up of the company” means, where it is being wound up by the court, the day on which the winding-up order is made.
(4)
This section, so far as relating to any estate or effects of the company situated in Scotland, applies in the case of a company registered in England and Wales as in the case of one registered in Scotland.
Miscellaneous matters
186 Rescission of contracts by the court.
(1)
The court may, on the application of a person who is, as against the liquidator, entitled to the benefit or subject to the burden of a contract made with the company, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise as the court thinks just.
(2)
Any damages payable under the order to such a person may be proved by him as a debt in the winding up.
187 Power to make over assets to employees.
(1)
On the winding up of a company (whether by the court or voluntarily), the liquidator may, subject to the following provisions of this section, make any payment which the company has, before the commencement of the winding up, decided to make under F177section 247 of the Companies Act 2006(power to provide for employees or former employees on cessation or transfer of business).
F178(2)
The liquidator may, after the winding up has commenced, make any such provision as is mentioned in section 247(1) if—
(a)
the company's liabilities have been fully satisfied and provision has been made for the expenses of the winding up,
(b)
the exercise of the power has been sanctioned by a resolution of the company, and
(c)
any requirements of the company's F179articles as to the exercise of the power conferred by section 247(1) are complied with.
(3)
Any payment which may be made by a company under this section (that is, a payment after the commencement of its winding up) may be made out of the company’s assets which are available to the members on the winding up.
(4)
On a winding up by the court, the exercise by the liquidator of his powers under this section is subject to the court’s control, and any creditor or contributory may apply to the court with respect to any exercise or proposed exercise of the power.
(5)
Subsections (1) and (2) above have effect notwithstanding anything in any rule of law or in section 107 of this Act (property of company after satisfaction of liabilities to be distributed among members).
188 Notification that company is in liquidation.
F180(1)
When a company is being wound up, whether by the court or voluntarily—
(a)
(b)
all the company's websites,
must contain a statement that the company is being wound up.
(2)
If default is made in complying with this section, the company and any of the following persons who knowingly and wilfully authorises or permits the default, namely, any officer of the company, any liquidator of the company and any receiver or manager, is liable to a fine.
189 Interest on debts.
(1)
In a winding up interest is payable in accordance with this section on any debt proved in the winding up, including so much of any such debt as represents interest on the remainder.
(2)
Any surplus remaining after the payment of the debts proved in a winding up shall, before being applied for any other purpose, be applied in paying interest on those debts in respect of the periods during which they have been outstanding since the company went into liquidation.
(3)
All interest under this section ranks equally, whether or not the debts on which it is payable rank equally.
(4)
The rate of interest payable under this section in respect of any debt (“the official rate” for the purposes of any provision of this Act in which that expression is used) is whichever is the greater of—
(a)
the rate specified in section 17of the M12Judgments Act 1838 on the day on which the company went into liquidation, and
(b)
the rate applicable to that debt apart from the winding up.
(5)
In the application of this section to Scotland—
(a)
references to a debt proved in a winding up have effect as references to a claim accepted in a winding up, and
(b)
the reference to section 17 of the Judgments Act 1838 has effect as a reference to the rules.
190 Documents exempt from stamp duty.
(1)
In the case of a winding up by the court, or of a creditors’ voluntary winding up, the following has effect as regards exemption from duties chargeable under the enactments relating to stamp duties.
(2)
If the company is registered in England and Wales, the following documents are exempt from stamp duty—
(a)
every assurance relating solely to freehold or leasehold property, or to any estate, right or interest in, any real or personal property, which forms part of the company’s assets and which, after the execution of the assurance, either at law of in equity, is or remains part of those assets, and
(b)
every writ, order, certificate, or other instrument or writing relating solely to the property of any company which is being wound up as mentioned in subsection (1), or to any proceeding under such a winding up.
“Assurance” here includes deed, conveyance, assignment and surrender.
(3)
If the company is registered in Scotland, the following documents are exempt from stamp duty—
(a)
every conveyance relating solely to property which forms part of the company’s assets and which, after the execution of the conveyance, is or remains the company’s property for the benefit of its creditors,
(b)
any articles of roup of sale, submission and every other instrument and writing whatsoever relating solely to the company’s property, and
(c)
every deed or writing forming part of the proceedings in the winding up.
“Conveyance” here includes assignation, instrument, discharge, writing and deed.
191 Company’s books to be evidence.
Where a company is being wound up, all books and papers of the company and of the liquidators are, as between the contributories of the company, prima facie evidence of the truth of all matters purporting to be recorded in them.
192 Information as to pending liquidations.
(1)
If the winding up of a company is not concluded within one year after its commencement, the liquidator shall, at such intervals as may be prescribed, until the winding up is concluded, send to the registrar of companies a statement in the prescribed form and containing the prescribed particulars with respect to the proceedings in, and position of, the liquidation.
(2)
If a liquidator fails to comply with this section, he is liable to a fine and, for continued contravention, to a daily default fine.
193 Unclaimed dividends (Scotland).
(1)
The following applies where a company registered in Scotland has been wound up, and is about to be dissolved.
(2)
The liquidator shall lodge in an appropriate bank or institution as defined in section 73(1) of the M13Bankruptcy (Scotland) Act 1985 (not being a bank or institution in or of which the liquidator is acting partner, manager, agent or cashier) in the name of the Accountant of Court the whole unclaimed dividends and unapplied or undistributable balances, and the deposit receipts shall be transmitted to the Accountant of Court.
(3)
The provisions of section 58 of the Bankruptcy (Scotland) Act 1985 (so far as consistent with this Act and F183the Companies Acts) apply with any necessary modifications to sums lodged in a bank or institution under this section as they apply to sums deposited under section 57 of the Act first mentioned.
194 Resolutions passed at adjourned meetings.
Where a resolution is passed at an adjourned meeting of a company’s creditors or contributories, the resolution is treated for all purposes as having been passed on the date on which it was in fact passed, and not as having been passed on any earlier date.
195 Meetings to ascertain wishes of creditors or contributories.
(1)
The court may—
(a)
as to all matters relating to the winding up of a company, have regard to the wishes of the creditors or contributories (as proved to it by any sufficient evidence), and
(b)
if it thinks fit, for the purpose of ascertaining those wishes, direct meetings of the creditors or contributories to be called, held and conducted in such manner as the court directs, and appoint a person to act as chairman of any such meeting and report the result of it to the court.
(2)
In the case of creditors, regard shall be had to the value of each creditor’s debt.
(3)
In the case of contributories, regard shall be had to the number of votes conferred on each contributory F184. . . .
196 Judicial notice of court documents.
In all proceedings under this Part, all courts, judges and persons judicially acting, and all officers, judicial or ministerial, of any court, or employed in enforcing the process of any court shall take judicial notice—
(a)
of the signature of any officer of the High Court or of a county court in England and Wales, or of the Court of Session or a sheriff court in Scotland, or of the High Court in Northern Ireland, and also
(b)
of the official seal or stamp of the several offices of the High Court in England and Wales or Northern Ireland, or of the Court of Session, appended to or impressed on any document made, issued or signed under the provisions of this Act or F185the Companies Acts, or any official copy of such a document.
197 Commission for receiving evidence.
(1)
When a company is wound up in England and Wales or in Scotland, the court may refer the whole or any part of the examination of witnesses—
(a)
to a specified county court in England and Wales, or
(b)
to the sheriff principal for a specified sheriffdom in Scotland, or
(c)
to the High Court in Northern Ireland or a specified Northern Ireland County Court,
(“specified” meaning specified in the order of the winding-up court).
(2)
Any person exercising jurisdiction as a judge of the court to which the reference is made (or, in Scotland, the sheriff principal to whom it is made) shall then, by virtue of this section, be a commissioner for the purpose of taking the evidence of those witnesses.
(3)
The judge or sheriff principal has in the matter referred the same power of summoning and examining witnesses, of requiring the production and delivery of documents, of punishing defaults by witnesses, and of allowing costs and expenses to witnesses, as the court which made the winding-up order.
These powers are in addition to any which the judge or sheriff principal might lawfully exercise apart from this section.
(4)
The examination so taken shall be returned or reported to the court which made the order in such manner as that court requests.
(5)
This section extends to Northern Ireland.
198 Court order for examination of persons in Scotland.
(1)
The court may direct the examination in Scotland of any person for the time being in Scotland (whether a contributory of the company or not), in regard to the trade, dealings, affairs or property of any company in course of being wound up, or of any person being a contributory of the company, so far as the company may be interested by reason of his being a contributory.
(2)
The order or commission to take the examination shall be directed to the sheriff principal of the sheriffdom in which the person to be examined is residing or happens to be for the time; and the sheriff principal shall summon the person to appear before him at a time and place to be specified in the summons for examination on oath as a witness or as a haver, and to produce any books or papers called for which are in his possession or power.
(3)
The sheriff principal may take the examination either orally or on written interrogatories, and shall report the same in writing in the usual form to the court, and shall transmit with the report the books and papers produced, if the originals are required and specified by the order or commission, or otherwise copies or extracts authenticated by the sheriff.
(4)
If a person so summoned fails to appear at the time and place specified, or refuses to be examined or to make the production required, the sheriff principal shall proceed against him as a witness or haver duly cited; and failing to appear or refusing to give evidence or make production may be proceeded against by the law of Scotland.
(5)
The sheriff principal is entitled to such fees, and the witness is entitled to such allowances, as sheriffs principal when acting as commissioners under appointment from the Court of Session and as witnesses and havers are entitled to in the like cases according to the law and practice of Scotland.
(6)
If any objection is stated to the sheriff principal by the witness, either on the ground of his incompetency as a witness, or as to the production required, or on any other ground, the sheriff principal may, if he thinks fit, report the objection to the court, and suspend the examination of the witness until it has been disposed of by the court.
199 Costs of application for leave to proceed (Scottish companies).
Where a petition or application for leave to proceed with an action or proceeding against a company which is being wound up in Scotland is unopposed and is granted by the court, the costs of the petition or application shall, unless the court otherwise directs, be added to the amount of the petitioner’s or applicant’s claim against the company.
200 Affidavits etc. in United Kingdom and overseas.
(1)
An affidavit required to be sworn under or for the purposes of this Part may be sworn in the United Kingdom, or elsewhere in Her Majesty’s dominions, before any court, judge or person lawfully authorised to take and receive affidavits, or before any of Her Majesty’s consuls or vice-consuls in any place outside Her dominions.
(2)
All courts, judges, justices, commissioners and persons acting judicially shall take judicial notice of the seal or stamp or signature (as the case may be) of any such court, judge, person, consul or vice-consul attached, appended or subscribed to any such affidavit, or to any other document to be used for the purposes of this Part.
Chaper IX Dissolution of Companies After Winding Up
201 Dissolution (voluntary winding up).
(1)
This section applies, in the case of a company wound up voluntarily, where the liquidator has sent to the registrar of companies his final account and return under section 94 (members’ voluntary) or section 106 (creditors’ voluntary).
(2)
The registrar on receiving the account and return shall forthwith register them; and on the expiration of 3 months from the registration of the return the company is deemed to be dissolved.
(3)
However, the court may, on the application of the liquidator or any other person who appears to the court to be interested, make an order deferring the date at which the dissolution of the company is to take effect for such time as the court thinks fit.
(4)
It is the duty of the person on whose application an order of the court under this section is made within 7 days after the making of the order to deliver to the registrar F186a copy of the order for registration; and if that person fails to do so he is liable to a fine and, for continued contravention, to a daily default fine.
202 Early dissolution (England and Wales).
(1)
This section applies where an order for the winding up of a company has been made by the court in England and Wales.
(2)
The official receiver, if—
(a)
he is the liquidator of the company, and
(b)
it appears to him—
(i)
that the realisable assets of the company are insufficient to cover the expenses of the winding up, and
(ii)
that the affairs of the company do not require any further investigation,
may at any time apply to the registrar of companies for the early dissolution of the company.
(3)
Before making that application, the official receiver shall give not less than 28 days’ notice of his intention to do so to the company’s creditors and contributories and, if there is an administrative receiver of the company, to that receiver.
(4)
With the giving of that notice the official receiver ceases (subject to any directions under the next section) to be required to perform any duties imposed on him in relation to the company, its creditors or contributories by virtue of any provision of this Act, apart from a duty to make an application under subsection (2) of this section.
(5)
On the receipt of the official receivers’ application under subsection (2) the registrar shall forthwith register it and, at the end of the period of 3 months beginning with the day of the registration of the application, the company shall be dissolved.
However, the Secretary of State may, on the application of the official receiver or any other person who appears to the Secretary of State to be interested, give directions under section 203 at any time before the end of that period.
203 Consequence of notice under s. 202.
(1)
Where a notice has been given under section 202(3), the official receiver or any creditor or contributory of the company, or the administrative receiver of the company (if there is one) may apply to the Secretary of State for directions under this section.
(2)
The grounds on which that application may be made are—
(a)
that the realisable assets of the company are sufficient to cover the expenses of the winding up;
(b)
that the affairs of the company do require further investigation; or
(c)
that for any other reason the early dissolution of the company is inappropriate.
(3)
Directions under this section—
(a)
are directions making such provision as the Secretary of State thinks fit for enabling the winding up of the company to proceed as if no notice had been given under section 202(3), and
(b)
may, in the case of an application under section 202(5), include a direction deferring the date at which the dissolution of the company is to take effect for such period as the Secretary of State thinks fit.
(4)
An appeal to the court lies from any decision of the Secretary of State on an application for directions under this section.
(5)
It is the duty of the person on whose application any directions are given under this section, or in whose favour an appeal with respect to an application for such directions is determined, within 7 days after the giving of the directions or the determination of the appeal, to deliver to the registrar of companies for registration such a copy of the directions or determination as is prescribed.
(6)
If a person without reasonable excuse fails to deliver a copy as required by subsection (5), he is liable to a fine and, for continued contravention, to a daily default fine.
204 Early dissolution (Scotland).
(1)
This section applies where a winding-up order has been made by the court in Scotland.
(2)
If after a meeting or meetings under section 138 (appointment of liquidator in Scotland) it appears to the liquidator that the realisable assets of the company are insufficient to cover the expenses of the winding up, he may apply to the court for an order that the company be dissolved.
(3)
Where the liquidator makes that application, if the court is satisfied that the realisable assets of the company are insufficient to cover the expenses of the winding up and it appears to the court appropriate to do so, the court shall make an order that the company be dissolved in accordance with this section.
(4)
A copy of the order shall within 14 days from its date be forwarded by the liquidator to the registrar of companies, who shall forthwith register it; and, at the end of the period of 3 months beginning with the day of the registration of the order, the company shall be dissolved.
(5)
The court may, on an application by any person who appears to the court to have an interest, order that the date at which the dissolution of the company is to take effect shall be deferred for such period as the court thinks fit.
(6)
It is the duty of the person on whose application an order is made under subsection (5), within 7 days after the making of the order, to deliver to the registrar of companies such a copy of the order as is prescribed.
(7)
If the liquidator without reasonable excuse fails to comply with the requirements of subsection (4), he is liable to a fine and, for continued contravention, to a daily default fine.
(8)
If a person without reasonable excuse fails to deliver a copy as required by subsection (6), he is liable to a fine and, for continued contravention, to a daily default fine.
205 Dissolution otherwise than under ss. 202-204.
(1)
This section applies where the registrar of companies receives—
(a)
a notice served for the purposes of section 172(8) (final meeting of creditors and vacation of office by liquidator), or
(b)
a notice, from the official receiver that the winding up of a company by the court is complete.
(2)
The registrar shall, on receipt of the notice, forthwith register it; and, subject, as follows, at the end of the period of 3 months beginning with the day of the registration of the notice, the company shall be dissolved.
(3)
The Secretary of State may, on the application of the official receiver or any other person who appears to the Secretary of State to be interested, give a direction deferring the date at which the dissolution of the company is to take effect for such period as the Secretary of State thinks fit.
(4)
An appeal to the court lies from any decision of the Secretary of State on an application for a direction under subsection (3).
(5)
Subsection (3) does not apply in a case where the winding-up order was made by the court in Scotland, but in such a case the court may, on an application by any person appearing to the court to have an interest, order that the date at which the dissolution of the company is to take effect shall be deferred for such period as the court thinks fit.
(6)
It is the duty of the person—
(a)
on whose application a direction is given under subsection (3);
(b)
in whose favour an appeal with respect to an application for such a direction is determined; or
(c)
on whose application an order is made under subsection (5),
within 7 days after the giving of the direction, the determination of the appeal or the making of the order, to deliver to the registrar for registration such a copy of the direction, determination or order as is prescribed.
(7)
If a person without reasonable excuse fails to deliver a copy as required by subsection (6), he is liable to a fine and, for continued contravention, to a daily default fine.
Chapter X Malpractice before and during Liquidation; Penalisation of Companies and Company Officers; Investigations and Prosecutions
Offences of fraud, deception, etc.
206 Fraud, etc. in anticipation of winding up.
(1)
When a company is ordered to be wound up by the court, or passes a resolution for voluntary winding up, any person, being a past or present officer of the company, is deemed to have committed an offence if, within the 12 months immediately preceding the commencement of the winding up, he has—
(a)
concealed any part of the company’s property to the value of F187£500 or more, or concealed any debt due to or from the company, or
(b)
fraudulently removed any part of the company’s property to the value of F187£500 or more, or
(c)
concealed, destroyed, mutilated or falsified any book or paper affecting or relating to the company’s property or affairs, or
(d)
made any false entry in any book or paper affecting or relating to the company’s property or affairs, or
(e)
fraudulently parted with, altered or made any omission in any document affecting or relating to the company’s property or affairs, or
(f)
pawned, pledged or disposed of any property of the company which has been obtained on credit and has not been paid for (unless the pawning, pledging or disposal was in the ordinary way of the company’s business).
(2)
Such a person is deemed to have committed an offence if within the period above mentioned he has been privy to the doing by others of any of the things mentioned in paragraphs (c), (d) and (e) of subsection (1); and he commits an offence if, at any time after the commencement of the winding up, he does any of the things mentioned in paragraphs (a) to (f) of that subsection, or is privy to the doing by others of any of the things mentioned in paragraphs (c) to (e) of it.
(3)
For purposes of this section, “officer” includes a shadow director.
(4)
It is a defence—
(a)
for a person charged under paragraph (a) or (f) of subsection (1) (or under subsection (2) in respect of the things mentioned in either of those two paragraphs) to prove that he had no intent to defraud, and
(b)
for a person charged under paragraph (c) or (d) of subsection (1) (or under subsection (2) in respect of the things mentioned in either of those two paragraphs) to prove that he had no intent to conceal the state of affairs of the company or to defeat the law.
(5)
Where a person pawns, pledges or disposes of any property in circumstances which amount to an offence under subsection (1)(f), every person who takes in pawn or pledge, or otherwise receives, the property knowing it to be pawned, pledged or disposed of in such circumstances, is guilty of an offence.
(6)
A person guilty of an offence under this section is liable to imprisonment or a fine, or both.
(7)
The money sums specified in paragraphs (a) and (b) of subsection (1) are subject to increase or reduction by order under section 416 in Part XV.
207 Transactions in fraud of creditors.
(1)
When a company is ordered to be wound up by the court or passes a resolution for voluntary winding up, a person is deemed to have committed an offence if he, being at the time an officer of the company—
(a)
has made or caused to be made any gift or transfer of, or charge on, or has caused or connived at the levying of any execution against, the company’s property, or
(b)
has concealed or removed any part of the company’s property since, or within 2 months before, the date of any unsatisfied judgment or order for the payment of money obtained against the company.
(2)
A person is not guilty of an offence under this section—
(a)
by reason of conduct constituting an offence under subsection (1)(a) which occurred more than 5 years before the commencement of the winding up, or
(b)
if he proves that, at the time of the conduct constituting the offence, he had no intent to defraud the company’s creditors.
(3)
A person guilty of an offence under this section is liable to imprisonment or a fine, or both.
208 Misconduct in course of winding up.
(1)
When a company is being wound up, whether by the court or voluntarily, any person, being a past or present officer of the company, commits an offence if he—
(a)
does not to the best of his knowledge and belief fully and truly discover to the liquidator all the company’s property, and how and to whom and for what consideration and when the company disposed of any part of that property (except such part as has been disposed of in the ordinary way of the company’s business), or
(b)
does not deliver up to the liquidator (or as he directs) all such part of the company’s property as is in his custody or under his control, and which he is required by law to deliver up, or
(c)
does not deliver up to the liquidator (or as he directs) all books and papers in his custody or under his control belonging to the company and which he is required by law to deliver up, or
(d)
knowing or believing that a false debt has been proved by any person in the winding up, fails to inform the liquidator as soon as practicable, or
(e)
after the commencement of the winding up, prevents the production of any book or paper affecting or relating to the company’s property or affairs.
(2)
Such a person commits an offence if after the commencement of the winding up he attempts to account for any part of the company’s property by fictitious losses or expenses; and he is deemed to have committed that offence if he has so attempted at any meeting of the company’s creditors within the 12 months immediately preceding the commencement of the winding up.
(3)
For purposes of this section, “officer” includes a shadow director.
(4)
It is a defence—
(a)
for a person charged under paragraph (a), (b) or (c) of subsection (1) to prove that he had no intent to defraud, and
(b)
for a person charged under paragraph (e) of that subsection to prove that he had no intent to conceal the state of affairs of the company or to defeat the law.
(5)
A person guilty of an offence under this section is liable to imprisonment or a fine, or both.
209 Falsification of company’s books.
(1)
When a company is being wound up, an officer or contributory of the company commits an offence if he destroys, multilates, alters or falsifies any books, papers or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account or document belonging to the company with intent to defraud or deceive any person.
(2)
A person guilty of an offence under this section is liable to imprisonment or a fine, or both.
210 Material omissions from statement relating to company’s affairs.
(1)
When a company is being wound up, whether by the court or voluntarily, any person, being a past or present officer of the company, commits an offence if he makes any material omission in any statement relating to the company’s affairs.
(2)
When a company has been ordered to be wound up by the court, or has passed a resolution for voluntary winding up, any such person is deemed to have committed that offence if, prior to the winding up, he has made any material omission in any such statement.
(3)
For purposes of this section, “officer” includes a shadow director.
(4)
It is a defence for a person charged under this section to prove that he had no intent to defraud.
(5)
A person guilty of an offence under this section is liable to imprisonment or a fine, or both.
211 False representations to creditors.
(1)
When a company is being wound up, whether by the court or voluntarily, any person, being a past or present officer of the company—
(a)
commits an offence if he makes any false representation or commits any other fraud for the purpose of obtaining the consent of the company’s creditors or any of them to an agreement with reference to the company’s affairs or to the winding up, and
(b)
is deemed to have committed that offence if, prior to the winding up, he has made any false representation, or committed any other fraud, for that purpose.
(2)
For purposes of this section, “officer” includes a shadow director.
(3)
A person guilty of an offence under this section is liable to imprisonment or a fine, or both.
Penalisation of directors and officers
212 Summary remedy against delinquent directors, liquidators, etc.
(1)
This section applies if in the course of the winding up of a company it appears that a person who—
(a)
is or has been an officer of the company,
(b)
has acted as liquidator F188. . . or administrative receiver of the company, or
(c)
not being a person falling within paragraph (a) or (b), is or has been concerned, or has taken part, in the promotion, formation or management of the company,
has misapplied or retained, or become accountable for, any money or other property of the company, or been guilty of any misfeasance or breach of any fiduciary or other duty in relation to the company.
(2)
The reference in subsection (1) to any misfeasance or breach of any fiduciary or other duty in relation to the company includes, in the case of a person who has acted as liquidator F189. . . of the company, any misfeasance or breach of any fiduciary or other duty in connection with the carrying out of his functions as liquidator F189. . . of the company.
(3)
The court may, on the application of the official receiver or the liquidator, or of any creditor or contributory, examine into the conduct of the person falling within subsection (1) and compel him—
(a)
to repay, restore or account for the money or property or any part of it, with interest at such rate as the court thinks just, or
(b)
to contribute such sum to the company’s assets by way of compensation in respect of the misfeasance or breach of fiduciary or other duty as the court thinks just.
(4)
(5)
The power of a contributory to make an application under subsection (3) is not exercisable except with the leave of the court, but is exercisable notwithstanding that he will not benefit from any order the court may make on the application.
213 Fraudulent trading.
(1)
If in the course of the winding up of a company it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose, the following has effect.
(2)
The court, on the application of the liquidator may declare that any persons who were knowingly parties to the carrying on of the business in the manner above-mentioned are to be liable to make such contributions (if any) to the company’s assets as the court thinks proper.
214 Wrongful trading.
(1)
Subject to subsection (3) below, if in the course of the winding up of a company it appears that subsection (2) of this section applies in relation to a person who is or has been a director of the company, the court, on the application of the liquidator, may declare that that person is to be liable to make such contribution (if any) to the company’s assets as the court thinks proper.
(2)
This subsection applies in relation to a person if—
(a)
the company has gone into insolvent liquidation,
(b)
at some time before the commencement of the winding up of the company, that person knew or ought to have concluded that there was no reasonable prospect that the company would avoid going into insolvent liquidation, and
(c)
that person was a director of the company at that time;
but the court shall not make a declaration under this section in any case where the time mentioned in paragraph (b) above was before 28th April 1986.
(3)
The court shall not make a declaration under this section with respect to any person if it is satisfied that after the condition specified in subsection (2)(b) was first satisfied in relation to him that person took every step with a view to minimising the potential loss to the company’s creditors as (assuming him to have known that there was no reasonable prospect that the company would avoid going into insolvent liquidation) he ought to have taken.
(4)
For the purposes of subsections (2) and (3), the facts which a director of a company ought to know or ascertain, the conclusions which he ought to reach and the steps which he ought to take are those which would be known or ascertained, or reached or taken, by a reasonably diligent person having both—
(a)
the general knowledge, skill and experience that may reasonably be expected of a person carrying out the same functions as are carried out by that director in relation to the company, and
(b)
the general knowledge, skill and experience that that director has.
(5)
The reference in subsection (4) to the functions carried out in relation to a company by a director of the company includes any functions which he does not carry out but which have been entrusted to him.
(6)
For the purposes of this section a company goes into insolvent liquidation if it goes into liquidation at a time when its assets are insufficient for the payment of its debts and other liabilities and the expenses of the winding up.
(7)
In this section “director” includes a shadow director.
(8)
This section is without prejudice to section 213.
215 Proceedings under ss. 213, 214.
(1)
On the hearing of an application under section 213 or 214, the liquidator may himself give evidence or call witnesses.
(2)
Where under either section the court makes a declaration, it may give such further directions as it thinks proper for giving effect to the declaration; and in particular, the court may—
(a)
provide for the liability of any person under the declaration to be a charge on any debt or obligation due from the company to him, or on any mortgage or charge or any interest in a mortgage or charge on assets of the company held by or vested in him, or any person on his behalf, or any person claiming as assignee from or through the person liable or any person acting on his behalf, and
(b)
from time to time make such further order as may be necessary for enforcing any charge imposed under this subsection.
(3)
For the purposes of subsection (2), “assignee”—
(a)
includes a person to whom or in whose favour, by the directions of the person made liable, the debt, obligation, mortgage or charge was created, issued or transferred or the interest created, but
(b)
does not include an assignee for valuable consideration (not including consideration by way of marriage F192or the formation of a civil partnership) given in good faith and without notice of any of the matters on the ground of which the declaration is made.
(4)
Where the court makes a declaration under either section in relation to a person who is a creditor of the company, it may direct that the whole or any part of any debt owed by the company to that person and any interest thereon shall rank in priority after all other debts owed by the company and after any interest on those debts.
(5)
Sections 213 and 214 have effect notwithstanding that the person concerned may be criminally liable in respect of matters on the ground of which the declaration under the section is to be made.
216 Restriction on re-use of company names.
(1)
This section applies to a person where a company (“the liquidating company”) has gone into insolvent liquidation on or after the appointed day and he was a director or shadow director of the company at any time in the period of 12 months ending with the day before it went into liquidation.
(2)
For the purposes of this section, a name is a prohibited name in relation to such a person if—
(a)
it is a name by which the liquidating company was known at any time in that period of 12 months, or
(b)
it is a name which is so similar to a name falling within paragraph (a) as to suggest an association with that company.
(3)
Except with leave of the court or in such circumstances as may be prescribed, a person to whom this section applies shall not at any time in the period of 5 years beginning with the day on which the liquidating company went into liquidation—
(a)
be a director of any other company that is known by a prohibited name, or
(b)
in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of any such company, or
(c)
in any way, whether directly or indirectly, be concerned or take part in the carrying on of a business carried on (otherwise than by a company) under a prohibited name.
(4)
If a person acts in contravention of this section, he is liable to imprisonment or a fine, or both.
(5)
In subsection (3) “the court” means any court having jurisdiction to wind up companies; and on an application for leave under that subsection, the Secretary of State or the official receiver may appear and call the attention of the court to any matters which seem to him to be relevant.
(6)
References in this section, in relation to any time, to a name by which a company is known are to the name of the company at that time or to any name under which the company carries on business at that time.
(7)
For the purposes of this section a company goes into insolvent liquidation if it goes into liquidation at at time when its assets are insufficient for the payment of its debts and other liabilities and the expenses of the winding up.
(8)
In this section “company” includes a company which may be wound up under Part V of this Act.
217 Personal liability for debts, following contravention of s. 216.
(1)
A person is personally responsible for all the relevant debts of a company if at any time—
(a)
in contravention of section 216, he is involved in the management of the company, or
(b)
as a person who is involved in the management of the company, he acts or is willing to act on instructions given (without the leave of the court) by a person whom he knows at that time to be in contravention in relation to the company of section 216.
(2)
Where a person is personally responsible under this section for the relevant debts of a company, he is jointly and severally liable in respect of those debts with the company and any other person who, whether under this section or otherwise, is so liable.
(3)
For the purposes of this section the relevant debts of a company are—
(a)
in relation to a person who is personally responsible under paragraph (a) of subsection (1), such debts and other liabilities of the company as are incurred at a time when that person was involved in the management of the company, and
(b)
in relation to a person who is personally responsible under paragraph (b) of that subsection, such debts and other liabilities of the company as are incurred at a time when that person was acting or was willing to act on instructions given as mentioned in that paragraph.
(4)
For the purposes of this section, a person is involved in the management of a company if he is a director of the company or if he is concerned, whether directly or indirectly, or takes part, in the management of the company.
(5)
For the purposes of this section a person who, as a person involved in the management of a company, has at any time acted on instructions given (without the leave of the court) by a person whom he knew at that time to be in contravention in relation to the company of section 216 is presumed, unless the contrary is shown, to have been willing at any time thereafter to act on any instructions given by that person.
(6)
In this section “company” includes a company which may be wound up under Part V.
Investigation and prosecution of malpractice
218 Prosecution of delinquent officers and members of company.
(1)
If it appears to the court in the course of a winding up by the court that any past or present officer, or any member, of the company has been guilty of any offence in relation to the company for which he is criminally liable, the court may (either on the application of a person interested in the winding up or of its own motion) direct the liquidator to refer the matter
F193(a)
in the case of a winding up in England and Wales, to the Secretary of State, and
(b)
in the case of a winding up in Scotland, to the Lord Advocate
F194(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)
If in the case of a winding up by the court in England and Wales it appears to the liquidator, not being the official receiver, that any past or present officer of the company, or any member of it, has been guilty of an offence in relation to the company for which he is criminally liable, the liquidator shall report the matter to the official receiver.
(4)
If it appears to the liquidator in the course of a voluntary winding up that any past or present officer of the company, or any member of it, has been guilty of an offence in relation to the company for which he is criminally liable, he shall F195forthwith report the matter—
(a)
in the case of a winding up in England and Wales, to the Secretary of State, and
(b)
in the case of a winding up in Scotland, to the Lord Advocate,
and shall furnish to the Secretary of State or (as the case may be) the Lord Advocatesuch information and give to him such access to and facilities for inspecting and taking copies of documents (being information or documents in the possession or under the control of the liquidator and relating to the matter in question) as F196the Secretary of State or (as the case may be) the Lord Advocate requires.
F197(5)
Where a report is made to the Secretary of State under subsection (4) he may, for the purpose of investigating the matter reported to him and such other matters relating to the affairs of the company as appear to him to require investigation, exercise any of the powers which are exercisable by inspectors appointed under section 431 or 432 of the F198the Companies Act 1985 to investigate a company’s affairs.
(6)
If it appears to the court in the course of a voluntary winding up that—
(a)
any past or present officer of the company, or any member of it, has been guilty as above-mentioned, and
(b)
no report with respect to the matter has been made by the liquidator F199. . . under subsection (4),
the court may (on the application of any person interested in the winding up or of its own motion) direct the liquidator to make such a report.
On a report being made accordingly, this section has effect as though the report had been made in pursuance of subsection (4).
219 Obligations arising under s. 218.
(1)
For the purpose of an investigation by the Secretary of State F200in consequence of a report made to him under section 218(4), any obligation imposed on a person by any provision of F201the Companies Act 1985 to produce documents or give information to, or otherwise to assist, inspectors appointed as mentioned in F200section 218(5) is to be regarded as an obligation similarly to assist the Secretary of State in his investigation.
(2)
An answer given by a person to a question put to him in exercise of the powers conferred by section 218(5) may be used in evidence against him.
F202(2A)
However, in criminal proceedings in which that person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the answer may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(2B)
Subsection (2A) applies to any offence other than—
(a)
an offence under section 2 or 5 of the M14Perjury Act 1911 (false statements made on oath otherwise than in judicial proceedings or made otherwise than on oath), or
(b)
an offence under section 44(1) or (2) of the M15Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath).
(3)
Where criminal proceedings are instituted by F203the Director of Public Prosecutions, the Lord Advocate or the Secretary of State following any report or reference under section 218, it is the duty of the liquidator and every officer and agent of the company past and present (other than the defendant or defender) to give to F203the Director of Public Prosecutions, the Lord Advocate or the Secretary of State (as the case may be) all assistance in connection with the prosecution which he is reasonably able to give.
For this purpose “agent” includes any banker or solicitor of the company and any person employed by the company as auditor, whether that person is or is not an officer of the company.
(4)
If a person fails or neglects to give assistance in the manner required by subsection (3), the court may, on the application of the F204Director of Public Prosecutions, the Lord Advocate or the Secretary of State (as the case may be) direct the person to comply with that subsection; and if the application is made with respect to a liquidator, the court may (unless it appears that the failure or neglect to comply was due to the liquidator not having in his hands sufficient assets of the company to enable him to do so) direct that the costs shall be borne by the liquidator personally.
Part V Winding Up of Unregistered Companies
F205220 Meaning of “unregistered company”.
For the purposes of this Part “unregistered company” includes any association and any company, with the exception of a company registered under the Companies Act 2006 in any part of the United Kingdom.
221 Winding up of unregistered companies.
(1)
Subject to the provisions of this Part, any unregistered company may be wound up under this Act; and all the provisions of this Act F206. . . about winding up apply to an unregistered company with the exceptions and additions mentioned in the following subsections.
(2)
If an unregistered company has a principal place of business situated in Northern Ireland, it shall not be wound up under this Part unless it has a principal place of business situated in England and Wales or Scotland, or in both England and Wales and Scotland.
(3)
For the purpose of determining a court’s winding-up jurisdiction, an unregistered company is deemed—
(a)
to be registered in England and Wales or Scotland, according as its principal place of business is situated in England and Wales or Scotland, or
(b)
if it has a principal place of business situated in both countries, to be registered in both countries;
and the principal place of business situated in that part of Great Britain in which proceedings are being instituted is, for all purposes of the winding up, deemed to be the registered office of the company.
(4)
No unregistered company shall be wound up under this Act voluntarily F207, except in accordance with the EC Regulation.
(5)
The circumstances in which an unregistered company may be wound up are as follows—
(a)
if the company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs;
(b)
if the company is unable to pay its debts;
(c)
if the court is of opinion that it is just and equitable that the company should be wound up.
(6)
A petition for winding up a trustee savings bank may be presented by the Trustee Savings Banks Central Board or by a commissioner appointed under section 35 of the M16Trustee Savings Banks Act 1981 as well as by any person authorised under Part IV of this Act to present a petition for the winding up of a company.
On such day as the Treasury appoints by order under section 4(3) of the M17Trustee Savings Banks Act 1985, this subsection ceases to have effect and is hereby repealed.
(7)
In Scotland, an unregistered company which the Court of Session has jurisdiction to wind up may be wound up by the court if there is subsisting a floating charge over property comprised in the company’s property and undertaking, and the court is satisfied that the security of the creditor entitled to the benefit of the floating charge is in jeopardy.
For this purpose a creditor’s security is deemed to be in jeopardy if the court is satisfied that events have occurred or are about to occur which render it unreasonable in the creditor’s interests that the company should retain power to dispose of the property which is subject to the floating charge.
222 Inability to pay debts: unpaid creditor for £750 or more.
(1)
An unregistered company is deemed (for the purposes of section 221) unable to pay its debts if there is a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding £750 then due and—
(a)
the creditor has served on the company, by leaving at its principal place of business, or by delivering to the secretary or some director, manager or principal officer of the company, or by otherwise serving in such manner as the court may approve or direct, a written demand in the prescribed form requiring the company to pay the sum due, and
(b)
the company has for 3 weeks after the service of the demand neglected to pay the sum or to secure or compound for it to the creditor’s satisfaction.
(2)
The money sum for the time being specified in subsection (1) is subject to increase or reduction by regulations under section 417 in Part XV; but no increase in the sum so specified affects any case in which the winding-up petition was presented before the coming into force of the increase.
223 Inability to pay debts: debt remaining unsatisfed after action brought.
An unregistered company is deemed (for the purposes of section 221) unable to pay its debts if an action or other proceeding has been instituted against any member for any debt or demand due, or claimed to be due, from the company, or from him in his character of member, and—
(a)
notice in writing of the institution of the action or proceeding has been served on the company by leaving it at the company’s principal place of business (or by delivering it to the secretary, or some director, manager or principal officer of the company, or by otherwise serving it in such manner as the court may approve or direct), and
(b)
the company has not within 3 weeks after service of the notice paid, secured or compounded for the debt or demand, or procured the action or proceeding to be stayed or sisted, or indemnified the defendant or defender to his reasonable satisfaction against the action or proceeding, and against all costs, damages and expenses to be incurred by him because of it.
224 Inability to pay debts: other cases.
(1)
An unregistered company is deemed (for purposes of section 221) unable to pay its debts—
(a)
if in England and Wales execution or other process issued on a judgment, decree or order obtained in any court in favour of a creditor against the company, or any member of it as such, or any person authorised to be sued as nominal defendant on behalf of the company, is returned unsatisfied;
(b)
if in Scotland the induciae of a charge for payment on an extract decree, or an extract registered bond, or an extract registered protest, have expired without payment being made;
(c)
if in Northern Ireland a certificate of unenforceability has been granted in respect of any judgment, decree or order obtained as mentioned in paragraph (a);
(d)
if it is otherwise proved to the satisfaction of the court that the company is unable to pay its debts as they fall due.
(2)
An unregistered company is also deemed unable to pay its debts if it is proved to the satisfaction of the court that the value of the company’s assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities.
225F208Company incorporated outside Great Britain may be wound up though dissolved.
F209(1)
Where a company incorporated outside Great Britain which has been carrying on business in Great Britain ceases to carry on business in Great Britain, it may be wound up as an unregistered company under this Act, notwithstanding that it has been dissolved or otherwise ceased to exist as a company under or by virtue of the laws of the country under which it was incorporated.
F209(2)
This section is subject to the EC Regulation.
226 Contributories in winding up of unregistered company.
(1)
In the event of an unregistered company being wound up, every person is deemed a contributory who is liable to pay or contribute to the payment of any debt or liability of the company, or to pay or contribute to the payment of any sum for the adjustment of the rights of members among themselves, or to pay or contribute to the payment of the expenses of winding up the company.
(2)
Every contributory is liable to contribute to the company’s assets all sums due from him in respect of any such liability as is mentioned above.
(3)
In the case of an unregistered company engaged in or formed for working mines within the stannaries, a past member is not liable to contribute to the assets if he has ceased to be a member for 2 years or more either before the mine ceased to be worked or before the date of the winding-up order.
(4)
F210. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
227 Power of court to stay, sist or restrain proceedings.
The provisions of this Part with respect to staying, sisting or restraining actions and proceedings against a company at any time after the presentation of a petition for winding up and before the making of a winding-up order extend, in the case of an unregistered company, where the application to stay, sist or restrain is presented by a creditor, to actions and proceedings against any contributory of the company.
228 Actions stayed on winding-up order.
Where an order has been made for winding up an unregistered company, no action or proceding shall be proceeded with or commenced against any contributory of the company in respect of any debt of the company, except by leave of the court, and subject to such terms as the court may impose.
229 Provisions of this Part to be cumulative.
(1)
The provisions of this Part with respect to unregistered companies are in addition to and not in restriction of any provisions in Part IV with respect to winding up companies by the court; and the court or liquidator may exercise any powers or do any act in the case of unregistered companies which might be exercised or done by it or him in winding up F211companies registered under the Companies Act 2006 in England and Wales or Scotland.
(2)
F212. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Part VI Miscellaneous Provisions Applying to Companies Which are Insolvent or in Liquidation
Office-holders
230 Holders of office to be qualified insolvency practitioners.
(1)
F213. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)
Where an administrative receiver of a company is appointed, he must be a person who is so qualified.
(3)
Where a company goes into liquidation, the liquidator must be a person who is so qualified.
(4)
Where a provisional liquidator is appointed, he must be a person who is so qualified.
(5)
Subsections (3) and (4) are without prejudice to any enactment under which the official receiver is to be, or may be, liquidator or provisional liquidator.
231 Appointment to office of two or more persons.
(1)
This section applies if an appointment or nomination of any person to the office of F214. . . administrative receiver, liquidator or provisional liquidator—
(a)
relates to more than one person, or
(b)
has the effect that the office is to be held by more than one person.
(2)
The appointment or nomination shall declare whether any act required or authorised under any enactment to be done by the F214. . . administrative receiver, liquidator or provisional liquidator is to be done by all or any one or more of the persons for the time being holding the office in question.
232 Validity of office-holder’s acts.
The acts of an individual as F215. . . administrative receiver, liquidator or provisional liquidator of a company are valid notwithstanding any defect in his appointment, nomination or qualifications.
Management by administrators, liquidators, etc.
233 Supplies of gas, water, electricity, etc.
(1)
This section applies in the case of a company where—
F216(a)
the company enters administration,
(b)
an administrative receiver is appointed, or
F217(ba)
a moratorium under section 1A is in force, or
(c)
a voluntary arrangement F218approved under Part I, has taken effect, or
(d)
the company goes into liquidation, or
(e)
a provisional liquidator is appointed;
and “the office-holder” means the administrator, the administrative receiver, F219the nominee, the supervisor of the voluntary arrangement, the liquidator or the provisional liquidator, as the case may be.
(2)
If a request is made by or with the concurrence of the office-holder for the giving, after the effective date, of any of the supplies mentioned in the next subsection, the supplier—
(a)
may make it a condition of the giving of the supply that the office-holder personally guarantees the payment of any charges in respect of the supply, but
(b)
shall not make it a condition of the giving of the supply, or do anything which has the effect of making it a condition of the giving of the supply, that any outstanding charges in respect of a supply given to the company before the effective date are paid.
(3)
The supplies referred to in subsection (2) are—
F220(a)
a supply of gas by a gas supplier within the meaning of Part I of the Gas Act 1986;
F221(b)
a supply of electricity by an electricity supplier within the meaning of Part I of the Electricity Act 1989;
F224(d)
a supply of communications services by a provider of a public electronic communications service.
(4)
“The effective date” for the purposes of this section is whichever is applicable of the following dates—
F225(a)
the date on which the company entered administration
(b)
the date on which the administative receiver was appointed (or, if he was appointed in succession to another administrative receiver, the date on which the first of his predecessors was appointed),
F226(ba)
the date on which the moratorium came into force
(c)
the date on which the voluntary arrangement F227took effect,
(d)
the date on which the company went into liquidation,
(e)
the date on which the provisional liquidator was appointed.
(5)
The following applies to expressions used in subsection (3)—
(a)
F228. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)
F229. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)
F230. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F231(d)
“communications services” do not include electronic communications services to the extent that they are used to broadcast or otherwise transmit programme services (within the meaning of the Communications Act 2003).
234 Getting in the company’s property.
(1)
This section applies in the case of a company where—
F232(a)
the company enters administration,
(b)
an administrative receiver is appointed, or
(c)
the company goes into liquidation, or
(d)
a provisional liquidator is appointed;
and “the office-holder” means the administrator, the administrative receiver, the liquidator or the provisional liquidator, as the case may be.
(2)
Where any person has in his possession or control any property, books, papers or records to which the company appears to be entitled, the court may require that person forthwith (or within such period as the court may direct) to pay, deliver, convey, surrender or transfer the property, books, papers or records to the office-holder.
(3)
Where the office-holder—
(a)
seizes or disposes of any property which is not property of the company, and
(b)
at the time of seizure or disposal believes, and has reasonable grounds for believing, that he is entitled (whether in pursuance of an order of the court or otherwise) to seize or dispose of that property,
the next subsection has effect.
(4)
In that case the office-holder—
(a)
is not liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as that loss or damage is caused by the office-holder’s own negligence, and
(b)
has a lien on the property, or the proceeds of its sale, for such expenses as were incurred in connection with the seizure or disposal.
235 Duty to co-operate with office-holder.
(1)
This section applies as does section 234; and it also applies, in the case of a company in respect of which a winding-up order has been made by the court in England and Wales, as if references to the office-holder included the official receiver, whether or not he is the liquidator.
(2)
Each of the persons mentioned in the next subsection shall—
(a)
give to the office-holder such information concerning the company and its promotion, formation, business, dealings, affairs or property as the office-holder may at any time after the effective date reasonably require, and
(b)
attend on the office-holder at such times as the latter may reasonably require.
(3)
The persons referred to above are—
(a)
those who are or have at any time been officers of the company,
(b)
those who have taken part in the formation of the company at any time within one year before the effective date,
(c)
those who are in the employment of the company, or have been in its employment (including employment under a contract for services) within that year, and are in the office-holder’s opinion capable of giving information which he requires,
(d)
those who are, or have within that year been, officers of, or in the employment (including employment under a contract for services) of, another company which is, or within that year was, an officer of the company in question, and
(e)
in the case of a company being wound up by the court, any person who has acted as administrator, administrative receiver or liquidator of the company.
(4)
For the purposes of subsections (2) and (3), “the effective date” is whichever is applicable of the following dates—
F233(a)
the date on which the company entered administration,
(b)
the date on which the administrative receiver was appointed or, if he was appointed in succession to another administrative receiver, the date on which the first of his predecessors was appointed,
(c)
the date on which the provisional liquidator was appointed, and
(d)
the date on which the company went into liquidation.
(5)
If a person without reasonable excuse fails to comply with any obligation imposed by this section, he is liable to a fine and, for continued contravention, to a daily default fine.
236 Inquiry into company’s dealings, etc.
(1)
This section applies as does section 234; and it also applies in the case of a company in respect of which a winding-up order has been made by the court in England and Wales as if references to the office-holder included the official receiver, whether or not he is the liquidator.
(2)
The court may, on the application of the office-holder, summon to appear before it—
(a)
any officer of the company,
(b)
any person known or suspected to have in his possession any property of the company or supposed to be indebted to the company, or
(c)
any person whom the court thinks capable of giving information concerning the promotion, formation, business, dealings, affairs or property of the company.
(3)
The court may require any such person as is mentioned in subsection (2)(a) to (c) to submit an affidavit to the court containing an account of his dealings with the company or to produce any books, papers or other records in his possession or under his control relating to the company or the matters mentioned in paragraph (c) of the subsection.
(4)
The following applies in a case where—
(a)
a person without reasonable excuse fails to appear before the court when he is summoned to do so under this section, or
(b)
there are reasonable grounds for believing that a person has absconded, or is about to abscond, with a view to avoiding his appearance before the court under this section.
(5)
The court may, for the purpose of bringing that person and anything in his possession before the court, cause a warrant to be issued to a constable or prescribed officer of the court—
(a)
for the arrest of that person, and
(b)
for the seizure of any books, papers, records, money or goods in that person’s possession.
(6)
The court may authorise a person arrested under such a warrant to be kept in custody, and anything seized under such a warrant to be held, in accordance with the rules, until that person is brought before the court under the warrant or until such other time as the court may order.
237 Court’s enforcement powers under s. 236.
(1)
If it appears to the court, on consideration of any evidence obtained under section 236 or this section, that any person has in his possession any property of the company, the court may, on the application of the office-holder, order that person to deliver the whole or any part of the property to the office-holder at such time, in such manner and on such terms as the court thinks fit.
(2)
If it appears to the court, on consideration of any evidence so obtained, that any person is indebted to the company, the court may, on the application of the office-holder, order that person to pay to the office holder,at such time and in such manner as the court may direct, the whole or any part of the amount due, whether in full discharge of the debt or otherwise, as the court thinks fit.
the court may, if it thinks fit, order that any person who if within the jurisdiction of the court would be liable to be summoned to appear before it under section 236 or this section shall be examined in any part of the United Kingdom where he may for the time being be, or in a place outside the United Kingdom.
(4)
Any person who appears or is brought before the court under section 236 or this section may be examined on oath, either orally or (except in Scotland) by interrogatories, concerning the company or the matters mentioned in section 236(2)(c).
Adjustment of prior transactions (administration and liquidation)
238 Transactions at an undervalue (England and Wales).
(1)
This section applies in the case of a company where—
F234(a)
the company enters administration,
(b)
the company goes into liquidation;
and “the office-holder” means the administrator or the liquidator, as the case may be.
(2)
Where the company has at a relevant time (defined in section 240) entered into a transaction with any person at an undervalue, the office-holder may apply to the court for an order under this section.
(3)
Subject as follows, the court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if the company had not entered into that transaction.
(4)
For the purposes of this section and section 241, a company enters into a transaction with a person at an undervalue if—
(a)
the company makes a gift to that person or otherwise enters into a transaction with that person on terms that provide for the company to receive no consideration, or
(b)
the company enters into a transaction with that person for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the company.
(5)
The court shall not make an order under this section in respect of a transaction at an undervalue if it is satisfied—
(a)
that the company which entered into the transaction did so in good faith and for the purpose of carrying on its business, and
(b)
that at the time it did so there were reasonable grounds for believing that the transaction would benefit the company.
239 Preferences (England and Wales).
(1)
This section applies as does section 238.
(2)
Where the company has at a relevant time (defined in the next section) given a preference to any person, the office-holder may apply to the court for an order under this section.
(3)
Subject as follows, the court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if the company had not given that preference.
(4)
For the purposes of this section and section 241, a company gives a preference to a person if—
(a)
that person is one of the company’s creditors or a surety or guarantor for any of the company’s debts or other liabilities, and
(b)
the company does anything or suffers anything to be done which (in either case) has the effect of putting that person into a position which, in the event of the company going into insolvent liquidation, will be better than the position he would have been in if that thing had not been done.
(5)
The court shall not make an order under this section in respect of a preference given to any person unless the company which gave the preference was influenced in deciding to give it by a desire to produce in relation to that person the effect mentioned in subsection (4)(b).
(6)
A company which has given a preference to a person connected with the company (otherwise than by reason only of being its employee) at the time the preference was given is presumed, unless the contrary is shown, to have been influenced in deciding to give it by such a desire as is mentioned in subsection (5).
(7)
The fact that something has been done in pursuance of the order of a court does not, without more, prevent the doing or suffering of that thing from constituting the giving of a preference.
240“Relevant time” under ss. 238, 239.
(1)
Subject to the next subsection, the time at which a company enters into a transaction at an undervalue or gives a preference is a relevant time if the transaction is entered into, or the preference given—
(a)
in the case of a transaction at an undervalue or of a preference which is given to a person who is connected with the company (otherwise than by reason only of being its employee), at a time in the period of 2 years ending with the onset of insolvency (which expression is defined below),
(b)
in the case of a preference which is not such a transaction and is not so given, at a time in the period of 6 months ending with the onset of insolvency,F235. . .
F236(c)
in either case, at a time between the making of an administration application in respect of the company and the making of an administration order on that application, and
(d)
in either case, at a time between the filing with the court of a copy of notice of intention to appoint an administrator under paragraph 14 or 22 of Schedule B1 and the making of an appointment under that paragraph.
(2)
Where a company enters into a transaction at an undervalue or gives a preference at a time mentioned in subsection (1)(a) or (b), that time is not a relevant time for the purposes of section 238 or 239 unless the company—
(a)
is at that time unable to pay its debts within the meaning of section 123 in Chapter VI of Part IV, or
(b)
becomes unable to pay its debts within the meaning of that section in consequence of the transaction or preference;
but the requirements of this subsection are presumed to be satisfied, unless the contrary is shown, in relation to any transaction at an undervalue which is entered into by a company with a person who is connected with the company.
(3)
For the purposes of subsection (1), the onset of insolvency is—
F237(a)
in a case where section 238 or 239 applies by reason of an administrator of a company being appointed by administration order, the date on which the administration application is made,
(b)
in a case where section 238 or 239 applies by reason of an administrator of a company being appointed under paragraph 14 or 22 of Schedule B1 following filing with the court of a copy of a notice of intention to appoint under that paragraph, the date on which the copy of the notice is filed,
(c)
in a case where section 238 or 239 applies by reason of an administrator of a company being appointed otherwise than as mentioned in paragraph (a) or (b), the date on which the appointment takes effect,
(d)
in a case where section 238 or 239 applies by reason of a company going into liquidation either following conversion of administration into winding up by virtue of Article 37 of the EC Regulation or at the time when the appointment of an administrator ceases to have effect, the date on which the company entered administration (or, if relevant, the date on which the application for the administration order was made or a copy of the notice of intention to appoint was filed), and
(e)
in a case where section 238 or 239 applies by reason of a company going into liquidation at any other time, the date of the commencement of the winding up.
241 Orders under ss. 238, 239.
(1)
Without prejudice to the generality of sections 238(3) and 239(3), an order under either of those sections with respect to a transaction or preference entered into or given by a company may (subject to the next subsection)—
(a)
require any property transferred as part of the transaction, or in connection with the giving of the preference, to be vested in the company,
(b)
require any property to be so vested if it represents in any person’s hands the application either of the proceeds of sale of property so transferred or of money so transferred,
(c)
release or discharge (in whole or in part) any security given by the company,
(d)
require any person to pay, in respect of benefits received by him from the company, such sums to the office-holder as the court may direct,
(e)
provide for any surety or guarantor whose obligations to any person were released or discharged (in whole or in part) under the transaction, or by the giving of the preference, to be under such new or revived obligations to that person as the court thinks appropriate,
(f)
provide for security to be provided for the discharge of any obligation imposed by or arising under the order, for such an obligation to be charged on any property and for the security or charge to have the same priority as a security or charge released or discharged (in whole or in part) under the transaction or by the giving of the preference, and
(g)
provide for the extent to which any person whose property is vested by the order in the company, or on whom obligations are imposed by the order, is to be able to prove in the winding up of the company for debts or other liabilities which arose from, or were released or discharged (in whole or in part) under or by, the transaction or the giving of the preference.
(2)
An order under section 238 or 239 may affect the property of, or impose any obligation on, any person whether or not he is the person with whom the company in question entered into the transaction or (as the case may be) the person to whom the preference was given; but such an order—
(a)
shall not prejudice any interest in property which was acquired from a person other than the company and was acquired F238in good faith and for value, or prejudice any interest deriving from such an interest, and
(b)
shall not require a person who received a benefit from the transaction or preference F238in good faith and for valueto pay a sum to the office-holder, except where that person was a party to the transaction or the payment is to be in respect of a preference given to that person at a time when he was a creditor of the company.
F239(2A)
Where a person has acquired an interest in property from a person other than the company in question, or has received a benefit from the transaction or preference, and at the time of that acquisition or receipt—
(a)
he had notice of the relevant surrounding circumstances and of the relevant proceedings, or
(b)
he was connected with, or was an associate of, either the company in question or the person with whom that company entered into the transaction or to whom that company gave the preference,
then, unless the contrary is shown, it shall be presumed for the purposes of paragraph (a) or (as the case may be) paragraph (b) of subsection (2) that the interest was acquired or the benefit was received otherwise than in good faith.
F240(3)
For the purposes of subsection (2A)(a), the relevant surrounding circumstances are (as the case may require)—
(a)
the fact that the company in question entered into the transaction at an undervalue; or
(b)
the circumstances which amounted to the giving of the preference by the company in question;
and subsections (3A) to (3C) have effect to determine whether, for those purposes, a person has notice of the relevant proceedings.
F241(3A)
Where section 238 or 239 applies by reason of a company’s entering administration, a person has notice of the relevant proceedings if he has notice that—
(a)
an administration application has been made,
(b)
an administration order has been made,
(c)
a copy of a notice of intention to appoint an administrator under paragraph 14 or 22 of Schedule B1 has been filed, or
(d)
notice of the appointment of an administrator has been filed under paragraph 18 or 29 of that Schedule.
F242(3B)
Where section 238 or 239 applies by reason of a company’s going into liquidation at the time when the appointment of an administrator of the company ceases to have effect, a person has notice of the relevant proceedings if he has notice that—
(a)
an administration application has been made,
(b)
an administration order has been made,
(c)
a copy of a notice of intention to appoint an administrator under paragraph 14 or 22 of Schedule B1 has been filed,
(d)
notice of the appointment of an administrator has been filed under paragraph 18 or 29 of that Schedule, or
(e)
the company has gone into liquidation.
(3C)
In a case where section 238 or 239 applies by reason of the company in question going into liquidation at any other time, a person has notice of the relevant proceedings if he has notice—
(a)
where the company goes into liquidation on the making of a winding-up order, of the fact that the petition on which the winding-up order is made has been presented or of the fact that the company has gone into liquidation;
(b)
in any other case, of the fact that the company has gone into liquidation.
(4)
The provisions of sections 238 to 241 apply without prejudice to the availability of any other remedy, even in relation to a transaction or preference which the company had no power to enter into or give.
242 Gratuitous alienations (Scotland).
(1)
Where this subsection applies and—
(a)
the winding up of a company has commenced, an alienation by the company is challengeable by—
(i)
any creditor who is a creditor by virtue of a debt incurred on or before the date of such commencement, or
(ii)
the liquidator;
(b)
F243a company enters administration, an alienation by the company is challengeable by the administrator.
(2)
Subsection (1) applies where—
(a)
by the alienation, whether before or after 1st April 1986 (the coming into force of section75 of the M18Bankruptcy (Scotland) Act 1985), any part of the company’s property is transferred or any claim or right of the company is discharged or renounced, and
(b)
the alienation takes place on a relevant day.
(3)
For the purposes of subsection (2)(b), the day on which an alienation takes place is the day on which it becomes completely effectual; and in that subsection “relevant day” means, if the alienation has the effect of favouring—
(a)
a person who is an associate (within the meaning of the Bankruptcy (Scotland) Act 1985) of the company, a day not earlier than 5 years before the date on which—
(i)
the winding up of the company commences, or
(ii)
as the case may be, F244the company enters administration; or
(b)
any other person, a day not earlier than 2 years before that date.
(4)
On a challenge being brought under subsection (1), the court shall grant decree of reduction or for such restoration of property to the company’s assets or other redress as may be appropriate; but the court shall not grant such a decree if the person seeking to uphold the alienation establishes—
(a)
that immediately, or at any other time, after the alienation the company’s assets were greater than its liabilities, or
(b)
that the alienation was made for adequate consideration, or
(c)
that the alienation—
(i)
was a birthday, Christmas or other conventional gift, or
(ii)
was a gift made, for a charitable purpose, to a person who is not an associate of the company,
which, having regard to all the circumstances, it was reasonable for the company to make:
Provided that this subsection is without prejudice to any right or interest acquired in good faith and for value from or through the transferee in the alienation.
(5)
In subsection (4) above, “charitable purpose” means any charitable, benevolent or philanthropic purpose, whether or not it is charitable within the meaning of any rule of law.
(6)
For the purposes of the foregoing provisions of this section, an alienation in implementation of a prior obligation is deemed to be one for which there was no consideration or no adequate consideration to the extent that the prior obligation was undertaken for no consideration or no adequate consideration.
(7)
A liquidator and an administrator have the same right as a creditor has under any rule of law to challenge an alienation of a company made for no consideration or no adequate consideration.
(8)
This section applies to Scotland only.
243 Unfair preferences (Scotland).
(1)
Subject to subsection (2) below, subsection (4) below applies to a transaction entered into by a company, whether before or after 1st April 1986, which has the effect of creating a preference in favour of a creditor to the prejudice of the general body of creditors, being a preference created not earlier than 6 months before the commencement of the winding up of the company or F245the company enters administration.
(2)
Subsection (4) below does not apply to any of the following transactions—
(a)
a transaction in the ordinary course of trade or business;
(b)
a payment in cash for a debt which when it was paid had become payable, unless the transaction was collusive with the purpose of prejudicing the general body of creditors;
(c)
a transaction whereby the parties to it undertake reciprocal obligations (whether the performance by the parties of their respective obligations occurs at the same time or at different times) unless the transaction was collusive as aforesaid;
(d)
the granting of a mandate by a company authorising an arrestee to pay over the arrested funds or part thereof to the arrester where—
(i)
there has been a decree for payment or a warrant for summary diligence, and
(ii)
the decree or warrant has been preceded by an arrestment on the dependence of the action or followed by an arrestment in execution.
(3)
For the purposes of subsection (1) above, the day on which a preference was created is the day on which the preference became completely effectual.
(4)
A transaction to which this subsection applies is challengeable by—
(a)
in the case of a winding up—
(i)
any creditor who is a creditor by virtue of a debt incurred on or before the date of commencement of the winding up, or
(ii)
the liquidator; and
(b)
F246where the company has entered administration, the administrator.
(5)
On a challenge being brought under subsection (4) above, the court, if satisfied that the transaction challenged is a transaction to which this section applies, shall grant decree of reduction or for such restoration of property to the company’s assets or other redress as may be appropriate;
Provided that this subsection is without prejudice to any right or interest acquired in good faith and for value from or through the creditor in whose favour the preference was created.
(6)
A liquidator and an administrator have the same right as a creditor has under any rule of law to challenge a preference created by a debtor.
(7)
This section applies to Scotland only.
244 Extortionate credit transactions.
(1)
This section applies as does section 238, and where the company is, or has been, a party to a transaction for, or involving, the provision of credit to the company.
(2)
The court may, on the application of the office-holder, make an order with respect to the transaction if the transaction is or was extortionate and was entered into in the period of 3 years ending with F247the day on which the company entered administration or went into liquidation.
(3)
For the purposes of this section a transaction is extortionate if, having regard to the risk accepted by the person providing the credit—
(a)
the terms of it are or were such as to require grossly exorbitant payments to be made (whether unconditionally or in certain contingencies) in respect of the provision of the credit, or
(b)
it otherwise grossly contravened ordinary principles of fair dealing;
and it shall be presumed, unless the contrary is proved, that a transaction with respect to which an application is made under this section is or, as the case may be, was extortionate.
(4)
An order under this section with respect to any transaction may contain such one or more of the following as the court thinks fit, that is to say—
(a)
provision setting aside the whole or part of any obligation created by the transaction,
(b)
provision otherwise varying the terms of the transaction or varying the terms on which any security for the purposes of the transaction is held,
(c)
provision requiring any person who is or was a party to the transaction to pay to the office-holder any sums paid to that person, by virtue of the transaction, by the company,
(d)
provision requiring any person to surrender to the office-holder any property held by him as security for the purposes of the transaction,
(e)
provision directing accounts to be taken between any persons.
(5)
The powers conferred by this section are exercisable in relation to any transaction concurrently with any powers exercisable in relation to that transaction as a transaction at an undervalue or under section 242 (gratuitious alienations in Scotland).
245 Avoidance of certain floating charges.
(1)
This section applies as does section 238, but applies to Scotland as well as to England and Wales.
(2)
Subject as follows, a floating charge on the company’s undertaking or property created at a relevant time is invalid except to the extent of the aggregate of—
(a)
the value of so much of the consideration for the creation of the charge as consists of money paid, or goods or services supplied, to the company at the same time as, or after, the creation of the charge,
(b)
the value of so much of that consideration as consists of the discharge or reduction, at the same time as, or after, the creation of the charge, of any debt of the company, and
(c)
the amount of such interest (if any) as is payable on the amount falling within paragraph (a) or (b) in pursuance of any agreement under which the money was so paid, the goods or services were so supplied or the debt was so discharged or reduced.
(3)
Subject to the next subsection, the time at which a floating charge is created by a company is a relevant time for the purposes of this section if the charge is created—
(a)
in the case of a charge which is created in favour of a person who is connected with the company, at a time in the period of 2 years ending with the onset of insolvency,
(b)
in the case of a charge which is created in favour of any other person, at a time in the period of 12 months ending with the onset of insolvency,F248. . .
F249(c)
in either case, at a time between the making of an administration application in respect of the company and the making of an administration order on that application, or
(d)
in either case, at a time between the filing with the court of a copy of notice of intention to appoint an administrator under paragraph 14 or 22 of Schedule B1 and the making of an appointment under that paragraph.
(4)
Where a company creates a floating charge at a time mentioned in subsection (3)(b) and the person in favour of whom the charge is created is not connected with the company, that time is not a relevant time for the purposes of this section unless the company—
(a)
is at that time unable to pay its debts within the meaning of section 123 in Chapter VI of Part IV, or
(b)
becomes unable to pay its debts within the meaning of that section in consequence of the transaction under which the charge is created.
(5)
For the purposes of subsection (3), the onset of insolvency is—
F250(a)
in a case where this section applies by reason of an administrator of a company being appointed by administration order, the date on which the administration application is made,
(b)
in a case where this section applies by reason of an administrator of a company being appointed under paragraph 14 or 22 of Schedule B1 following filing with the court of a copy of notice of intention to appoint under that paragraph, the date on which the copy of the notice is filed,
(c)
in a case where this section applies by reason of an administrator of a company being appointed otherwise than as mentioned in paragraph (a) or (b), the date on which the appointment takes effect, and
(d)
in a case where this section applies by reason of a company going into liquidation, the date of the commencement of the winding up.
(6)
For the purposes of subsection (2)(a) the value of any goods or services supplied by way of consideration for a floating charge is the amount in money which at the time they were supplied could reasonably have been expected to be obtained for supplying the goods or services in the ordinary course of business and on the same terms (apart from the consideration) as those on which they were supplied to the company.
246 Unenforceability of liens on books, etc.
(1)
This section applies in the case of a company where—
F251(a)
the company enters administration,
(b)
the company goes into liquidation, or
(c)
a provisional liquidator is appointed;
and “the office-holder” means the administrator, the liquidator or the provisional liquidator, as the case may be.
(2)
Subject as follows, a lien or other right to retain possession of any of the books, papers or other records of the company is unenforceable to the extent that its enforcement would deny possession of any books, papers or other records to the office-holder.
(3)
This does not apply to a lien on documents which give a title to property and are held as such.
Part VII Interpretation for First Group of Parts
247“Insolvency” and “go into liquidation”.
(1)
In this Group of Parts, except in so far as the context otherwise requires, “insolvency”, in relation to a company, includes the approval of a voluntary arrangement under Part I, F252or the appointment of an administrator or administrative receiver.
(2)
For the purposes of any provision in this Group of Parts, 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 court at a time when it has not already gone into liquidation by passing such a resolution.
F253(3)
The reference to a resolution for voluntary winding up in subsection (2) includes a reference to a resolution which is deemed to occur by virtue of—
(a)
paragraph 83(6)(b) of Schedule B1, or
(b)
an order made following conversion of administration or a voluntary arrangement into winding up by virtue of Article 37 of the EC Regulation.
248“Secured creditor”, etc.
In this Group of Parts, except in so far as the context otherwiserequires—
(a)
“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; and
(b)
“security” means—
(i)
in relation to England and Wales, any mortgage, charge, lien or other security, and
(ii)
in relation to Scotland, any security (whether heritable or moveable), any floating charge and any right of lien or preference and any right of retention (other than a right of compensation or set off).
249“Connected” with a company.
For the purposes of any provision in this Group of Parts, 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,
and “associate” has the meaning given by section 435 in Part XVIII of this Act.
250“Member” of a company.
For the purposes of any provision in this Group of Parts, 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.
251 Expressions used generally.
In this Group of Parts, except in so far as the context otherwise requires—
“administative receiver” means—
(a)
an administrative receiver as defined by section 29(2) in Chapter I of Part III, or
(b)
a receiver appointed under section 51 in Chapter II of that Part in a case where the whole (or substantially the whole) of the company’s property is attached by the floating charge;
F254“agent” does not include a person's counsel acting as such;
F255“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 any part of Great Britain;
“chattel leasing agreement” means an agreement for the bailment or, in Scotland, the hiring of goods which is capable of subsisting for more than 3 months;
“contributory” has the meaning given by section 79;
F256“the court”, in relation to a company, means a court having jurisdiction to wind up the company;
“director” includes any person occupying the position of director, by whatever name called;
F257“document” includes summons, notice, order and other legal process, and registers;
“floating charge” means a charge which, as created, was a floating charge an includes a floating charge within section 462 of the Companies Act (Scottish floating charges);
F258“the Gazette” means—
(a)
as respects companies registered in England and Wales, the London Gazette;
(b)
as respects companies registered in Scotland, the Edinburgh Gazette;
F259. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F260“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 section 189(4);
“prescribed” means prescribed by the rules;
“receiver”, in the expression “receiver or manager”, does not include a receiver appointed under section 51 in Chapter II of Part III;
“retention of title agreement” means an agreement for the sale of goods to a company, being an agreement—
(a)
which does not constitute a charge on the goods, but
(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;
“the rules” means rules under section 411 in Part XV; and
“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 (but so that a person is not deemed a shadow director by reason only that the directors act on advice given by him in a professional capacity);
F261. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Second Group of Parts Insolvency of Individuals; Bankruptcy
F262Part 7ADebt relief orders
Preliminary
251ADebt relief orders
(1)
An individual who is unable to pay his debts may apply for an order under this Part (“a debt relief order”) to be made in respect of his qualifying debts.
(2)
In this Part “qualifying debt” means (subject to subsection (3)) a debt which—
(a)
is for a liquidated sum payable either immediately or at some certain future time; and
(b)
is not an excluded debt.
(3)
A debt is not a qualifying debt to the extent that it is secured.
(4)
In this Part “excluded debt” means a debt of any description prescribed for the purposes of this subsection.
Applications for a debt relief order
251BMaking of application
(1)
An application for a debt relief order must be made to the official receiver through an approved intermediary.
(2)
The application must include—
(a)
a list of the debts to which the debtor is subject at the date of the application, specifying the amount of each debt (including any interest, penalty or other sum that has become payable in relation to that debt on or before that date) and the creditor to whom it is owed;
(b)
details of any security held in respect of any of those debts; and
(c)
such other information about the debtor's affairs (including his creditors, debts and liabilities and his income and assets) as may be prescribed.
(3)
The rules may make further provision as to—
(a)
the form of an application for a debt relief order;
(b)
the manner in which an application is to be made; and
(c)
information and documents to be supplied in support of an application.
(4)
For the purposes of this Part an application is not to be regarded as having been made until—
(a)
the application has been submitted to the official receiver; and
(b)
any fee required in connection with the application by an order under section 415 has been paid to such person as the order may specify.
251CDuty of official receiver to consider and determine application
(1)
This section applies where an application for a debt relief order is made.
(2)
The official receiver may stay consideration of the application until he has received answers to any queries raised with the debtor in relation to anything connected with the application.
(3)
The official receiver must determine the application by—
(a)
deciding whether to refuse the application;
(b)
if he does not refuse it, by making a debt relief order in relation to the specified debts he is satisfied were qualifying debts of the debtor at the application date;
but he may only refuse the application if he is authorised or required to do so by any of the following provisions of this section.
(4)
The official receiver may refuse the application if he considers that—
(a)
the application does not meet all the requirements imposed by or under section 251B;
(b)
any queries raised with the debtor have not been answered to the satisfaction of the official receiver within such time as he may specify when they are raised;
(c)
the debtor has made any false representation or omission in making the application or on supplying any information or documents in support of it.
(5)
The official receiver must refuse the application if he is not satisfied that—
(a)
the debtor is an individual who is unable to pay his debts;
(b)
at least one of the specified debts was a qualifying debt of the debtor at the application date;
(c)
each of the conditions set out in Part 1 of Schedule 4ZA is met.
(6)
The official receiver may refuse the application if he is not satisfied that each condition specified in Part 2 of Schedule 4ZA is met.
(7)
If the official receiver refuses an application he must give reasons for his refusal to the debtor in the prescribed manner.
(8)
In this section “specified debt” means a debt specified in the application.
251DPresumptions applicable to the determination of an application
(1)
The following presumptions are to apply to the determination of an application for a debt relief order.
(2)
The official receiver must presume that the debtor is an individual who is unable to pay his debts at the determination date if—
(a)
that appears to the official receiver to be the case at the application date from the information supplied in the application and he has no reason to believe that the information supplied is incomplete or inaccurate; and
(b)
he has no reason to believe that, by virtue of a change in the debtor's financial circumstances since the application date, the debtor may be able to pay his debts.
(3)
The official receiver must presume that a specified debt (of the amount specified in the application and owed to the creditor so specified) is a qualifying debt at the application date if—
(a)
that appears to him to be the case from the information supplied in the application; and
(b)
he has no reason to believe that the information supplied is incomplete or inaccurate.
(4)
The official receiver must presume that the condition specified in paragraph 1 of Schedule 4ZA is met if—
(a)
that appears to him to be the case from the information supplied in the application;
(b)
any prescribed verification checks relating to the condition have been made; and
(c)
he has no reason to believe that the information supplied is incomplete or inaccurate.
(5)
The official receiver must presume that any other condition specified in Part 1 or 2 of Schedule 4ZA is met if—
(a)
that appears to him to have been the case as at the application date from the information supplied in the application and he has no reason to believe that the information supplied is incomplete or inaccurate;
(b)
any prescribed verification checks relating to the condition have been made; and
(c)
he has no reason to believe that, by virtue of a change in circumstances since the application date, the condition may no longer be met.
(6)
References in this section to information supplied in the application include information supplied to the official receiver in support of the application.
(7)
In this section “specified debt” means a debt specified in the application.
Making and effect of debt relief order
251EMaking of debt relief orders
(1)
This section applies where the official receiver makes a debt relief order on determining an application under section 251C.
(2)
The order must be made in the prescribed form.
(3)
The order must include a list of the debts which the official receiver is satisfied were qualifying debts of the debtor at the application date, specifying the amount of the debt at that time and the creditor to whom it was then owed.
(4)
The official receiver must—
(a)
give a copy of the order to the debtor; and
(b)
make an entry for the order in the register containing the prescribed information about the order or the debtor.
(5)
The rules may make provision as to other steps to be taken by the official receiver or the debtor on the making of the order.
(6)
Those steps may include in particular notifying each creditor to whom a qualifying debt specified in the order is owed of—
(a)
the making of the order and its effect,
(b)
the grounds on which a creditor may object under section 251K, and
(c)
any other prescribed information.
(7)
In this Part the date on which an entry relating to the making of a debt relief order is first made in the register is referred to as “the effective date”.
251FEffect of debt relief order on other debt management arrangements
(1)
This section applies if—
(a)
a debt relief order is made, and
(b)
immediately before the order is made, other debt management arrangements are in force in respect of the debtor.
(2)
The other debt management arrangements cease to be in force when the debt relief order is made.
(3)
In this section “other debt management arrangements” means—
(a)
an administration order under Part 6 of the County Courts Act 1984;
(b)
an enforcement restriction order under Part 6A of that Act;
(c)
a debt repayment plan arranged in accordance with a debt management scheme that is approved under Chapter 4 of Part 5 of the Tribunals, Courts and Enforcement Act 2007.
251GMoratorium from qualifying debts
(1)
A moratorium commences on the effective date for a debt relief order in relation to each qualifying debt specified in the order (“a specified qualifying debt”).
(2)
During the moratorium, the creditor to whom a specified qualifying debt is owed—
(a)
has no remedy in respect of the debt, and
(b)
may not—
(i)
commence a creditor's petition in respect of the debt, or
(ii)
otherwise commence any action or other legal proceedings against the debtor for the debt,
except with the permission of the court and on such terms as the court may impose.
(3)
If on the effective date a creditor to whom a specified qualifying debt is owed has any such petition, action or other proceeding as mentioned in subsection (2)(b) pending in any court, the court may—
(a)
stay the proceedings on the petition, action or other proceedings (as the case may be), or
(b)
allow them to continue on such terms as the court thinks fit.
(4)
In subsection (2)(a) and (b) references to the debt include a reference to any interest, penalty or other sum that becomes payable in relation to that debt after the application date.
(5)
Nothing in this section affects the right of a secured creditor of the debtor to enforce his security.
251HThe moratorium period
(1)
The moratorium relating to the qualifying debts specified in a debt relief order continues for the period of one year beginning with the effective date for the order, unless—
(a)
the moratorium terminates early; or
(b)
the moratorium period is extended by the official receiver under this section or by the court under section 251M.
(2)
The official receiver may only extend the moratorium period for the purpose of—
(a)
carrying out or completing an investigation under section 251K;
(b)
taking any action he considers necessary (whether as a result of an investigation or otherwise) in relation to the order; or
(c)
in a case where he has decided to revoke the order, providing the debtor with the opportunity to make arrangements for making payments towards his debts.
(3)
The official receiver may not extend the moratorium period for the purpose mentioned in subsection (2)(a) without the permission of the court.
(4)
The official receiver may not extend the moratorium period beyond the end of the period of three months beginning after the end of the initial period of one year mentioned in subsection (1).
(5)
The moratorium period may be extended more than once, but any extension (whether by the official receiver or by the court) must be made before the moratorium would otherwise end.
(6)
References in this Part to a moratorium terminating early are to its terminating before the end of what would otherwise be the moratorium period, whether on the revocation of the order or by virtue of any other enactment.
251IDischarge from qualifying debts
(1)
Subject as follows, at the end of the moratorium applicable to a debt relief order the debtor is discharged from all the qualifying debts specified in the order (including all interest, penalties and other sums which may have become payable in relation to those debts since the application date).
(2)
Subsection (1) does not apply if the moratorium terminates early.
(3)
Subsection (1) does not apply in relation to any qualifying debt which the debtor incurred in respect of any fraud or fraudulent breach of trust to which the debtor was a party.
(4)
The discharge of the debtor under subsection (1) does not release any other person from—
(a)
any liability (whether as partner or co-trustee of the debtor or otherwise) from which the debtor is released by the discharge; or
(b)
any liability as surety for the debtor or as a person in the nature of such a surety.
(5)
If the order is revoked by the court under section 251M after the end of the moratorium period, the qualifying debts specified in the order shall (so far as practicable) be treated as though subsection (1) had never applied to them.
Duties of debtor
251JProviding assistance to official receiver etc
(1)
The duties in this section apply to a debtor at any time after the making of an application by him for a debt relief order.
(2)
The debtor must—
(a)
give to the official receiver such information as to his affairs,
(b)
attend on the official receiver at such times, and
(c)
do all such other things,
as the official receiver may reasonably require for the purpose of carrying out his functions in relation to the application or, as the case may be, the debt relief order made as a result of the application.
(3)
The debtor must notify the official receiver as soon as reasonably practicable if he becomes aware of—
(a)
any error in, or omission from, the information supplied to the official receiver in, or in support of, the application;
(b)
any change in his circumstances between the application date and the determination date that would affect (or would have affected) the determination of the application.
(4)
The duties under subsections (2) and (3) apply after (as well as before) the determination of the application, for as long as the official receiver is able to exercise functions of the kind mentioned in subsection (2).
(5)
If a debt relief order is made as a result of the application, the debtor must notify the official receiver as soon as reasonably practicable if—
(a)
there is an increase in his income during the moratorium period applicable to the order;
(b)
he acquires any property or any property is devolved upon him during that period;
(c)
he becomes aware of any error in or omission from any information supplied by him to the official receiver after the determination date.
(6)
A notification under subsection (3) or (5) must give the prescribed particulars (if any) of the matter being notified.
Objections, investigations and revocation
251KObjections and investigations
(1)
Any person specified in a debt relief order as a creditor to whom a specified qualifying debt is owed may object to—
(a)
the making of the order;
(b)
the inclusion of the debt in the list of the debtor's qualifying debts; or
(c)
the details of the debt specified in the order.
(2)
An objection under subsection (1) must be—
(a)
made during the moratorium period relating to the order and within the prescribed period for objections;
(b)
made to the official receiver in the prescribed manner;
(c)
based on a prescribed ground;
(d)
supported by any information and documents as may be prescribed;
and the prescribed period mentioned in paragraph (a) must not be less than 28 days after the creditor in question has been notified of the making of the order.
(3)
The official receiver must consider every objection made to him under this section.
(4)
The official receiver may—
(a)
as part of his consideration of an objection, or
(b)
on his own initiative,
carry out an investigation of any matter that appears to the official receiver to be relevant to the making of any decision mentioned in subsection (5) in relation to a debt relief order or the debtor.
(5)
The decisions to which an investigation may be directed are—
(a)
whether the order should be revoked or amended under section 251L;
(b)
whether an application should be made to the court under section 251M; or
(c)
whether any other steps should be taken in relation to the debtor.
(6)
The power to carry out an investigation under this section is exercisable after (as well as during) the moratorium relating to the order.
(7)
The official receiver may require any person to give him such information and assistance as he may reasonably require in connection with an investigation under this section.
(8)
Subject to anything prescribed in the rules as to the procedure to be followed in carrying out an investigation under this section, an investigation may be carried out by the official receiver in such manner as he thinks fit.
251LPower of official receiver to revoke or amend a debt relief order
(1)
The official receiver may revoke or amend a debt relief order during the applicable moratorium period in the circumstances provided for by this section.
(2)
The official receiver may revoke the order on the ground that—
(a)
any information supplied to him by the debtor—
(i)
in, or in support of, the application, or
(ii)
after the determination date,
was incomplete, incorrect or otherwise misleading;
(b)
the debtor has failed to comply with a duty under section 251J;
(c)
a bankruptcy order has been made in relation to the debtor; or
(d)
the debtor has made a proposal under Part 8 (or has notified the official receiver of his intention to do so).
(3)
The official receiver may revoke the order on the ground that he should not have been satisfied—
(a)
that the debts specified in the order were qualifying debts of the debtor as at the application date;
(b)
that the conditions specified in Part 1 of Schedule 4ZA were met;
(c)
that the conditions specified in Part 2 of that Schedule were met or that any failure to meet such a condition did not prevent his making the order.
(4)
The official receiver may revoke the order on the ground that either or both of the conditions in paragraphs 7 and 8 of Schedule 4ZA (monthly surplus income and property) are not met at any time after the order was made.
For this purpose those paragraphs are to be read as if references to the determination date were references to the time in question.
(5)
Where the official receiver decides to revoke the order, he may revoke it either—
(a)
with immediate effect, or
(b)
with effect from such date (not more than three months after the date of the decision) as he may specify.
(6)
In considering when the revocation should take effect the official receiver must consider (in the light of the grounds on which the decision to revoke was made and all the other circumstances of the case) whether the debtor ought to be given the opportunity to make arrangements for making payments towards his debts.
(7)
If the order has been revoked with effect from a specified date the official receiver may, if he thinks it appropriate to do so at any time before that date, revoke the order with immediate effect.
(8)
The official receiver may amend a debt relief order for the purpose of correcting an error in or omission from anything specified in the order.
(9)
But subsection (8) does not permit the official receiver to add any debts that were not specified in the application for the debt relief order to the list of qualifying debts.
(10)
The rules may make further provision as to the procedure to be followed by the official receiver in the exercise of his powers under this section.
Role of the court
251MPowers of court in relation to debt relief orders
(1)
Any person may make an application to the court if he is dissatisfied by any act, omission or decision of the official receiver in connection with a debt relief order or an application for such an order.
(2)
The official receiver may make an application to the court for directions or an order in relation to any matter arising in connection with a debt relief order or an application for such an order.
(3)
The matters referred to in subsection (2) include, among other things, matters relating to the debtor's compliance with any duty arising under section 251J.
(4)
An application under this section may, subject to anything in the rules, be made at any time.
(5)
The court may extend the moratorium period applicable to a debt relief order for the purposes of determining an application under this section.
(6)
On an application under this section the court may dismiss the application or do one or more of the following—
(a)
quash the whole or part of any act or decision of the official receiver;
(b)
give the official receiver directions (including a direction that he reconsider any matter in relation to which his act or decision has been quashed under paragraph (a));
(c)
make an order for the enforcement of any obligation on the debtor arising by virtue of a duty under section 251J;
(d)
extend the moratorium period applicable to the debt relief order;
(e)
make an order revoking or amending the debt relief order;
(f)
make an order under section 251N; or
(g)
make such other order as the court thinks fit.
(7)
An order under subsection (6)(e) for the revocation of a debt relief order—
(a)
may be made during the moratorium period applicable to the debt relief order or at any time after that period has ended;
(b)
may be made on the court's own motion if the court has made a bankruptcy order in relation to the debtor during that period;
(c)
may provide for the revocation of the order to take effect on such terms and at such a time as the court may specify.
(8)
An order under subsection (6)(e) for the amendment of a debt relief order may not add any debts that were not specified in the application for the debt relief order to the list of qualifying debts.
251NInquiry into debtor's dealings and property
(1)
An order under this section may be made by the court on the application of the official receiver.
(2)
An order under this section is an order summoning any of the following persons to appear before the court—
(a)
the debtor;
(b)
the debtor's spouse or former spouse or the debtor's civil partner or former civil partner;
(c)
any person appearing to the court to be able to give information or assistance concerning the debtor or his dealings, affairs and property.
(3)
The court may require a person falling within subsection (2)(c)—
(a)
to provide a written account of his dealings with the debtor; or
(b)
to produce any documents in his possession or under his control relating to the debtor or to the debtor's dealings, affairs or property.
(4)
Subsection (5) applies where a person fails without reasonable excuse to appear before the court when he is summoned to do so by an order under this section.
(5)
The court may cause a warrant to be issued to a constable or prescribed officer of the court—
(a)
for the arrest of that person, and
(b)
for the seizure of any records or other documents in that person's possession.
(6)
The court may authorise a person arrested under such a warrant to be kept in custody, and anything seized under such a warrant to be held, in accordance with the rules, until that person is brought before the court under the warrant or until such other time as the court may order.
Offences
251OFalse representations and omissions
(1)
A person who makes an application for a debt relief order is guilty of an offence if he knowingly or recklessly makes any false representation or omission in making the application or providing any information or documents to the official receiver in support of the application.
(2)
A person who makes an application for a debt relief order is guilty of an offence if—
(a)
he intentionally fails to comply with a duty under section 251J(3) in connection with the application; or
(b)
he knowingly or recklessly makes any false representation or omission in providing any information to the official receiver in connection with such a duty or otherwise in connection with the application.
(3)
It is immaterial for the purposes of an offence under subsection (1) or (2) whether or not a debt relief order is made as a result of the application.
(4)
A person in respect of whom a debt relief order is made is guilty of an offence if—
(a)
he intentionally fails to comply with a duty under section 251J(5) in connection with the order; or
(b)
he knowingly or recklessly makes any false representation or omission in providing information to the official receiver in connection with such a duty or otherwise in connection with the performance by the official receiver of functions in relation to the order.
(5)
It is immaterial for the purposes of an offence under subsection (4)—
(a)
whether the offence is committed during or after the moratorium period; and
(b)
whether or not the order is revoked after the conduct constituting the offence takes place.
251PConcealment or falsification of documents
(1)
A person in respect of whom a debt relief order is made is guilty of an offence if, during the moratorium period in relation to that order—
(a)
he does not provide, at the request of the official receiver, all his books, papers and other records of which he has possession or control and which relate to his affairs;
(b)
he prevents the production to the official receiver of any books, papers or other records relating to his affairs;
(c)
he conceals, destroys, mutilates or falsifies, or causes or permits the concealment, destruction, mutilation or falsification of, any books, papers or other records relating his affairs;
(d)
he makes, or causes or permits the making of, any false entries in any book, document or record relating to his affairs; or
(e)
he disposes of, or alters or makes any omission in, or causes or permits the disposal, altering or making of any omission in, any book, document or record relating to his affairs.
(2)
A person in respect of whom a debt relief order is made is guilty of an offence if—
(a)
he did anything falling within paragraphs (c) to (e) of subsection (1) during the period of 12 months ending with the application date; or
(b)
he did anything falling within paragraphs (b) to (e) of subsection (1) after that date but before the effective date.
(3)
A person is not guilty of an offence under this section if he proves that, in respect of the conduct constituting the offence, he had no intent to defraud or to conceal the state of his affairs.
(4)
In its application to a trading record subsection (2)(a) has effect as if the reference to 12 months were a reference to two years.
(5)
In subsection (4) “trading record” means a book, document or record which shows or explains the transactions or financial position of a person's business, including—
(a)
a periodic record of cash paid and received,
(b)
a statement of periodic stock-taking, and
(c)
except in the case of goods sold by way of retail trade, a record of goods sold and purchased which identifies the buyer and seller or enables them to be identified.
(6)
It is immaterial for the purposes of an offence under this section whether or not the debt relief order in question is revoked after the conduct constituting the offence takes place (but no offence is committed under this section by virtue of conduct occurring after the order is revoked).
251QFraudulent disposal of property
(1)
A person in respect of whom a debt relief order is made is guilty of an offence if he made or caused to be made any gift or transfer of his property during the period between—
(a)
the start of the period of two years ending with the application date; and
(b)
the end of the moratorium period.
(2)
The reference in subsection (1) to making a transfer of any property includes causing or conniving at the levying of any execution against that property.
(3)
A person is not guilty of an offence under this section if he proves that, in respect of the conduct constituting the offence, he had no intent to defraud or to conceal the state of his affairs.
(4)
For the purposes of subsection (3) a person is to be taken to have proved that he had no such intent if—
(a)
sufficient evidence is adduced to raise an issue as to whether he had such intent; and
(b)
the contrary is not proved beyond reasonable doubt.
(5)
It is immaterial for the purposes of this section whether or not the debt relief order in question is revoked after the conduct constituting an offence takes place (but no offence is committed by virtue of conduct occurring after the order is revoked).
251RFraudulent dealing with property obtained on credit
(1)
A person in respect of whom a debt relief order is made is guilty of an offence if during the relevant period he disposed of any property which he had obtained on credit and, at the time he disposed of it, had not paid for it.
(2)
Any other person is guilty of an offence if during the relevant period he acquired or received property from a person in respect of whom a debt relief order was made (the “debtor”) knowing or believing—
(a)
that the debtor owed money in respect of the property, and
(b)
that the debtor did not intend, or was unlikely to be able, to pay the money he so owed.
(3)
In subsections (1) and (2) “relevant period” means the period between—
(a)
the start of the period of two years ending with the application date; and
(b)
the determination date.
(4)
A person is not guilty of an offence under subsection (1) or (2) if the disposal, acquisition or receipt of the property was in the ordinary course of a business carried on by the debtor at the time of the disposal, acquisition or receipt.
(5)
In determining for the purposes of subsection (4) whether any property is disposed of, acquired or received in the ordinary course of a business carried on by the debtor, regard may be had, in particular, to the price paid for the property.
(6)
A person is not guilty of an offence under subsection (1) if he proves that, in respect of the conduct constituting the offence, he had no intent to defraud or to conceal the state of his affairs.
(7)
In this section references to disposing of property include pawning or pledging it; and references to acquiring or receiving property shall be read accordingly.
(8)
It is immaterial for the purposes of this section whether or not the debt relief order in question is revoked after the conduct constituting an offence takes place (but no offence is committed by virtue of conduct occurring after the order is revoked).
251SObtaining credit or engaging in business
(1)
A person in respect of whom a debt relief order is made is guilty of an offence if, during the relevant period—
(a)
he obtains credit (either alone or jointly with any other person) without giving the person from whom he obtains the credit the relevant information about his status; or
(b)
he engages directly or indirectly in any business under a name other than that in which the order was made without disclosing to all persons with whom he enters into any business transaction the name in which the order was made.
(2)
For the purposes of subsection (1)(a) the relevant information about a person's status is the information that—
(a)
a moratorium is in force in relation to the debt relief order,
(b)
a debt relief restrictions order is in force in respect of him, or
(c)
both a moratorium and a debt relief restrictions order is in force,
as the case may be.
(3)
In subsection (1) “relevant period” means—
(a)
the moratorium period relating to the debt relief order, or
(b)
the period for which a debt relief restrictions order is in force in respect of the person in respect of whom the debt relief order is made,
as the case may be.
(4)
Subsection (1)(a) does not apply if the amount of the credit is less than the prescribed amount (if any).
(5)
The reference in subsection (1)(a) to a person obtaining credit includes the following cases—
(a)
where goods are bailed to him under a hire-purchase agreement, or agreed to be sold to him under a conditional sale agreement;
(b)
where he is paid in advance (in money or otherwise) for the supply of goods or services.
251TOffences: supplementary
(1)
Proceedings for an offence under this Part may only be instituted by the Secretary of State or by or with the consent of the Director of Public Prosecutions.
(2)
It is not a defence in proceedings for an offence under this Part that anything relied on, in whole or in part, as constituting the offence was done outside England and Wales.
(3)
A person guilty of an offence under this Part is liable to imprisonment or a fine, or both (but see section 430).
Supplementary
251UApproved intermediaries
(1)
In this Part “approved intermediary” means an individual for the time being approved by a competent authority to act as an intermediary between a person wishing to make an application for a debt relief order and the official receiver.
(2)
In this section “competent authority” means a person or body for the time being designated by the Secretary of State for the purposes of granting approvals under this section.
(3)
Designation as a competent authority may be limited so as to permit the authority only to approve persons of a particular description.
(4)
The Secretary of State may by regulations make provision as to—
(a)
the procedure for designating persons or bodies as competent authorities;
(b)
descriptions of individuals who are ineligible to be approved under this section;
(c)
the procedure for granting approvals under this section;
(d)
the withdrawal of designations or approvals under this section;
and provision made under paragraph (a) or (c) may include provision requiring the payment of fees.
(5)
The rules may make provision about the activities to be carried out by an approved intermediary in connection with an application for a debt relief order, which may in particular include—
(a)
assisting the debtor in making the application;
(b)
checking that the application has been properly completed;
(c)
sending the application to the official receiver.
(6)
The rules may also make provision about other activities to be carried out by approved intermediaries.
(7)
An approved intermediary may not charge a debtor any fee in connection with an application for a debt relief order.
(8)
An approved intermediary is not liable to any person in damages for anything done or omitted to be done when acting (or purporting to act) as an approved intermediary in connection with a particular application by a debtor for a debt relief order.
(9)
Subsection (8) does not apply if the act or omission was in bad faith.
(10)
Regulations under subsection (4) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
251VDebt relief restrictions orders and undertakings
Schedule 4ZB (which makes provision about debt relief restrictions orders and debt relief restrictions undertakings) has effect.
251WRegister of debt relief orders etc
The Secretary of State must maintain a register of matters relating to—
(a)
debt relief orders;
(b)
debt relief restrictions orders; and
(c)
debt relief restrictions undertakings.
251XInterpretation
(1)
In this Part—
“the application date”, in relation to a debt relief order or an application for a debt relief order, means the date on which the application for the order is made to the official receiver;
“approved intermediary” has the meaning given in section 251U(1);
“debt relief order” means an order made by the official receiver under this Part;
“debtor” means—
(a)
in relation to an application for a debt relief order, the applicant; and
(b)
in relation to a debt relief order, the person in relation to whom the order is made;
“debt relief restrictions order” and “debt relief restrictions undertaking” means an order made, or an undertaking accepted, under Schedule 4ZB;
“the determination date”, in relation to a debt relief order or an application for a debt relief order, means the date on which the application for the order is determined by the official receiver;
“the effective date” has the meaning given in section 251E(7);
“excluded debt” is to be construed in accordance with section 251A;
“moratorium” and “moratorium period” are to be construed in accordance with sections 251G and 251H;
“qualifying debt”, in relation to a debtor, has the meaning given in section 251A(2);
“the register” means the register maintained under section 251W;
“specified qualifying debt” has the meaning given in section 251G(1).
(2)
In this Part references to a creditor specified in a debt relief order as the person to whom a qualifying debt is owed by the debtor include a reference to any person to whom the right to claim the whole or any part of the debt has passed, by assignment or operation of law, after the date of the application for the order.
Part VIII Individual Voluntary Arrangements
Moratorium for insolvent debtor
252 Interim order of court.
(1)
In the circumstances specified below, the court may in the case of a debtor (being an individual) make an interim order under this section.
(2)
An interim order has the effect that, during the period for which it is in force—
(a)
no bankruptcy petition relating to the debtor may be presented or proceeded with,
F263(aa)
no landlord or other person to whom rent is payable may exercise any right of forfeiture by peaceable re-entry in relation to premises let to the debtor in respect of a failure by the debtor to comply with any term or condition of his tenancy of such premises, except with the leave of the court and
(b)
no other proceedings, and no execution or other legal process, may be commenced or continued F264and no distress may be levied against the debtor or his property except with leave of the court.
253 Application for interim order.
(1)
Application to the court for an interim order may be made where the debtor intends to make a proposal F265under this Part, that is, a proposalto his creditors for a composition in satisfaction of his debts or a scheme of arrangement of his affairs (from here on referred to, in either case, as a “voluntary arrangement”).
(2)
The proposal must provide for some person (“the nominee”) to act in relation to the voluntary arrangement either as trustee or otherwise for the purpose of supervising its implementation F266and the nominee must be a person who is qualified to act as an insolvency practitioner, or authorised to act as nominee, in relation to the voluntary arrangement.
(3)
Subject as follows, the application may be made—
(a)
if the debtor is an undischarged bankrupt, by the debtor, the trustee of his estate, or the official receiver, and
(b)
in any other case, by the debtor.
(4)
An application shall not be made under subsection (3)(a) unless the debtor has given notice of F267the proposal to the official receiver and, if there is one, the trustee of his estate.
(5)
An application shall not be made while a bankruptcy petition presented by the debtor is pending, if the court has, under section 273 below, appointed an insolvency practitioner to inquire into the debtor’s affairs and report.
254 Effect of application.
(1)
At any time when an application under section 253 for an interim order is pending
F268(a)
no landlord or other person to whom rent is payable may exercise any right of forfeiture by peaceable re-entry in relation to premises let to the debtor in respect of a failure by the debtor to comply with any term or condition of his tenancy of such premises, except with the leave of the court, and
(b)
, the court may F269forbid the levying of any distress on the debtor’s property or its subsequent sale, or both, and stay any action, execution or other legal process against the property or person of the debtor.
(2)
Any court in which proceedings are pending against an individual may, on proof that an application under that section has been made in respect of that individual, either stay the proceedings or allow them to continue on such terms as it thinks fit.
255 Cases in which interim order can be made.
(1)
The court shall not make an interim order on an application under section 253 unless it is satisfied—
(a)
that the debtor intends to make F270a proposal under this Part;
(b)
that on the day of the making of the application the debtor was an undischarged bankrupt or was able to petition for his own bankruptcy;
(c)
that no previous application has been made by the debtor for an interim order in the period of 12 months ending with that day; and
(d)
that the nominee under the debtor’s proposal F271. . . is willing to act in relation to the proposal.
(2)
The court may make an order if it thinks that it would be appropriate to do so for the purpose of facilitating the consideration and implementation of the debtor’s proposal.
(3)
Where the debtor is an undischarged bankrupt, the interim order may contain provision as to the conduct of the bankruptcy, and the administration of the bankrupt’s estate, during the period for which the order is in force.
(4)
Subject as follows, the provision contained in an interim order by virtue of subsection (3) may include provision staying proceedings in the bankruptcy or modifying any provision in this Group of Parts, and any provision of the rules in their application to the debtor’s bankruptcy.
(5)
An interim order shall not, in relation to a bankrupt, make provision relaxing or removing any of the requirements of provisions in this Group of Parts, or of the rules, unless the court is satisfied that that provision is unlikely to result in any significant diminution in, or in the value of, the debtor’s estate for the purposes of the bankruptcy.
(6)
Subject to the following provisions of this Part, an interim order made on an application under section 253 ceases to have effect at the end of the period of 14 days beginning with the day after the making of the order.
256 Nominee’s report on debtor’s proposal.
(1)
Where an interim order has been made on an application under section 253, the nominee shall, before the order ceases to have effect, submit a report to the court stating—
(a)
F272whether, in his opinion, the voluntary arrangement which the debtor is proposing has a reasonable prospect of being approved and implemented,
(aa)whether, in his opinion, a meeting of the debtor’s creditors should be summoned to consider the debtors’ proposal, and
(b)
if in his opinion such a meeting should be summoned, the date on which, and time and place at which, he proposes the meeting should be held.
(2)
For the purpose of enabling the nominee to prepare his report the debtor shall submit to the nominee—
(a)
a document setting out the terms of the voluntary arrangement which the debtor is proposing, and
(b)
a statement of his affairs containing—
(i)
such particulars of his creditors and of his debts and other liabilities and of his assets as may be prescribed, and
(ii)
such other information as may be prescribed.
F273(3)
The court may—
(a)
on an application made by the debtor in a case where the nominee has failed to submit the report required by this section or has died, or
(b)
on an application made by the debtor or the nominee in a case where it is impracticable or inappropriate for the nominee to continue to act as such,
direct that the nominee shall be replaced as such by another person qualified to act as an insolvency practitioner, or authorised to act as nominee, in relation to the voluntary arrangement.
(3A)
The court may, on an application made by the debtor in a case where the nominee has failed to submit the report required by this section, direct that the interim order shall continue, or (if it has ceased to have effect) be renewed, for such further period as the court may specify in the direction.
(4)
The court may, on the application of the nominee, extend the period for which the interim order has effect so as to enable the nominee to have more time to prepare his report.
(5)
If the court is satisfied on receiving the nominee’s report that a meeting of the debtor’s creditors should be summoned to consider the debtor’s proposal, the court shall direct that the period for which the interim order has effect shall be extended, for such further period as it may specify in the direction, for the purpose of enabling the debtor’s proposal to be considered by his creditors in accordance with the following provisions of this Part.
(6)
The court may discharge the interim order if it is satisfied, on the application of the nominee—
(a)
that the debtor has failed to comply with his obligations under subsection (2), or
(b)
that for any other reason it would be inappropriate for a meeting of the debtor’s creditors to be summoned to consider the debtor’s proposal.
F274 Procedure where no interim order made
F275256A Debtor’s proposal and nominee’s report.
(1)
This section applies where a debtor (being an individual)—
(a)
intends to make a proposal under this Part (but an interim order has not been made in relation to the proposal and no application for such an order is pending), and
(b)
if he is an undischarged bankrupt, has given notice of the proposal to the official receiver and, if there is one, the trustee of his estate,
unless a bankruptcy petition presented by the debtor is pending and the court has, under section 273, appointed an insolvency practitioner to inquire into the debtor’s affairs and report.
(2)
For the purpose of enabling the nominee to prepare a report to the court, the debtor shall submit to the nominee—
(a)
a document setting out the terms of the voluntary arrangement which the debtor is proposing, and
(b)
a statement of his affairs containing—
(i)
such particulars of his creditors and of his debts and other liabilities and of his assets as may be prescribed, and
(ii)
such other information as may be prescribed.
(3)
If the nominee is of the opinion that the debtor is an undischarged bankrupt, or is able to petition for his own bankruptcy, the nominee shall, within 14 days (or such longer period as the court may allow) after receiving the document and statement mentioned in subsection (2), submit a report to the court stating—
(a)
whether, in his opinion, the voluntary arrangement which the debtor is proposing has a reasonable prospect of being approved and implemented,
(b)
whether, in his opinion, a meeting of the debtor’s creditors should be summoned to consider the debtor’s proposal, and
(c)
if in his opinion such a meeting should be summoned, the date on which, and time and place at which, he proposes the meeting should be held.
(4)
The court may—
(a)
on an application made by the debtor in a case where the nominee has failed to submit the report required by this section or has died, or
(b)
on an application made by the debtor or the nominee in a case where it is impracticable or inappropriate for the nominee to continue to act as such,
direct that the nominee shall be replaced as such by another person qualified to act as an insolvency practitioner, or authorised to act as nominee, in relation to the voluntary arrangement.
(5)
The court may, on an application made by the nominee, extend the period within which the nominee is to submit his report.
F276 Creditors’ meeting
257 Summoning of creditors’ meeting.
(1)
Where it has been reported to the court under section 256 F277or 256Athat a meeting of the debtor’s creditors should be summoned, the nominee (or his replacement under section F278256(3) or 256A(4)) shall, unless the court otherwise directs, summon that meeting for the time, date and place proposed in his report.
(2)
The persons to be summoned to the meeting are every creditor of the debtor of whose claim and address the person summoning the meeting is aware.
(3)
For this purpose the creditors of a debtor who is an undischarged bankrupt include—
(a)
every person who is a creditor of the bankrupt in respect of a bankruptcy debt, and
(b)
every person who would be such a creditor if the bankruptcy had commenced on the date on which notice of the meeting is given.
Consideration and implementation of debtor’s proposal
258 Decisions of creditor’s meeting.
(1)
A creditors’ meeting summoned under section 257 shall decide whether to approve the proposed voluntary arrangement.
(2)
The meeting may approve the proposed voluntary arrangement with modifications, but shall not do so unless the debtor consents to each modification.
(3)
The modifications subject to which the proposed voluntary arrangement may be approved may include one conferring the functions proposed to be conferred on the nominee on another person qualified to act as an insolvency practitioner F279or authorised to act as nominee, in relation to the voluntary arrangement.
But they shall not include any modification by virtue of which the proposal ceases to be a proposal F279under this Part.
(4)
The meeting shall not approve any proposal or modification which affects the right of a secured creditor of the debtor to enforce his security, except with the concurrence of the creditor concerned.
(5)
Subject as follows, the meeting shall not approve any proposal or modification under which—
(a)
any preferential debt of the debtor is to be paid otherwise than in priority to such of his debts as are not preferential debts, or
(b)
a preferential creditor of the debtor is to be paid an amount in respect of a preferential debt that bears to that debt a smaller proportion than is borne to another preferential debt by the amount that is to be paid in respect of that other debt.
However, the meeting may approve such a proposal or modification with the concurrence of the preferential creditor concerned.
(6)
Subject as above, the meeting shall be conducted in accordance with the rules.
(7)
In this section “preferential debt” has the meaning given by section 386 in Part XII; and “preferential creditor” is to be construed accordingly.
259 Report of decisions to court.
(1)
After the conclusion in accordance with the rules of the meeting summoned under section 257, the chairman of the meeting shall report the result of it to the court and, immediately after so reporting, shall give notice of the result of the meeting to such persons as may be prescribed.
(2)
If the report is that the meeting has declined (with or without modifications) to approve the debtor’s proposal, the court may discharge any interim order which is in force in relation to the debtor.
260 Effect of approval.
(1)
This section has effect where the meeting summoned under section 257 approves the proposed voluntary arrangement (with or without modifications).
(2)
The approved arrangement—
(a)
takes effect as if made by the debtor at the meeting, and
F280(b)
binds every person who in accordance with the rules—
(i)
was entitled to vote at the meeting (whether or not he was present or represented at it), or
(ii)
would have been so entitled if he had had notice of it,
as if he were a party to the arrangement.
(2A)
If—
(a)
when the arrangement ceases to have effect any amount payable under the arrangement to a person bound by virtue of subsection (2)(b)(ii) has not been paid, and
(b)
the arrangement did not come to an end prematurely,
the debtor shall at that time become liable to pay to that person the amount payable under the arrangement.
(3)
The M19Deeds of Arrangement Act 1914 does not apply to the approved voluntary arrangement.
(4)
Any interim order in force in relation to the debtor immediately before the end of the period of 28 days beginning with the day on which the report with respect to the creditors’ meeting was made to the court under section 259 ceases to have effect at the end of that period.
This subsection applies except to such extent as the court may direct for the purposes of any application under section 262 below.
(5)
Where proceedings on a bankruptcy petition have been stayed by an interim order which ceases to have effect under subsection (4), that petition is deemed, unless the court otherwise orders, to have been dismissed.
F281261 Additional effect on undischarged bankrupt
(1)
This section applies where—
(a)
the creditors’ meeting summoned under section 257 approves the proposed voluntary arrangement (with or without modifications), and
(b)
the debtor is an undischarged bankrupt.
(2)
Where this section applies the court shall annul the bankruptcy order on an application made—
(a)
by the bankrupt, or
(b)
where the bankrupt has not made an application within the prescribed period, by the official receiver.
(3)
An application under subsection (2) may not be made—
(a)
during the period specified in section 262(3)(a) during which the decision of the creditors’ meeting can be challenged by application under section 262,
(b)
while an application under that section is pending, or
(c)
while an appeal in respect of an application under that section is pending or may be brought.
(4)
Where this section applies the court may give such directions about the conduct of the bankruptcy and the administration of the bankrupt’s estate as it thinks appropriate for facilitating the implementation of the approved voluntary arrangement.
262 Challenge of meeting’s decision.
(1)
Subject to this section, an application to the court may be made, by any of the persons specified below, on one or both of the following grounds, namely—
(a)
that a voluntary arrangement approved by a creditors’ meeting summoned under section 257 unfairly prejudices the interests of a creditor of the debtor;
(b)
that there has been some material irregularity at or in relation to such a meeting.
(2)
The persons who may apply under this section are—
(a)
the debtor;
F282(b)
a person who—
(i)
was entitled, in accordance with the rules, to vote at the creditors’ meeting, or
(ii)
would have been so entitled if he had had notice of it
(c)
the nominee (or his replacement under section F283256(3), 256A(4) or 258(3)); and
(d)
if the debtor is an undischarged bankrupt, the trustee of his estate or the official receiver.
(3)
An application under this section shall not be madeF284(a)after the end of the period of 28 days beginning with the day on which the report of the creditors’ meeting was made to the court under section 259 F284or
(b)
in the case of a person who was not given notice of the creditors’ meeting, after the end of the period of 28 days beginning with the day on which he became aware that the meeting had taken place,
but (subject to that) an application made by a person within subsection (2)(b)(ii) on the ground that the arrangement prejudices his interests may be made after the arrangement has ceased to have effect, unless it has come to an end prematurely.
(4)
Where on an application under this section the court is satisfied as to either of the grounds mentioned in subsection (1), it may do one or both of the following, namely—
(a)
revoke or suspend any approval given by the meeting;
(b)
give a direction to any person for the summoning of a further meeting of the debtor’s creditors to consider any revised proposal he may make or, in a case falling within subsection (1)(b), to reconsider his original proposal.
(5)
Where at any time after giving a direction under subsection (4)(b) for the summoning of a meeting to consider a revised proposal the court is satisfied that the debtor does not intend to submit such a proposal, the court shall revoke the direction and revoke or suspend any approval given at the previous meeting.
(6)
Where the court gives a direction under subsection (4)(b), it may also give a direction continuing or, as the case may require, renewing, for such period as may be specified in the direction, the effect in relation to the debtor of any interim order.
(7)
In any case where the court, on an application made under this section with respect to a creditors’ meeting, gives a direction under subsection (4)(b) or revokes or suspends an approval under subsection (4)(a) or (5), the court may give such supplemental directions as it thinks fit and, in particular, directions with respect to—
(a)
things done since the meeting under any voluntary arrangement approved by the meeting, and
(b)
such things done since the meeting as could not have been done if any interim order had been in force in relation to the debtor when they were done.
(8)
Except in pursuance of the preceding provisions of this section, an approval given at a creditors’ meeting summoned under section 257 is not invalidated by any irregularity at or in relation to the meeting.
F285262A False representations etc.
(1)
If for the purpose of obtaining the approval of his creditors to a proposal for a voluntary arrangement, the debtor—
(a)
makes any false representation, or
(b)
fraudulently does, or omits to do, anything,
he commits an offence.
(2)
Subsection (1) applies even if the proposal is not approved.
(3)
A person guilty of an offence under this section is liable to imprisonment or a fine, or both.
F286262B Prosecution of delinquent debtors.
(1)
This section applies where a voluntary arrangement approved by a creditors’ meeting summoned under section 257 has taken effect.
(2)
If it appears to the nominee or supervisor that the debtor has been guilty of any offence in connection with the arrangement for which he is criminally liable, he shall forthwith—
(a)
report the matter to the Secretary of State, and
(b)
provide the Secretary of State with such information and give the Secretary of State such access to and facilities for inspecting and taking copies of documents (being information or documents in his possession or under his control and relating to the matter in question) as the Secretary of State requires.
(3)
Where a prosecuting authority institutes criminal proceedings following any report under subsection (2), the nominee or, as the case may be, supervisor shall give the authority all assistance in connection with the prosecution which he is reasonably able to give.
For this purpose, “prosecuting authority” means the Director of Public Prosecutions or the Secretary of State.
(4)
The court may, on the application of the prosecuting authority, direct a nominee or supervisor to comply with subsection (3) if he has failed to do so.
F287262C Arrangements coming to an end prematurely.
For the purposes of this Part, a voluntary arrangement approved by a creditors’ meeting summoned under section 257 comes to an end prematurely if, when it ceases to have effect, it has not been fully implemented in respect of all persons bound by the arrangement by virtue of section 260(2)(b)(i).
263 Implementation and supervision of approved voluntary arrangement.
(1)
This section applies where a voluntary arrangement approved by a creditors’ meeting summoned under section 257 has taken effect.
(2)
The person who is for the time being carrying out, in relation to the voluntary arrangement, the functions conferred by virtue of the approval on the nominee (or his replacement under section F288256(3), 256A(4) or 258(3)) shall be known as the supervisor of the voluntary arrangement.
(3)
If the debtor, any of his creditors or any other person is dissatisfied by any act, omission or decision of the supervisor, he may apply to the court; and on such an application the court may—
(a)
confirm, reverse or modify any act or decision of the supervisor,
(b)
give him directions, or
(c)
make such other order as it thinks fit.
(4)
The supervisor may apply to the court for directions in relation to any particular matter arising under the voluntary arrangement.
(5)
The court may, whenever—
(a)
it is expedient to appoint a person to carry out the functions of the supervisor, and
(b)
it is inexpedient, difficult or impracticable for an appointment to be made without the assistance of the court,
make an order appointing a person who is qualified to act as an insolvency practitioner F289or authorised to act as supervisor, in relation to the voluntary arrangement, either in substitution for the existing supervisor or to fill a vacancy.
This is without prejudice to section 41(2) of the M20Trustee Act 1925 (power of court to appoint trustees of deeds of arrangement).
(6)
The power conferred by subsection (5) is exercisable so as to increase the number of persons exercising the functions of the supervisor or, where there is more than one person exercising those functions, so as to replace one or more of those persons.
F290Fast-track voluntary arrangement
263A Availability
Section 263B applies where an individual debtor intends to make a proposal to his creditors for a voluntary arrangement and—
(a)
the debtor is an undischarged bankrupt,
(b)
the official receiver is specified in the proposal as the nominee in relation to the voluntary arrangement, and
(c)
no interim order is applied for under section 253.
263B Decision
(1)
The debtor may submit to the official receiver—
(a)
a document setting out the terms of the voluntary arrangement which the debtor is proposing, and
(b)
a statement of his affairs containing such particulars as may be prescribed of his creditors, debts, other liabilities and assets and such other information as may be prescribed.
(2)
If the official receiver thinks that the voluntary arrangement proposed has a reasonable prospect of being approved and implemented, he may make arrangements for inviting creditors to decide whether to approve it.
(3)
For the purposes of subsection (2) a person is a “creditor” only if—
(a)
he is a creditor of the debtor in respect of a bankruptcy debt, and
(b)
the official receiver is aware of his claim and his address.
(4)
Arrangements made under subsection (2)—
(a)
must include the provision to each creditor of a copy of the proposed voluntary arrangement,
(b)
must include the provision to each creditor of information about the criteria by reference to which the official receiver will determine whether the creditors approve or reject the proposed voluntary arrangement, and
(c)
may not include an opportunity for modifications to the proposed voluntary arrangement to be suggested or made.
(5)
Where a debtor submits documents to the official receiver under subsection (1) no application under section 253 for an interim order may be made in respect of the debtor until the official receiver has—
(a)
made arrangements as described in subsection (2), or
(b)
informed the debtor that he does not intend to make arrangements (whether because he does not think the voluntary arrangement has a reasonable prospect of being approved and implemented or because he declines to act).
F290263C Result
As soon as is reasonably practicable after the implementation of arrangements under section 263B(2) the official receiver shall report to the court whether the proposed voluntary arrangement has been approved or rejected.
F290263D Approval of voluntary arrangement
(1)
This section applies where the official receiver reports to the court under section 263C that a proposed voluntary arrangement has been approved.
(2)
The voluntary arrangement—
(a)
takes effect,
(b)
binds the debtor, and
(c)
binds every person who was entitled to participate in the arrangements made under section 263B(2).
(3)
The court shall annul the bankruptcy order in respect of the debtor on an application made by the official receiver.
(4)
An application under subsection (3) may not be made—
(a)
during the period specified in section 263F(3) during which the voluntary arrangement can be challenged by application under section 263F(2),
(b)
while an application under that section is pending, or
(c)
while an appeal in respect of an application under that section is pending or may be brought.
(5)
The court may give such directions about the conduct of the bankruptcy and the administration of the bankrupt’s estate as it thinks appropriate for facilitating the implementation of the approved voluntary arrangement.
(6)
The Deeds of Arrangement Act 1914 (c. 47) does not apply to the voluntary arrangement.
(7)
A reference in this Act or another enactment to a voluntary arrangement approved under this Part includes a reference to a voluntary arrangement which has effect by virtue of this section.
263E Implementation
Section 263 shall apply to a voluntary arrangement which has effect by virtue of section 263D(2) as it applies to a voluntary arrangement approved by a creditors’ meeting.
F290263F Revocation
(1)
The court may make an order revoking a voluntary arrangement which has effect by virtue of section 263D(2) on the ground—
(a)
that it unfairly prejudices the interests of a creditor of the debtor, or
(b)
that a material irregularity occurred in relation to the arrangements made under section 263B(2).
(2)
An order under subsection (1) may be made only on the application of—
(a)
the debtor,
(b)
a person who was entitled to participate in the arrangements made under section 263B(2),
(c)
the trustee of the bankrupt’s estate, or
(d)
the official receiver.
(3)
An application under subsection (2) may not be made after the end of the period of 28 days beginning with the date on which the official receiver makes his report to the court under section 263C.
(4)
But a creditor who was not made aware of the arrangements under section 263B(2) at the time when they were made may make an application under subsection (2) during the period of 28 days beginning with the date on which he becomes aware of the voluntary arrangement.
263G Offences
(1)
Section 262A shall have effect in relation to obtaining approval to a proposal for a voluntary arrangement under section 263D.
(2)
Section 262B shall have effect in relation to a voluntary arrangement which has effect by virtue of section 263D(2) (for which purposes the words “by a creditors’ meeting summoned under section 257” shall be disregarded).
Part IX Bankruptcy
Chapter I Bankruptcy Petitions; Bankruptcy Orders
Preliminary
264 Who may present a bankruptcy petition.
(1)
A petition for a bankruptcy order to be made against an individual may be presented to the court in accordance with the following provisions of this Part—
(a)
by one of the individual’s creditors or jointly by more than one of them,
(b)
by the individual himself,
F291(ba)
by a temporary administrator (within the meaning of Article 38 of the EC Regulation),
(bb)
by a liquidator (within the meaning of Article 2(b) of the EC Regulation) appointed in proceedings by virtue of Article 3(1) of the EC Regulation,
(c)
by the supervisor of, or any person (other than the individual) who is for the time being bound by, a voluntary arrangement proposed by the individual and approved under Part VIII, or
(d)
where a criminal bankruptcy order has been made against the individual, by the Official Petitioner or by any person specified in the order in pursuance of section 39(3)(b) of the M21Powers of Criminal Courts Act 1973.
(2)
Subject to those provisions, the court may make a bankruptcy order on any such petition.
265 Conditions to be satisfied in respect of debtor.
(1)
A bankruptcy petition shall not be presented to the court under section 264(1)(a) or (b) unless the debtor—
(a)
is domiciled in England and Wales,
(b)
is personally present in England and Wales on the day on which the petition is presented, or
(c)
at any time in the period of 3 years ending with that day—
(i)
has been ordinarily resident, or has had a place of residence, in England and Wales, or
(ii)
has carried on business in England and Wales.
(2)
The reference in subsection (1)(c) to an individual carrying on business includes—
(a)
the carrying on of business by a firm or partnership of which the individual is a member, and
(b)
the carrying on of business by an agent or manager for the individual or for such a firm or partnership.
F292(3)
This section is subject to Article 3 of the EC Regulation.
266 Other preliminary conditions.
(1)
Where a bankruptcy petition relating to an individual is presented by a person who is entitled to present a petition under two or more paragraphs of section 264(1), the petition is to be treated for the purposes of this Part as a petition under such one of those paragraphs as may be specified in the petition.
(2)
A bankruptcy petition shall not be withdrawn without the leave of the court.
(3)
The court has a general power, if it appears to it appropriate to do so on the grounds that there has been a contravention of the rules or for any other reason, to dismiss a bankruptcy petition or to stay proceedings on such a petition; and, where it stays proceedings on a petition, it may do so on such terms and conditions as it thinks fit.
F293(4)
Without prejudice to subsection (3), where a petition under section 264(1)(a), (b) or (c) in respect of an individual is pending at a time when a criminal bankruptcy order is made against him, or is presented after such an order has been so made, the court may on the application of the Official Petitioner dismiss the petition if it appears to it appropriate to do so.
Creditor’s petition
267 Grounds of creditor’s petition.
(1)
A creditor’s petition must be in respect of one or more debts owed by the debtor, and the petitioning creditor or each of the petitioning creditors must be a person to whom the debt or (as the case may be) at least one of the debts is owed.
(2)
Subject to the next three sections, a creditor’s petition may be presented to the court in respect of a debt or debts only if, at the time the petition is presented—
(a)
the amount of the debt, or the aggregate amount of the debts, is equal to or exceeds the bankruptcy level,
(b)
the debt, or each of the debts, is for a liquidated sum payable to the petitioning creditor, or one or more of the petitioning creditors, either immediately or at some certain, future time, and is unsecured,
(c)
the debt, or each of the debts, is a debt which the debtor appears either to be unable to pay or to have no reasonable prospect of being able to pay, and
(d)
there is no outstanding application to set aside a statutory demand served (under section 268 below) in respect of the debt or any of the debts.
F294(3)
A debt is not to be regarded for the purposes of subsection (2) as a debt for a liquidated sum by reason only that the amount of the debt is specified in a criminal bankruptcy order.
(4)
“The bankruptcy level” is £750 but the Secretary of State may by order in a statutory instrument substitute any amount specified in the order for that amount or (as the case may be) for the amount which by virtue of such an order is for the time being the amount of the bankruptcy level.
(5)
An order shall not be made under subsection (4) unless a draft of it has been laid before, and approved by a resolution of, each House of Parliament.
268 Definition of “inability to pay”, etc.; the statutory demand.
(1)
For the purposes of section 267(2)(c), the debtor appears to be unable to pay a debt if, but only if, the debt is payable immediately and either—
(a)
the petitioning creditor to whom the debt is owed has served on the debtor a demand (known as “the statutory demand”) in the prescribed form requiring him to pay the debt or to secure or compound for it to the satisfaction of the creditor, at least 3 weeks have elapsed since the demand was served and the demand has been neither complied with nor set aside in accordance with the rules, or
(b)
execution or other process issued in respect of the debt on a judgment or order of any court in favour of the petitioning creditor, or one or more of the petitioning creditors to whom the debt is owed, has been returned unsatisfied in whole or in part.
(2)
For the purposes of section 267(2)(c) the debtor appears to have no reasonable prospect of being able to pay a debt if, but only if, the debt is not immediately payable and—
(a)
the petitioning creditor to whom it is owed has served on the debtor a demand (also known as “the statutory demand”) in the prescribed form requiring him to establish to the satisfaction of the creditor that there is a reasonable prospect that the debtor will be able to pay the debt when it falls due,
(b)
at least 3 weeks have elapsed since the demand was served, and
(c)
the demand has been neither complied with nor set aside in accordance with the rules.
269 Creditor with security.
(1)
A debt which is the debt, or one of the debts, in respect of which a creditor’s petition is presented need not be unsecured if either—
(a)
the petition contains a statement by the person having the right to enforce the security that he is willing, in the event of a bankruptcy order being made, to give up his security for the benefit of all the bankrupt’s creditors, or
(b)
the petition is expressed not to be made in respect of the secured part of the debt and contains a statement by that person of the estimated value at the date of the petition of the security for the secured part of the debt.
(2)
In a case falling within subsection (1)(b) the secured and unsecured parts of the debt are to be treated for the purposes of sections 267 to 270 as separate debts.
270 Expedited petition.
In the case of a creditor’s petition presented wholly or partly in respect of a debt which is the subject of a statutory demand under section 268, the petition may be presented before the end of the 3-week period there mentioned if there is a serious possibility that the debtor’s property or the value of any of his property will be significantly diminished during that period and the petition contains a statement to that effect.
271 Proceedings on creditor’s petition.
(1)
The court shall not make a bankruptcy order on a creditor’s petition unless it is satisfied that the debt, or one of the debts, in respect of which the petition was presented is either—
(a)
a debt which, having been payable at the date of the petition or having since become payable, has been neither paid nor secured or compounded for, or
(b)
a debt which the debtor has no reasonable prospect of being able to pay when it falls due.
(2)
In a case in which the petition contains such a statement as is required by section 270, the court shall not make a bankruptcy order until at least 3 weeks have elapsed since the service of any statutory demand under section 268.
(3)
The court may dismiss the petition if it is satisfied that the debtor is able to pay all his debts or is satisfied—
(a)
that the debtor has made an offer to secure or compound for a debt in respect of which the petition is presented,
(b)
that the acceptance of that offer would have required the dismissal of the petition, and
(c)
that the offer has been unreasonably refused;
and, in determining for the purposes of this subsection whether the debtor is able to pay all his debts, the court shall take into account his contingent and prospective liabilities.
(4)
In determining for the purposes of this section what constitutes a reasonable prospect that a debtor will be able to pay a debt when it falls due, it is to be assumed that the prospect given by the facts and other matters known to the creditor at the time he entered into the transaction resulting in the debt was a reasonable prospect.
(5)
Nothing in sections 267 to 271 prejudices the power of the court, in accordance with the rules, to authorise a creditor’s petition to be amended by the omission of any creditor or debt and to be proceeded with as if things done for the purposes of those sections had been done only by or in relation to the remaining creditors or debts.
Debtor’s petition
272 Grounds of debtor’s petition.
(1)
A debtor’s petition may be presented to the court only on the grounds that the debtor is unable to pay his debts.
(2)
The petition shall be accompanied by a statement of the debtor’s affairs containing—
(a)
such particulars of the debtor’s creditors and of his debts and other liabilities and of his assets as may be prescribed, and
(b)
such other information as may be prescribed.
273 Appointment of insolvency practitioner by the court.
(1)
Subject to the next section, on the hearing of a debtor’s petition the court shall not make a bankruptcy order if it appears to the court—
(a)
that if a bankruptcy order were made the aggregate amount of the bankruptcy debts, so far as unsecured, would be less than the small bankruptcies level,
(b)
that if a bankruptcy order were made, the value of the bankrupt’s estate would be equal to or more than the minimum amount,
(c)
that within the period of 5 years ending with the presentation of the petition the debtor has neither been adjudged bankrupt nor made a composition with his creditors in satisfaction of his debts or a scheme of arrangement of his affairs, and
(d)
that it would be appropriate to appoint a person to prepare a report under section 274.
“The minimum amount” and “the small bankruptcies level” means such amounts as may for the time being be prescribed for the purposes of this section.
(2)
Where on the hearing of the petition, it appears to the court as mentioned in subsection (1), the court shall appoint a person who is qualified to act as an insolvency practitioner in relation to the debtor—
(a)
to prepare a report under the next section, and
(b)
subject to section 258(3) in Part VIII, to act in relation to any voluntary arrangement to which the report relates either as trustee or otherwise for the purpose of supervising its implementation.
274 Action on report of insolvency practitioner.
(1)
A person appointed under section 273 shall inquire into the debtor’s affairs and, within such period as the court may direct, shall submit a report to the court stating whether the debtor is willing, for the purposes of Part VIII, to make a proposal for a voluntary arrangement.
(2)
A report which states that the debtor is willing as above mentioned shall also state—
(a)
whether, in the opinion of the person making the report, a meeting of the debtor’s creditors should be summoned to consider the proposal, and
(b)
if in that person’s opinion such a meeting should be summoned, the date on which, and time and place at which, he proposes the meeting should be held.
(3)
On considering a report under this section the court may—
(a)
without any application, make an interim order under section 252, if it thinks that it is appropriate to do so for the purposes of facilitating the consideration and implementation of the debtor’s proposal, or
(b)
if it thinks it would be inappropriate to make such an order, make a bankruptcy order.
(4)
An interim order made by virtue of this section ceases to have effect at the end of such period as the court may specify for the purpose of enabling the debtor’s proposal to be considered by his creditors in accordance with the applicable provisions of Part VIII.
(5)
Where it has been reported to the court under this section that a meeting of the debtor’s creditors should be summoned, the person making the report shall, unless the court otherwise directs, summon that meeting for the time, date and place proposed in his report.
The meeting is then deemed to have been summoned under section 257 in Part VIII, and subsections (2) and (3) of that section, and sections 258 to 263 apply accordingly.
F295274ADebtor who meets conditions for a debt relief order
(1)
This section applies where, on the hearing of a debtor's petition—
(a)
it appears to the court that a debt relief order would be made in relation to the debtor if, instead of presenting the petition, he had made an application under Part 7A; and
(b)
the court does not appoint an insolvency practitioner under section 273.
(2)
If the court thinks it would be in the debtor's interests to apply for a debt relief order instead of proceeding on the petition, the court may refer the debtor to an approved intermediary (within the meaning of Part 7A) for the purposes of making an application for a debt relief order.
(3)
Where a reference is made under subsection (2) the court shall stay proceedings on the petition on such terms and conditions as it thinks fit; but if following the reference a debt relief order is made in relation to the debtor the court shall dismiss the petition.
275 Summary administration.
F296. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other cases for special consideration
276 Default in connection with voluntary arrangement.
(1)
The court shall not make a bankruptcy order on a petition under section 264(1)(c) (supervisor of, or person bound by, voluntary arrangement proposed and approved) unless it is satisfied—
(a)
that the debtor has failed to comply with his obligations under the voluntary arrangement, or
(b)
that information which was false or misleading in any material particular or which contained material omissions—
(i)
was contained in any statement of affairs or other document supplied by the debtor under Part VIII to any person, or
(ii)
was otherwise made available by the debtor to his creditors at or in connection with a meeting summoned under that Part, or
(c)
that the debtor has failed to do all such things as may for the purposes of the voluntary arrangement have been reasonably required of him by the supervisor of the arrangement.
(2)
Where a bankruptcy order is made on a petition under section 264(1)(c), any expenses properly incurred as expenses of the administration of the voluntary arrangement in question shall be a first charge on the bankrupt’s estate.
F297277 Petition based on criminal bankruptcy order.
(1)
Subject to section 266(3), the court shall make a bankruptcy order on a petition under section 264(1)(d) on production of a copy of the criminal bankruptcy order on which the petition is based.
This does not apply if it appears to the court that the criminal bankruptcy order has been rescinded on appeal.
(2)
Subject to the provisions of this Part, the fact that an appeal is pending against any conviction by virtue of which a criminal bankruptcy order was made does not affect any proceedings on a petition under section 264(1)(d) based on that order.
(3)
For the purposes of this section, an appeal against a conviction is pending—
(a)
in any case, until the expiration of the period of 28 days beginning with the date of conviction;
(b)
if notice of appeal to the Court of Appeal is given during that period and during that period the appellant notifies the official receiver of it, until the determination of the appeal and thereafter for so long as an appeal to the F298Supreme Court is pending within the meaning of F299subsection (4).
(4)
For the purposes of subsection (3)(b) an appeal to the Supreme Court shall be treated as pending until any application for leave to appeal is disposed of and, if leave to appeal is granted, until the appeal is disposed of; and for the purposes of this subsection an application for leave to appeal shall be treated as disposed of at the expiration of the time within which it may be made, if it is not made within that time.
Commencement and duration of bankruptcy; discharge
278 Commencement and continuance.
The bankruptcy of an individual against whom a bankruptcy order has been made—
(a)
commences with the day on which the order is made, and
(b)
continues until the individual is discharged under the following provisions of this Chapter.
F300279 Duration
(1)
A bankrupt is discharged from bankruptcy at the end of the period of one year beginning with the date on which the bankruptcy commences.
(2)
If before the end of that period the official receiver files with the court a notice stating that investigation of the conduct and affairs of the bankrupt under section 289 is unnecessary or concluded, the bankrupt is discharged when the notice is filed.
(3)
On the application of the official receiver or the trustee of a bankrupt’s estate, the court may order that the period specified in subsection (1) shall cease to run until—
(a)
the end of a specified period, or
(b)
the fulfilment of a specified condition.
(4)
The court may make an order under subsection (3) only if satisfied that the bankrupt has failed or is failing to comply with an obligation under this Part.
(5)
In subsection (3)(b) “condition” includes a condition requiring that the court be satisfied of something.
(6)
In the case of an individual who is adjudged bankrupt on a petition under section 264(1)(d)—
(a)
subsections (1) to (5) shall not apply, and
(b)
the bankrupt is discharged from bankruptcy by an order of the court under section 280.
(7)
This section is without prejudice to any power of the court to annul a bankruptcy order.
280 Discharge by order of the court.
(1)
(2)
On an application under this section the court may—
(a)
refuse to discharge the bankrupt from bankruptcy,
(b)
make an order discharging him absolutely, or
(c)
make an order discharging him subject to such conditions with respect to any income which may subsequently become due to him, or with respect to property devolving upon him, or acquired by him, after his discharge, as may be specified in the order.
(3)
The court may provide for an order falling within subsection (2)(b) or (c) to have immediate effect or to have its effect suspended for such period, or until the fulfilment of such conditions (including a condition requiring the court to be satisfied as to any matter), as may be specified in the order.
281 Effect of discharge.
(1)
Subject as follows, where a bankrupt is discharged, the discharge releases him from all the bankruptcy debts, but has no effect—
(a)
on the functions (so far as they remain to be carried out) of the trustee of his estate, or
(b)
on the operation, for the purposes of the carrying out of those functions, of the provisions of this Part;
and, in particular, discharge does not affect the right of any creditor of the bankrupt to prove in the bankruptcy for any debt from which the bankrupt is released.
(2)
Discharge does not affect the right of any secured creditor of the bankrupt to enforce his security for the payment of a debt from which the bankrupt is relased.
(3)
Discharge does not release the bankrupt from any bankruptcy debt which he incurred in respect of, or forbearance in respect of which was secured by means of, any fraud or fraudulent breach of trust to which he was a party.
(4)
Discharge does not release the bankrupt from any liability in respect of a fine imposed for an offence or from any liability under a recognisance except, in the case of a penalty imposed for an offence under an enactment relating to the public revenue or of a recognisance, with the consent of the Treasury.
F303(4A)
In subsection (4) the reference to a fine includes a reference to a confiscation order under Part 2, 3 or 4 of the Proceeds of Crime Act 2002.
(5)
Discharge does not, except to such extent and on such conditions as the court may direct, release the bankrupt from any bankruptcy debt which—
(a)
consists in a liability to pay damages for negligence, nuisance or breach of a statutory, contractual or other duty, F304or to pay damages by virtue of Part I of the Consumer Protection Act 1987, being in either case damages in respect of personal injuries to any person, or
(6)
Discharge does not release the bankrupt from such other bankruptcy debts,not being debts provable in his bankruptcy, as are prescribed.
(7)
Discharge does not release any person other than the bankrupt from any liability (whether as partner or co-trustee of the bankrupt or otherwise) from which the bankrupt is released by the discharge, or from any liability as surety for the bankrupt or as a person in the nature of such a surety.
(8)
In this section—
F307“family proceedings” means—
(a)
family proceedings within the meaning of the M22 Magistrates’ Courts Act 1980 and any proceedings which would be such proceedings but for section 65(1)(ii) of that Act (proceedings for variation of order for periodical payments); and
(b)
family proceedings within the meaning of Part V of the M23 Matrimonial and Family Proceedings Act 1984.
“fine” means the same as in the Magistrates’ Courts Act 1980; and
“personal injuries” includes death and any disease or other impairment of a person’s physical or mental condition.
F308281A Post-discharge restrictions
Schedule 4A to this Act (bankruptcy restrictions order and bankruptcy restrictions undertaking) shall have effect.
282 Court’s power to annul bankruptcy order.
(1)
The court may annul a bankruptcy order if it at any time appears to the court—
(a)
that, on any grounds existing at the time the order was made, the order ought not to have been made, or
(b)
that, to the extent required by the rules, the bankruptcy debts and the expenses of the bankruptcy have all, since the making of the order, been either paid or secured for to the satisfaction of the court.
(2)
The court may annul a bankruptcy order made against an individual on a petition under paragraph (a), (b) or (c) of section 264(1) if it at any time appears to the court, on an application by the Official Petitioner—
(a)
that the petition was pending at a time when a criminal bankruptcy order was made against the individual or was presented after such an order was so made, and
(b)
no appeal is pending (within the meaning of section 277) against the individual’s conviction of any offence by virtue of which the criminal bankruptcy order was made;
and the court shall annul a bankruptcy order made on a petition under section 264(1)(d) if it at any time appears to the court that the criminal bankruptcy order on which the petition was based has been rescinded in consequence of an appeal.
(3)
The court may annul a bankruptcy order whether or not the bankrupt has been discharged from the bankruptcy.
(4)
Where the court annuls a bankruptcy order (whether under this section or under section 261 F309or 263D in Part VIII)—
(a)
any sale or other disposition of property, payment made or other thing duly done, under any provision in this Group of Parts, by or under the authority of the official receiver or a trustee of the bankrupt’s estate or by the court is valid, but
(b)
if any of the bankrupt’s estate is then vested, under any such provision, in such a trustee, it shall vest in such person as the court may appoint or, in default of any such appointment, revert to the bankrupt on such terms (if any) as the court may direct;
and the court may include in its order such supplemental provisions as may be authorised by the rules.
(5)
F310. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chapter II Protection of Bankrupt’s Estate and Investigation of His Affairs
283 Definition of bankrupt’s estate.
(1)
Subject as follows, a bankrupt’s estate for the purposes of any of this Group of Parts 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 following provisions of this Part is comprised in that estate or is treated as falling with the preceding paragraph.
(2)
Subsection (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.
This subsection is subject to section 308 in Chapter IV (certain excluded property reclaimable by trustee).
(3)
Subsection (1) does not apply to—
(a)
property held by the bankrupt on trust for any other person, or
(b)
the right of nomination to a vacant ecclesiastical benefice.
F311(3A)
Subject to section 308A in Chapter IV, subsection (1) does not apply to—
(a)
a tenancy which is an assured tenancy or an assured agricultural occupancy, within the meaning of Part I of the Housing Act 1988, and the terms of which inhibit an assignment as mentioned in section 127(5) of the M24 Rent Act 1977, or
(b)
a protected tenancy, within the meaning of the Rent Act 1977, in respect of which, by virtue of any provision of Part IX of that Act, no premium can lawfully be required as a condition of assignment, or
(c)
a tenancy of a dwelling-house by virtue of which the bankrupt is, within the meaning of the M25 Rent (Agriculture) Act 1976, a protected occupier of the dwelling-house, and the terms of which inhibit an assignment as mentioned in section 127(5) of the Rent Act 1977, or
(d)
a secure tenancy, within the meaning of Part IV of the M26 Housing Act 1985, which is not capable of being assigned, except in the cases mentioned in section 91(3) of that Act.
(4)
References in any of this Group of Parts 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 section 299(2) in chapter III or a meeting summoned by the trustee of that estate under section 331 in Chapter IV 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 this Group of Parts 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 this Group of Parts, 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 section 269(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.
(6)
This section has effect subject to the provisions of any enactment not contained in this Act under which any property is to be excluded from a bankrupt’s estate.
F312283A Bankrupt’s home ceasing to form part of estate
(1)
This section applies where property comprised in the bankrupt’s estate consists of an interest in a dwelling-house which at the date of the bankruptcy was the sole or principal residence of—
(a)
the bankrupt,
(b)
the bankrupt’s spouse F313or civil partner, or
(c)
a former spouse F314or former civil partner of the bankrupt.
(2)
At the end of the period of three years beginning with the date of the bankruptcy the interest mentioned in subsection (1) shall—
(a)
cease to be comprised in the bankrupt’s estate, and
(b)
vest in the bankrupt (without conveyance, assignment or transfer).
(3)
Subsection (2) shall not apply if during the period mentioned in that subsection—
(a)
the trustee realises the interest mentioned in subsection (1),
(b)
the trustee applies for an order for sale in respect of the dwelling-house,
(c)
the trustee applies for an order for possession of the dwelling-house,
(d)
the trustee applies for an order under section 313 in Chapter IV in respect of that interest, or
(e)
the trustee and the bankrupt agree that the bankrupt shall incur a specified liability to his estate (with or without the addition of interest from the date of the agreement) in consideration of which the interest mentioned in subsection (1) shall cease to form part of the estate.
(4)
Where an application of a kind described in subsection (3)(b) to (d) is made during the period mentioned in subsection (2) and is dismissed, unless the court orders otherwise the interest to which the application relates shall on the dismissal of the application—
(a)
cease to be comprised in the bankrupt’s estate, and
(b)
vest in the bankrupt (without conveyance, assignment or transfer).
(5)
If the bankrupt does not inform the trustee or the official receiver of his interest in a property before the end of the period of three months beginning with the date of the bankruptcy, the period of three years mentioned in subsection (2)—
(a)
shall not begin with the date of the bankruptcy, but
(b)
shall begin with the date on which the trustee or official receiver becomes aware of the bankrupt’s interest.
(6)
The court may substitute for the period of three years mentioned in subsection (2) a longer period—
(a)
in prescribed circumstances, and
(b)
in such other circumstances as the court thinks appropriate.
(7)
The rules may make provision for this section to have effect with the substitution of a shorter period for the period of three years mentioned in subsection (2) in specified circumstances (which may be described by reference to action to be taken by a trustee in bankruptcy).
(8)
The rules may also, in particular, make provision—
(a)
requiring or enabling the trustee of a bankrupt’s estate to give notice that this section applies or does not apply;
(b)
about the effect of a notice under paragraph (a);
(c)
requiring the trustee of a bankrupt’s estate to make an application to the Chief Land Registrar.
(9)
Rules under subsection (8)(b) may, in particular—
(a)
disapply this section;
(b)
enable a court to disapply this section;
(c)
make provision in consequence of a disapplication of this section;
(d)
enable a court to make provision in consequence of a disapplication of this section;
(e)
make provision (which may include provision conferring jurisdiction on a court or tribunal) about compensation.
284 Restrictions on dispositions of property.
(1)
Where a person is adjudged bankrupt, any disposition of property made by that person in the period to which this section applies is void except to the extent that it is or was made with the consent of the court, or is or was subsequently ratified by the court.
(2)
Subsection (1) applies to a payment (whether in cash or otherwise) as it applies to a disposition of property and, accordingly, where any payment is void by virtue of that subsection, the person paid shall hold the sum paid for the bankrupt as part of his estate.
(3)
This section applies to the period beginning with the day of the presentation of the petition for the bankruptcy order and ending with the vesting, under Chapter IV of this Part, of the bankrupt’s estate in a trustee.
(4)
The preceding provisions of this section do not give a remedy against any person—
(a)
in respect of any property or payment which he received before the commencement of the bankruptcy in good faith, for value and without notice that the petition had been presented, or
(b)
in respect of any interest in property which derives from an interest in respect of which there is, by virtue of this subsection, no remedy.
(5)
Where after the commencement of his bankruptcy the bankrupt has incurred a debt to a banker or other person by reason of the making of a payment which is void under this section, that debt is deemed for the purposes of any of this Group of Parts to have been incurred before the commencement of the bankruptcy unless—
(a)
that banker or person had notice of the bankruptcy before the debt was incurred, or
(b)
it is not reasonably practicable for the amount of the payment to be recovered from the person to whom it was made.
(6)
A disposition of property is void under this section notwithstanding that the property is not or, as the case may be, would not be comprised in the bankrupt’s estate; but nothing in this section affects any disposition made by a person of property held by him on trust for any other person.
285 Restriction on proceedings and remedies.
(1)
At any time when proceedings on a bankruptcy petition are pending or an individual has been adjudged bankrupt the court may stay any action, execution or other legal process against the property or person of the debtor or, as the case may be, of the bankrupt.
(2)
Any court in which proceedings are pending against any individual may, on proof that a bankruptcy petition has been presented in respect of that individual or that he is an undischarged bankrupt, either stay the proceedings or allow them to continue on such terms as it thinks fit.
(3)
After the making of a bankruptcy order no person who is a creditor of the bankrupt in respect of a debt provable in the bankruptcy shall—
(a)
have any remedy against the property or person of the bankrupt in respect of that debt, or
(b)
before the discharge of the bankrupt, commence any action or other legal proceedings against the bankrupt except with the leave of the court and on such terms as the court may impose.
This is subject to sections 346 (enforcement procedures) and 347 (limited right to distress).
(4)
Subject as follows, subsection (3) does not affect the right of a secured creditor of the bankrupt to enforce his security.
(5)
Where any goods of an undischarged bankrupt are held by any person by way of pledge, pawn or other security, the official receiver may, after giving notice in writing of his intention to do so, inspect the goods.
Where such a notice has been given to any person, that person is not entitled, without leave of the court, to realise his security unless he has given the trustee of the bankrupt’s estate a reasonable opportunity of inspecting the goods and of exercising the bankrupt’s right of redemption.
(6)
References in this section to the property or goods of the bankrupt are to any of his property or goods, whether or not comprised in his estate.
286 Power to appoint interim receiver.
(1)
The court may, if it is shown to be necessary for the protection of the debtor’s property, at any time after the presentation of a bankruptcy petition and before making a bankruptcy order, appoint the official receiver to be interim receiver of the debtor’s property.
(2)
Where the court has, on a debtor’s petition, appointed an insolvency practitioner under section 273 and it is shown to the court as mentioned in subsection (1) of this section, the court may, without making a bankruptcy order, appoint that practitioner, instead of the official receiver, to be interim receiver of the debtor’s property.
(3)
The court may by an order appointing any person to be an interim receiver direct that his powers shall be limited or restricted in any respect; but, save as so directed, an interim receiver has, in relation to the debtor’s property, all the rights, powers, duties and immunities of a receiver and manager under the next section.
(4)
An order of the court appointing any person to be an interim receiver shall require that person to take immediate possession of the debtor’s property or, as the case may be, the part of it to which his powers as interim receiver are limited.
(5)
Where an interim receiver has been appointed, the debtor shall give him such inventory of his property and such other information, and shall attend on the interim receiver at such times, as the latter may for the purpose of carrying out his functions under this section reasonably require.
(6)
Where an interim receiver is appointed, section 285(3) applies for the period between the appointment and the making of a bankruptcy order on the petition, or the dismissal of the petition, as if the appointment were the making of such an order.
(7)
A person ceases to be interim receiver of a debtor’s property if the bankruptcy petition relating to the debtor is dismissed, if a bankruptcy order is made on the petition or if the court by order otherwise terminates the appointment.
(8)
References in this section to the debtor’s property are to all his property, whether or not it would be comprised in his estate if he were adjudged bankrupt.
287 Receivership pending appointment of trustee.
(1)
Between the making of a bankruptcy order and the time at which the bankrupt’s estate vests in a trustee under Chapter IV of this Part, the official receiver is the receiver and (subject to section 370 (special manager)) the manager of the bankrupt’s estate and is under a duty to act as such.
(2)
The function of the official receiver while acting as receiver or manager of the bankrupt’s estate under this section is to protect the estate; and for this purpose—
(a)
he has the same powers as if he were a receiver or manager appointed by the High Court, and
(b)
he is entitled to sell or otherwise dispose of any perishable goods comprised in the estate and any other goods so comprised the value of which is likely to diminish if they are not disposed of.
(3)
The official receiver while acting as receiver or manager of the estate under this section—
(a)
shall take all such steps as he thinks fit for protecting any property which may be claimed for the estate by the trustee of that estate,
(b)
is not, except in pursuance of directions given by the Secretary of State, required to do anything that involves his incurring expenditure,
(c)
may, if he thinks fit (and shall, if so directed by the court) at any time summon a general meeting of the bankrupt’s creditors.
(4)
Where—
(a)
the official receiver acting as receiver or manager of the estate under this section seizes or disposes of any property which is not comprised in the estate, and
(b)
at the time of the seizure or disposal the official receiver believes, and has reasonable grounds for believing, that he is entitled (whether in pursuance of an order of the court or otherwise) to seize or dispose of that property,
the official receiver is not to be liable to any person in respect of any loss or damage resulting from the seizure or disposal except in so far as that loss or damage is caused by his negligence; and he has a lien on the property, or the proceeds of its sale, for such of the expenses of the bankruptcy as were incurred in connection with the seizure or disposal.
(5)
This section does not apply where by virtue of section 297 (appointment of trustee; special cases) the bankrupt’s estate vests in a trustee immediately on the making of the bankruptcy order.
288 Statement of affairs.
(1)
Where a bankruptcy order has been made otherwise than on a debtor’s petition, the bankrupt shall submit a statement of his affairs to the official receiver before the end of the period of 21 days beginning with the commencement of the bankruptcy.
(2)
The statement of affairs shall contain—
(a)
such particulars of the bankrupt’s creditors and of his debts and other liabilities and of his assets as may be prescribed, and
(b)
such other information as may be prescribed.
(3)
The official receiver may, if he thinks fit—
(a)
release the bankrupt from his duty under subsection (1), or
(b)
extend the period specified in that subsection;
and where the official receiver has refused to exercise a power conferred by this section, the court, if it thinks fit, may exercise it.
(4)
A bankrupt who—
(a)
without reasonable excuse fails to comply with the obligation imposed by his section, or
(b)
without reasonable excuse submits a statement of affairs that does not comply with the prescribed requirements,
is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).
F315289 Investigatory duties of official receiver
(1)
The official receiver shall—
(a)
investigate the conduct and affairs of each bankrupt (including his conduct and affairs before the making of the bankruptcy order), and
(b)
make such report (if any) to the court as the official receiver thinks fit.
(2)
Subsection (1) shall not apply to a case in which the official receiver thinks an investigation under that subsection unnecessary.
(3)
Where a bankrupt makes an application for discharge under section 280—
(a)
the official receiver shall make a report to the court about such matters as may be prescribed, and
(b)
the court shall consider the report before determining the application.
(4)
A report by the official receiver under this section shall in any proceedings be prima facie evidence of the facts stated in it.
290 Public examination of bankrupt.
(1)
Where a bankruptcy order has been made, the official receiver may at any time before the discharge of the bankrupt apply to the court for the public examination of the bankrupt.
(2)
Unless the court otherwise orders, the official receiver shall make an application under subsection (1) if notice requiring him to do so is given to him, in accordance with the rules, by one of the bankrupt’s creditors with the concurrence of not less than one-half, in value, of those creditors (including the creditor giving notice).
(3)
On an application under subsection (1), the court shall direct that a public examination of the bankrupt shall be held on a day appointed by the court; and the bankrupt shall attend on that day and be publicly examined as to his affairs, dealings and property.
(4)
The following may take part in the public examination of the bankrupt and may question him concerning his affairs, dealings and property and the causes of his failure, namely—
(a)
the official receiver and, in the case of an individual adjudged bankrupt on a petition under section 264(1)(d), the Official Petitioner,
(b)
the trustee of the bankrupt’s estate, if his appointment has taken effect,
(c)
any person who has been appointed as special manager of the bankrupt’s estate or business,
(d)
any creditor of the bankrupt who has tendered a proof in the bankruptcy.
(5)
If a bankrupt without reasonable excuse fails at any time to attend his public examination under this section he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).
291 Duties of bankrupt in relation to official receiver.
(1)
Where a bankruptcy order has been made, the bankrupt is under a duty—
(a)
to deliver possession of his estate to the official receiver, and
(b)
to deliver up to the official receiver all books, papers and other records of which he has possession or control and which relate to his estate and affairs (including any which would be privileged from disclosure in any proceedings).
(2)
In the case of any part of the bankrupt’s estate which consists of things possession of which cannot be delivered to the official receiver, and in the case of any property that may be claimed for the bankrupt’s estate by the trustee, it is the bankrupt’s duty to do all such things as may reasonably be required by the official receiver for the protection of those things or that property.
(3)
Subsections (1) and (2) do not apply where by virtue of section 297 below the bankrupt’s estate vests in a trustee immediately on the making of the bankruptcy order.
F316(4)
The bankrupt shall give the official receiver such inventory of his estate and such other information, and shall attend on the official receiver at such times, as the official receiver may reasonably require—
(a)
for a purpose of this Chapter, or
(b)
in connection with the making of a bankruptcy restrictions order.
(5)
Subsection (4) applies to a bankrupt after his discharge.
(6)
If the bankrupt without reasonable excuse fails to comply with any obligation imposed by this section, he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).
Chapter III Trustees in Bankruptcy
Tenure of office as trustee
292 Power to make appointments.
(1)
The power to appoint a person as trustee of a bankrupt’s estate (whether the first such trustee or a trustee appointed to fill any vacancy) is exercisable—
(a)
F317. . . by a general meeting of the bankrupt’s creditors;
(b)
under section 295(2), 296(2) or 300(6) below in this Chapter, by the Secretary of State; or
(c)
under section 297, by the court.
(2)
No person may be appointed as trustee of a bankrupt’s estate unless he is, at the time of the appointment, qualified to act as an insolvency practitioner in relation to the bankrupt.
(3)
Any power to appoint a person as trustee of a bankrupt’s estate includes power to appoint two or more persons as joint trustees; but such an appointment must make provision as to the circumstances in which the trustees must act together and the circumstances in which one or more of them may act for the others.
(4)
The appointment of any person as trustee takes effect only if that person accepts the appointment in accordance with the rules. Subject to this, the appointment of any person as trustee takes effect at the time specified in his certificate of appointment.
(5)
This section is without prejudice to the provisions of this Chapter under which the official receiver is, in certain circumstances, to be trustee of the estate.
293 Summoning of meeting to appoint first trustee.
(1)
Where a bankruptcy order has been made F318. . . it is the duty of the official receiver, as soon as practicable in the period of 12 weeks beginning with the day on which the order was made, to decide whether to summon a general meeting of the bankrupt’s creditors for the purpose of appointing a trustee of the bankrupt’s estate.
This section does not apply where the bankruptcy order was made on a petition under section 264(1)(d) (criminal bankruptcy); and it is subject to the provision made in sections 294(3) and 297(6) below.
(2)
Subject to the next section, if the official receiver decides not to summon such a meeting, he shall, before the end of the period of 12 weeks above mentioned, given notice of his decision to the court and to every creditor of the bankrupt who is known to the official receiver or is identified in the bankrupt’s statement of affairs.
(3)
As from the giving to the court of a notice under subsection (2), the official receiver is the trustee of the bankrupt’s estate.
294 Power of creditors to requisition meeting.
(1)
Where in the case of any bankruptcy—
(a)
the official receiver has not yet summoned, or has decided not to summon, a general meeting of the bankrupt’s creditors for the purpose of appointing the trustee,F319. . .
(b)
F319. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
any creditor of the bankrupt may request the official receiver to summon such a meeting for that purpose.
(2)
If such a request appears to the official receiver to be made with the concurrence of not less than one-quarter, in value, of the bankrupt’s creditors (including the creditor making the request), it is the duty of the official receiver to summon the requested meeting.
(3)
Accordingly, where the duty imposed by subsection (2) has arisen, the official receiver is required neither to reach a decision for the purposes of section 293(1) nor (if he has reached one) to serve any notice under section 293(2).
295 Failure of meeting to appoint trustee.
(1)
If a meeting summoned under section 293 or 294 is held but no appointment of a person as trustee is made, it is the duty of the official receiver to decide whether to refer the need for an appointment to the Secretary of State.
(2)
On a reference made in pursuance of that decision, the Secretary of State shall either make an appointment or decline to make one.
(3)
If—
(a)
the official receiver decides not to refer the need for an appointment to the Secretary of State, or
(b)
on such a reference the Secretary of State declines to make an appointment,
the official receiver shall give notice of his decision or, as the case may be, of the Secretary of State’s decision to the court.
(4)
As from the giving of notice under subsection (3) in a case in which no notice has been given under section 293(2), the official receiver shall be trustee of the bankrupt’s estate.
296 Appointment of trustee by Secretary of State.
(1)
At any time when the official receiver is the trustee of a bankrupt’s estate by virtue of any provision of this Chapter (other than section 297(1) below) he may apply to the Secretary of State for the appointment of a person as trustee instead of the official receiver.
(2)
On an application under subsection (1) the Secretary of State shall either make an appointment or decline to make one.
(3)
Such an application may be made notwithstanding that the Secretary of State has declined to make an appointment either on a previous application under subsection (1) or on a reference under section 295 or under section 300(4) below.
(4)
Where the trustee of a bankrupt’s estate has been appointed by the Secretary of State (whether under this section or otherwise), the trustee shall give notice to the bankrupt’s creditors of his appointment or, if the court so allows, shall advertise his appointment in accordance with the court’s directions.
(5)
In that notice or advertisement the trustee shall—
(a)
state whether he proposes to summon a general meeting of the bankrupt’s creditors for the purpose of establishing a creditor’s committee under section 301, and
(b)
if he does not propose to summon such a meeting, set out the power of the creditors under this Part to require him to summon one.
297 Special cases.
(1)
Where a bankrupticy order is made on a petition under section 264(1)(d) (criminal bankruptcy), the official receiver shall be trustee of the bankrupt’s estate.
(2)
F320. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)
F320. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)
Where a bankruptcy order is made in a case in which an insolvency practitioner’s report has been submitted to the court under section 274F321. . . , the court, if it thinks fit, may on making the order appoint the person who made the report as trustee.
(5)
Where a bankruptcy order is made (whether or not on a petition under section 264(1)(c)) at a time when there is a supervisor of a voluntary arrangement approved in relation to the bankrupt under Part VIII, the court, if it thinks fit, may on making the order appoint the supervisor of the arrangement as trustee.
(6)
Where an appointment is made under subsection (4) or (5) of this section, the official receiver is not under the duty imposed by section 293(1) (to decide whether or not to summon a meeting of creditors).
(7)
Where the trustee of a bankrupt’s estate has been appointed by the court, the trustee shall give notice to the bankrupt’s creditors of his appointment or, if the court so allows, shall advertise his appointment in accordance with the directions of the court.
(8)
In that notice or advertisement he shall—
(a)
state whether he proposes to summon a general meeting of the bankrupt’s creditors for the purpose of establishing a creditor’s committee under section 301 below, and
(b)
if he does not propose to summon such a meeting, set out the power of the creditors under this Part to require him to summon one.
298 Removal of trustee; vacation of office.
(1)
Subject as follows, the trustee of a bankrupt’s estate may be removed from office only by an order of the court or by a general meeting of the bankrupt’s creditors summoned specially for that purpose in accordance with the rules.
(2)
Where the official receiver is trustee by virtue of section 297(1), he shall not be removed from office under this section.
(3)
F322. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)
Where the official receiver is trustee by virtue of section 293(3) or 295(4) or a trustee is appointed by the Secretary of State or (otherwise than under section 297(5)) by the court, a general meeting of the bankrupt’s creditors shall be summoned for the purpose of replacing the trustee only if—
(a)
the trustee thinks fit, or
(b)
the court so directs, or
(c)
the meeting is requested by one of the bankrupt’s creditors with the concurrence of not less than one-quarter, in value, of the creditors (including the creditor making the request).
(5)
If the trustee was appointed by the Secretary of State, he may be removed by a direction of the Secretary of State.
(6)
The trustee (not being the official receiver) shall vacate office if he ceases to be a person who is for the time being qualified to act as an insolvency practitioner in relation to the bankrupt.
(7)
The trustee may, in the prescribed circumstances, resign his office by giving notice of his resignation to the court.
(8)
The trustee shall vacate office on giving notice to the court that a final meeting has been held under section 331 in Chapter IV and of the decision (if any) of that meeting.
(9)
The trustee shall vacate office if the bankruptcy order is annulled.
299 Release of trustee.
(1)
Where the official receiver has ceased to be the trustee of a bankrupt’s estate and a person is appointed in his stead, the official receiver shall have his release with effect from the following time, that is to say—
(a)
where that person is appointed by a general meeting of the bankrupt’s creditors or by the Secretary of State, the time at which the official receiver gives notice to the court that he has been replaced, and
(b)
where that person is appointed by the court, such time as the court may determine.
(2)
If the official receiver while he is the trustee gives notice to the Secretary of State that the administration of the bankrupt’s estate in accordance with Chapter IV of this Part is for practical purposes complete, he shall have his release with effect from such time as the Secretary of State may determine.
(3)
A person other than the official receiver who has ceased to be the trustee shall have his release with effect from the following time, that is to say—
(a)
in the case of a person who has been removed from office by a general meeting of the bankrupt’s creditors that has not resolved against his release or who has died, the time at which notice is given to the court in accordance with the rules that that person has ceased to hold office;
(b)
in the case of a person who has been removed from office by a general meeting of the bankrupt’s creditors that has resolved against his release, or by the court, or by the Secretary of State, or who has vacated office under section 298(6), such time as the Secretary of State may, on an application by that person, determine;
(c)
in the case of a person who has resigned, such time as may be prescribed;
(d)
in the case of a person who has vacated office under section 298(8)—
(i)
if the final meeting referred to in that subsection has resolved against that person’s release, such time as the Secretary of State may, on an application by that person, determine; and
(ii)
if that meeting has not so resolved, the time at which the person vacated office.
(4)
Where a bankruptcy order is annulled, the trustee at the time of the annulment has his release with effect from such time as the court may determine.
(5)
Where the offical receiver or the trustee has his release under this section, he shall, with effect from the time specified in the preceeding provisions of this section, be discharged from all liability both in respect of acts or omissions of his in the administration of the estate and otherwise in relation to his conduct as trustee.
But nothing in this section prevents the exercise, in relation to a person who has had his release under this section, of the court’s powers under section 304.
300 Vacancy in office as trustee.
(1)
This section applies where the appointment of any person as trustee of a bankrupt’s estate fails to take effect or, such an appointment having taken effect, there is otherwise a vacancy in the office of trustee.
(2)
The official receiver shall be trustee until the vacancy is filled.
(3)
The official receiver may summon a general meeting of the bankrupt’s creditors for the purpose of filling the vacancy and shall summon such a meeting if required to do so in pursuance of section 314(7) (creditor’s requisition).
(4)
If at the end of the period of 28 days beginning with the day on which the vacancy first came to the offical receiver’s attention he has not summoned, and is not proposing to summon, a general meeting of creditors for the purpose of filling the vacancy, he shall refer the need for an appointment to the Secretary of State.
(5)
F323. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6)
On a reference to the Secretary of State under subsection (4) F324. . . the Secretary of State shall either make an appointment or decline to make one.
(7)
If on a reference under subsection (4) F324. . . no appointment is made, the official receiver shall continue to be trustee of the bankrupt’s estate, but without prejudice to his power to make a further reference.
(8)
References in this section to a vacancy include a case where it is necessary, in relation to any property which is or may be comprised in a bankrupt’s estate, to revive the trusteeship of that estate after the holding of a final meeting summoned under section 331 or the giving by the official receiver of notice under section 299(2).
Control of trustee
301 Creditors’ committee.
(1)
Subject as follows, a general meeting of a bankrupt’s creditors (whether summoned under the preceding provisions of this Chapter or otherwise) may, in accordance with the rules, establish a committee (known as “the creditors’ committee”) to exercise the functions conferred on it by or under this Act.
(2)
A general meeting of the bankrupt’s creditors shall not establish such a committee, or confer any functions on such a committee, at any time when the official receiver is the trustee of the bankrupt’s estate, except in connection with an appointment made by that meeting of a person to be trustee instead of the official receiver.
302 Exercise by Secretary of State of functions of creditors’ committee.
(1)
The creditors’ committee is not to be able or required to carry out its functions at any time when the official receiver is trustee of the bankrupt’s estate; but at any such time the functions of the committee under this Act shall be vested in the Secretary of State, except to the extent that the rules otherwise provide.
(2)
Where in the case of any bankruptcy there is for the time being no creditors’ committee and the trustee of the bankrupt’s estate is a person other than the official receiver, the functions of such a committee shall be vested in the Secretary of State, except to the extent that the rules otherwise provide.
303 General control of trustee by the court.
(1)
If a bankrupt or any of his creditors or any other person is dissatisfied by any act, omission or decision of a trustee of the bankrupt’s estate, he may apply to the court; and on such an application the court may confirm, reverse or modify any act or decision of the trustee, may give him directions or may make such other order as it thinks fit.
(2)
The trustee of a bankrupt’s estate may apply to the court for directions in relation to any particular matter arising under the bankruptcy.
F325(2A)
Where at any time after a bankruptcy petition has been presented to the court against any person, whether under the provisions of the Insolvent Partnerships Order 1994 or not, the attention of the court is drawn to the fact that the person in question is a member of an insolvent partnership, the court may make an order as to the future conduct of the insolvency proceedings and any such order may apply any provisions of that Order with any necessary modifications.
(2B)
Where a bankruptcy petition has been presented against more than one individual in the circumstances mentioned in subsection (2A) above, the court may give such directions for consolidating the proceedings, or any of them, as it thinks just.
(2C)
Any order or directions under subsection (2A) or (2B) may be made or given on the application of the official receiver, any responsible insolvency practitioner, the trustee of the partnership or any other interested person and may include provisions as to the administration of the joint estate of the partnership, and in particular how it and the separate estate of any member are to be administered.
304 Liability of trustee.
(1)
Where on an application under this section the court is satisfied—
(a)
that the trustee of a bankrupt’s estate has misapplied or retained, or become accountable for, any money or other property comprised in the bankrupt’s estate, or
(b)
that a bankrupt’s estate has suffered any loss in consequence of any misfeasance or breach of fiduciary or other duty by a trustee of the estate in the carrying out of his functions,
the court may order the trustee, for the benefit of the estate, to repay, restore or account for money or other property (together with interest at such rate as the court thinks just) or, as the case may require, to pay such sum by way of compensation in respect of the misfeasance or breach of fiduciary or other duty as the court thinks just.
This is without prejudice to any liability arising apart from this section.
(2)
An application under this section may be made by the official receiver, the Secretary of State, a creditor of the bankrupt or (whether or not there is, or is likely to be, a surplus for the purposes of section 330(5) (final distribution)) the bankrupt himself.
But the leave of the court is required for the making of an application if it is to be made by the bankrupt or if it is to be made after the trustee has had his release under section 299.
(3)
Where—
(a)
the trustee seizes or disposes of any property which is not comprised in the bankrupts estate, and
(b)
at the time of the seizure or disposal the trustee believes, and has reasonable grounds for believing, that he is entitled (whether in pursuance of an order of the court or otherwise) to seize or dispose of that property,
the trustee is not liable to any person (whether under this section or otherwise) in respect of any loss or damage resulting from the seizure or disposal except in so far as that loss or damage is caused by the negligence of the trustee; and he has a lien on the property, or the proceeds of its sale, for such of the expenses of the bankruptcy as were incurred in connection with the seizure or disposal.
Chapter IV Administration by Trustee
Preliminary
305 General functions of trustee.
(1)
This Chapter applies in relation to any bankruptcy where either—
(a)
the appointment of a person as trustee of a bankrupt’s estate takes effect, or
(b)
the official receiver becomes trustee of a bankrupt’s estate.
(2)
The function of the trustee is to get in, realise and distribute the bankrupt’s estate in accordance with the following provisions of this Chapter; and in the carrying out of that function and in the management of the bankrupt’s estate the trustee is entitled, subject to those provisions, to use his own discretion.
(3)
It is the duty of the trustee, if he is not the official receiver—
(a)
to furnish the official receiver with such information,
(b)
to produce to the offical receiver, and permit inspection by the official receiver of, such books, papers and other records, and
(c)
to give the official receiver such other assistance,
as the official receiver may reasonably require for the purpose of enabling him to carry out his functions in relation to the bankruptcy.
(4)
The official name of the trustee shall be “the trustee of the estate of ............, a bankrupt” (inserting the name of the bankrupt); but he may be referred to as “the trustee in bankruptcy” of the particular bankrupt.
Acquisition, control and realisation of bankrupt’s estate
306 Vesting of bankrupt’s estate in trustee.
(1)
The bankrupt’s estate shall vest in the trustee immediately on his appointment taking effect or, in the case of the official receiver, on his becoming trustee.
(2)
Where any property which is, or is to be, comprised in the bankrupt’s estate vests in the trustee (whether under this section or under any other provision of this Part), it shall so vest without any conveyance, assignment or transfer.
F326306A Property subject to restraint order
(1)
This section applies where—
(a)
property is excluded from the bankrupt’s estate by virtue of section 417(2)(a) of the Proceeds of Crime Act 2002 (property subject to a restraint order),
(b)
(c)
the restraint order is discharged.
(2)
On the discharge of the restraint order the property vests in the trustee as part of the bankrupt’s estate.
(3)
But subsection (2) does not apply to the proceeds of property realised by a management receiver under section 49(2)(d) or 197(2)(d) of that Act (realisation of property to meet receiver’s remuneration and expenses).
F329306AAProperty released from detention
(1)
This section applies where—
(a)
property is excluded from the bankrupt's estate by virtue of section 417(2)(b) of the Proceeds of Crime Act 2002 (property detained under certain provisions),
(b)
no order is in force in respect of the property under section 41, 50, 120, 128, 190 or 198 of that Act, and
(c)
the property is released.
(2)
The property vests in the trustee as part of the bankrupt's estate.
F330306B Property in respect of which receivership or administration order made
(1)
This section applies where—
(a)
property is excluded from the bankrupt’s estate by virtue of section 417(2)(b), (c) or (d) of the Proceeds of Crime Act 2002 (property in respect of which an order for the appointment of a receiver or administrator under certain provisions of that Act is in force),
(b)
a confiscation order is made under section 6, 92 or 156 of that Act,
(c)
the amount payable under the confiscation order is fully paid, and
(d)
any of the property remains in the hands of the receiver or administrator (as the case may be).
(2)
The property vests in the trustee as part of the bankrupt’s estate.
F331306BAProperty in respect of which realisation order made
(1)
This section applies where—
(a)
property is excluded from the bankrupt's estate by virtue of section 417(2)(d) of the Proceeds of Crime Act 2002 (property in respect of which an order has been made authorising realisation of the property by an appropriate officer),
(b)
a confiscation order is made under section 6, 92 or 156 of that Act,
(c)
the amount payable under the confiscation order is fully paid, and
(d)
any of the property remains in the hands of the appropriate officer.
(2)
The property vests in the trustee as part of the bankrupt's estate.
F332306C Property subject to certain orders where confiscation order discharged or quashed
(1)
This section applies where—
(a)
property is excluded from the bankrupt’s estate by virtue of section 417(2)(a), (b), (c) or (d) of the Proceeds of Crime Act 2002 (property in respect of which a restraint order or an order for the appointment of a receiver or administrator under that Act is in force),
(b)
a confiscation order is made under section 6, 92 or 156 of that Act, and
(c)
the confiscation order is discharged under section 30, 114 or 180 of that Act (as the case may be) or quashed under that Act or in pursuance of any enactment relating to appeals against conviction or sentence.
(2)
Any such property in the hands of a receiver appointed under Part 2 or 4 of that Act or an administrator appointed under Part 3 of that Act vests in the trustee as part of the bankrupt’s estate.
(3)
But subsection (2) does not apply to the proceeds of property realised by a management receiver under section 49(2)(d) or 197(2)(d) of that Act (realisation of property to meet receiver’s remuneration and expenses).
307 After-acquired property.
(1)
Subject to this section and section 309, the trustee may by notice in writing claim for the bankrupt’s estate any property which has been acquired by, or has devolved upon, the bankrupt since the commencement of the bankruptcy.
(2)
A notice under this section shall not be served in respect of—
(a)
any property falling within subsection (2) or (3) of section 283 in Chapter II,
F333(aa)
any property vesting in the bankrupt by virtue of section 283A in Chapter II,
(b)
any property which by virtue of any other enactment is excluded from the bankrupt’s estate, or
(c)
without prejudice to section 280(2)(c) (order of court on application for discharge), any property which is acquired by, or devolves upon, the bankrupt after his discharge.
(3)
Subject to the next subsection, upon the service on the bankrupt of a notice under this section the property to which the notice relates shall vest in the trustee as part of the bankrupt’s estate; and the trustee’s title to that property has relation back to the time at which the property was acquired by, or devolved upon, the bankrupt.
(4)
Where, whether before or after service of a notice under this section—
(a)
a person acquires property in good faith, for value and without notice of the bankruptcy, or
(b)
a banker enters into a transaction in good faith and without such notice,
the trustee is not in respect of that property or transaction entitled by virtue of this section to any remedy against that person or banker, or any person whose title to any property derives from that person or banker.
(5)
References in this section to property do not include any property which, as part of the bankrupt’s income, may be the subject of an income payments order under section 310.
308 Vesting in trustee of certain items of excess value.
(1)
Subject to F334section 309, where—
(a)
property is excluded by virtue of section 283(2) (tools of trade, household effects, etc.) from the bankrupt’s estate, and
(b)
it appears to the trustee that the realisable value of the whole or any part of that property exceeds the cost of a reasonable replacement for that property or that part of it,
the trustee may by notice in writing claim that property or, as the case may be, that part of it, for the bankrupt’s estate.
(2)
Upon the service on the bankrupt of a notice under this section, the property to which the notice relates vests in the trustee as part of the bankrupt’s estate; and, except against a purchaser in good faith, for value and without notice of the bankruptcy, the trustee’s title to that property has relation back to the commencement of the bankruptcy.
(3)
The trustee shall apply funds comprised in the estate to the purchase by or on behalf of the bankrupt of a reasonable replacement for any property vested in the trustee under this section; and the duty imposed by this subsection has priority over the obligation of the trustee to distribute the estate.
(4)
For the purposes of this section property is a reasonable replacement for other property if it is reasonably adequate for meeting the needs met by the other property.
F335308A Vesting in trustee of certain tenancies.
Upon the service on the bankrupt by the trustee of a notice in writing under this section, any tenancy—
(a)
which is excluded by virtue of section 283(3A) from the bankrupt’s estate, and
(b)
to which the notice relates,
vests in the trustee as part of the bankrupt’s estate; and, except against a purchaser in good faith, for value and without notice of the bankruptcy, the trustee’s title to that tenancy has relation back to the commencement of the bankruptcy.
309 Time-limit for notice under s. 307 or 308.
(1)
Except with the leave of the court, a notice shall not be served—
(a)
under section 307, after the end of the period of 42 days beginning with the day on which it first came to the knowledge of the trustee that property in question had been acquired by, or had devolved upon, the bankrupt;
(2)
For the purposes of this section—
(a)
any thing which comes to the knowledge of the trustee is deemed in relation to any successor of his as trustee to have come to the knowledge of the sucessor at the same time; and
(b)
any thing which comes (otherwise than under paragraph (a)) to the knowledge of a person before he is the trustee is deemed to come to his knowledge on his appointment taking effect or, in the case of the official receiver, on his becoming trustee.
310 Income payments orders.
(1)
The court may F338. . . make an order (“an income payments order”) claiming for the bankrupt’s estate so much of the income of the bankrupt during the period for which the order is in force as may be specified in the order.
F339(1A)
An income payments order may be made only on an application instituted—
(a)
by the trustee, and
(b)
before the discharge of the bankrupt.
(2)
The court shall not make an income payments order the effect of which would be to reduce the income of the bankrupt F340when taken together with any payments to which subsection (8) applies below what appears to the court to be necessary for meeting the reasonable domestic needs of the bankrupt and his family.
(3)
An income payments order shall, in respect of any payment of income to which it is to apply, either—
(a)
require the bankrupt to pay the trustee an amount equal to so much of that payment as is claimed by the order, or
(b)
require the person making the payment to pay so much of it as is so claimed to the trustee, instead of to the bankrupt.
(4)
Where the court makes an income payments order it may, if it thinks fit, discharge or vary any attachment of earnings order that is for the time being in force to secure payments by the bankrupt.
(5)
Sums received by the trustee under an income payments order form part of the bankrupt’s estate.
F341(6)
An income payments order must specify the period during which it is to have effect; and that period—
(a)
may end after the discharge of the bankrupt, but
(b)
may not end after the period of three years beginning with the date on which the order is made.
(6A)
An income payments order may (subject to subsection (6)(b)) be varied on the application of the trustee or the bankrupt (whether before or after discharge).
(7)
For the purposes of this section the income of the bankrupt comprises every payment in the nature of income which is from time to time made to him or to which he from time to time becomes entitled, including any payment in respect of the carrying on of any business or in respect of any office or employment F342and F343 (despite anything in section 11 or 12 of the Welfare Reform and Pensions Act 1999) any payment under a pension scheme but excluding any payment to which subsection (8) applies..
(8)
This subsection applies to—
(a)
payments by way of guaranteed minimum pension; and
(b)
payments giving effect to the bankrupt’s protected rights as a member of a pension scheme.
(9)
In this section, “guaranteed minimum pension” and “protected rights” have the same meaning as in the Pension Schemes Act 1993.
F344310A Income payments agreement
(1)
In this section “income payments agreement” means a written agreement between a bankrupt and his trustee or between a bankrupt and the official receiver which provides—
(a)
that the bankrupt is to pay to the trustee or the official receiver an amount equal to a specified part or proportion of the bankrupt’s income for a specified period, or
(b)
that a third person is to pay to the trustee or the official receiver a specified proportion of money due to the bankrupt by way of income for a specified period.
(2)
A provision of an income payments agreement of a kind specified in subsection (1)(a) or (b) may be enforced as if it were a provision of an income payments order.
(3)
While an income payments agreement is in force the court may, on the application of the bankrupt, his trustee or the official receiver, discharge or vary an attachment of earnings order that is for the time being in force to secure payments by the bankrupt.
(4)
The following provisions of section 310 shall apply to an income payments agreement as they apply to an income payments order—
(a)
subsection (5) (receipts to form part of estate), and
(b)
subsections (7) to (9) (meaning of income).
(5)
An income payments agreement must specify the period during which it is to have effect; and that period—
(a)
may end after the discharge of the bankrupt, but
(b)
may not end after the period of three years beginning with the date on which the agreement is made.
(6)
An income payments agreement may (subject to subsection (5)(b)) be varied—
(a)
by written agreement between the parties, or
(b)
by the court on an application made by the bankrupt, the trustee or the official receiver.
(7)
The court—
(a)
may not vary an income payments agreement so as to include provision of a kind which could not be included in an income payments order, and
(b)
shall grant an application to vary an income payments agreement if and to the extent that the court thinks variation necessary to avoid the effect mentioned in section 310(2).
311 Acquisition by trustee of control.
(1)
The trustee shall take possession of all books, papers and other records which relate to the bankrupt’s estate or affairs and which belong to him or are in his possession or under his control (including any which would be privileged from disclosure in any proceedings).
(2)
In relation to, and for the purpose of acquiring or retaining possession of, the bankrupt’s estate, the trustee is in the same position as if her were a receiver of property appointed by the High Court; and the court may, on his application, enforce such acquisition or retention accordingly.
(3)
Where any part of the bankrupt’s estate consists of stock or shares in a company, shares in a ship or any other property transferable in the books of a company, office or person, the trustee may exercise the right to transfer the property to the same extent as the bankrupt might have exercised it if he had not become bankrupt.
(4)
Where any part of the estate consists of things in action, they are deemed to have been assigned to the trustee; but notice of the deemed assignment need not be given except in so far as it is necessary, in a case where the deemed assignment is from the bankrupt himself for protecting the priority of the trustee.
(5)
Where any goods comprised in the estate are held by any person by way of pledge, pawn or other security and no notice has been served in respect of those goods by the official receiver under subsection (5) of section 285 (restriction on realising security), the trustee may serve such a notice in respect of the goods; and whether or not a notice has been served under this subsection or that subsection, the trustee may, if he thinks fit, exercise the bankrupt’s right of redemption in respect of any such goods.
(6)
A notice served by the trustee under subsection (5) has the same effect as a notice served by the official receiver under section 285(5).
312 Obligation to surrender control to trustee.
(1)
The bankrupt shall deliver up to the trustee possession of any property, books, papers or other records of which he has possession or control and of which the trustee is required to take possession.
This is without prejudice to the general duties of the bankrupt under section 333 in this Chapter.
(2)
If any of the following is in possession of any property, books, papers or other records of which the trustee is required to take possession, namely—
(a)
the official receiver,
(b)
a person who has ceased to be trustee of the bankrupt’s estate, or
(c)
a person who has been the supervisor of a voluntary arrangement approved in relation to the bankrupt under Part VIII,
the official receiver or, as the case may be, that person shall deliver up possession of the property, books, papers or records to the trustee.
(3)
Any banker or agent of the bankrupt or any other person who holds any property to the account of, or for, the bankrupt shall pay or deliver to the trustee all property in his possession or under his control which forms part of the bankrupt’s estate and which he is not by law entitled to retain as against the bankrupt or trustee.
(4)
If any person without reasonable excuse fails to comply with any obligation imposed by this section, he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).
313 Charge on bankrupt’s home.
(1)
Where any property consisting of an interest in a dwelling house which is occupied by the bankrupt or by his spouse or former spouse F345or by his civil partner or former civil partner is comprised in the bankrupt’s estate and the trustee is, for any reason, unable for the time being to realise that property, the trustee may apply to the court for an order imposing a charge on the property for the benefit of the bankrupt’s estate.
(2)
If on an application under this section the court imposes a charge on any property, the benefit of that charge shall be comprised in the bankrupt’s estate and is enforceable F346, up to the charged value from time to time, for the payment of any amount which is payable otherwise than to the bankrupt out of the estate and of interest on that amount at the prescribed rate.
F347(2A)
In subsection (2) the charged value means—
(a)
the amount specified in the charging order as the value of the bankrupt’s interest in the property at the date of the order, plus
(b)
interest on that amount from the date of the charging order at the prescribed rate.
(2B)
In determining the value of an interest for the purposes of this section the court shall disregard any matter which it is required to disregard by the rules.
(3)
An order under this section made in respect of property vested in the trustee shall provide, in accordance with the rules, for the property to cease to be comprised in the bankrupt’s estate and, subject to the charge (and any prior charge), to vest in the bankrupt.
(4)
Subsections (1) and (2) and (4) to (6) of section 3 of the Charging Orders Act 1979 (supplemental provisions with respect to charging orders) have effect in relation to orders under this section as in relation to charging orders under that Act.
F348(5)
But an order under section 3(5) of that Act may not vary a charged value.
F349313A Low value home: application for sale, possession or charge
(1)
This section applies where—
(a)
property comprised in the bankrupt’s estate consists of an interest in a dwelling-house which at the date of the bankruptcy was the sole or principal residence of—
(i)
the bankrupt,
(ii)
the bankrupt’s spouse F350or civil partner, or
(iii)
a former spouse F351or former civil partner of the bankrupt, and
(b)
the trustee applies for an order for the sale of the property, for an order for possession of the property or for an order under section 313 in respect of the property.
(2)
The court shall dismiss the application if the value of the interest is below the amount prescribed for the purposes of this subsection.
(3)
In determining the value of an interest for the purposes of this section the court shall disregard any matter which it is required to disregard by the order which prescribes the amount for the purposes of subsection (2).
314 Powers of trustee.
(1)
The trustee may—
(a)
with the permission of the creditor’s committee or the court, exercise any of the powers specified in Part I of Schedule 5 to this Act, and
(b)
without that permission, exercise any of the general powers specified in Part II of that Schedule.
(2)
With the permission of the creditors’ committee or the court, the trustee may appoint the bankrupt—
(a)
to superintend the management of his estate or any part of it,
(b)
to carry on his business (if any) for the benefit of his creditors, or
(c)
in any other respect to assist in administering the estate in such manner and on such terms as the trustee may direct.
(3)
A permission given for the purposes of subsection (1)(a) or (2) shall not be a general permission but shall relate to a particular exercise of the power in question; and a person dealing with the trustee in good faith and for value is not to be concerned to enquire whether any permission required in either case has been given.
(4)
Where the trustee has done anything without the permission required by subsection (1)(a) or (2), the court or the creditor’s committee may, for the purpose of enabling him to meet his expenses out of the bankrupt’s estate, ratify what the trustee has done.
But the committee shall not do so unless it is satisfied that the trustee has acted in a case or urgency and has sought its ratification without undue delay.
(5)
Part III of Schedule 5 to this Act has effect with respect to the things which the trustee is able to do for the purposes of, or in connection with, the exercise of any of his powers under any of his Group of Parts.
(6)
Where the trustee (not being the official receiver) in exercise of the powers conferred on him by any provision in this Group of Parts—
(a)
disposes of any property comprised in the bankrupt’s estate to an associate of the bankrupt, or
(b)
employs a solicitor,
he shall, if there is for the time being a creditor’s committee, give notice to the committee of that exercise of his powers.
(7)
Without prejudice to the generality of subsection (5) and Part III of Schedule 5, the trustee may, if he thinks fit, at any time summon a general meeting of the bankrupt’s creditors.
Subject to the preceding provisions in this Group of Parts, he shall summon such a meeting if he is requested to do so by a creditor of the bankrupt and the request is made with the concurrence of not less than one-tenth, in value, of the bankrupt’s creditors (including the creditor making the request).
(8)
Nothing in this Act is to be construed as restricting the capacity of the trustee to exercise any of his powers outside England and Wales.
Disclaimer of onerous property
315 Disclaimer (general power).
(1)
Subject as follows, the trustee may, by the giving of the prescribed notice, disclaim any onerous property and may do so notwithstanding that he has taken possession of it, endeavoured to sell it or otherwise exercised rights of ownership in relation to it.
(2)
The following is onerous property for the purposes of this section, that is to say—
(a)
any unprofitable contract, and
(b)
any other property comprised in the bankrupt’s estate which is unsaleable or not readily saleable, or is such that it may give rise to a liability to pay money or perform any other onerous act.
(3)
A disclaimer under this section—
(a)
operates so as to determine, as from the date of the disclaimer, the rights, interests and liabilities of the bankrupt and his estate in or in respect of the property disclaimed, and
(b)
discharges the trustee from all personal liability in respect of that property as from the commencement of his trusteeship,
but does not, except so far as is necessary for the purpose of releasing the bankrupt, the bankrupt’s estate and the trustee from any liability, affect the rights or liabilities of any other person.
(4)
A notice of disclaimer shall not be given under this section in respect of any property that has been claimed for the estate under section 307 (after-acquired property) or 308 (personal property of bankrupt exceeding reasonable replacement value) F352or 308A, except with the leave of the court.
(5)
Any person sustaining loss or damage in consequence of the operation of a disclaimer under this section is deemed to be a creditor of the bankrupt to the extent of the loss or damage and accordingly may prove for the loss or damage as a bankruptcy debt.
316 Notice requiring trustee’s decision.
(1)
Notice of disclaimer shall not be given under section 315 in respect of any property if—
(a)
a person interested in the property has applied in writing to the trustee or one of his predecessors as trustee requiring the trustee or that predecessor to decide whether he will disclaim or not, and
(b)
the period of 28 days beginning with the day on which that application was made has expired without a notice of disclaimer having been given under section 315 in respect of that property.
(2)
The trustee is deemed to have adopted any contract which by virtue of this section he is not entitled to disclaim.
317 Disclaimer of leaseholds.
(1)
The disclaimer of any property of a leasehold nature does not take effect unless a copy of the disclaimer has been served (so far as the trustee is aware of their addresses) on every person claiming under the bankrupt as underlessee or mortgagee and either—
(a)
no application under section 320 below is made with respect to the property before the end of the period of 14 days beginning with the day on which the last notice served under this subsection was served, or
(b)
where such an application has been made, the court directs that the disclaimer is to take effect.
(2)
Where the court gives a direction under subsection (1)(b) it may also, instead of or in addition to any order it makes under section 320, make such orders with respect to fixtures, tenant’s improvements and other matters arising out of the lease as it thinks fit.
318 Disclaimer of dwelling house.
Without prejudice to section 317, the disclaimer of any property in a dwelling house does not take effect unless a copy of the disclaimer has been served (so far as the trustee is aware of their addresses) on every person in occupation of or claiming a right to occupy the dwelling house and either—
(a)
no application under section 320 is made with respect to the property before the end of the period of 14 days beginning with the day on which the last notice served under this section was served, or
(b)
where such an application has been made, the court directs that the disclaimer is to take effect.
319 Disclaimer of land subject to rentcharge.
(1)
The following applies where, in consequence of the disclaimer under section 315 of any land subject to a rentcharge, that land vests by operation of law in the Crown or any other person (referred to in the next subsection as “the proprietor”).
(2)
The proprietor, and the successors in title of the proprietor, are not subject to any personal liability in respect of any sums becoming due under the rentcharge, except sums becoming due after the proprietor, or some person claiming under or through the proprietor, has taken possession or control of the land or has entered into occupation of it.
320 Court order vesting disclaimed property.
(1)
This section and the next apply where the trustee has disclaimed property under section 315.
(2)
An application may be made to the court under this section by—
(a)
any person who claims an interest in the disclaimed property,
(b)
any person who is under any liability in respect of the disclaimed property, not being a liability discharged by the disclaimer, or
(c)
where the disclaimed property is property in a dwelling house, any person who at the time when the bankruptcy petition was presented was in occupation of or entitled to occupy the dwelling house.
(3)
Subject as follows in this section and the next, the court may, on an application under this section, make an order on such terms as it thinks fit for the vesting of the disclaimed property in, or for its delivery to—
(a)
a person entitled to it or a trustee for such a person,
(b)
a person subject to such a liability as is mentioned in subsection (2)(b) or a trustee for such a person, or
(c)
where the disclaimed property is property in a dwelling house, any person who at the time when the bankruptcy petition was presented was in occupation of or entitled to occupy the dwelling house.
(4)
The court shall not make an order by virtue of subsection (3)(b) except where it appears to the court that it would be just to do so for the purpose of compensating the person subject to the liability in respect of the disclaimer.
(5)
The effect of any order under this section shall be taken into account in assessing for the purposes of section 315(5) the extent of any loss or damage sustained by any person in consequence of the disclaimer.
(6)
An order under this section vesting property in any person need not be completed by any conveyance, assignment or transfer.
321 Order under s. 320 in respect of leaseholds.
(1)
The court shall not make an order under section 320 vesting property of a leasehold nature in any person, except on terms making that person—
(a)
subject to the same liabilities and obligations as the bankrupt was subject to under the lease on the day the bankruptcy petition was presented, or
(b)
if the court thinks fit, subject to the same liabilities and obligations as that person would be subject to if the lease had been assigned to him on that day.
(2)
For the purposes of an order under section 320 relating to only part of any property comprised in a lease, the requirements of subsection (1) apply as if the lease comprised only the property to which the order relates.
(3)
Where subsection (1) applies and no person is willing to accept an order under section 320 on the terms required by that subsection, the court may (by order under section 320) vest the estate or interest in the bankrupt in the property in any person who is liable (whether personally or in a representative capacity and whether alone or jointly with the bankrupt) to perform the lessee’s covenants in the lease.
The court may by virtue of this subsection vest that estate and interest in such a person freed and discharged from all estates, incumbrances and interests created by the bankrupt.
(4)
Where subsection (1) applies and a person declines to accept any order under section 320, that person shall be excluded from all interest in the property.
Distribution of bankrupt’s estate
322 Proof of debts.
(1)
Subject to this section and the next, the proof of any bankruptcy debt by a secured or unsecured creditor of the bankrupt and the admission or rejection of any proof shall take place in accordance with the rules.
(2)
Where a bankruptcy debt bears interest, that interest is provable as part of the debt except in so far as it is payable in respect of any period after the commencement of the bankruptcy.
(3)
The trustee shall estimate the value of any bankruptcy debt which, by reason of its being subject to any contingency or contingencies or for any other reason, does not bear a certain value.
(4)
Where the value of a bankruptcy debt is estimated by the trustee under subsection (3) or, by virtue of section 303 in Chapter III, by the court, the amount provable in the bankruptcy in respect of the debt is the amount of the estimate.
323 Mutual credit and set-off.
(1)
This section applies where before the commencement of the bankruptcy there have been mutual credits, mutual debts or other mutual dealings between the bankruptcy and any creditor of the bankrupt proving or claiming to prove for a bankruptcy debt.
(2)
An account shall be taken of what is due from each party to the other in respect of the mutual dealings and the sums due from one party shall be set off against the sums due from the other.
(3)
Sums due from the bankrupt to another party shall not be included in the account taken under subsection (2) if that other party had notice at the time they became due that a bankruptcy petition relating to the bankrupt was pending.
(4)
Only the balance (if any) of the account taken under subsection (2) is provable as a bankruptcy debt or, as the case may be, to be paid to the trustee as part of the bankrupt’s estate.
324 Distribution by means of dividend.
(1)
Whenever the trustee has sufficient funds in hand for the purpose he shall, subject to the retention of such sums as may be necessary for the expenses of the bankruptcy, declare and distribute dividends among the creditors in respect of the bankruptcy debts which they have respectively proved.
(2)
The trustee shall give notice of his intention to declare and distribute a dividend.
(3)
Where the trustee has declared a dividend, he shall give notice of the dividend and of how it is proposed to distribute it; and a notice given under this subsection shall contain the prescribed particulars of the bankrupt’s estate.
(4)
In the calculation and distribution of a dividend the trustee shall make provision—
(a)
for any bankruptcy debts which appear to him to be due to persons who, by reason of the distance of their place of residence, may not have had sufficient time to tender and establish their proofs,
(b)
for any bankruptcy debts which are the subject of claims which have not yet been determined, and
(c)
for disputed proofs and claims.
325 Claims by unsatisfied creditors.
(1)
A creditor who has not proved his debt before the declaration of any dividend is not entitled to disturb, by reason that he has not participated in it, the distribution of that dividend or any other dividend declared before his debt was proved, but—
(a)
when he has proved that debt he is entitled to be paid, out of any money for the time being available for the payment of any further dividend, any dividend or dividends which he has failed to receive; and
(b)
any dividend or dividends payable under paragraph (a) shall be paid before that money is applied to the payment of any such further dividend.
(2)
No action lies against the trustee for a dividend,but if the trustee refuses to pay a dividend the court may, if it thinks fit, order him to pay it and also to pay, out of his own money—
(a)
interest on the dividend, at the rate for the time being specified in section 17 of the M27JudgmentsAct 1838, from the time it was withheld, and
(b)
the costs of the proceedings in which the order to pay is made.
326 Distribution of property in specie.
(1)
Without prejudice to sections 315 to 319 (disclaimer), the trustee may, with the permission of the creditors’ committee, divide in its existing form amongst the bankrupt’s creditors, according to its estimated value, any property which from its peculiar nature or other special circumstances cannot be readily or advantageously sold.
(2)
A permission given for the purposes of subsection (1) shall not be a general permission but shall relate to a particular proposed exercise of the power in question; and a person dealing with the trustee in good faith and for value is not to be concerned to enquire whether any permission required by subsection (1) has been given.
(3)
Where the trustee has done anything without the permission required by subsection (1), the court or the creditors’ committee may, for the purpose of enabling him to meet his expenses out of the bankrupt’s estate, ratify what the trustee has done.
But the committee shall not do so unless it is satisfied that the trustee acted in a case of urgency and has sought its ratification without undue delay.
F353327 Distribution in criminal bankruptcy.
Where the bankruptcy order was made on a petition under section 264(1)(d) (criminal bankruptcy), no distribution shall be made under sections 324 to 326 so long as an appeal is pending (within the meaning of section 277) against the bankrupt’s conviction of any offence by virtue of which the criminal bankruptcy order on which the petition was based was made.
328 Priority of debts.
(1)
In the distribution of the bankrupt’s estate, his preferential debts (within the meaning given by section 386 in Part XII) shall be paid in priority to other debts.
(2)
Preferential debts rank equally between themselves after the expenses of the bankruptcy and shall be paid in full unless the bankrupt’s estate is insufficient for meeting them, in which case they abate in equal proportions between themselves.
(3)
Debts which are neither preferential debts nor debts to which the next section applies also rank equally between themselves and, after the preferential debts, shall be paid in full unless the bankrupt’s estate is insufficient for meeting them, in which case they abate in equal proportions between themselves.
(4)
Any surplus remaining after the payment of the debts that are preferential or rank equally under subsection (3) shall be applied in paying interest on those debts in respect of the periods during which they have been outstanding since the commencement of the bankruptcy; and interest on preferential debts ranks equally with interest on debts other than preferential debts.
(5)
The rate of interest payable under subsection (4) in respect of any debt is whichever is the greater of the following—
(a)
the rate specified in section 17 of the M28Judgments Act 1838 at the commencement of the bankruptcy, and
(b)
the rate applicable to that debt apart from the bankruptcy.
(6)
This section and the next are without prejudice to any provision of this Act or any other Act under which the payment of any debt or the making of any other payment is, in the event of bankruptcy, to have a particular priority or to be postponed.
329 Debts to spouse.
(1)
(2)
Such debts—
(a)
rank in priority after the debts and interest required to be paid in pursuance of section 328(3) and (4), and
(b)
are payable with interest at the rate specified in section 328(5) in respect of the period during which they have been outstanding since the commencement of the bankruptcy;
and the interest payable under paragraph (b) has the same priority as the debts on which it is payable.
330 Final distribution.
(1)
When the trustee has realised all the bankrupt’s estate or so much of it as can, in the trustee’s opinion, be realised without needlessly protracting the trusteeship, he shall give notice in the prescribed manner either—
(a)
of his intention to declare a final dividend, or
(b)
that no dividend, or further dividend, will be declared.
(2)
The notice under subsection (1) shall contain the prescribed particulars and shall require claims against the bankrupt’s estate to be established by a date (“the final date”) specified in the notice.
(3)
The court may, on the application of any person, postpone the final date.
(4)
After the final date, the trustee shall—
(a)
defray any outstanding expenses of the bankruptcy out of the bankrupt’s estate, and
(b)
if he intends to declare a final dividend, declare and distribute that dividend without regard to the claim of any person in respect of a debt not already proved in the bankruptcy.
(5)
If a surplus remains after payment in full and with interest of all the bankrupt’s creditors and the payment of the expenses of the bankruptcy, the bankrupt is entitled to the surplus.
F355(6)
Subsection (5) is subject to Article 35 of the EC Regulation (surplus in secondary proceedings to be transferred to main proceedings).
331 Final meeting.
(1)
Subject as follows in this section and the next, this section applies where—
(a)
it appears to the trustee that the administration of the bankrupt’s estate in accordance with this Chapter is for practical purposes complete, and
(b)
the trustee is not the official receiver.
(2)
The trustee shall summon a final general meeting of the bankrupt’s creditors which—
(a)
shall receive the trustee’s report of his administration of the bankrupt’s estate, and
(b)
shall determine whether the trustee should have his release under section 299 in Chapter III.
(3)
The trustee may, if he thinks fit, give the notice summoning the final general meeting at the same time as giving notice under section 330(1); but, if summoned for an earlier date, that meeting shall be adjourned (and, if necessary, further adjourned) until a date on which the trustee is able to report to the meeting that the administration of the bankrupt’s estate is for practical purposes complete.
(4)
In the administration of the estate it is the trustee’s duty to retain sufficient sums from the estate to cover the expenses of summoning and holding the meeting required by this section.
332 Saving for bankrupt’s home.
(1)
This section applies where—
(a)
there is comprised in the bankrupt’s estate property consisting of an interest in a dwelling house which is occupied by the bankrupt or by his spouse or former spouse F356or by his civil partner or former civil partner, and
(b)
the trustee has been unable for any reason to realise that property.
(2)
The trustee shall not summon a meeting under section 331 unless either—
(a)
the court has made an order under section 313 imposing a charge on that property for the benefit of the bankrupt’s estate, or
(b)
the court has declined, on an application under that section, to make such an order, or
(c)
the Secretary of State has issued a certificate to the trustee stating that it would be inappropriate or inexpedient for such an application to be made in the case in question.
Supplemental
333 Duties of bankrupt in relation to trustee.
(1)
The bankrupt shall—
(a)
give to the trustee such information as to his affairs,
(b)
attend on the trustee at such times, and
(c)
do all such other things,
as the trustee may for the purposes of carrying out his functions under any of this Group of Parts reasonably require.
(2)
Where at any time after the commencement of the bankruptcy any property is acquired by, or devolves upon, the bankrupt or there is an increase of the bankrupt’s income, the bankrupt shall, within the prescribed period, give the trustee notice of the property or, as the case may be, of the increase.
(3)
Subsection (1) applies to a bankrupt after his discharge.
(4)
If the bankrupt without reasonable excuse fails to comply with any obligation imposed by this section, he is guitly of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which he may be subject).
334 Stay of distribution in case of second bankruptcy.
(1)
This section and the next apply where a bankruptcy order is made against an undischarged bankrupt; and in both sections—
(a)
“the later bankruptcy” means the bankruptcy arising from that order,
(b)
“the earlier bankruptcy” means the bankruptcy (or, as the case may be, most recent bankruptcy) from which the bankrupt has not been discharged at the commencement of the later bankruptcy, and
(c)
“the existing trustee” means the trustee (if any) of the bankrupt’s estate for the purposes of the earlier bankruptcy.
(2)
Where the existing trustee has been given the prescribed notice of the presentation of the petition of the later bankruptcy, any distribution or other disposition by him of anything to which the next subsection applies, if made after the giving of the notice, is void except to the extent that it was made with the consent of the court or is or was subsequently ratified by the court.
This is without prejudice to section 284 (restrictions on dispositions of property following bankruptcy order).
(3)
This subsection applies to—
(a)
any property which is vested in the existing trustee under section 307(3) (after-acquired property);
(b)
any money paid to the existing trustee in pursuance of an income payments order under section 310; and
(c)
any property or money, which is, or in the hands of the existing trustee represents, the proceeds of sale or application of property or money falling within paragraph (a) or (b) of this subsection.
335 Adjustment between earlier and later bankruptcy estates.
(1)
With effect from the commencement of the later bankruptcy anthing to which section 334(3) applies which, immediately before the commencement of that bankruptcy, is comprised in the bankrupt’s estate for the purposes of the earlier bankruptcy is to be treated as comprised in the bankrupt’s estate for the purposes of the later bankruptcy and, until there is a trustee of that estate, is to be dealt with by the existing trustee in accordance with the rules.
(2)
Any sums which in pursuance of an income payments order under section 310 are payable after the commencement of the later bankruptcy to the existing trustee shall form part of the bankrupt’s estate for the purposes of the later bankruptcy; and the court may give such consequential directions for the modification of the order as it thinks fit.
(3)
Anything comprised in a bankrupt’s estate by virtue of subsection (1) or (2) is so comprised subject to a first charge in favour of the existing trustee for any bankruptcy expenses incurred by him in relation thereto.
(4)
Except as provided above and in section 334, property which is, or by virtue of section 308 (personal property of bankrupt exceeding reasonable replacement value) F357or section 308A (vesting in trustee of certain tenancies) is capable of being, comprised in the bankrupt’s estate for the purposes of the earlier bankruptcy, or of any bankruptcy prior to it, shall not be comprised in his estate for the purposes of the later bankruptcy.
(5)
The creditors of the bankrupt in the earlier bankruptcy and the creditors of the bankrupt in any bankruptcy prior to the earlier one, are not to be creditors of his in the later bankruptcy in respect of the same debts; but the existing trustee may prove in the later bankruptcy for—
(a)
the unsatisfied balance of the debts (including any debt under this subsection) provable against the bankrupt’s estate in the earlier bankruptcy;
(b)
any interest payable on that balance; and
(c)
any unpaid expenses of the earlier bankruptcy.
(6)
Any amount provable under subsection (5) ranks in priority after all the other debts provable in the later bankruptcy and after interest on those debts and, accordingly, shall not be paid unless those debts and that interest have first been paid in full.
Chapter V Effect of Bankruptcy on Certain Rights Transacttions, Etc.
F358 Rights under trusts of land
F359335A Rights under trusts of land.
(1)
Any application by a trustee of a bankrupt’s estate under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 (powers of court in relation to trusts of land) for an order under that section for the sale of land shall be made to the court having jurisdiction in relation to the bankruptcy.
(2)
On such an application the court shall make such order as it thinks just and reasonable having regard to—
(a)
the interests of the bankrupt’s creditors;
(b)
where the application is made in respect of land which includes a dwelling house which is or has been the home of the bankrupt or the F360bankrupt’s spouse or civil partner or former spouse or former civil partner—
(i)
the conduct of the F361spouse, civil partner, former spouse or former civil partner, so far as contributing to the bankruptcy,
(ii)
the needs and financial resources of the F361spouse, civil partner, former spouse or former civil partner, and
(iii)
the needs of any children; and
(c)
all the circumstances of the case other than the needs of the bankrupt.
(3)
Where such an application is made after the end of the period of one year beginning with the first vesting under Chapter IV of this Part of the bankrupt’s estate in a trustee, the court shall assume, unless the circumstances of the case are exceptional, that the interests of the bankrupt’s creditors outweigh all other considerations.
(4)
The powers conferred on the court by this section are exercisable on an application whether it is made before or after the commencement of this section.
Rights of occupation
336 Rights of occupation etc. of bankrupt’s spouse F362or civil partner.
(1)
Nothing occurring in the initial period of the bankruptcy (that is to say, the period beginning with the day of the presentation of the petition for the bankruptcy order and ending with the vesting of the bankrupt’s estate in a trustee) is to be taken as having given rise to any F363F364home rights under Part IV of the Family Law Act 1996 in relation to a dwelling house comprised in the bankrupt’s estate.
(2)
Where F365a spouse’s or civil partner’s home rightsF366under the Act of 1996 are a charge on the estate or interest of the other spouse F367or civil partner, or of trustees for the other spouse F367or civil partner, and the other spouse F367or civil partner is adjudged bankrupt—
(a)
the charge continues to subsist notwithstanding the bankruptcy and, subject to the provisions of that Act, binds the trustee of the bankrupts’s estate and persons deriving title under the trustee, and
(b)
any application for an order F368under section 33 of that Act shall be made to the court having jurisdiction in relation to the bankruptcy.
F369(3)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4)
On such an application as is mentioned in subsection (2) F370. . . the court shall make such order under F371section 33 of the Act of 1996. . . as it thinks just and reasonable having regard to—
(a)
the interests of the bankrupt’s creditors,
(b)
the conduct of the spouse or former spouse F372or civil partner or former civil partner, so far as contributing to the bankruptcy,
(c)
the needs and financial resources of the spouse or former spouse F372or civil partner or former civil partner,
(d)
the needs of any children, and
(e)
all the circumstances of the case other than the needs of the bankrupt.
(5)
Where such an application is made after the end of the period of one year beginning with the first vesting under Chapter IV of this Part of the bankrupt’s estate in a trustee, the court shall assume, unless the circumstances of the case are exceptional, that the interests of the bankrupt’s creditors outweigh all other considerations.
337 Rights of occupation of bankrupt.
(1)
This section applies where—
(a)
a person who is entitled to occupy a dwelling house by virtue of a beneficial estate or interest is adjudged bankrupt, and
(b)
any persons under the age of 18 with whom that person had at some time occupied that dwelling house had their home with that person at the time when the bankruptcy petition was presented and at the commencement of the bankruptcy.
(2)
Whether or not the bankrupt’s F373spouse or civil partner (if any) has home rightsF374under Part IV of the Family Law Act 1996—
(a)
the bankrupt has the followng rights as against the trustee of his estate—
(i)
if in occupation, a right not to be evicted or excluded from the dwelling house or any part of it, except with the leave of the court,
(ii)
if not in occupation, a right with the leave of the court to enter into and occupy the dwelling house, and
(b)
the bankrupt’s rights are a charge, having the like priority as an equitable interest created immediately before the commencement of the bankruptcy, on so much of his estate or interest in the dwelling house as vests in the trustee.
F375(3)
The Act of 1996 has effect, with the necessary modifications, as if—
(a)
the rights conferred by paragraph (a) of subsection (2) were F376home rights under that Act,
(b)
any application for such leave as is mentioned in that paragraph were an application for an order under section 33 of that Act, and
(c)
any charge under paragraph (b) of that subsection on the estate or interest of the trustee were a charge under that Act on the estate or interest of a spouse F377or civil partner.
(4)
Any application for leave such as is mentioned in subsection (2)(a) or otherwise by virtue of this section for an order under F378section 33 of the Act of 1996 shall be made to the court having jurisdiction in relation to the bankruptcy.
(5)
On such an application the court shall make such order under F378section 33 of the Act of 1996 as it thinks just and reasonable having regard to the interests of the creditors, to the bankrupt’s financial resources, to the needs of the children and to all the circumstances of the case other than the needs of the bankrupt.
(6)
Where such an application is made after the end of the period of one year beginning with the first vesting (under Chapter IV of this Part) of the bankrupt’s estate in a trustee, the court shall assume, unless the circumstances of the case are exceptional, that the interests of the bankrupt’s creditors outweigh all other considerations.
338 Payments in respect of premises occupied by bankrupt.
Where any premises comprised in a bankrupt’s estate are occupied by him (whether by virtue of the preceding section or otherwise) on condition that he makes payments towards satisfying any liability arising under a mortgage of the premises or otherwise towards the outgoings of the premises, the bankrupt does not, by virtue of those payments, acquire any interest in the premises.
Adjustment of prior transactions, etc.
339 Transactions at an undervalue.
(1)
Subject as follows in this section and sections 341 and 342, where an individual is adjudged bankrupt and he has at a relevant time (defined in section 341) entered into a transaction with any person at an undervalue, the trustee of the bankrupt’s estate may apply to the court for an order under this section.
(2)
The court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if that individual had not entered into that transaction.
(3)
For the purposes of this section and sections 341 and 342, an individual enters into a transaction with a person at an undervalue if—
(a)
he makes a gift to that person or he otherwise enters into a transaction with that person on terms that provide for him to receive no consideration,
(b)
he enters into a transaction with that person in consideration of marriage F379or the formation of a civil partnership, or
(c)
he enters into a transaction with that person for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the individual.
340 Preferences.
(1)
Subject as follows in this and the next two sections, where an individual is adjudged bankrupt and he has at a relevant time (defined in section 341) given a preference to any person, the trustee of the bankrupt’s estate may apply to the court for an order under this section.
(2)
The court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if that individual had not given that preference.
(3)
For the purposes of this and the next two sections, an individual gives a preference to a person if—
(a)
that person is one of the individual’s creditors or a surety or guarantor for any of his debts or other liabilities, and
(b)
the individual does anything or suffers anything to be done which (in either case) has the effect of putting that person into a position which, in the event of the individual’s bankruptcy, will be better than the position he would have been in if that thing had not been done.
(4)
The court shall not make an order under this section in respect of a preference given to any person unless the individual who gave the preference was influenced in deciding to give it by a desire to produce in relation to that person the effect mentioned in subsection (3)(b) above.
(5)
An individual who has given a preference to a person who, at the time the preference was given, was an associate of his (otherwise than by reason only of being his employee) is presumed, unless the contrary is shown, to have been influenced in deciding to give it by such a desire as is mentioned in subsection (4).
(6)
The fact that something has been done in pursuance of the order of a court does not, without more, prevent the doing or suffering of that thing from constituting the giving of a preference.
341“Relevant time” under ss. 339, 340.
(1)
Subject as follows, the time at which an individual enters into a transaction at an undervalue or gives a preference is a relevant time if the transaction is entered into or the preference given—
(a)
in the case of a transaction at an undervalue, at a time in the period of 5 years ending with the day of the presentation of the bankruptcy petition on which the individual is adjudged bankrupt,
(b)
in the case of a preference which is not a transaction at an undervalue and is given to a person who is an associate of the individual (otherwise than by reason only of being his employee), at a time in the period of 2 years ending with that day, and
(c)
in any other case of a preference which is not a transaction at an undervalue, at a time in the period of 6 months ending with that day.
(2)
Where an individual enters into a transaction at an undervalue or gives a preference at a time mentioned in paragraph (a), (b) or (c) of subsection (1) (not being, in the case of a transaction at an undervalue, a time less than 2 years before the end of the period mentioned in paragraph (a)), that time is not a relevant time for the purposes of sections 339 and 340 unless the individual—
(a)
is insolvent at that time, or
(b)
becomes insolvent in consequence of the transaction or preference;
but the requirements of this subsection are presumed to be satisfied, unless the contrary is shown, in relation to any transaction at an undervalue which is entered into by an individual with a person who is an associate of his (otherwise than by reason only of being his employee).
(3)
For the purposes of subsection (2), an individual is insolvent if—
(a)
he is unable to pay his debts as they fall due, or
(b)
the value of his assets is less than the amount of his liabilities, taking into account his contingent and prospective liabilities.
F380(4)
A transaction entered into or preference given by a person who is subsequently adjudged bankrupt on a petition under section 264(1)(d) (criminal bankruptcy) is to be treated as having been entered into or given at a relevant time for the purposes of sections 339 and 340 if it was entered into or given at any time on or after the date specified for the purposes of this subsection in the criminal bankruptcy order on which the petition was based.
F380(5)
No order shall be made under section 339 or 340 by virtue of subsection (4) of this section where an appeal is pending (within the meaning of section 277) against the individual’s conviction of any offence by virtue of which the criminal bankruptcy order was made.
342 Orders under ss. 339, 340.
(1)
Without prejudice to the generality of section 339(2) or 340(2), an order under either of those sections with respect to a transaction or preference entered into or given by an individual who is subsequently adjudged bankrupt may (subject as follows)—
(a)
require any property transferred as part of the transaction, or in connection with the giving of the preference, to be vested in the trustee of the bankrupt’s estate as part of that estate;
(b)
require any property to be so vested it if represents in any person’s hands the application either of the proceeds of sale of property so transferred or of money so transferred;
(c)
release or discharge (in whole or in part) any security given by the individual;
(d)
require any person to pay, in respect of benefits received by him from the individual, such sums to the trustee of his estate as the court may direct;
(e)
provide for any surety or guarantor whose obligations to any person were released or discharged (in whole or in part) under the transaction or by the giving of the preference to be under such new or revived obligations to that person as the court thinks appropriate;
(f)
provide for security to be provided for the discharge of any obligation imposed by or arising under the order, for such an obligation to be charged on any property and for the security or charge to have the same priority as a security or charge released or discharged (in whole or in part) under the transaction or by the giving of the preference; and
(g)
provide for the extent to which any person whose property is vested by the order in the trustee of the bankrupt’s estate, or on whom obligations are imposed by the order, is to be able to prove in the bankruptcy for debts or other liabilities which arose from, or were released or discharged (in whole or in part) under or by, the transaction or the giving of the preference.
(2)
An order under section 339 or 340 may affect the property of, or impose any obligation on, any person whether or not he is the person with whom the individual in question entered into the transaction or, as the case may be the person to whom the preference was given; but such an order—
(a)
shall not prejudice any interest in property which was acquired from a person other than that individual and was acquired F381in good faith and for value, or prejudice any interest deriving from such an interest, and
(b)
shall not require a person who received a benefit from the transaction or preference F381in good faith and for value to pay a sum to the trustee of the bankrupt’s estate except where he was a party to the transaction or the payment is to be in respect of a preference given to that person at a time when he was a creditor of that individual.
F382(2A)
Where a person has acquired an interest in property from a person other than the individual in question, or has received a benefit from the transaction or preference, and at the time of that acquisition or receipt—
(a)
he had notice of the relevant surrounding circumstances and of the relevant proceedings, or
(b)
he was an associate of, or was connected with, either the individual in question or the person with whom that individual entered into the transaction or to whom that individual gave the preference,
then, unless the contrary is shown, it shall be presumed for the purposes of paragraph (a) or (as the case may be) paragraph (b) of subsection (2) that the interest was acquired or the benefit was received otherwise than in good faith.
(3)
Any sums required to be paid to the trustee in accordance with an order under section 339 or 340 shall be comprised in the bankrupt’s estate.
F383(4)
For the purposes of subsection (2A)(a), the relevant surrounding circumstances are (as the case may require)—
(a)
the fact that the individual in question entered into the transaction at an undervalue; or
(b)
the circumstances which amounted to the giving of the preference by the individual in question.
(5)
For the purposes of subsection (2A)(a), a person has notice of the relevant proceedings if he has notice—
(a)
of the fact that the petition on which the individual in question is adjudged bankrupt has been presented; or
(b)
of the fact that the individual in question has been adjudged bankrupt.
(6)
Section 249 in Part VII of this Act shall apply for the purposes of subsection (2A)(b) as it applies for the purposes of the first Group of Parts.
F384F385342A Recovery of excessive pension contributions.
(1)
Where an individual who is adjudged bankrupt—
(a)
has rights under an approved pension arrangement, or
(b)
has excluded rights under an unapproved pension arrangement,
the trustee of the bankrupt’s estate may apply to the court for an order under this section.
(2)
If the court is satisfied—
(a)
that the rights under the arrangement are to any extent, and whether directly or indirectly, the fruits of relevant contributions, and
(b)
that the making of any of the relevant contributions (“the excessive contributions”) has unfairly prejudiced the individual’s creditors,
the court may make such order as it thinks fit for restoring the position to what it would have been had the excessive contributions not been made.
(3)
Subsection (4) applies where the court is satisfied that the value of the rights under the arrangement is, as a result of rights of the individual under the arrangement or any other pension arrangement having at any time become subject to a debit under section 29(1)(a) of the Welfare Reform and Pensions Act 1999 (debits giving effect to pension-sharing), less than it would otherwise have been.
(4)
Where this subsection applies—
(a)
any relevant contributions which were represented by the rights which became subject to the debit shall, for the purposes of subsection (2), be taken to be contributions of which the rights under the arrangement are the fruits, and
(b)
where the relevant contributions represented by the rights under the arrangement (including those so represented by virtue of paragraph (a)) are not all excessive contributions, relevant contributions which are represented by the rights under the arrangement otherwise than by virtue of paragraph (a) shall be treated as excessive contributions before any which are so represented by virtue of that paragraph.
(5)
In subsections (2) to (4) “relevant contributions” means contributions to the arrangement or any other pension arrangement—
(a)
which the individual has at any time made on his own behalf, or
(b)
which have at any time been made on his behalf.
(6)
The court shall, in determining whether it is satisfied under subsection (2)(b), consider in particular—
(a)
whether any of the contributions were made for the purpose of putting assets beyond the reach of the individual’s creditors or any of them, and
(b)
whether the total amount of any contributions—
(i)
made by or on behalf of the individual to pension arrangements, and
(ii)
represented (whether directly or indirectly) by rights under approved pension arrangements or excluded rights under unapproved pension arrangements,
is an amount which is excessive in view of the individual’s circumstances when those contributions were made.
(7)
For the purposes of this section and sections 342B and 342C (“the recovery provisions”), rights of an individual under an unapproved pension arrangement are excluded rights if they are rights which are excluded from his estate by virtue of regulations under section 12 of the Welfare Reform and Pensions Act 1999.
(8)
In the recovery provisions—
“approved pension arrangement” has the same meaning as in section 11 of the Welfare Reform and Pensions Act 1999;
“unapproved pension arrangement” has the same meaning as in section 12 of that Act.
F386F387342B Orders under section 342A.
(1)
Without prejudice to the generality of section 342A(2), an order under section 342A may include provision—
(a)
requiring the person responsible for the arrangement to pay an amount to the individual’s trustee in bankruptcy,
(b)
adjusting the liabilities of the arrangement in respect of the individual,
(c)
adjusting any liabilities of the arrangement in respect of any other person that derive, directly or indirectly, from rights of the individual under the arrangement,
(d)
for the recovery by the person responsible for the arrangement (whether by deduction from any amount which that person is ordered to pay or otherwise) of costs incurred by that person in complying in the bankrupt’s case with any requirement under section 342C(1) or in giving effect to the order.
(2)
In subsection (1), references to adjusting the liabilities of the arrangement in respect of a person include (in particular) reducing the amount of any benefit or future benefit to which that person is entitled under the arrangement.
(3)
In subsection (1)(c), the reference to liabilities of the arrangement does not include liabilities in respect of a person which result from giving effect to an order or provision falling within section 28(1) of the Welfare Reform and Pensions Act 1999 (pension sharing orders and agreements).
(4)
The maximum amount which the person responsible for an arrangement may be required to pay by an order under section 342A is the lesser of—
(a)
the amount of the excessive contributions, and
(b)
the value of the individual’s rights under the arrangement (if the arrangement is an approved pension arrangement) or of his excluded rights under the arrangement (if the arrangement is an unapproved pension arrangement).
(5)
An order under section 342A which requires the person responsible for an arrangement to pay an amount (“the restoration amount”) to the individual’s trustee in bankruptcy must provide for the liabilities of the arrangement to be correspondingly reduced.
(6)
For the purposes of subsection (5), liabilities are correspondingly reduced if the difference between—
(a)
the amount of the liabilities immediately before the reduction, and
(b)
the amount of the liabilities immediately after the reduction,
is equal to the restoration amount.
(7)
An order under section 342A in respect of an arrangement—
(a)
shall be binding on the person responsible for the arrangement, and
(b)
overrides provisions of the arrangement to the extent that they conflict with the provisions of the order.
F388F389342C Orders under section 342A: supplementary.
(1)
The person responsible for—
(a)
an approved pension arrangement under which a bankrupt has rights,
(b)
an unapproved pension arrangement under which a bankrupt has excluded rights, or
(c)
a pension arrangement under which a bankrupt has at any time had rights,
shall, on the bankrupt’s trustee in bankruptcy making a written request, provide the trustee with such information about the arrangement and rights as the trustee may reasonably require for, or in connection with, the making of applications under section 342A.
(2)
Nothing in—
(a)
any provision of section 159 of the Pension Schemes Act 1993 or section 91 of the Pensions Act 1995 (which prevent assignment and the making of orders that restrain a person from receiving anything which he is prevented from assigning),
(b)
any provision of any enactment (whether passed or made before or after the passing of the Welfare Reform and Pensions Act 1999) corresponding to any of the provisions mentioned in paragraph (a), or
(c)
any provision of the arrangement in question corresponding to any of those provisions,
applies to a court exercising its powers under section 342A.
(3)
Where any sum is required by an order under section 342A to be paid to the trustee in bankruptcy, that sum shall be comprised in the bankrupt’s estate.
(4)
Regulations may, for the purposes of the recovery provisions, make provision about the calculation and verification of—
(a)
any such value as is mentioned in section 342B(4)(b);
(b)
any such amounts as are mentioned in section 342B(6)(a) and (b).
(5)
The power conferred by subsection (4) includes power to provide for calculation or verification—
(a)
in such manner as may, in the particular case, be approved by a prescribed person; or
F390(b)
in accordance with guidance from time to time prepared by a prescribed person.
(6)
References in the recovery provisions to the person responsible for a pension arrangement are to—
(a)
the trustees, managers or provider of the arrangement, or
(b)
the person having functions in relation to the arrangement corresponding to those of a trustee, manager or provider.
(7)
In this section and sections 342A and 342B—
“prescribed” means prescribed by regulations;
“the recovery provisions” means this section and sections 342A and 342B;
“regulations” means regulations made by the Secretary of State.
(8)
Regulations under the recovery provisions may—
(a)
make different provision for different cases;
(b)
contain such incidental, supplemental and transitional provisions as appear to the Secretary of State necessary or expedient.
(9)
Regulations under the recovery provisions shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
F391342D Recovery of excessive contributions in pension-sharing cases.
(1)
For the purposes of sections 339, 341 and 342, a pension-sharing transaction shall be taken—
(a)
to be a transaction, entered into by the transferor with the transferee, by which the appropriate amount is transferred by the transferor to the transferee; and
(b)
to be capable of being a transaction entered into at an undervalue only so far as it is a transfer of so much of the appropriate amount as is recoverable.
(2)
For the purposes of sections 340 to 342, a pension-sharing transaction shall be taken—
(a)
to be something (namely a transfer of the appropriate amount to the transferee) done by the transferor; and
(b)
to be capable of being a preference given to the transferee only so far as it is a transfer of so much of the appropriate amount as is recoverable.
(3)
If on an application under section 339 or 340 any question arises as to whether, or the extent to which, the appropriate amount in the case of a pension-sharing transaction is recoverable, the question shall be determined in accordance with subsections (4) to (8).
(4)
The court shall first determine the extent (if any) to which the transferor’s rights under the shared arrangement at the time of the transaction appear to have been (whether directly or indirectly) the fruits of contributions (“personal contributions”)—
(a)
which the transferor has at any time made on his own behalf, or
(b)
which have at any time been made on the transferor’s behalf,
to the shared arrangement or any other pension arrangement.
(5)
Where it appears that those rights were to any extent the fruits of personal contributions, the court shall then determine the extent (if any) to which those rights appear to have been the fruits of personal contributions whose making has unfairly prejudiced the transferor’s creditors (“the unfair contributions”).
(6)
If it appears to the court that the extent to which those rights were the fruits of the unfair contributions is such that the transfer of the appropriate amount could have been made out of rights under the shared arrangement which were not the fruits of the unfair contributions, then the appropriate amount is not recoverable.
(7)
If it appears to the court that the transfer could not have been wholly so made, then the appropriate amount is recoverable to the extent to which it appears to the court that the transfer could not have been so made.
(8)
In making the determination mentioned in subsection (5) the court shall consider in particular—
(a)
whether any of the personal contributions were made for the purpose of putting assets beyond the reach of the transferor’s creditors or any of them, and
(b)
whether the total amount of any personal contributions represented, at the time the pension-sharing transaction was made, by rights under pension arrangements is an amount which is excessive in view of the transferor’s circumstances when those contributions were made.
(9)
In this section and sections 342E and 342F—
“appropriate amount”, in relation to a pension-sharing transaction, means the appropriate amount in relation to that transaction for the purposes of section 29(1) of the Welfare Reform and Pensions Act 1999 (creation of pension credits and debits);
“pension-sharing transaction” means an order or provision falling within section 28(1) of the Welfare Reform and Pensions Act 1999 (orders and agreements which activate pension-sharing);
“”, in relation to a pension-sharing transaction, means the pension arrangement to which the transaction relates;
“transferee”, in relation to a pension-sharing transaction, means the person for whose benefit the transaction is made;
“transferor”, in relation to a pension-sharing transaction, means the person to whose rights the transaction relates.
F392342E Orders under section 339 or 340 in respect of pension-sharing transactions.
(1)
This section and section 342F apply if the court is making an order under section 339 or 340 in a case where—
(a)
the transaction or preference is, or is any part of, a pension-sharing transaction, and
(b)
the transferee has rights under a pension arrangement (“the destination arrangement”, which may be the shared arrangement or any other pension arrangement) that are derived, directly or indirectly, from the pension-sharing transaction.
(2)
Without prejudice to the generality of section 339(2) or 340(2), or of section 342, the order may include provision—
(a)
requiring the person responsible for the destination arrangement to pay an amount to the transferor’s trustee in bankruptcy,
(b)
adjusting the liabilities of the destination arrangement in respect of the transferee,
(c)
adjusting any liabilities of the destination arrangement in respect of any other person that derive, directly or indirectly, from rights of the transferee under the destination arrangement,
(d)
for the recovery by the person responsible for the destination arrangement (whether by deduction from any amount which that person is ordered to pay or otherwise) of costs incurred by that person in complying in the transferor’s case with any requirement under section 342F(1) or in giving effect to the order,
(e)
for the recovery, from the transferor’s trustee in bankruptcy, by the person responsible for a pension arrangement, of costs incurred by that person in complying in the transferor’s case with any requirement under section 342F(2) or (3).
(3)
In subsection (2), references to adjusting the liabilities of the destination arrangement in respect of a person include (in particular) reducing the amount of any benefit or future benefit to which that person is entitled under the arrangement.
(4)
The maximum amount which the person responsible for the destination arrangement may be required to pay by the order is the smallest of—
(a)
so much of the appropriate amount as, in accordance with section 342D, is recoverable,
(b)
so much (if any) of the amount of the unfair contributions (within the meaning given by section 342D(5)) as is not recoverable by way of an order under section 342A containing provision such as is mentioned in section 342B(1)(a), and
(c)
the value of the transferee’s rights under the destination arrangement so far as they are derived, directly or indirectly, from the pension-sharing transaction.
(5)
If the order requires the person responsible for the destination arrangement to pay an amount (“the restoration amount”) to the transferor’s trustee in bankruptcy it must provide for the liabilities of the arrangement to be correspondingly reduced.
(6)
For the purposes of subsection (5), liabilities are correspondingly reduced if the difference between—
(a)
the amount of the liabilities immediately before the reduction, and
(b)
the amount of the liabilities immediately after the reduction,
is equal to the restoration amount.
(7)
The order—
(a)
shall be binding on the person responsible for the destination arrangement, and
(b)
overrides provisions of the destination arrangement to the extent that they conflict with the provisions of the order.
F393342F Orders under section 339 or 340 in pension-sharing cases: supplementary.
(1)
On the transferor’s trustee in bankruptcy making a written request to the person responsible for the destination arrangement, that person shall provide the trustee with such information about—
(a)
the arrangement,
(b)
the transferee’s rights under it, and
(c)
where the destination arrangement is the shared arrangement, the transferor’s rights under it,
as the trustee may reasonably require for, or in connection with, the making of applications under sections 339 and 340.
(2)
Where the shared arrangement is not the destination arrangement, the person responsible for the shared arrangement shall, on the transferor’s trustee in bankruptcy making a written request to that person, provide the trustee with such information about—
(a)
the arrangement, and
(b)
the transferor’s rights under it,
as the trustee may reasonably require for, or in connection with, the making of applications under sections 339 and 340.
(3)
On the transferor’s trustee in bankruptcy making a written request to the person responsible for any intermediate arrangement, that person shall provide the trustee with such information about—
(a)
the arrangement, and
(b)
the transferee’s rights under it,
as the trustee may reasonably require for, or in connection with, the making of applications under sections 339 and 340.
(4)
In subsection (3) “intermediate arrangement” means a pension arrangement, other than the shared arrangement or the destination arrangement, in relation to which the following conditions are fulfilled—
(a)
there was a time when the transferee had rights under the arrangement that were derived (directly or indirectly) from the pension-sharing transaction, and
(b)
the transferee’s rights under the destination arrangement (so far as derived from the pension-sharing transaction) are to any extent derived (directly or indirectly) from the rights mentioned in paragraph (a).
(5)
Nothing in—
(a)
any provision of section 159 of the M29Pension Schemes Act 1993 or section 91 of the M30Pensions Act 1995 (which prevent assignment and the making of orders which restrain a person from receiving anything which he is prevented from assigning),
(b)
any provision of any enactment (whether passed or made before or after the passing of the Welfare Reform and Pensions Act 1999) corresponding to any of the provisions mentioned in paragraph (a), or
(c)
any provision of the destination arrangement corresponding to any of those provisions,
applies to a court exercising its powers under section 339 or 340.
(6)
Regulations may, for the purposes of sections 339 to 342, sections 342D and 342E and this section, make provision about the calculation and verification of—
(a)
any such value as is mentioned in section 342E(4)(c);
(b)
any such amounts as are mentioned in section 342E(6)(a) and (b).
(7)
The power conferred by subsection (6) includes power to provide for calculation or verification—
(a)
in such manner as may, in the particular case, be approved by a prescribed person; or
F394(b)
in accordance with guidance from time to time prepared by a prescribed person.
(8)
In section 342E and this section, references to the person responsible for a pension arrangement are to—
(a)
the trustees, managers or provider of the arrangement, or
(b)
the person having functions in relation to the arrangement corresponding to those of a trustee, manager or provider.
(9)
In this section—
“prescribed” means prescribed by regulations;
“regulations” means regulations made by the Secretary of State.
(10)
Regulations under this section may—
(a)
make different provision for different cases;
(b)
contain such incidental, supplemental and transitional provisions as appear to the Secretary of State necessary or expedient.
(11)
Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
343 Extortionate credit transactions.
(1)
This section applies where a person is adjudged bankrupt who is or has been a party to a transaction for, or involving, the provision to him of credit.
(2)
The court may, on the application of the trustee of the bankrupt’s estate, make an order with respect to the transaction if the transaction is or was extortionate and was not entered into more than 3 years before the commencement of the bankruptcy.
(3)
For the purposes of this section a transaction is extortionate if, having regard to the risk accepted by the person providing the credit—
(a)
the terms of it are or were such as to require grossly exorbitant payments to be made (whether unconditionally or in certain contingencies) in respect of the provision of the credit, or
(b)
it otherwise grossly contravened ordinary principles of fair dealing;
and it shall be presumed, unless the contrary is proved, that a transaction, with respect to which an application is made under this section is or, as the case may be, was extortionate.
(4)
An order under this section with respect to any transaction may contain such one or more of the following as the court thinks fit, that is to say—
(a)
provision setting aside the whole or part of any obligation created by the transaction;
(b)
provision otherwise varying the terms of the transaction or varying the terms on which any security for the purposes of the transaction is held;
(c)
provision requiring any person who is or was party to the transaction to pay to the trustee any sums paid to that person, by virtue of the transaction, by the bankrupt;
(d)
provision requiring any person to surrender to the trustee any property held by him as security for the purposes of the transaction;
(e)
provision directing accounts to be taken between any persons.
(5)
Any sums or property required to be paid or surrendered to the trustee in accordance with an order under this section shall be comprised in the bankrupt’s estate.
(6)
344 Avoidance of general assignment of book debts.
(1)
The following applies where a person engaged in any business makes a general assignment to another person of his existing or future book debts, or any class of them, and is subsequently adjudged bankrupt.
(2)
The assignment is void against the trustee of the bankrupt’s estate as regards book debts which were not paid before the presentation of the bankruptcy petition, unless the assignment has been registered under the M31Bills of Sale Act 1878.
(3)
For the purposes of subsections (1) and (2)—
(a)
“assignment” includes an assignment by way of security or charge on book debts, and
(b)
“general assignment” does not include—
(i)
an assignment of book debts due at the date of the assignment from specified debtors or of debts becoming due under specified contracts, or
(ii)
an assignment of book debts included either in a transfer of a business made in good faith and for value or in an assignment of assets for the benefit of creditors generally.
(4)
For the purposes of registration under the Act of 1878 an assignment of book debts is to be treated as if it were a bill of sale given otherwise than by way of security for the payment of a sum of money; and the provisions of that Act with respect to the registration of bills of sale apply accordingly with such necessary modifications as may be made by rules under that Act.
345 Contracts to which bankrupt is a party.
(1)
The following applies where a contract has been made with a person who is subsequently adjudged bankrupt.
(2)
The court may, on the application of any other paty to the contract, make an order discharging obligations under the contract on such terms as to payment by the applicant or the bankrupt of damages for non-performance or otherwise as appear to the court to be equitable.
(3)
Any damages payable by the bankrupt by virtue of an order of the court under this section are provable as a bankruptcy debt.
(4)
Where an undischarged bankrupt is a contractor in respect of any contract jointly with any person, that person may sue or be sued in respect of the contract without the joinder of the bankrupt.
346 Enforcement procedures.
(1)
Subject to section 285 in Chapter II (restriction on proceedings and remedies) and to the following provisions of this section, where the creditor of any person who is adjudged bankrupt has, before the commencement of the bankruptcy—
(a)
issued execution against the goods or land of that person, or
(b)
attached a debt due to that person from another person,
that creditor is not entitled, as against the official reciever or trustee of the bankrupt’s estate, to retain the benefit of the execution or attachment, or any sums paid to avoid it, unless the execution or attachment was completed, or the sums were paid, before the commencement of the bankruptcy.
(2)
Subject as follows, where any goods of a person have been taken in execution, then, if before the completion of the execution notice is given to the F396enforcement officer or other officer charged with the execution that that person has been adjudged bankrupt—
(a)
the F396enforcement officer or other officer shall on request deliver to the official receiver or trustee of the bankrupt’s estate the goods and any money seized or recovered in part satisfaction of the execution, but
(b)
the costs of the execution are a first charge on the goods or money so delivered and the official receiver or trustee may sell the goods or a sufficient part of them for the purpose of satisfying the charge.
(3)
Subject to subsection (6) below, where—
(a)
under an execution in respect of a judgment for a sum exceeding such sum as may be prescribed for the purposes of this subsection, the goods of any person are sold or money is paid in order to avoid a sale, and
(b)
before the end of the period of 14 days beginning with the day of the sale or payment the F396enforcement officer or other officer charged with the execution is given notice that a bankruptcy petition has been presented in relation to that person, and
(c)
a bankruptcy order is or has been made on that petition,
the balance of the proceeds of sale or money paid, after deducting the costs of execution, shall (in priority to the claim of the execution creditor) be comprised in the bankrupt’s estate.
(4)
Accordingly, in the case of an execution in respect of a judgment for a sum exceeding the sum prescribed for the purposes of subsection (3), the F396enforcement officer or other officer charged with the execution—
(a)
shall not dispose of the balance mentioned in subsection (3) at any time within the period of 14 days so mentioned or while there is pending a bankruptcy petition of which he has been given notice under that subsection, and
(b)
shall pay that balance, where by virtue of that subsection it is comprised, in the bankrupt’s estate, to the official receiver or (if there is one) to the trustee or that estate.
(5)
For the purposes of this section—
(a)
an execution against goods is completed by seizure and sale or by the making of a charging order under section 1 of the M32Charging Orders Act 1979;
(b)
an execution against land is completed by seizure, by the appointment of a receiver or by the making of a charging order under that section;
(c)
an attachment of a debt is completed by the receipt of the debt.
(6)
The rights conferred by subsections (1) to (3) on the official receiver or the trustee may, to such extent and on such terms as it thinks fit, be set aside by the court in favour of the creditor who has issued the execution or attached the debt.
(7)
Nothing in this section entitles the trustee of a bankrupt’s estate to claim goods from a person who has acquired them in good faith under a sale by F397an enforcement officer or other officer charged with an execution.
(8)
Neither subsection (2) nor subsection (3) applies in relation to any execution against property which has been acquired by or has devolved upon the bankrupt since the commencement of the bankruptcy, unless, at the time the execution is issued or before it is completed—
(a)
the property has been or is claimed for the bankrupt’s estate under section 307 (after-acquired property), and
(b)
a copy of the notice given under that section has been or is served on the F396enforcement officer or other officer charged with the execution.
F398(9)
In this section “enforcement officer” means an individual who is authorised to act as an enforcement officer under the Courts Act 2003.
347 Distress, etc.
(1)
The right of any landlord or other person to whom rent is payable to distrain upon the goods and effects of an undischarged bankrupt for rent due to him from the bankrupt is available (subject to F399sections 252(2)(b) and 254(1) above and subsection (5) below) against goods and effects comprised in the bankrupt’s estate, but only for 6 months’ rent accrued due before the commencement of the bankruptcy.
(2)
Where a landlord or other person to whom rent is payable has distrained for rent upon the goods and effects of an individual to whom a bankruptcy petition relates and a bankruptcy order is subsequently made on that petition, any amount recovered by way of that distress which—
(a)
is in excess of the amount which by virtue of subsection (1) would have been recoverable after the commencement of the bankruptcy, or
(b)
is in respect of rent for a period or part of a period after the distress was levied,
shall be held for the bankrupt as apart of his estate.
(3)
Where any person (whether or not a landlord or person entitled to rent) has distrained upon the goods or effects of an individual who is adjudged bankrupt before the end of the period of 3 months beginning with the distraint, so much of those goods or effects, or of the proceeds of their sale, as is not held for the bankrupt under subsection (2) shall be charged for the benefit of the bankrupt’s estate with the preferential debts of the bankrupt to the extent that the bankrupt’s estate is for the time being insufficient for meeting those debts.
(4)
Where by virtue of any charge under subsection (3) any person surrenders any goods or effects to the trustee of a bankrupt’s estate or makes a payment to such a trustee, that person ranks, in respect of the amount of the proceeds of the sale of those goods or effects by the trustee or, as the case may be, the amount of the payment, as a preferential creditor of the bankrupt, except as against so much of the bankrupt’s estate as is available for the payment of preferential creditors by virtue of the surrender or payment.
(5)
A landlord or other person to whom rent is payable is not at any time after the discharge of a bankrupt entitled to distrain upon any goods or effects comprised in the bankrupt’s estate.
(6)
Where in the case of any execution—
(a)
a landlord is (apart from this section) entitled under section 1 of the M33Landlord and Tenant Act 1709 or section 102 of the M34County Courts Act 1984 (claims for rent where goods seized in execution) to claim for an amount not exceeding one year’s rent, and
(b)
the person against whom the execution is levied is adjudged bankrupt before the notice of claim is served on the F400enforcement officer, or other officer charged with the execution,
the right of the landlord to claim under that section is restricted to a right to claim for an amount not exceeding 6 months’ rent and does not extend to any rent payable in respect of a period after the notice of claim is so served.
(7)
Nothing in subsection (6) imposes any liability on F401an enforcement officer or other officer charged with an execution to account to the official receiver or the trustee of a bankrupt’s estate for any sums paid by him to a landlord at any time before F402the enforcement officer or other officer was served with notice of the banktuptcy order in question.
But this subsection is without prejudice to the liability of the landlord.
(8)
F403Subject to sections 252(2)(b) and 254(1) above nothing in this Group of Parts affects any right to distrain otherwise than for rent; and any such right is at any time exerciseable without restriction against property comprised in a bankrupt’s estate, even if that right is expressed by any enactment to be exerciseable in like manner as a right to distrain for rent.
(9)
Any right to distrain against property comprised in a bankrupt’s estate is exerciseable notwithstanding that the propety has vested in the trustee.
(10)
The provisions of this section are without prejudice to a landlord’s right in a bankruptcy to prove for any bankruptcy debt in respect of rent.
F404(11)
In this section “enforcement officer” means an individual who is authorised to act as an enforcement officer under the Courts Act 2003.
348 Apprenticeships, etc.
(1)
This section applies where—
(a)
a bankruptcy order is made in respect of an individual to whom another individual was an apprentice or articled clerk at the time when the petition on which the order was made was presented, and
(b)
the bankrupt or the apprentice or clerk gives notice to the trustee terminating the apprenticeship or articles.
(2)
Subject to subsection (6) below, the indenture of apprenticeship or, as the case may be, the articles of agreement shall be discharged with effect from the commencement of the bankruptcy.
(3)
If any money has been paid by or on behalf of the apprentice or clerk to the bankrupt as a fee, the trustee may, on an application made by or on behalf of the apprentice or clerk, pay such sum to the apprentice or clerk as to the trustee thinks reasonable, having regard to—
(a)
the amount of the fee,
(b)
the proportion of the period in respect of which the fee was paid that has been served by the apprentice or clerk before the commencement of the bankruptcy, and
(c)
the other circumstances of the case.
(4)
The power of the trustee to make a payment under subsection (3) has priority over his obligation to distribute the bankrupt’s estate.
(5)
Instead of making a payment under subsection (3), the trustee may, if it appears to him expedient to do so on an application made by or on behalf of the apprentice or clerk, transfer the indenture or articles to a person other than the bankrupt.
(6)
Where a transfer is made under subsection (5), subsection (2) has effect only as between the apprentice or clerk and the bankrupt.
349 Unenforceability of liens on books, etc.
(1)
Subject as follows, a lien or other right to retain possession of any of the books, papers or other records of a bankrupt is unenforceable to the extent that its enforcement would deny possession of any books, papers or other records to the official receiver or the trustee of the bankrupt’s estate.
(2)
Subsection (1) does not apply to a lien on documents which give a title to property and are held as such.
F405349A Arbitration agreements to which bankrupt is party.
(1)
This section applies where a bankrupt had become party to a contract containing an arbitration agreement before the commencement of his bankruptcy.
(2)
If the trustee in bankruptcy adopts the contract, the arbitration agreement is enforceable by or against the trustee in relation to matters arising from or connected with the contract.
(3)
If the trustee in bankruptcy does not adopt the contract and a matter to which the arbitration agreement applies requires to be determined in connection with or for the purposes of the bankruptcy proceedings—
(a)
the trustee with the consent of the creditors’ committee, or
(b)
any other party to the agreement,
may apply to the court which may, if it thinks fit in all the circumstances of the case, order that the matter be referred to arbitration in accordance with the arbitration agreement.
(4)
In this section—
“arbitration agreement” has the same meaning as in Part I of the Arbitration Act 1996; and
“the court” means the court which has jurisdiction in the bankruptcy proceedings.
Chapter VI Bankruptcy Offences
Preliminary
350 Scheme of this Chapter.
(1)
Subject to section 360(3) below, this Chapter applies where the court has made a bankruptcy order on a bankruptcy petition.
(2)
This Chapter applies whether or not the bankruptcy order is annulled, but proceedings for an offence under this Chapter shall not be instituted after the annulment.
(3)
Without prejudice to his liability in respect of a subsequent bankruptcy, the bankrupt is not guilty of an offence under this Chapter in respect of anything done after his discharge; but nothing in this Group of Parts prevents the institution of proceedings against a discharged bankrupt for an offence committed before his discharge.
F406(3A)
Subsection (3) is without prejudice to any provision of this Chapter which applies to a person in respect of whom a bankruptcy restrictions order is in force.
(4)
It is not a defence in proceedings for an offence under this Chapter that anything relied on, in whole or in part, as constituting that offence was done outside England and Wales.
(5)
Proceedings for an offence under this Chapter or under the rules shall not be instituted except by the Secretary of State or by or with the consent of the Director of Public Prosecutions.
(6)
A person guilty of any offence under this Chapter is liable to imprisonment or a fine, or both.
351 Definitions.
In the following provisions of this Chapter—
(a)
references to property comprised in the bankrupt’s estate or to property possession of which is required to be delivered up to the official receiver or the trustee of the bankrupt’s estate include any property which would be such property if a notice in respect of it were given under section 307 (after-acquired property) F407, section 308 (personal property and effects of bankrupt having more than replacement value) F408or section 308A (vesting in trustee of certain tenancies);
(b)
“the initial period” means the period between the presentation of the bankruptcy petition and the commencement of the bankruptcy; and
(c)
a reference to a number of months or years before petition is to that period ending with the presentation of the bankruptcy petition.
352 Defence of innocent intention.
Where in the case of an offence under any provision of this Chapter it is stated that this section applies, a person is not guilty of the offence if he proves that, at the time of the conduct constituting the offence, he had no intent to defraud or to conceal the state of his affairs.
Wrongdoing by the bankrupt before and after bankruptcy
353 Non-disclosure.
(1)
The bankrupt is guilty of an offence if—
(a)
he does not to the best of his knowledge and belief disclose all the property comprised in his estate to the official receiver or the trustee, or
(b)
he does not inform the official receiver or the trustee of any disposal of any property which but for the disposal would be so comprised, stating how, when, to whom and for what consideration the property was disposed of.
(2)
Subsection (1)(b) does not apply to any disposal in the ordinary course of a business carried on by the bankrupt or to any payment of the ordinary expenses of the bankrupt or his family.
(3)
Section 352 applies to this offence.
354 Concealment of property.
(1)
The bankrupt is guilty of an offence if—
(a)
he does not deliver up possession to the official receiver or trustee, or as the official receiver or trustee may direct, of such part of the property comprised in his estate as is in his possession or under his control and possession of which he is required by law so to deliver up,
(b)
he conceals any debt due to or from him or conceals any property the value of which is not less than the prescribed amount and possession of which he is required to deliver up to the official receiver or trustee, or
(c)
in the 12 months before petition, or in the initial period, he did anything which would have been an offence under paragraph (b) above if the bankruptcy order had been made immediately before he did it.
Section 352 applies to this offence.
(2)
The bankrupt is guilty of an offence if he removes, or in the initial period removed, any property the value of which was not less than the prescribed amount and possession of which he has or would have been required to deliver up to the official receiver or the trustee.
Section 352 applies to this offence.
(3)
The bankrupt is guilty of an offence if he without reasonable excuse fails, on being required to do so by the official receiver F409, the trustee or the court—
(a)
to account for the loss of any substantial part of his property incurred in the 12 months before petition or in the initial period, or
(b)
to give a satisfactory explanation of the manner in which such a loss was incurred.
355 Concealment of books and papers; falsification.
(1)
The bankrupt is guilty of an offence if he does not deliver up possession to the official receiver or the trustee, or as the official receiver or trustee may direct, of all books, papers and other records of which he has possession or control and which relate to his estate or his affairs.
Section 352 applies to this offence.
(2)
The bankrupt is guilty of an offence if—
(a)
he prevents, or in the initial period prevented, the production of any books, papers or records relating to his estate or affairs;
(b)
he conceals destroys, mutilates or falsifies, or causes or permits the concealment, destruction, mutilation or falsification of, any books, papers or other records relating to his estate or affairs;
(c)
he makes, or causes or permits the making of, any false entries in any book, document or record relating to his estate or affairs; or
(d)
in the 12 months before petition, or in the initial period, he did anything which would have been an offence under paragraph (b) or (c) above if the bankruptcy order had been made before he did it.
Section 352 applies to this offence.
(3)
The bankrupt is guilty of an offence if—
(a)
he disposes of, or alters or makes any omission in, or causes or permits the disposal, altering or making of any omission in, any book, document or record relating to his estate or affairs, or
(b)
in the 12 months before petition, or in the initial period, he did anything which would have been an offence under paragraph (a) if the bankruptcy order had been made before he did it.
Section 352 applies to this offence.
F410(4)
In their application to a trading record subsections (2)(d) and (3)(b) shall have effect as if the reference to 12 months were a reference to two years.
(5)
In subsection (4) “trading record” means a book, document or record which shows or explains the transactions or financial position of a person’s business, including—
(a)
a periodic record of cash paid and received,
(b)
a statement of periodic stock-taking, and
(c)
except in the case of goods sold by way of retail trade, a record of goods sold and purchased which identifies the buyer and seller or enables them to be identified.
356 False statements.
(1)
The bankrupt is guilty of an offence if he makes or has made any material omission in any statement made under any provision in this Group of Parts and relating to his affairs.
Section 352 applies to this offence.
(2)
The bankrupt is guilty of an offence if—
(a)
knowing or believing that a false debt has been proved by any person under the bankruptcy, he fails to inform the trustee as soon as practicable; or
(b)
he attempts to account for any part of his property by fictitious losses or expenses; or
(c)
at any meeting of his creditors in the 12 months before petition or (whether or not such a meeting) at any time in the intial period, he did anything which would have been an offence under paragraph (b) if the bankruptcy order had been made before he did it; or
(d)
he is, or at any time has been, guilty of any false representation or other fraud for the purpose of obtaining the consent of his creditors, or any of them, to an agreement with reference to his affairs or to his bankruptcy.
357 Fraudulent disposal of property.
(1)
The bankrupt is guilty of an offence if he makes or causes to be made, or has in the period of 5 years ending with the commencement of the bankruptcy made or caused to be made, any gift or transfer of, or any charge on,his property.
Section 352 applies to this offence.
(2)
The reference to making a transfer of or charge on any property includes causing or conniving at the levying of any execution against that property.
(3)
The bankrupt is guilty of an offence if he conceals or removes, or has at any time before the commencement of the bankruptcy concealed or removed, any part of his property after, or within 2 months before, the date on which a judgment or order for the payment of money has been obtained against him, being a judgment or order which was not satisfied before the commencement of the bankruptcy.
Section 352 applies to this offence.
358 Absconding.
The bankrupt is guilty of an offence if—
(a)
he leaves, or attempts or makes preparations to leave, England and Wales with any property the value of whichis not less than the prescribed amount and possession of which he is required to deliver up to the official receiver or the trustee, or
(b)
in the 6 months before petition, or in the initial period, he did anything which would have been an offence under paragraph (a) if the bankruptcy order had been made immediately before he did it.
Section 352 applies to this offence.
359 Fraudulent dealing with property obtained on credit.
(1)
The bankrupt is guilty of an offence if, in the 12 months before petition, or in the initial period, he disposed of any property which he had obtained on credit and, at the time he disposed of it, had not paid for.
Section 352 applies to this offence.
(2)
A person is guilty of an offence if, in the 12 months before petition or in the initial period, he acquired or received property from the bankrupt knowing or believing—
(a)
that the bankrupt owed money in respect of the property, and
(b)
that the bankrupt did not intend, or was unlikely to be able, to pay the money he so owed.
(3)
A person is not guilty of an offence under subsection (1) or (2) if the disposal, acquisition or receipt of the property was in the ordinary course of a business carried on by the bankrupt at the time of the disposal, acquisition or receipt.
(4)
In determining for the purposes of this section whether any property is disposed of, acquired or received in the ordinary course of a business carried on by the bankrupt, regard may be had, in particular, to the price paid for the property.
(5)
In this section references to disposing of property include pawning or pledging it; and references to acquiring or receiving property shall be read accordingly.
360 Obtaining credit; engaging in business.
(1)
The bankrupt is guilty of an offence if—
(a)
either alone or jointly with any other person, he obtains credit to the extent of the prescribed amount or more without giving the person from whom he obtains it the relevant information about his status; or
(b)
he engages (whether directly or indirectly) in any business under a name other than that in which he was adjudged bankrupt without disclosing to all persons with whom he enters into any business transaction the name in which he was so adjudged.
(2)
The reference to the bankrupt obtaining credit includes the following cases—
(a)
where goods are bailed to him under a hire-purchase agreement, or agreed to be sold to him under a conditional sale agreement, and
(b)
where he is paid in advance (whether in money or otherwise) for the supply of goods or services.
(3)
A person whose estate has been sequestrated in Scotland, or who has been adjudged bankrupt in Northern Ireland, is guilty of an offence if, before his discharge, he does anything in England and Wales which would be an offence under subsection (1) if he were an undischarged bankrupt and the sequestration of his estate or the adjudication in Northern Ireland were an adjudication under this Part.
(4)
For the purposes of subsection (1)(a), the relevant information about the status of the person in question is the information that he is an undischarged bankrupt or, as the case may be, that his estate has been sequestrated in Scotland and that he has not been discharged.
F411(5)
This section applies to the bankrupt after discharge while a bankruptcy restrictions order is in force in respect of him.
(6)
For the purposes of subsection (1)(a) as it applies by virtue of subsection (5), the relevant information about the status of the person in question is the information that a bankruptcy restrictions order is in force in respect of him.
361 Failure to keep proper accounts of business.
F412. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
362 Gambling.
F413. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chapter VII Powers of Court In Bankruptcy
363 General control of court.
(1)
Every bankruptcy is under the general control of the court and, subject to the provisions in this Group of Parts, the court has full power to decide all questions of priorities and all other questions, whether of law or fact, arising in any bankruptcy.
(2)
Without prejudice to any other provision in this Group of Parts, an undischarged bankrupt or a discharged bankrupt whose estate is still being administered under Chapter IV of this Part shall do all such things as he may be directed to do by the court for the purposes of his bankruptcy or, as the case may be, the administration of that estate.
(3)
The official receiver or the trustee of a bankrupt’s estate may at any time apply to the court for a direction under subsection (2).
(4)
If any person without reasonable excuse fails to comply with any obligation imposed on him by subsection (2), he is guilty of a contempt of court and liable to be punished accordingly (in addition to any other punishment to which may be subject).
364 Power of arrest.
(1)
In the cases specified in the next subsection the court may cause a warrant to be issued to a constable or prescribed officer of the court—
(a)
for the arrest of a debtor to whom a bankruptcy petition relates or of an undischarged bankrupt, or of a discharged bankrupt whose estate is still being administered under Chapter IV of this Part, and
(b)
for the seizure of any books, papers, records, money or goods in the possession of a person arrested under the warrant,
and may authorise a person arrested under such a warrant to be kept in custody, and anything seized under such a warrant to be held, in accordance with the rules, until such time as the court may order.
(2)
The powers conferred by subsection (1) are exercisable in relation to a debtor or undischarged or discharged bankrupt if, at any time after the presentation of the bankruptcy petition relating to him or the making of the bankruptcy order against him, it appears to the court—
(a)
that there are reasonable grounds for believing that he has absconded, or is about to abscond, with a view to avoiding or delaying the payment of any of his debts or his appearance to a bankruptcy petition or to avoiding, delaying or disrupting any proceedings in bankruptcy against him or any examination of his affairs, or
(b)
that he is about to remove his goods with a view to preventing or delaying possession being taken of them by the official receiver or the trustee of his estate, or
(c)
that there are reasonable grounds for believing that he has concealed or destroyed, or is about to conceal or destroy, any of his goods or any books, papers or records which might be of use to his creditors in the course of his bankruptcy or in connection with the administration of his estate, or
(d)
that he has, without the leave of the official receiver or the trustee of his estate, removed any goods in his possession which exceed in value such sums as may be prescribed for the purposes of this paragraph or
(e)
that he has failed, without reasonable excuse, to attend any examination ordered by the court.
365 Seizure of bankrupt’s property.
(1)
At any time after a bankruptcy order has been made, the court may, on the application of the official receiver or the trustee of the bankrupt’s estate, issue a warrant authorising the person to whom it is directed to seize any property comprised in the bankrupt’s estate which is, or any books, papers or records relating to the bankrupt’s estate or affairs which are, in the possession or under the control of the bankrupt or any other person who is required to deliver the property, books, papers or records to the official receiver or trustee.
(2)
Any person executing a warrant under this section may, for the purpose of seizing any property comprised in the bankrupt’s estate or any books, papers or records relating to the bankrupt’s estate or affairs, break open any premises where the bankrupt or anything that may be seized under the warrant is or is believed to be and any receptacle of the bankrupt which contains or is believed to contain anything that may be so seized.
(3)
If, after a bankruptcy order has been made, the court is satisfied that any property comprised in the bankrupt’s estate is, or any books, papers or records relating to the bankrupt’s estate or affairs are, concealed in any premises not belonging to him, it may issue a warrant authorising any constable or prescribed officer of the court to search those premises for the property, books, papers or records.
(4)
A warrant under subsection (3) shall not be executed except in the prescribed manner and in accordance with its terms.
366 Inquiry into bankrupt’s dealings and property.
(1)
At any time after a bankruptcy order has been made the court may, on the application of the official receiver or the trustee of the bankrupt’s estate, summon to appear before it—
(a)
the bankrupt or the bankrupt’s spouse or former spouse F414or civil partner or former civil partner,
(b)
any person known or believed to have any property comprised in the bankrupt’s estate in his possession or to be indebted to the bankrupt,
(c)
any person appearing to the court to be able to give information concerning the bankrupt or the bankrupt’s dealings, affairs or property.
The court may require any such person as is mentioned in paragraph (b) or (c) to submit an affidavit to the court containing an account of his dealings with the bankrupt or to produce any documents in his possession or under his control relating to the bankrupt or the bankrupt’s dealings, affairs or property.
(2)
Without prejudice to section 364, the following applies in a case where—
(a)
a person without reasonable excuse fails to appear before the court when he is summoned to do so under this section, or
(b)
there are reasonable grounds for believing that a person has absconded, or is about to abscond, with a view to avoiding his appearance before the court under this section.
(3)
The court may, for the purpose of bringing that person and anything in his possession before the court, cause a warrant to be issued to a constable or prescribed officer of the court—
(a)
for the arrest of that person, and
(b)
for the seizure of any books, papers, records, money or goods in that person’s possession.
(4)
The court may authorise a person arrested under such a warrant to be kept in custody, and anything seized under such a warrant to be held, in accordance with the rules, until that person is brought before the court under the warrant or until such other times as the court may order.
367 Court’s enforcement powers under s. 366.
(1)
If it appears to the court, on consideration of any evidence obtained under section 366 or this section, that any person has in his possession any property comprised in the bankrupt’s estate, the court may, on the application of the official receiver or the trustee of the bankrupt’s estate, order that person to deliver the whole or any part of the property to the official receiver or the trustee at such time, in such manner and on such terms as the court thinks fit.
(2)
If it appears to the court, on consideration of any evidence obtained under section 366 or this section, that any person is indebted to the bankrupt, the court may, on the application of the official receiver or the trustee of the bankrupt’s estate, order that person to pay to the official receiver or trustee, at such time and in such manner as the court may direct, the whole or part of the amount due, whether in full discharge of the debt or otherwise as the court thinks fit.
(3)
The court may, if it thinks fit, order that any person who if within the jurisdiction of the court would be liable to be summoned to appear before it under section 366 shall be examined in any part of the United Kingdom where he may be for the time being, or in any place outside the United Kingdom.
(4)
Any person who appears or is brought before the court under section 366 or this section may be examined on oath, either orally or by interrogatories, concerning the bankrupt or the bankrupt’s dealings, affairs and property.
368 Provision corresponding to s. 366, where interim receiver appointed.
Sections 366 and 367 apply where an interim receiver has been appointed under section 286 as they apply where a bankruptcy order has been made, as if—
(a)
references to the official receiver or the trustee were to the interim receiver, and
(b)
references to the bankrupt and to his estate were (respectively) to the debtor and his property.
369 Order for production of documents by inland revenue.
(1)
For the purposes of an examination under section 290 (public examination of bankrupt) or proceedings under sections 366 to 368, the court may, on the application of the official receiver or the trustee of the bankrupt’s estate, order an inland revenue official to produce to the court—
(a)
any return, account or accounts submitted (whether before or after the commencement of the bankruptcy) by the bankrupt to any inland revenue official,
(b)
any assessment or determination made (whether before or after the commencement of the bankruptcy) in relation to the bankrupt by any inland revenue official, or
(c)
any correspondence (whether before or after the commencement of the bankruptcy) between the bankrupt and any inland revenue official.
(2)
Where the court has made an order under subsection (1) for the purposes of any examination or proceedings, the court may, at any time after the document to which the order relates is produced to it, by order authorised the disclosure of the document, or of any part of its contents, to the official receiver, the trustee of the bankrupt’s estate or the bankrupt’s creditors.
(3)
The court shall not address an order under subsection (1) to an inland revenue official unless it is satisfied that that official is dealing, or has dealt, with the affairs of the bankrupt.
(4)
Where any document to which an order under subsection (1) relates is not in the possession of the official to whom the order is addressed, it is the duty of that official to take all reasonable steps to secure possession of it and, if he fails to do so, to report the reasons for his failure to the court.
(5)
Where any document to which an order under subsection (1) relates is in the possession of an inland revenue official other than the one to whom the order is addressed, it is the duty of the official in possession of the document, at the request of the official to whom the order is addressed, to deliver it to the official making the request.
(6)
In this section “inland revenue official” means any inspector or collector of taxes appointed by the Commissioners of Inland Revenue or any person appointed by the Commissioners to serve in any other capacity.
(7)
This section does not apply for the purposes of an examination under sections 366 and 367 which takes places by virtue of section 368 (interim receiver).
370 Power to appoint special manager.
(1)
The court may, on an application under this section, appoint any person to be the special manager—
(a)
of a bankrupt’s estate, or
(b)
of the business of an undischarged bankrupt, or
(c)
of the property or business of a debtor in whose case the official receiver has been appointed interim receiver under section 286.
(2)
An application under this section may be made by the official receiver or the trustee of the bankrupt’s estate in any case where it appears to the official receiver or trustee that the nature of the estate, property or business, or the interests of the creditors generally, require the appointment of another person to manage the estate, property or business.
(3)
A special manager appointed under this section has such powers as may be entrusted to him by the court.
(4)
The power of the court under subsection (3) to entrust powers to a special manager includes power to direct that any provision in ths Group of Parts that has effect in relation to the official receiver, interim receiver or trustee shall have the like effect in relation to the special manager for the purposes of the carrying out by the special manager of any of the functions of the official receiver, interim receiver or trustee.
(5)
A special manager appointed under this section shall—
(a)
give such security as may be prescribed,
(b)
prepare and keep such accounts as may be prescribed, and
(c)
produce those accounts in accordance with the rules to the Secretary of State or to such other persons as may be prescribed.
371 Re-direction of bankrupt’s letters, etc.
(1)
Where a bankruptcy order has been made, the court may from time to time, on the application of the official receiver or the trustee of the bankrupt’s estate, order F415a postal operator (within the meaning of the Postal Services Act 2000) to re-direct and send or deliver to the official receiver or trustee or otherwise any postal packet (within the meaning of F415M35that Act ) which would otherwise be sent or delivered by F415the operator concerned to the bankrupt at such place or places as may be specified in the order.
(2)
An order under this section has effect for such period, not exceeding 3 months, as may be specified in the order.
Part X Individual Insolvency: General Provisions
372 Supplies of gas, water, electricity, etc.
(1)
This section applies where on any day (“the relevant day”)—
(a)
a bankruptcy order is made against an individual or an interim receiver of an individual’s property is appointed, or
(b)
a voluntary arrangement proposed by an individual is approved under Part VIII, or
(c)
a deed of arrangement is made for the benefit of an individual’s creditors;
and in this section “the office-holder” means the official receiver, the trustee in bankruptcy, the interim receiver, the supervisor of the voluntary arrangement or the trustee under the deed of arrangement, as the case may be.
(2)
If a request falling within the next subsection is made for the giving after the relevant day of any of the supplies mentioned in subsection (4), the supplier—
(a)
may make it a condition of the giving of the supply that the office-holder personally guarantees the payment of any charges in respect of the supply, but
(b)
shall not make it a condition of the giving of the supply, or do anything which has the effect of making it a condition of the giving of the supply, that any outstanding charges in respect of a supply given to the individual before the relevant day are paid.
(3)
A request falls within this subsection if it is made—
(a)
by or with the concurrence of the office-holder, and
(b)
for the purposes of any business which is or has been carried on by the individual, by a firm or partnership of which the individual is or was a member, or by an agent or manager for the individual or for such a firm or partnership.
(4)
The supplies referred to in subsection (2) are—
F416(a)
a supply of gas by a gas supplier within the meaning of Part I of the Gas Act 1986;
F417(b)
a supply of electricity by an electricity supplier within the meaning of Part I of the Electricity Act 1989;
(c)
a supply of water by F418a water undertaker,
F419(d)
a supply of communications services by a provider of a public electronic communications service.
(5)
The following applies to expressions used in subsection (4)—
F420(a)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F421(b)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F422(c)
“communications services” do not include electronic communications services to the extent that they are used to broadcast or otherwise transmit programme services (within the meaning of the Communications Act 2003).
373 Jurisdiction in relation to insolvent individuals.
(1)
The High Court and the county courts have jurisdiction throughout England and Wales for the purposes of the Parts in this Group.
(2)
For the purposes of those Parts, a county court has, in addition to its ordinary jurisdiction, all the powers and jurisdiction of the High Court; and the orders of the court may be enforced accordingly in the prescribed manner.
(3)
Jurisdiction for the purposes of those Parts is exercised—
(a)
by the High Court in relation to the proceedings, which, in accordance with the rules, are allocated to the London insolvency district, and
(b)
by each county court in relation to the proceedings which are so allocated to the insolvency district of that court.
(4)
Subsection (3) is without prejudice to the transfer of proceedings from one court to another in the manner prescribed by the rules; and nothing in that subsection invalidates any proceedings on the grounds that they were initiated or continued in the wrong court.
374 Insolvency districts.
(1)
The Lord Chancellor may F423, with the concurrence of the Lord Chief Justice, by order designate the areas which are for the time being to be comprised, for the purposes of the Parts in this Group, in the London insolvency district and the insolvency district of each county court; and an order under this section may—
(a)
exclude any county court from having jurisdiction for the purposes of those Parts, or
(b)
confer jurisdiction for those purposes on any county court which has not previously had that jurisdiction.
(2)
An order under this section may contain such incidental, supplemental and transitional provisions as may appear to the Lord Chancellor F424and the Lord Chief Justice necessary or expedient.
(3)
An order under this section shall be made by statutory instrument and, after being made, shall be laid before each House of Parliament.
(4)
Subject to any order under this section—
(a)
the district which, immediately before the appointed day, is the London bankruptcy district becomes, on that day, the London insolvency district;
(b)
any district which immediately before that day is the bankruptcy district of a county court becomes, on that day, the insolvency district of that court, and
(c)
any county court which immediately before that day is excluded from having jurisdiction in bankruptcy is excluded, on and after that day, from having jurisdiction for the purposes of the Parts in this Group.
F425(5)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
375 Appeals etc. from courts exercising insolvency jurisdiction.
(1)
Every court having jurisdiction for the purposes of the Parts in this Group may review, rescind or vary any order made by it in the exercise of that jurisdiction.
(2)
An appeal from a decision made in the exercise of jurisdiction for the purposes of those Parts by a county court or by a registrar in bankruptcy of the High Court lies to a single judge of the High Court; and an appeal from a decision of that judge on such an appeal lies F426. . . to the Court of Appeal.
(3)
A county court is not, in the exercise of its jurisdiction for the purposes of those Parts, to be subject to be restrained by the order of any other court, and no appeal lies from its decision in the exercise of that jurisdiction except as provided by this section.
376 Time-limits.
Where by any provision in this Group of Parts or by the rules the time for doing anything is limited, the court may extend the time, either before or after it has expired, on such terms, if any, as it thinks fit.
377 Formal defects.
The acts of a person as the trustee of a bankrupt’s estate or as a special manager, and the acts of the creditors’ committee established for any bankruptcy, are valid notwithstanding any defect in the appointment, election or qualifications of the trustee or manager or, as the case may be, of any member of the committee.
378 Exemption from stamp duty.
Stamp duty shall not be charged on—
(a)
any document, being a deed, conveyance, assignment, surrender, admission or other assurance relating solely to property which is comprised in a bankrupt’s estate and which, after the execution of that document, is or remains at law or in equity the property of the bankrupt or of the trustee of that estate,
(b)
any writ, order, certificate or other instrument relating solely to the property of a bankrupt or to any bankruptcy proceedings.
379 Annual report.
As soon as practicable after the end of 1986 and each subsequent calendar year, the Secretary of State shall prepare and lay before each House of Parliament a report about the operation during that year of so much of this Act as is comprised in this Group of Parts, and about proceedings in the course of that year under the M36Deeds of Arrangement Act 1914.
Part XI Interpretation for Second Group of Parts
380 Introductory.
The next five sections have effect for the interpretation of the provisions of this Act which are comprised in this Group of Parts; and where a definition is provided for a particular expression, it applies except so far as the context otherwise requires.
381“Bankrupt” and associated terminology.
(1)
“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.
(2)
“Bankruptcy order” means an order adjudging an individual bankrupt.
(3)
“Bankruptcy petition” means a petition to the court for a bankruptcy order.
382“Bankruptcy debt”, etc.
(1)
“Bankruptcy debt”, in relation to a bankrupt, means (subject to the next subsection) any of the following—
(a)
any debt or liability to which he is subject at the commencement of the bankruptcy,
(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,
F427(c)
any amount specified in pursuance of section 39(3)(c) of the M37Powers of Criminal Courts Act 1973 in any criminal bankruptcy order made against him before the commencement of the bankruptcy, and
(d)
any interest provable as mentioned in section 322(2) in Chapter IV of Part IX.
(2)
In determining for the purposes of any provision in this Group of Parts 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.
(3)
For the purposes of references in this Group of Parts 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 rules or as a matter of opinion; and references in this Group of Parts to owing a debt are to be read accordingly.
(4)
In this Group of Parts, except in so far as the context otherwise requires, “liability” means (subject to subsection (3) above) a liability to pay money or money’s worth, including any liability under an enactment, any liability for breach of trust, any liability in contract, tort or bailment and any liability arising out of an obligation to make restitution.
383“Creditor”, “security”, etc.
(1)
“Creditor”—
(a)
in relation to a bankrupt, means a person to whom any of the bankruptcy debts is owed F428(being, in the case of an amount falling within paragraph (c) of the definition in section 382(1) or “bankruptcy debt”, the person in respect of whom that amount is specified in the criminal bankruptcy order in question), and
(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.
(2)
Subject to the next two subsections 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 this Group of Parts 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.
(3)
Where a statement such as is mentioned in section 269(1)(a) in Chapter I of Part IX 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 the Parts in this Group to have given up the security specified in the statement.
(4)
In subsection (2) 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.
384“Prescribed” and “the rules”.
(1)
Subject to the next subsection F429and sections 342C(7) and 342F(9) in Chapter V of Part IX, “prescribed” means prescribed by the rules; and “the rules” means rules made under section 412 in Part XV.
(2)
References in this Group of Parts to the amount prescribed for the purposes of any of the following provisions—
F430section 251S(4);
section 273;
F431section 313A;
section 346(3);
section 354(1) and (2);
section 358;
section 360(1);
section 361(2); F432. . .
section 364(2)(d),
F433paragraphs 6 to 8 of Schedule 4ZA,
and references in those provisions to the prescribed amount are to be read in accordance with section 418 in Part XV and orders made under that section.
385 Miscellaneous definitions.
(1)
The following definitions have effect—
“the court”, in relation to any matter, means the court to which, in accordance with section 373 in Part X and the rules, proceedings with respect to that matter are allocated or transferred;
“creditor’s petition” means a bankruptcy petition under section 264(1)(a);
F434“criminal bankruptcy order” means an order under section 39(1) of the M38Powers of Criminal Courts Act 1973;
“debt” is to be construed in accordance with section 382(3);
“the debtor”—
(a)
F435in relation to a debt relief order or an application for such an order, has the same meaning as in Part 7A,
(b)
in relation to a proposal for the purposes of Part VIII, means the individual making or intending to make that proposal, and
(c)
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 section 264(1)(b);
F436“debt relief order” means an order made by the official receiver under Part 7A;
“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;
“estate”, in relation to a bankrupt is to be construed in accordance with section 283 in Chapter II of Part IX;
“family”, in relation to a bankrupt, means the persons (if any) who are living with him and are dependent on him;
F437“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;
“secured” and related expressions are to be construed in accordance with section 383;
F437“the Rules” means the Insolvency Rules 1986. and
“the trustee”, in relation to a bankruptcy and the bankrupt, means the trustee of the bankrupt’s estate.
(2)
References in this Group of Parts to a person’s affairs include his business, if any.
The Third Group of Parts Miscellaneous Matters Bearing on Both Company and Individual Insolvency; General Interpretation; Final Provisions
Part XII Preferential debts in Company and Individual Insolvency
386 Categories of preferential debts.
(1)
A reference in this Act to the preferential debts of a company or an individual is to the debts listed in Schedule 6 to this Act F438(contributions to occupational pension schemes; remuneration, &c. of employees; levies on coal and steel production); and references to preferential creditors are to be read accordingly.
(2)
In that Schedule “the debtor” means the company or the individual concerned.
(3)
Schedule 6 is to be read with F439Schedule 4 to the Pension Schemes Act 1993 (occupational pension scheme contributions).
387“The relevant date”.
(1)
This section explains references in Schedule 6 to the relevant date (being the date which determines the existence and amount of a preferential debt).
(2)
For the purposes of section 4 in Part I (meetings to consider company voluntary arrangement), the relevant date in relation to a company which is not being wound up is—
F440(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.
F441(2A)
For the purposes of paragraph 31 of Schedule A1 (meetings to consider company voluntary arrangement where a moratorium under section 1A 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 court, and the winding-up order was made immediately upon the discharge of an administration order, the relevant date is F442the date on which the company entered administration;
F443(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 Article 37 of the EC Regulation, the relevant date is F442the date on which the company entered administration;
(ab)
if 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 Article 37 of the EC Regulation, the relevant date is F442the date on which the company entered administration;
(b)
if the case does not fall within paragraph (a) F444, (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;
F445(ba)
if the case does not fall within paragraph (a), (aa), (ab) or (b) and the company is being wound up following administration pursuant to paragraph 83 of Schedule B1, the relevant date is the date on which the company entered administration;
(c)
if the case does not fall within F446paragraph (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.
F447(3A)
In relation to a company which is in administration (and to which no other provision of this section applies) the relevant date is the date on which the company enters administration.
(4)
In relation to a company in receivership (where section 40 or, as the case may be, section 59 applies), the relevant date is—
(a)
in England and Wales, the date of the appointment of the receiver by debenture-holders, and
(b)
in Scotland, the date of the appointment of the receiver under section 53(6) or (as the case may be) 54(5).
(5)
For the purposes of section 258 in Part VIII (individual voluntary arrangements), the relevant date is, in relation to a debtor who is not an undischarged bankrupt
F448(a)
where an interim order has been made under section 252 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)
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 section 286, 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.
Part XIII Insolvency Practitioners and their Qualification
Restrictions on unqualified persons acting as liquidator, trustee in bankruptcy, etc.
388 Meaning of “act as insolvency practitioner”
(1)
A person acts as an insolvency practitioner in relation to a company by acting—
(a)
as its liquidator, provisional liquidator, administrator or administrative receiver, or
F449(b)
where a voluntary arrangement in relation to the company is proposed or approved under Part I, as nominee or supervisor
(2)
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 as permanent or interim trustee in the sequestration of his estate; or
(b)
as trustee under a deed which is a deed of arrangement made for the benefit of his creditors or, in Scotland, a trust deed for his creditor; or
F450(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 section applies by virtue of an order under section 421 (application of provisions of this Act to insolvent estates of deceased persons), as administrator of that estate.
F451(2A)
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 1994, or
F452(c)
where a voluntary arrangement in relation to the insolvent partnership is proposed or approved under Part I of the Act, as nominee or supervisor.
F453(2B)
In relation to a voluntary arrangement proposed under Part I or VIII, a person acts as nominee if he performs any of the functions conferred on nominees under the Part in question.
(3)
References in this section to an individual include, except in so far as the context otherwise requires, references F454. . . to any debtor within the meaning of the M39Bankruptcy (Scotland) Act 1985.
(4)
In this section—
“administrative receiver” has the meaning given by section 251 in Part VII;
F455“company” means—
(a)
a company registered under the Companies Act 2006 in England and Wales or Scotland, or
(b)
a company that may be wound up under Part 5 of this Act (unregistered companies).
“interim trustee” and “permanent trustee” mean the same as in the Bankruptcy (Scotland) Act 1985.
F456(5)
Nothing in this section applies to anything done by—
(a)
the official receiver; or
(b)
the Accountant in Bankruptcy (within the meaning of the Bankruptcy (Scotland) Act 1985).
F457(6)
Nothing in this section applies to anything done (whether in the United Kingdom or elsewhere) in relation to insolvency proceedings under the EC Regulation in a member State other than the United Kingdom.
389 Acting without qualification an offence.
(1)
A person who acts as an insolvency practitioner in relation to a company or an individual at a time when he is not qualified to do so is liable to imprisonment or a fine, or to both.
F458(1A)
This section is subject to section 389A.
(2)
This section does not apply to the official receiver F459or the Accountant in Bankruptcy (within the meaning of the Bankruptcy (Scotland) Act 1985)..
F460389A Authorisation of nominees and supervisors.
(1)
Section 389 does not apply to a person acting, in relation to a voluntary arrangement proposed or approved under Part I or Part VIII, as nominee or supervisor if he is authorised so to act.
(2)
For the purposes of subsection (1) and those Parts, an individual to whom subsection (3) does not apply is authorised to act as nominee or supervisor in relation to such an arrangement if—
(a)
he is a member of a body recognised for the purpose by the Secretary of State F461 or of a body recognised for the purpose of Article 348A(2)(a) of the Insolvency (Northern Ireland) Order 1989 by the Department of Enterprise, Trade and Investment for Northern Ireland, and
(b)
there is in force security (in Scotland, caution) for the proper performance of his functions and that security or caution meets the prescribed requirements with respect to his so acting in relation to the arrangement.
(3)
This subsection applies to a person if—
(a)
he has been adjudged bankrupt or sequestration of his estate has been awarded and (in either case) he has not been discharged,
F462(b)
he is subject to a disqualification order made or a disqualification undertaking accepted under the Company Directors Disqualification Act 1986 or the Company Directors Disqualification (Northern Ireland) Order 2002,
(c)
(d)
he lacks capacity (within the meaning of the Mental Capacity Act 2005) to act as nominee or supervisor
(4)
The Secretary of State may by order declare a body which appears to him to fall within subsection (5) to be a recognised body for the purposes of subsection (2)(a).
(5)
A body may be recognised if it maintains and enforces rules for securing that its members—
(a)
are fit and proper persons to act as nominees or supervisors, and
(b)
meet acceptable requirements as to education and practical training and experience.
(6)
For the purposes of this section, a person is a member of a body only if he is subject to its rules when acting as nominee or supervisor (whether or not he is in fact a member of the body).
(7)
An order made under subsection (4) in relation to a body may be revoked by a further order if it appears to the Secretary of State that the body no longer falls within subsection (5).
(8)
An order of the Secretary of State under this section has effect from such date as is specified in the order; and any such order revoking a previous order may make provision for members of the body in question to continue to be treated as members of a recognised body for a specified period after the revocation takes effect.
F466389B Official receiver as nominee or supervisor
(1)
The official receiver is authorised to act as nominee or supervisor in relation to a voluntary arrangement approved under Part VIII provided that the debtor is an undischarged bankrupt when the arrangement is proposed.
(2)
The Secretary of State may by order repeal the proviso in subsection (1).
(3)
An order under subsection (2)—
(a)
must be made by statutory instrument, and
(b)
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
The requisite qualification, and the means of obtaining it
390 Persons not qualified to act as insolvency practitioners.
(1)
A person who is not an individual is not qualified to act as an insolvency practitioner.
(2)
A person is not qualified to act as an insolvency practitioner at any time unless at that time—
(a)
he is authorised so to act by virtue of membership of a professional body recognised under section 391 below, being permitted so to act by or under the rules of that body, or
(b)
he holds an authorisation granted by a competent authority under section 393F467; or
(c)
he holds an authorisation granted by the Department of Enterprise, Trade and Investment for Northern Ireland under Article 352 of the Insolvency (Northern Ireland) Order 1989.
(3)
A person is not qualified to act as an insolvency practitioner in relation to another person at any time unless—
(a)
there is in force at that time security or, in Scotland, caution for the proper performance of his functions, and
(b)
that security or caution meets the prescribed requirements with respect to his so acting in relation to that other person.
(4)
A person is not qualified to act as an insolvency practitioner at any time if at that time—
(a)
he has been adjudged bankrupt or sequestration of his estate has been awarded and (in either case) he has not been discharged,
F468(aa)
a moratorium period under a debt relief order applies in relation of him,
F469(b)
he is subject to a disqualification order made or a disqualification undertaking accepted under the Company Directors Disqualification Act 1986 or the Company Directors Disqualification (Northern Ireland) Order 2002,
(c)
(d)
he lacks capacity (within the meaning of the Mental Capacity Act 2005) to act as an insolvency practitioner.
F474(5)
A person is not qualified to act as an insolvency practitioner while a bankruptcy restrictions order F475or a debt relief restrictions order is in force in respect of him.
391 Recognised professional bodies.
(1)
The Secretary of State may by order declare a body which appears to him to fall within subsection (2) below to be a recognised professional body for the purposes of this section.
(2)
A body may be recognised if it regulates the practice of a profession and maintains and enforces rules for securing that such of its members as are permitted by or under the rules to act as insolvency practitioners—
(a)
are fit and proper persons so to act, and
(b)
meet acceptable requirements as to education and practical training and experience.
(3)
References to members of a recognised professional body are to persons who, whether members of that body or not, are subject to its rules in the practice of the profession in question.
The reference in section 390(2) above to membership of a professional body recognised under this section is to be read accordingly.
(4)
An order made under subsection (1) in relation to a professional body may be revoked by a further order if it appears to the Secretary of State that the body no longer falls within subsection (2).
(5)
An order of the Secretary of State under this section has effect from such date as is specified in the order; and any such order revoking a previous order may make provision whereby members of the body in question continue to be treated as authorised to act as insolvency practitioners for a specified period after the revocation takes effect.
392 Authorisation by competent authority.
(1)
Application may be made to a competent authority for authorisation to act as an insolvency practitioner.
(2)
The competent authorities for this purpose are—
(a)
in relation to a case of any description specified in directions given by the Secretary of State, the body or person so specified in relation to cases of that description, and
(b)
in relation to a case not falling within paragraph (a), the Secretary of State.
(3)
The application—
(a)
shall be made in such manner as the competent authority may direct,
(b)
shall contain or be accompanied by such information as that authority may reasonably require for the purpose of determining the application, and
(c)
shall be accompanied by the prescribed fee;
and the authority may direct that notice of the making of the application shall be published in such manner as may be specified in the direction.
(4)
At any time after receiving the application and before determining it the authority may require the applicant to furnish additional information.
(5)
Directions and requirements given or imposed under subsection (3) or (4) may differ as between different applications.
(6)
Any information to be furnished to the competent authority under this section shall, if it so requires, be in such form or verified in such manner as it may specify.
(7)
An application may be withdrawn before it is granted or refused.
(8)
Any sums received under this section by a competent authority other than the Secretary of State may be retained by the authority; and any sums so received by the Secretary of State shall be paid into the Consolidated Fund.
F476(9)
Subsection (3)(c) shall not have effect in respect of an application made to the Secretary of State (but this subsection is without prejudice to section 415A).
393 Grant, refusal and withdrawal of authorisation.
(1)
The competent authority may, on an application duly made in accordance with section 392 and after being furnished with all such information as it may require under that section, grant or refuse the application.
(2)
The authority shall grant the application if it appears to it from the information furnished by the applicant and having regard to such other information, if any, as it may have—
(a)
that the applicant is a fit and proper person to act as an insolvency practitioner, and
(b)
that the applicant meets the prescribed requirements with respect to education and practical training and experience.
F477(3)
An authorisation granted under this section, if not previously withdrawn, continues in force for one year.
(3A)
But where an authorisation is granted under this section the competent authority must, before its expiry (and without a further application made in accordance with section 392) grant a further authorisation under this section taking effect immediately after the expiry of the previous authorisation, unless it appears to the authority that the subject of the authorisation no longer complies with subsection (2)(a) and (b).
(4)
An authorisation F478granted under this section may be withdrawn by the competent authority if it appears to it—
(a)
that the holder of the authorisation is no longer a fit and proper person to act as an insolvency practitioner, or
(b)
without prejudice to paragraph (a), that the holder—
(i)
has failed to comply with any provision of this Part or of any regulations made under this Part or Part XV, or
(ii)
in purported compliance with any such provision, has furnished the competent authority with false, inaccurate or misleading information.
(5)
An authorisation granted under this section may be withdrawn by the competent authority at the request or with the consent of the holder of the authorisation.
F479(6)
Where an authorisation granted under this section is withdrawn—
(a)
subsection (3A) does not require a further authorisation to be granted, or
(b)
if a further authorisation has already been granted at the time of the withdrawal, the further authorisation is also withdrawn.
394 Notices.
(1)
Where a competent authority grants an authorisation under section 393, it shall give written notice of that fact to the applicant, specifying the date on which the authorisation takes effect.
(2)
Where the authority proposes to refuse an application, or to withdraw an authorisation under section 393(4), it shall give the applicant or holder of the authorisation written notice of its intention to do so, setting out particulars of the grounds on which it proposes to act.
(3)
In the case of a proposed withdrawal the notice shall state the date on which it is proposed that the withdrawal should take effect.
(4)
A notice under subsection (2) shall give particulars of the rights exercisable under the next two sections by a person on whom the notice is served.
395 Right to make representations.
(1)
A person on whom a notice is served under section 394(2) may within 14 days after the date of service make written representations to the competent authority.
(2)
The competent authority shall have regard to any representations so made in determining whether to refuse the application or withdraw the authorisation, as the case may be.
396 Reference to Tribunal.
(1)
The Insolvency Practitioners Tribunal (“the Tribunal”) continues in being; and the provisions of Schedule 7 apply to it.
(2)
Where a person is served with a notice under section 394(2), he may—
(a)
at any time within 28 days after the date of service of the notice, or
(b)
at any time after the making by him of representations under section 395 and before the end of the period of 28 days after the date of the service on him of a notice by the competent authority that the authority does not propose to alter its decision in consequence of the representations,
give written notice to the authority requiring the case to be referred to the Tribunal.
(3)
Where a requirement is made under subsection (2), then, unless the competent authority—
(a)
has decided or decides to grant the application or, as the case may be, not to withdraw the authorisation, and
(b)
within 7 days after the date of the making of the requirement, gives written notice of that decision to the person by whom the requirement was made,
it shall refer the case to the Tribunal.
397 Action of Tribunal on reference.
(1)
On a reference under section 396 the Tribunal shall—
(a)
investigate the case, and
(b)
make a report to the competent authority stating what would in their opinion be the appropriate decision in the matter and the reasons for that opinion,
and it is the duty of the competent authority to decide the matter accordingly.
(2)
The Tribunal shall send a copy of the report to the applicant or, as the case may be, the holder of the authorisation; and the competent authority shall serve him with a written notice of the decision made by it in accordance with the report.
(3)
The competent authority may, if he thinks fit, publish the report of the Tribunal.
398 Refusal or withdrawal without reference to Tribunal.
Where in the case of any proposed refusal or withdrawal of an authorisation either—
(a)
the period mentioned in section 396(2)(a) has expired without the making of any requirement under that subsection or of any representations under section 395, or
(b)
the competent authority has given a notice such as is mentioned in section 396(2)(b) and the period so mentioned has expired without the making of any such requirement,
the competent authority may give written notice of the refusal or withdrawal to the person concerned in accordance with the proposal in the notice given under section 394(2).
Part XIV Public Administration (England and Wales)
Official receivers
399 Appointment, etc. of official receivers.
(1)
For the purposes of this Act the official receiver, in relation to any bankruptcy F480, winding up F481, individual voluntary arrangement, debt relief order or application for such an order, is any person who by virtue of the following provisions of this section or section 401 below is authorised to act as the official receiver in relation to that bankruptcy F480, winding up F481, individual voluntary arrangement, debt relief order or application for such an order.
(2)
The Secretary of State may (subject to the approval of the Treasury as to numbers) appoint persons to the office of official receiver, and a person appointed to that office (whether under this section or section 70 of the M40Bankruptcy Act 1914)—
(a)
shall be paid out of money provided by Parliament such salary as the Secretary of State may with the concurrence of the Treasury direct,
(b)
shall hold office on such other terms and conditions as the Secretary of State may with the concurrence of the Treasury direct, and
(c)
may be removed from office by a direction of the Secretary of State.
(3)
Where a person holds the office of official receiver, the Secretary of State shall from time to time attach him either to the High Court or to a county court having jurisdiction for the purposes of the second Group of Parts of this Act.
(4)
Subject to any directions under subsection (6) below, an official receiver attached to a particular court is the person authorised to act as the official receiver in relation to every bankruptcy F480, winding up F482, individual voluntary arrangement, debt relief order or application for such an order falling within the jurisdiction of that court.
(5)
The Secretary of State shall ensure that there is, at all times, at least one official receiver attached to the High Court and at least one attached to each county court having jurisdiction for the purposes of the second Group of Parts; but he may attach the same official receiver to two or more different courts.
(6)
The Secretary of State may give directions with respect to the disposal of the business of official receivers, and such directions may, in particular—
(a)
authorise an official receiver attached to one court to act as the official receiver in relation to any case or description of cases falling within the jurisdiction of another court;
(b)
provide, where there is more than one official receiver authorised to act as the official receiver in relation to cases falling within the jurisdiction of any court, for the distribution of their business between or among themselves.
(7)
A person who at the coming into force of section 222 of the M41Insolvency Act 1985 (replaced by this section) is an official receiver attached to a court shall continue in office after the coming into force of that section as an official receiver attached to that court under this section.
400 Functions and status of official receivers.
(1)
In addition to any functions conferred on him by this Act, a person holding the office of official receiver shall carry out such other functions as may from time to time be conferred on him by the Secretary of State.
(2)
In the exercise of the functions of his office a person holding the office of official receiver shall act under the general directions of the Secretary of State and shall also be an officer of the court in relation to which he exercises those functions.
(3)
Any property vested in his official capacity in a person holding the office of official receiver shall, on his dying, ceasing to hold office or being otherwise succeeded in relation to the bankruptcy or winding up in question by another official receiver, vest in his successor without any conveyance, assignment or transfer.
401 Deputy official receivers and staff.
(1)
The Secretary of State may, if he thinks it expedient to do so in order to facilitate the disposal of the business of the official receiver attached to any court, appoint an officer of his department to act as deputy to that official receiver.
(2)
Subject to any directions given by the Secretary of State under section 399 or 400, a person appointed to act as deputy to an official receiver has, on such conditions and for such period as may be specified in the terms of his appointment, the same status and functions as the official receiver to whom he is appointed deputy.
Accordingly, references in this Act (except section 399(1) to (5)) to an official receiver include a person appointed to act as his deputy.
(3)
An appointment made under subsection (1) may be terminated at any time by the Secretary of State.
(4)
The Secretary of State may, subject to the approval of the Treasury as to numbers and remuneration and as to the other terms and conditions of the appointments, appoint officers of his department to assist official receivers in the carrying out of their functions.
The Official Petitioner
F483402 Official Petitioner.
(1)
There continues to be an officer known as the Official Petitioner for the purposes of discharging, in relation to cases in which a criminal bankruptcy order is made, the functions assigned to him by or under this Act; and the Director of Public Prosecutions continues, by virtue of his office, to be the Official Petitioner.
(2)
The functions of the Official Petitioner include the following—
(a)
to consider whether, in a case in which a criminal bankruptcy order is made, it is in the public interest that he should himself present a petition under section 264(1)(d) of this Act;
(b)
to present such a petition in any case where he determines that it is in the public interest for him to do so;
(c)
to make payments, in such cases as he may determine, towards expenses incurred by other persons in connection with proceedings in pursuance of such a petition; and
(d)
to exercise, so far as he considers it in the public interest to do so, any of the powers conferred on him by or under this Act.
(3)
Any functions of the Official Petitioner may be discharged on his behalf by any person acting with his authority.
(4)
Neither the Official Petitioner nor any person acting with his authority is liable to any action or proceeding in respect of anything done or omitted to be done in the discharge, or purported discharge, of the functions of the Official Petitioner.
(5)
In this section “criminal bankruptcy order” means an order under section 39(1) of the M42Powers of Criminal Courts Act 1973.
Insolvency Service finance, accounting and investment
403 Insolvency Services Account.
(1)
All money received by the Secretary of State in respect of proceedings under this Act as it applies to England and Wales shall be paid into the Insolvency Services Account kept by the Secretary of State with the Bank of England; and all payments out of money standing to the credit of the Secretary of State in that account shall be made by the Bank of England in such manner as he may direct.
(2)
Whenever the cash balance standing to the credit of the Insolvency Services Account is in excess of the amount which in the opinion of the Secretary of State is required for the time being to answer demands in respect of bankrupts’ estates or companies’ estates, the Secretary of State shall—
(a)
notify the excess to the National Debt Commissioners, and
(b)
pay into the Insolvency Services Investment Account (“the Investment Account”) kept by the Commissioners with the Bank of England the whole or any part of the excess as the Commissioners may require for investment in accordance with the following provisions of this Part.
(3)
Whenever any part of the money so invested is, in the opinion of the Secrtetary of State, required to answer any demand in respect of bankrupt’s estates or companies’ estates, he shall notify to the National Debt Commissioners the amount so required and the Commissioners—
(a)
shall thereupon repay to the Secretary of State such sum as may be required to the credit of the Insolvency Services Account, and
(b)
for that purpose may direct the sale of such part of the securities in which the money has been invested as may be necessary.
404 Investment Account.
Any money standing to the credit of the Investment Account (including any money received by the National Debt Commissioners by way of interest on or proceeds of any investment under this section) may be invested by the Commissioners, in accordance with such directions as may be given by the Treasury, in any manner for the time being specified in Part II of Schedule 1 to the M43Trustee Investments Act 1961.
405 Application of income in Investment Account; adjustment of balances.
F484. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
406F485Interest on money received by liquidators or trustees in bankruptcy and invested.
Where under rules made by virtue of paragraph 16 of Schedule 8 to this Act(investment of money received by company liquidators) F486or paragraph 21 of Schedule 9 to this Act (investment of money received by trustee in bankruptcy) a company or a bankrupt’s estate has become entitled to any sum by way of interest, the Secretary of State shall certify that sum and the amount of tax payable on it to the National Debt Commissioners; and the Commissioners shall pay, out of the Investment Account—
(a)
into the Insolvency Services Account, the sum so certified less the amount of tax so certified, and
(b)
to the Commissioners of Inland Revenue, the amount of tax so certified.
407 Unclaimed dividends and undistributed balances.
(1)
The Secretary of State shall from time to time pay into the Consolidated Fund out of the Insolvency Services Account so much of the sums standing to the credit of that Account as represents—
(a)
dividends which were declared before such date as the Treasury may from time to time determine and have not been claimed, and
(b)
balances ascertained before that date which are too small to be divided among the persons entitled to them.
(2)
For the purposes of this section the sums standing to the credit of the Insolvency Services Account are deemed to include any sums paid out of that Account and represented by any sums or securities standing to the credit of the Investment Account.
(3)
The Secretary of State may require the National Debt Commissioners to pay out of the Investment Account into the Insolvency Services Account the whole or part of any sum which he is required to pay out of that account under subsection (1); and the Commissioners may direct the sale of such securities standing to the credit of the Investment Account as may be necessary for that purpose.
F487408 Adjustment of balances
(1)
The Treasury may direct the payment out of the Consolidated Fund of sums into—
(a)
the Insolvency Services Account;
(b)
the Investment Account.
(2)
The Treasury shall certify to the House of Commons the reason for any payment under subsection (1).
(3)
The Secretary of State may pay sums out of the Insolvency Services Account into the Consolidated Fund.
(4)
The National Debt Commissioners may pay sums out of the Investment Account into the Consolidated Fund.
409 Annual financial statement and audit.
(1)
The National Debt Commissioners shall for each year ending on 31st March prepare a statement of the sums credited and debited to the Investment Account in such form and manner as the Treasury may direct and shall transmit it to the Comptroller and Auditor General before the end of November next following the year.
(2)
The Secretary of State shall for each year ending 31st March prepare a statement of the sums received or paid by him under section 403 above in such form and manner as the Treasury may direct and shall transmit each statement to the Comptroller and Auditor General before the end of November next following the year.
(3)
Every such statement shall include such additional information as the Treasury may direct.
(4)
The Comptroller and Auditor General shall examine, certify and report on every such statement and shall lay copies of it, and of his report, before Parliament.
Supplementary
410 Extent of this Part.
This part of this Act extends to England and Wales only.
Part XV Subordinate Legislation
General insolvency rules
411 Company insolvency rules.
(1)
Rules may be made—
(a)
in relation to England and Wales, by the Lord Chancellor with the concurrence of the Secretary of State F488and, in the case of rules that affect court procedure, with the concurrence of the Lord Chief Justice, or
(b)
in relation to Scotland, by the Secretary of State,
for the purpose of giving effect to Parts I to VII of this Act F489or the EC Regulation.
F490(1A)
Rules may also be made for the purpose of giving effect to Part 2 of the Banking Act 2009 (bank insolvency orders); and rules for that purpose shall be made—
(a)
in relation to England and Wales, by the Lord Chancellor with the concurrence of—
(i)
the Treasury, and
(ii)
in the case of rules that affect court procedure, the Lord Chief Justice, or
(b)
in relation to Scotland, by the Treasury.
F491(1B)
Rules may also be made for the purpose of giving effect to Part 3 of the Banking Act 2009 (bank administration); and rules for that purpose shall be made—
(a)
in relation to England and Wales, by the Lord Chancellor with the concurrence of—
(i)
the Treasury, and
(ii)
in the case of rules that affect court procedure, the Lord Chief Justice, or
(b)
in relation to Scotland, by the Treasury.
(2)
Without prejudice to the generality of subsection (1), F492(1A)F493or (1B) or to any provision of those Parts by virtue of which rules under this section may be made with respect to any matter, rules under this section may contain—
(a)
any such provision as is specified in Schedule 8 to this Act or corresponds to provision contained immediately before the coming into force of section 106 of the M44Insolvency Act 1985 in rules made, or having effect as if made, under section 663(1) or (2) of the F494the Companies Act 1985(old winding-up rules), and
(b)
such incidental, supplemental and transitional provisions as may appear to the Lord Chancellor or, as the case may be, the Secretary of State F495or the Treasury necessary or expedient.
F496(2A)
For the purposes of subsection (2), a reference in Schedule 8 to this Act to doing anything under or for the purposes of a provision of this Act includes a reference to doing anything under or for the purposes of the EC Regulation (in so far as the provision of this Act relates to a matter to which the EC Regulation applies).
(2B)
Rules under this section for the purpose of giving effect to the EC Regulation may not create an offence of a kind referred to in paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972.
F497(2C)
For the purposes of subsection (2), a reference in Schedule 8 to this Act to doing anything under or for the purposes of a provision of this Act includes a reference to doing anything under or for the purposes of Part 2 of the Banking Act 2009.
F498(2D)
For the purposes of subsection (2), a reference in Schedule 8 to this Act to doing anything under or for the purposes of a provision of this Act includes a reference to doing anything under or for the purposes of Part 3 of the Banking Act 2009.
(3)
In Schedule 8 to this Act “liquidator” includes a provisional liquidator F499or bank liquidatorF500or administrator; and references above in this section to Parts I to VII of this Act F501or Part 2 F502or 3 of the Banking Act 2009 are to be read as including F503the Companies Actsso far as relating to, and to matters connected with or arising out of, the insolvency or winding up of companies.
F504(3A)
In this section references to Part 2 or 3 of the Banking Act 2009 include references to those Parts as applied to building societies (see section 90C of the Building Societies Act 1986).
(4)
Rules under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(5)
Regulations made by the Secretary of State F505or the Treasury under a power conferred by rules under this section shall be made by statutory instrument and, after being made, shall be laid before each House of Parliament.
(6)
Nothing in this section prejudices any power to make rules of court.
F506(7)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
412 Individual insolvency rules (England and Wales).
(1)
(2)
Without prejudice to the generality of subsection (1), or to any provision of those Parts by virtue of which rules under this section may be made with respect to any matter, rules under this section may contain—
(a)
any such provision as is specified in Schedule 9 to this Act or corresponds to provision contained immediately before the appointed day in rules made under section 132 of the M45Bankruptcy Act 1914; and
(b)
such incidental, supplemental and transitional provisions as may appear to the Lord Chancellor necessary or expedient.
F510(2A)
For the purposes of subsection (2), a reference in Schedule 9 to this Act to doing anything under or for the purposes of a provision of this Act includes a reference to doing anything under or for the purposes of the EC Regulation (in so far as the provision of this Act relates to a matter to which the EC Regulation applies).
(2B)
Rules under this section for the purpose of giving effect to the EC Regulation may not create an offence of a kind referred to in paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972.
(3)
Rules under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(4)
Regulations made by the Secretary of State under a power conferred by rules under this section shall be made by statutory instrument and, after being made, shall be laid before each House of Parliament.
(5)
Nothing in this section prejudices any power to make rules of court.
F511(6)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
413 Insolvency Rules Committee.
(1)
The committee established under section 10 of the M46Insolvency Act 1976 (advisory committee on bankruptcy and winding-up rules) continues to exist for the purpose of being consulted under this section.
(2)
The Lord Chancellor shall consult the committee before making any rules under section 411 or 412 F512other than rules which contain a statement that the only provision made by the rules is provision applying rules made under section 411, with or without modifications, for the purposes of provision made by section F513any of sections 23 to 26 of the Water Industry Act 1991 or Schedule 3 to that ActF514or by any of sections 59 to 65 of, or Schedule 6 or 7 to, the Railways Act 1993..
(3)
Subject to the next subsection, the committee shall consist of—
(a)
a judge of the High Court attached to the Chancery Division;
(b)
a circuit judge;
(c)
a registrar in bankruptcy of the High Court;
(d)
the registrar of a county court;
(e)
a practising barrister;
(f)
a practising solictor; and
(g)
a practising accountant;
and the appointment of any person as a member of the committee shall be made F515in accordance with subsection (3A) or (3B).
F516(3A)
The Lord Chief Justice must appoint the persons referred to in paragraphs (a) to (d) of subsection (3), after consulting the Lord Chancellor.
(3B)
The Lord Chancellor must appoint the persons referred to in paragraphs (e) to (g) of subsection (3), after consulting the Lord Chief Justice.
(4)
The Lord Chancellor may appoint as additional members of the committee any persons appearing to him to have qualifications or experience that would be of value to the committee in considering any matter with which it is concerned.
F517(5)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
Fees orders
414 Fees orders (company insolvency proceedings).
(1)
There shall be paid in respect of—
(a)
proceedings under any of Parts I to VII of this Act, and
(b)
the performance by the official receiver or the Secretary of State of functions under those Parts,
such fees as the competent authority may with the sanction of the Treasury by order direct.
(2)
That authority is—
(a)
in relation to England and Wales, the Lord Chancellor, and
(b)
in relation to Scotland, the Secretary of State.
(3)
The Treasury may by order direct by whom and in what manner the fees are to be collected and accounted for.
(4)
The Lord Chancellor may, with the sanction of the Treasury, by order provide for sums to be deposited, by such persons, in such manner and in such circumstances as may be specified in the order, by way of security for fees payable by virtue of this section.
(5)
An order under this section may contain such incidental, supplemental and transitional provisions as may appear to the Lord Chancellor, the Secretary of State or (as the case may be) the Treasury necessary or expedient.
(6)
An order under this section shall be made by statutory instrument and, after being made, shall be laid before each House of Parliament.
(7)
Fees payable by virtue of this section shall be paid into the Consolidated Fund.
(8)
References in subsection (1) to Parts I to VII of this Act are to be read as including F518the Companies Acts so far as relating to, and to matters connected with or arising out of, the insolvency or winding up of companies.
F519(8A)
This section applies in relation to Part 2 of the Banking Act 2009 (bank insolvency) as in relation to Parts I to VII of this Act.
F520(8B)
This section applies in relation to Part 3 of the Banking Act 2009 (bank administration) as in relation to Parts I to VII of this Act.
F521(8C)
In subsections (8A) and (8B) the reference to Parts 2 and 3 of the Banking Act 2009 include references to those Parts as applied to building societies (see section 90C of the Building Societies Act 1986).
(9)
Nothing in this section prejudices any power to make rules of court; and the application of this section to Scotland is without prejudice to section 2 of the M47Courts of Law Fees (Scotland) Act 1895.
415 Fees orders (individual insolvency proceedings in England and Wales).
(1)
There shall be paid in respect of—
F522(za)
the costs of persons acting as approved intermediaries under Part 7A,
(a)
proceedings under F523Parts 7A to 11 of this Act, and
(b)
the performance by the official receiver or the Secretary of State of functions under those Parts,
such fees as the Lord Chancellor may with the sanction of the Treasury by order direct.
(2)
The Treasury may by order direct by whom and in what manner the fees are to be collected and accounted for.
(3)
The Lord Chancellor may, with the sanction of the Treasury, by order provide for sums to be deposited, by such persons, in such manner and in such circumstances as may be specified in the order, by way of security for—
(a)
fees payable by virtue of this section, and
(b)
fees payable to any person who has prepared an insolvency practitioner’s report under section 274 in Chapter I of Part IX.
(4)
An order under this section may contain such incidental, supplemental and transitional provisions as may appear to the Lord Chancellor or, as the case may be, the Treasury, necessary or expedient.
(5)
An order under this section shall be made by statutory instrument and, after being made, shall be laid before each House of Parliament.
(6)
Fees payable by virtue of this section shall be paid into the Consolidated Fund.
(7)
Nothing in this section prejudices any power to make rules of court.
F524415A Fees orders (general)
F525A1
The Secretary of State—
(a)
may by order require a person or body to pay a fee in connection with the grant or maintenance of a designation of that person or body as a competent authority under section 251U, and
(b)
may refuse to grant, or may withdraw, any such designation where a fee is not paid.
(1)
The Secretary of State—
(a)
may by order require a body to pay a fee in connection with the grant or maintenance of recognition of the body under section 391, and
(b)
may refuse recognition, or revoke an order of recognition under section 391(1) by a further order, where a fee is not paid.
(2)
The Secretary of State—
(a)
may by order require a person to pay a fee in connection with the grant or maintenance of authorisation of the person under section 393, and
(b)
may disregard an application or withdraw an authorisation where a fee is not paid.
(3)
The Secretary of State may by order require the payment of fees in respect of—
(a)
the operation of the Insolvency Services Account;
(b)
payments into and out of that Account.
(4)
The following provisions of section 414 apply to fees under this section as they apply to fees under that section—
(a)
subsection (3) (manner of payment),
(b)
subsection (5) (additional provision),
(c)
subsection (6) (statutory instrument),
(d)
subsection (7) (payment into Consolidated Fund), and
(e)
subsection (9) (saving for rules of court).
Specification, increase and reduction of money sums relevant in the operation of this Act
416 Monetary limits (companies winding up).
(1)
The Secretary of State may by order in a statutory instrument increase or reduce any of the money sums for the time being specified in the following provisions in the first Group of Parts—
section 117(2) (amount of company’s share capital determining whether county court has jurisdiction to wind it up);
section 120(3) (the equivalent as respects sheriff court jurisdiction in Scotland);
section 123(1)(a) (minimum debt for service of demand on company by unpaid creditor);
section 184(3) (minimum value of judgment, affecting sheriff’s duties on levying execution);
section 206(1)(a) and (b) (minimum value of company property concealed or fraudulently removed, affecting criminal liability of company’s officer).
(2)
An order under this section may contain such transitional provisions as may appear to the Secretary of State necessary or expedient.
(3)
No order under this section increasing or reducing any of the money sums for the time being specified in section 117(2), 120(3) or 123(1)(a) shall be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.
(4)
A statutory instrument containing an order under this section, other than an order to which subsection (3) applies, is subject to annulment in pursuance of a resolution of either House of Parliament.
417 Money sum in s. 222.
The Secretary of State may by regulations in a statutory instrument increase or reduce the money sum for the time being specified in section 222(1) (minimum debt for service of demand on unregistered company by unpaid creditor); but such regulations shall not be made unless a draft of the statutory instrument containing them has been approved by resolution of each House of Parliament.
F526417A Money sums (company moratorium).
(1)
The Secretary of State may by order increase or reduce any of the money sums for the time being specified in the following provisions of Schedule A1 to this Act—
paragraph 17(1) (maximum amount of credit which company may obtain without disclosure of moratorium);
paragraph 41(4) (minimum value of company property concealed or fraudulently removed, affecting criminal liability of company’s officer).
(2)
An order under this section may contain such transitional provisions as may appear to the Secretary of State necessary or expedient.
(3)
An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
418 Monetary limits (bankruptcy).
(1)
The Secretary of State may by order prescribe amounts for the purposes of the following provisions in the second Group of Parts—
F527section 251S(4) (maximum amount of credit which a person in respect of whom a debt relief order is made may obtain without disclosure of his status);
section 273 (minimum value of debtor’s estate determining whether immediate bankruptcy order should be made; small bankruptcies level);
F528section 313A (value of property below which application for sale, possession or charge to be dismissed);
section 346(3) (minimum amount of judgment, determining whether amount recovered on sale of debtor’s goods is to be treated as part of his estate in bankruptcy);
section 354(1) and (2) (minimum amount of concealed debt, or value or property concealed or removed, determining criminal liability under the section);
section 358 (minimum value of property taken by a bankrupt out of England and Wales, determining his criminal liability);
section 360(1) (maximum amount of credit which bankrupt may obtain without disclosure of his status);
section 361(2) (exemption of bankrupt from criminal liability for failure to keep proper accounts, if unsecured debts not more than the prescribed minimum);
section 364(2)(d) (minimum value of goods removed by the bankrupt, determining his liability to arrest);
F529paragraphs 6 to 8 of Schedule 4ZA (maximum amount of a person's debts, monthly surplus income and property for purposes of obtaining a debt relief order);
and references in the second Group of Parts to the amount prescribed for the purposes of any of those provisions, and references in those provisions to the prescribed amount, are to be construed accordingly.
(2)
An order under this section may contain such transitional provisions as may appear to the Secretary of State necessary or expedient.
(3)
An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
Insolvency practice
419 Regulations for purposes of Part XIII.
(1)
The Secretary of State may make regulations for the purpose of giving effect to Part XIII of this Act; and “prescribed” in that Part means prescribed by regulations made by the Secretary of State.
(2)
Without prejudice to the generality of subsection (1) or to any provision of that Part by virtue of which regulations may be made with respect to any matter, regulations under this section may contain—
(a)
provision as to the matters to be taken into account in determining whether a person is a fit and proper person to act as an insolvency practitioner;
(b)
provision prohibiting a person from so acting in prescribed cases, being cases in which a conflict of interest will or may arise;
(c)
provision imposing requirments with respect to—
(i)
the preparation and keeping by a person who acts as an insolvency practitioner of prescribed books, accounts and other records, and
(ii)
the production of those books, accounts and records to prescribed persons;
(d)
provision conferring power on prescribed persons—
(i)
to require any person who acts or has acted as an insolvency practitioner to answer any inquiry in relation to a case in which he is so acting or has so acted, and
(ii)
to apply to a court to examine such a person or any other person on oath concerning such a case;
(e)
provision making non-co(mpliance with any of the regulations a criminal offence; and
(f)
such incidental, supplemental and transitional provisions as may appear to the Secretary of State necessary or expedient.
(3)
Any power conferred by Part XIII of this Part to make regulations, rules or orders is exercisable by statutory instrument subject to annulment by resolution of either House of Parliament.
(4)
Any rule or regulation under Part XIII or this Part may make different provision with respect to different cases or descriptions of cases, including different provision for different areas.
Other order-making powers
420 Insolvent partnerships.
(1)
The Lord Chancellor may, by order made with the concurrence of the Secretary of State F530and the Lord Chief Justice, provide that such provisions of this Act as may be specified in the order shall apply in relation to insolvent partnerships with such modifications as may be so specified.
F531(1A)
An order under this section may make provision in relation to the EC Regulation.
(1B)
But provision made by virtue of this section in relation to the EC Regulation may not create an offence of a kind referred to in paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972.
(2)
An order under this section may make different provision for different cases and may contain such incidental, supplemental and transitional provisions as may appear to the Lord Chancellor F532and the Lord Chief Justice necessary or expedient.
(3)
An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
F533(4)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
421 Insolvent estates of deceased persons.
(1)
The Lord Chancellor may, by order made with the concurrence of the Secretary of State F534and the Lord Chief Justice, provide that such provisions of this Act as may be specified in the order shall apply F535in relation to the administration of the insolvent estates of deceased persons with such modifications as may be so specified.
F536(1A)
An order under this section may make provision in relation to the EC Regulation.
(1B)
But provision made by virtue of this section in relation to the EC Regulation may not create an offence of a kind referred to in paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972.
(2)
An order under this section may make different provision for different cases and may contain such incidental, supplemental and transitional provisions as may appear to the Lord Chancellor F537and the Lord Chief Justice necessary or expedient.
(3)
An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(4)
For the purposes of this section the estate of a deceased person is insolvent if, when realised, it will be insufficient to meet in full all the debts and other liabilities to which it is subject.
F538(5)
The Lord Chief Justice may nominate a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005) to exercise his functions under this section.
F539421A Insolvent estates: joint tenancies.
(1)
This section applies where—
(a)
an insolvency administration order has been made in respect of the insolvent estate of a deceased person,
(b)
the petition for the order was presented after the commencement of this section and within the period of five years beginning with the day on which he died, and
(c)
immediately before his death he was beneficially entitled to an interest in any property as joint tenant.
(2)
For the purpose of securing that debts and other liabilities to which the estate is subject are met, the court may, on an application by the trustee appointed pursuant to the insolvency administration order, make an order under this section requiring the survivor to pay to the trustee an amount not exceeding the value lost to the estate.
(3)
In determining whether to make an order under this section, and the terms of such an order, the court must have regard to all the circumstances of the case, including the interests of the deceased’s creditors and of the survivor; but, unless the circumstances are exceptional, the court must assume that the interests of the deceased’s creditors outweigh all other considerations.
(4)
The order may be made on such terms and conditions as the court thinks fit.
(5)
Any sums required to be paid to the trustee in accordance with an order under this section shall be comprised in the estate.
(6)
The modifications of this Act which may be made by an order under section 421 include any modifications which are necessary or expedient in consequence of this section.
(7)
In this section, “survivor” means the person who, immediately before the death, was beneficially entitled as joint tenant with the deceased or, if the person who was so entitled dies after the making of the insolvency administration order, his personal representatives.
(8)
If there is more than one survivor—
(a)
an order under this section may be made against all or any of them, but
(b)
no survivor shall be required to pay more than so much of the value lost to the estate as is properly attributable to him.
(9)
In this section—
“insolvency administration order” has the same meaning as in any order under section 421 having effect for the time being,
“value lost to the estate” means the amount which, if paid to the trustee, would in the court’s opinion restore the position to what it would have been if the deceased had been adjudged bankrupt immediately before his death.
422F540Formerly authorised banks.
F541(1)
The Secretary of State may by order made with the concurrence of the Treasury and after consultation with the Financial Services Authority provide that specified provisions in the first Group of Parts shall apply with specified modifications in relation to any person who—
(a)
has a liability in respect of a deposit which he accepted in accordance with the Banking Act 1979 (c. 37) or 1987 (c. 22), but
(b)
does not have permission under Part IV of the Financial Services and Markets Act 2000 (c. 8) (regulated activities) to accept deposits.
(1A)
Subsection (1)(b) shall be construed in accordance with—
(a)
section 22 of the Financial Services and Markets Act 2000 (classes of regulated activity and categories of investment),
(b)
any relevant order under that section, and
(c)
Schedule 2 to that Act (regulated activities).
(1A)
F542. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2)
An order under this section may make different provision for different cases and may contain such incidental, supplemental and transitional provisions as may appear to the Secretary of State necessary or expedient.
(3)
An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
Part XVI Provisions Against Debt Avoidance (England and Wales only)
423 Transactions defrauding creditors.
(1)
This section relates to transactions entered into at an undervalue; and a person enters into such a transaction with another person if—
(a)
he makes a gift to the other person or he otherwise enters into a transaction with the other on terms that provide for him to receive no consideration;
(b)
he enters into a transaction with the other in consideration of marriage F543or the formation of a civil partnership; or
(c)
he enters into a transaction with the other for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by himself.
(2)
Where a person has entered into such a transaction, the court may, if satisfied under the next subsection, make such order as it thinks fit for—
(a)
restoring the position to what it would have been if the transaction had not been entered into, and
(b)
protecting the interests of persons who are victims of the transaction.
(3)
In the case of a person entering into such a transaction, an order shall only be made if the court is satisfied that it was entered into by him for the purpose—
(a)
of putting assets beyond the reach of a person who is making, or may at some time make, a claim against him, or
(b)
of otherwise prejudicing the interests of such a person in relation to the claim which he is making or may make.
(4)
In this section “the court” means the High Court or—
(a)
if the person entering into the transaction is an individual, any other court which would have jurisdiction in relation to a bankruptcy petition relating to him;
(b)
if that person is a body capable of being wound up under Part IV or V of this Act, any other court having jurisdiction to wind it up.
(5)
In relation to a transaction at an undervalue, references here and below to a victim of the transaction are to a person who is, or is capable of being, prejudiced by it; and in the following two sections the person entering into the transaction is referred to as “the debtor”.
424 Those who may apply for an order under s. 423.
(1)
An application for an order under section 423 shall not be made in relation to a transaction except—
(a)
in a case where the debtor has been adjudged bankrupt or is a body corporate which is being wound up or F544is in administration, by the official receiver, by the trustee of the bankrupt’s estate or the liquidator or adminstrator of the body corporate or (with the leave of the court) by a victim of the transaction;
(b)
in a case where a victim of the transaction is bound by a voluntary arrangement approved under Part I or Part VIII of this Act, by the supervisor of the voluntary arrangement or by any person who (whether or not so bound) is such a victim; or
(c)
in any other case, by a victim of the transaction.
(2)
An application made under any of the paragraphs of subsection (1) is to be treated as made on behalf of every victim of the transaction.
425 Provision which may be made by order under s. 423.
(1)
Without prejudice to the generality of section 423, an order made under that section with respect to a transaction may (subject as follows)—
(a)
require any property transferred as part of the transaction to be vested in any person, either absolutely or for the benefit of all the persons on whose behalf the application for the order is treated as made;
(b)
require any property to be so vested if it represents, in any person’s hands, the application either of the proceeds of sale of property so transferred or of the money so transferred;
(c)
release or discharge (in whole or in part) any security given by the debtor;
(d)
require any person to pay to any other person in respect of benefits received from the debtor such sums as the court may direct;
(e)
provide for any surety or guarantor whose obligations to any person were released or discharged (in whole or in part) under the transaction to be under such new or revived obligations as the court thinks appropriate;
(f)
provide for security to be provided for the discharge of any obligation imposed by or arising under the order, for such an obligation to be charged on any property and for such security or charge to have the same priority as a security or charge released or discharged (in whole or in part) under the transaction.
(2)
An order under section 423 may affect the property of, or impose any obligation on, any person whether or not he is the person with whom the debtor entered into the transaction; but such an order—
(a)
shall not prejudice any interest in property which was acquired from a person other than the debtor and was acquired in good faith, for value and without notice of the relevant circumstances, or prejudice any interest deriving from such an interest, and
(b)
shall not require a person who received a benefit from the transaction in good faith, for value and without notice of the relevant circumstances to pay any sum unless he was a party to the transaction.
(3)
For the purposes of this section the relevant circumstances in relation to a transaction are the circumstances by virtue of which an order under section 423 may be made in respect of the transaction.
(4)
In this section “security” means any mortgage, charge, lien or other security.
Part XVII Miscellaneous and General
426 Co-operation between courts exercising jurisdiction in relation to insolvency.
(1)
An order made by a court in any part of the United Kingdom in the exercise of jurisdiction in relation to insolvency law shall be enforced in any other part of the United Kingdom as if it were made by a court exercising the corresponding jurisdiction in that other part.
(2)
However, without prejudice to the following provisions of this section, nothing in subsection (1) requires a court in any part of the United Kingdom to enforce, in relation to property situated in that part, any order made by a court in any other part of the United Kingdom.
(3)
The Secretary of State, with the concurrence in relation to property situated in England and Wales of the Lord Chancellor, may by order make provision for securing that a trustee or assignee under the insolvency law of any part of the United Kingdom has, with such modifications as may be specified in the order, the same rights in relation to any property situated in another part of the United Kingdom as he would have in the corresponding circumstances if he were a trustee or assignee under the insolvency law of that other part.
(4)
The courts having jurisdiction in relation to insolvency law in any part of the United Kingdom shall assist the courts having the corresponding jurisdiction in any other part of the United Kingdom or any relevant country or territory.
(5)
For the purposes of subsection (4) a request made to a court in any part of the United Kingdom by a court in any other part of the United Kingdom or in a relevant country or territory is authority for the court to which the request is made to apply, in relation to any matters specified in the request, the insolvency law which is applicable by either court in relation to comparable matters falling within its jurisdiction.
In exercising its descretion under this subsection, a court shall have regard in particular to the rules of private international law.
(6)
Where a person who is a trustee or assignee under the insolvency law of any part of the United Kingdom claims property situated in any other part of the United Kingdom (whether by virtue of an order under subsection (3) or otherwise), the submission of that claim to the court exercising jurisdiction in relation to insolvency law in that other part shall be treated in the same manner as a request made by a court for the purpose of subsection (4).
(7)
Section 38 of the M48Criminal Law Act 1977 (execution of warrant of arrest throughout the United Kingdom) applies to a warrant which, in exercise of any jurisdiction in relation to insolvency law, is issued in any part of the United Kingdom for the arrest of a person as it applies to a warrant issued in that part of the United Kingdom for the arrest of a person charged with an offence.
(8)
Without prejudice to any power to make rules of court, any power to make provision by subordinate legislation for the purpose of giving effect in relation to companies or individuals to the insolvency law of any part of the United Kingdom includes power to make provision for the purpose of giving effect in that part to any provision made by or under the preceding provisions of this section.
(9)
An order under subsection (3) shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(10)
In this section “insolvency law” means—
(a)
in relation to England and Wales, provision F545extending to England and Wales and made by or under this Act or sections F5451A 6 to 10, F54612 to 15, 19(c) and 20 (with Schedule 1) of the M49Company Directors Disqualification Act 1986 F546and sections 1 to 17 of that Act as they apply for the purposes of those provisions of that Act;
(b)
in relation to Scotland, provision extending to Scotland and made by or under this Act, sections F5471A 6 to 10, F54812 to 15, 19(c) and 20 (with Schedule 1) of the Company Directors Disqualification Act 1986 F547and sections 1 to 17 of that Act as they apply for the purposes of those provisions of that Act, Part XVIII of the Companies Act or the M50Bankruptcy (Scotland) Act 1985;
(c)
(d)
in relation to any relevant country or territory, so much of the law of that country or territory as corresponds to provisions falling within any of the foregoing paragraphs;
and references in this subsection to any enactment include, in relation to any time before the coming into force of that enactment the corresponding enactment in force at that time.
(11)
In this section “relevant country or territory” means—
(a)
any of the Channel Islands or the Isle of Man, or
(b)
any country or territory designated for the purposes of this section by the Secretary of State by order made by statutory instrument.
F551(12)
In the application of this section to Northern Ireland—
(a)
for any reference to the Secretary of State there is substituted a reference to the Department of Economic Development in Northern Ireland;
(b)
in subsection (3) for the words “another part of the United Kingdom” and the words “that other part” there is substituted the words “Northern Ireland”;
(c)
for subsection (9) there is substituted the following subsection—
“(9)
An order made under subsection (3) by the Department of Economic Development in Northern Ireland shall be a statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 and shall be subject to negative resolution within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954.”.
F552(13)
Section 129 of the Banking Act 2009 provides for provisions of that Act about bank insolvency to be “insolvency law” for the purposes of this section.
F553(14)
Section 165 of the Banking Act 2009 provides for provisions of that Act about bank administration to be “insolvency law” for the purposes of this section.
F554426A Disqualification from Parliament (England and Wales)
(1)
A person in respect of whom a bankruptcy restrictions order F555or a debt relief restrictions order has effect shall be disqualified—
(a)
from membership of the House of Commons,
(b)
from sitting or voting in the House of Lords, and
(c)
from sitting or voting in a committee of the House of Lords or a joint committee of both Houses.
(2)
If a member of the House of Commons becomes disqualified under this section, his seat shall be vacated.
(3)
If a person who is disqualified under this section is returned as a member of the House of Commons, his return shall be void.
(4)
No writ of summons shall be issued to a member of the House of Lords who is disqualified under this section.
(5)
If a court makes a bankruptcy restrictions order or interim order F556, or a debt relief restrictions order or an interim debt relief restrictions order, in respect of a member of the House of Commons or the House of Lords the court shall notify the Speaker of that House.
(6)
If the Secretary of State accepts a bankruptcy restrictions undertaking F557or a debt relief restrictions undertaking made by a member of the House of Commons or the House of Lords, the Secretary of State shall notify the Speaker of that House.
F558426B Devolution
(1)
If a court makes a bankruptcy restrictions order or interim order in respect of a member of the Scottish Parliament, the Northern Ireland Assembly or the National Assembly for Wales, F559or makes a debt relief restrictions order or interim debt relief restrictions order in respect of such a member, the court shall notify the presiding officer of that body.
(2)
If the Secretary of State accepts a bankruptcy restrictions undertaking F560or a debt relief restrictions undertaking made by a member of the Scottish Parliament, the Northern Ireland Assembly or the National Assembly for Wales, the Secretary of State shall notify the presiding officer of that body.
F561426C Irrelevance of privilege
(1)
An enactment about insolvency applies in relation to a member of the House of Commons or the House of Lords irrespective of any Parliamentary privilege.
(2)
In this section “enactment” includes a provision made by or under—
(a)
an Act of the Scottish Parliament, or
(b)
Northern Ireland legislation.
427F562Disqualification from Parliament (Scotland and Northern Ireland)
(1)
Where a court in F563. . . Northern Ireland adjudges an individual bankrupt or a court in Scotland awards sequestrian of an individual’s estate, the individual is disqualified—
(a)
for sitting or voting in the House of Lords,
(b)
for being elected to, or sitting or voting in, the House of Commons, and
(c)
for sitting or voting in a committee of either House.
(2)
Where an individual is disqualified under this section, the disqualification ceases—
(a)
except where the adjudication is annulled or the award recalled or reduced without the individual having been first discharged, on the discharge of the individual, and
(b)
in the excepted case, on the annulment, recall or reduction, as the case may be.
(3)
No writ of summons shall be issued to any lord of Parliament who is for the time being disqualified under this section for sitting and voting in the House of Lords.
(4)
Where a member of the House of Commons who is disqualified under this section continues to be so disqualified until the end of the period of 6 months beginning with the day of the adjudication or award, his seat shall be vacated at the end of that period.
(5)
A court which makes an adjudication or award such as is mentioned is subsection (1) in relation to any lord of Parliament or member of the House of Commons shall forthwith certify the adjudication or award to the Speaker of the House of Lords or, as the case may be, to the Speaker of the House of Commons.
(6)
Where a court has certified an adjudication or award to the Speaker of the House of Commons under subsection (5), then immediately after it becomes apparent which of the following certificates is applicable, the court shall certify to the Speaker of the House of Commons—
(a)
that the period of 6 months beginning with the day of the adjudication or award has expired without the adjudication or award having been annulled, recalled or reduced, or
(b)
that the adjudication or award has been annulled, recalled or reduced before the end of that period.
F564(6A)
Subsections (4) to (6) have effect in relation to a member of the Scottish Parliament but as if—
(a)
references to the House of Commons were to the Parliament and references to the Speaker were to the Presiding Officer, and
(b)
in subsection (4), for “under this section” there were substituted “
under section 15(1)(b) of the
Scotland Act 1998 by virtue of this section
”
.
F565(6B)
Subsections (4) to (6) have effect in relation to a member of the National Assembly for Wales but as if—
(a)
references to the House of Commons were to the Assembly and references to the Speaker were to the presiding officer, and
(b)
in subsection (4), for “under this section” there were substituted “
under F566section 16(2) of the Government of Wales Act 2006 by virtue of this section
”
.
F567(6C)
Subsection (1), as applied to a member of the Northern Ireland Assembly by virtue of section 36(4) of the Northern Ireland Act 1998, has effect as if “or Northern Ireland” were omitted; and subsections (4) to (6) have effect in relation to such a member as if—
(a)
references to the House of Commons were to the Assembly and references to the Speaker were to the Presiding Officer; and
(b)
in subsection (4), for “under this section” there were substituted “
under section 36(4) of the
Northern Ireland Act 1998 by virtue of this section
”
.
(7)
F568. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
428 Exemptions from Restrictive Trade Practices Act.
F569(1)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F569(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)
In this section “insolvency services” means the services of persons acting as insolvency practitioners or carrying out under the law of Northern Ireland functions corresponding to those mentioned in section 388(1) or (2) in Part XIII, in their capacity as such F569. . ..
429 Disabilities on revocation of administration order against an individual.
(1)
The following applies where a person fails to make any payment which he is required to make by virtue of an administration order under Part VI of the M51County Courts Act 1984.
(2)
The court which is administering that person’s estate under the order may, if it thinks fit—
(a)
revoke the administration order, and
(b)
make an order directing that this section and section 12 of the M52Company Directors Disqualification Act 1986 shall apply to the person for such period, F570not exceeding one year, as may be specified in the order.
(3)
A person to whom this section so applies shall not—
(a)
either alone or jointly with another person, obtain credit to the extent of the amount prescribed for the purposes of section 360(1)(a) or more, or
(b)
enter into any transaction in the course of or for the purposes of any business in which he is directly or indirectly engaged,
without disclosing to the person from whom he obtains the credit, or (as the case may be) with whom the transaction is entered into, the fact that this section applies to him.
(4)
The reference in subsection (3) to a person obtaining credit includes—
(a)
a case where goods are bailed or hired to him under a hire-purchase agreement or agreed to be sold to him under a conditional sale agreement, and
(b)
a case where he is paid in advance (whether in money or otherwise) for the supply of goods or services.
(5)
A person who contravenes this section is guilty of an offence and liable to imprisonment or a fine, or both.
430 Provision introducing Schedule of punishments.
(1)
Schedule 10 to this Act has effect with respect to the way in which offences under this Act are punishable on conviction.
(2)
In relation to an offence under a provision of this Act 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 of the Schedule shows, in relation to an offence, the maximum punishment by way of fine or imprisonment under this Act 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 subsquent 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 Scheudule).
(5)
For the purpose of any enactment in this Act whereby an officer of a company who is in default is liable to a fine or penalty, the expression “officer who is in default” means any officer of the company who knowingly and wilfully authorises or permits the default, refusal or contravention mentioned in the enactment.
431 Summary proceedings.
(1)
Summary proceedings for any offence under any of Parts I to VII of this Act may (without prejudice to any jurisdiction exercisable apart from this subsection) be taken against a body corporate at any place at which the body has a place of business, and against any other person at any place at which he is for the time being.
(2)
Notwithstanding anything in section 127(1) of the M53Magistrates’ Courts Act 1980, an information relating to such an offence which is triable by a magistrates’ court in England and Wales may be so tried if it is laid at any time within 3 years after the commission of the offence and within 12 months after the date on which evidence sufficient in the opinion of the Director of Public Prosecutions or the Secretary of State (as the case may be) to justify the proceedings comes to his knowledge.
(3)
Summary proceedings in Scotland for such an offence shall not be commenced after the expiration of 3 years from the commission of the offence.
Subject to this (and notwithstanding anything in F571section 136 of the Criminal Procdure (Scotland) Act 1995), such proceedings may (in Scotland) be commenced at any time within 12 months after the date on which evidence sufficient in the Lord Advocate’s opinion to justify the proceedings came to his knowledge or, where such evidence was reported to him by the Secretary of State, within 12 months after the date on which it came to the knowledge of the latter; and subsection (3) of that section applies for the purpose of this subsection as it applies for the purpose of that section.
(4)
For purposes of this section, a certificate of the Director of Public Prosecutions, the Lord Advocate or the Secretary of State (as the case may be) as to the date on which such evidence as is referred to above came to his knowledge is conclusive evidence.
432 Offences by bodies corporate.
(1)
This section applies to offences under this Act other than those excepted by subsection (4).
(2)
Where a body corporate is guilty of an offence to which this section applies and the offence is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity he, as well as the body corporate, is guilty of the offence and liable to be proceeded against and punished accordingly.
(3)
Where the affairs of a body corporate are managed by its members, subsection (2) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(4)
The offences excepted from this section are those under sections 30, 39, 51, 53, 54, 62, 64, 66, 85, 89, 164, 188, 201, 206, 207, 208, 209, 210 and 211 F572and those under paragraphs 16(2), 17(3)(a), 18(3)(a), 19(3)(a), 22(1) and 23(1)(a) of Schedule A1.
433 Admissibility in evidence of statements of affairs, etc.
F573(1)
In any proceedings (whether or not under this Act)—
(a)
a statement of affairs prepared for the purposes of any provision of this Act which is derived from the M54Insolvency Act 1985,
F574(aa)
a statement made in pursuance of a requirement imposed by or under Part 2 of the Banking Act 2009 (bank insolvency),
F575(ab)
a statement made in pursuance of a requirement imposed by or under Part 3 of that Act (bank administration), and
(b)
any other statement made in pursuance of a requirement imposed by or under any such provision or by or under rules made under this Act,
may be used in evidence against any person making or concurring in making the statement.
F576(2)
However, in criminal proceedings in which any such person is charged with an offence to which this subsection applies—
(a)
no evidence relating to the statement may be adduced, and
(b)
no question relating to it may be asked,
by or on behalf of the prosecution, unless evidence relating to it is adduced, or a question relating to it is asked, in the proceedings by or on behalf of that person.
(3)
Subsection (2) applies to any offence other than—
(a)
an offence under section 22(6), 47(6), 48(8), 66(6), 67(8), 95(8), 98(6), 99(3)(a), 131(7), 192(2), 208(1)(a) or (d) or (2), 210, 235(5), 353(1), 354(1)(b) or (3) or 356(1) or (2)(a) or (b) or paragraph 4(3)(a) of Schedule 7;
(b)
an offence which is—
(i)
created by rules made under this Act, and
(ii)
designated for the purposes of this subsection by such rules or by regulations made by the Secretary of State;
(c)
an offence which is—
(i)
created by regulations made under any such rules, and
(ii)
designated for the purposes of this subsection by such regulations;
(d)
an offence under section 1, 2 or 5 of the M55Perjury Act 1911 (false statements made on oath or made otherwise than on oath); or
(e)
an offence under section 44(1) or (2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made on oath or otherwise than on oath).
(4)
Regulations under subsection (3)(b)(ii) shall be made by statutory instrument and, after being made, shall be laid before each House of Parliament.
434 Crown application.
For the avoidance of doubt it is hereby declared that provisions of this Act which derive from the M56Insolvency Act 1985 bind the Crown so far as affecting or relating to the following matters, namely—
(a)
remedies against, or against the property of, companies or individuals;
(b)
priorities of debts;
(c)
transactions at an undervalue or preferences;
(d)
voluntary arrangements approved under Part I or Part VIII, and
(e)
discharge from bankruptcy.
F577PART 17ASUPPLEMENTARY PROVISIONS
434AIntroductory
The provisions of this Part have effect for the purposes of—
(a)
the First Group of Parts, and
(b)
sections 411, 413, 414, 416 and 417 in Part 15.
434BRepresentation of corporations at meetings
(1)
If a corporation is a creditor or debenture-holder, it may by resolution of its directors or other governing body authorise a person or persons to act as its representative or representatives—
(a)
at any meeting of the creditors of a company held in pursuance of this Act or of rules made under it, or
(b)
at any meeting of a company held in pursuance of the provisions contained in a debenture or trust deed.
(2)
Where the corporation authorises only one person, that person is entitled to exercise the same powers on behalf of the corporation as the corporation could exercise if it were an individual creditor or debenture-holder.
(3)
Where the corporation authorises more than one person, any one of them is entitled to exercise the same powers on behalf of the corporation as the corporation could exercise if it were an individual creditor or debenture-holder.
(4)
Where the corporation authorises more than one person and more than one of them purport to exercise a power under subsection (3)—
(a)
if they purport to exercise the power in the same way, the power is treated as exercised in that way;
(b)
if they do not purport to exercise the power in the same way, the power is treated as not exercised.
434CLegal professional privilege
In proceedings against a person for an offence under this Act nothing in this Act is to be taken to require any person to disclose any information that he is entitled to refuse to disclose on grounds of legal professional privilege (in Scotland, confidentiality of communications).
F578434DEnforcement of company's filing obligations
(1)
This section applies where a company has made default in complying with any obligation under this Act—
(a)
to deliver a document to the registrar, or
(b)
to give notice to the registrar of any matter.
(2)
The registrar, or any member or creditor of the company, may give notice to the company requiring it to comply with the obligation.
(3)
If the company fails to make good the default within 14 days after service of the notice, the registrar, or any member or creditor of the company, may apply to the court for an order directing the company, and any specified officer of it, to make good the default within a specified time.
(4)
The court's order may provide that all costs (in Scotland, expenses) of or incidental to the application are to be borne by the company or by any officers of it responsible for the default.
(5)
This section does not affect the operation of any enactment imposing penalties on a company or its officers in respect of any such default.
434EApplication of filing obligations to overseas companies
The provisions of this Act requiring documents to be forwarded or delivered to, or filed with, the registrar of companies apply in relation to an overseas company that is required to register particulars under section 1046 of the Companies Act 2006 as they apply in relation to a company registered under that Act in England and Wales or Scotland.
Part XVIII Interpretation
435 Meaning of “associate”.
(1)
For the purposes of this Act any question whether a person is an associate of another person is to be determined in accordance with the following provisions of this section (any provision that a person is an associate of another person being taken to mean that they are associates of each other).
F579(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 F580or 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.
(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 any of the second Group of Parts or the M57Bankruptcy (Scotland) Act 1985, or
(b)
a pension scheme or an employees’ share scheme F581. . . ,
is an associate of another person if the beneficiaries of the trust include, or the terms of the trust confer a power that may be exercised 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 two or more persons has control of each company, and the groups either consist of the same persons or 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 section 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;
(9)
For the purposes of this section any director or other officer of a company is to be treated as employed by that company.
(10)
For the purposes of this section 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 of or another company which has control of it;
and where two or more persons together satisfy either of the above conditions, they are to be taken as having control of the company.
(11)
In this section “company” includes any body corporate (whether incorporated in Great Britain 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.
436 Expressions used generally.
F584[(1)]
In this Act, except in so far as the context otherwise requires (and subject to Parts VII and XI)—
F585“agricultural charge” has the same meaning as in the M58Agricultural Credits Act 1928;
“agricultural receiver” means a receiver appointed under an agricultural charge;
“the appointed day” means the day of which this Act comes into force under section 443;
“associate” has the meaning given by section 435;
F586“body corporate” includes a body incorporated outside Great Britain, but does not include—
- (a)
a corporation sole, or
- (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;
- (a)
“business” includes a trade or profession;
F587 “the Companies Act” means the Companies Act 1985;F588“the Companies Acts” means the Companies Acts (as defined in section 2 of the Companies Act 2006) as they have effect in Great Britain;
“conditional sale agreement” and “hire-purchase agreement” have the same meanings as in the M59Consumer Credit Act 1974;
F585“corporate member” means an insolvent member which is a company;
“the court”, in relation to an insolvent partnership, means the court which has jurisdiction to wind up the partnership;
F589“the EC Regulation” means Council Regulation (EC) No. 1346/2000;
F590“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;
F591“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—
- (a)
the bona fide employees or former employees of—
- (i)
the company,
- (ii)
any subsidiary of the company, or
- (iii)
the company's holding company or any subsidiary of the company's holding company, or
- (i)
- (b)
the spouses, civil partners, surviving spouses, surviving civil partners, or minor children or step-children of such employees or former employees.
- (a)
F585“individual member” means an insolvent member who is an individual;
“insolvency order” means—
- (a)
in the case of an insolvent partnership or a corporate member, a winding-up order; and
- (b)
in the case of an individual member, a bankruptcy order;
- (a)
“insolvency petition” means, in the case of a petition presented to the court—
- (a)
against a corporate member, a petition for its winding up by the court;
- (b)
against an individual member, a petition for a bankruptcy order to be made against that 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 Act;
- (a)
“insolvency proceedings” means any proceedings under the Act, this Order or the M60Insolvency Rules 1986
“insolvent member” means a member of an insolvent partnership, against whom an insolvency petition is being or has been presented;
“joint bankruptcy petition” means a petition by virtue of article 11 of this Order;
“joint debt” means a debt of an insolvent partnership in respect of which an order is made by virtue of Part IV or V of this Order;
“joint estate” means the partnership property of an insolvent partnership in respect of which an order is made by virtue of Part IV or V of this Order;
“joint expenses” means expenses incurred in the winding up of an insolvent partnership or in the winding up of the business of an insolvent partnership and the administration of its property;
“limited partner” has the same meaning as in the M61Limited Partnerships Act 1907;
“member” means a member of a partnership and any person who is liable as a partner within the meaning of section 14 of the M62Partnership Act 1890;
“modifications” includes additions, alterations and omissions and cognate expressions shall be construed accordingly;
F585“officer”, in relation to an insolvent partnership, means—
- (a)
a member; or
- (b)
a person who has management or control of the partnership business;
- (a)
“partnership property” has the same meaning as in the Partnership Act 1890;
“postponed debt” means a debt the payment of which is postponed by or under any provision of the Act or of any other enactment;
“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;
F585“responsible insolvency practitioner” means—
- (a)
in winding up, the liquidator of an insolvent partnership or corporate member; and
- (b)
in bankruptcy, the trustee of the estate of an individual member,
and in either case includes the official receiver when so acting;
- (a)
“separate debt” means a debt for which a member of a partnership is liable, other than a joint debt;
“separate estate” means the property of an insolvent member against whom an insolvency order has been made;
“separate expenses” means expenses incurred in the winding up of a corporate member, or in the bankruptcy of an individual member; and
“subordinate legislation” has the same meaning as in the M63Interpretation Act 1978; and
“transaction” includes a gift, agreement or arrangement, and references to entering into a transaction shall be construed accordingly.
F585“trustee of the partnership” means a person authorised by order made by virtue of article 11 of this Order to wind up the business of an insolvent partnership and to administer its property.
F592(2)
The following expressions have the same meaning in this Act 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);
“registrar of companies” (see section 1060 of that Act);
“share” (see section 540 of that Act);
“subsidiary” (see sections 1159 and 1160 of, and Schedule 6 to, that Act).
F593436AProceedings under EC Regulations: modified definition of property
In the application of this Act to proceedings by virtue of Article 3 of the EC Regulation, a reference to property is a reference to property which may be dealt with in the proceedings.
F594436BReferences to things in writing
(1)
A reference in this Act to a thing in writing includes that thing in electronic form.
(2)
Subsection (1) does not apply to the following provisions—
(a)
section 53 (mode of appointment by holder of charge),
(b)
section 67(2) (report by receiver),
(c)
section 70(4) (reference to instrument creating a charge),
(d)
section 111(2) (dissent from arrangement under s. 110),
(e)
in the case of a winding up of a company registered in Scotland, section 111(4),
(f)
section 123(1) (definition of inability to pay debts),
(g)
section 198(3) (duties of sheriff principal as regards examination),
(h)
section 222(1) (inability to pay debts: unpaid creditor for £750 or more), and
(i)
section 223 (inability to pay debts: debt remaining unsatisfied after action brought).
Part XIX Final Provisions
437 Transitional provisions, and savings.
The transitional provisions and savings set out in Schedule 11 to this Act shall have effect, the Schedule comprising the following Parts—
Part I: company insolvency and winding up (matters arising before appointed day, and continuance of proceedings in certain cases as before that day);
Part II: individual insolvency (matters so arising, and continuance of bankruptcy proceedings in certain cases as before that day);
Part III: transactions entered into before the appointed day and capable of being affected by orders of the court under Part XVI of this Act;
Part IV: insolvency practitioners acting as such before the appointed day; and
Part V: general transitional provisions and savings required consequentially on, and in connection with, the repeal and replacement by this Act and the M64Company Directors Disqualification Act 1986 of provisions of F595the Companies Act 1985, the greater part of the M65Insolvency Act 1985 and other enactments.
438 Repeals.
The enactments specified in the second column of Schedule 12 to this Act are repealed to the extent specified in the third column of that Schedule.
439 Amendment of enactments.
(1)
The Companies Act is amended as shown in Parts I and II of Schedule 13 to this Act, being amendments consequential on this Act and the Company Directors Disqualification Act 1986.
(2)
The enactments specified in the first column of Schedule 14 to this Act (being enactments which refer, or otherwise relate, to those which are repealed and replaced by this Act or the Company Directors Diqualification Act 1986) are amended as shown in the second column of that Schedule.
(3)
The Lord Chancellor may by order make such consequential modifications of any provision contained in any subordinate legislation made before the appointed day and such transitional provisions in connection with those modifications as appear to him necessary or expedient in respect of—
(a)
any reference in that subordinate legislation to the M66Bankruptcy Act 1914;
(b)
any reference in that subordinate legislation to any enactment repealed by Part III or IV or Schedule 10 to the M67Insolvency Act 1985; or
(c)
any reference in that subordinate legislation to any matter provided for under the Act of 1914 or under any enactment so repealed.
(4)
An order under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
440 Extent (Scotland).
(1)
Subject to the next subsection, provisions of this Act contained in the first Group of Parts extend to Scotland except where otherwise stated.
(2)
The following provisions of this Act do not extend to Scotland—
(a)
in the first Group of Parts—
section 43;
sections 238 to 241; and
section 246;
(b)
the second Group of Parts;
(c)
in the third Group of Parts—
sections 399 to 402,
sections 412, 413, 415, F596415A(3), 418, 420 and 421,
sections 423 to 425, and
section 429(1) and (2); and
(d)
in the Schedules—
Parts II and III of Schedule 11; and
Schedules 12 and 14 so far as they repeal or amend enactments which extend to England and Wales only.
441 Extent (Northern Ireland).
(1)
The following provisions of this Act extend to Northern Ireland—
(a)
sections 197, 426, 427 and 428; and
(b)
so much of section 439 and Schedule 14 as relates to enactments which extend to Northern Ireland.
(2)
Subject as above, and to any provision expressly relating to companies incorporated elsewhere than in Great Britain, nothing in this Act extends to Northern Ireland or applies to or in relation to companies registered or incorporated in Northern Ireland.
442 Extent (other territories).
Her Majesty may, by Order in Council, direct that such of the provisions of this Act as are specified in the Order, being provisions formerly contained in the M68Insolvency Act 1985, shall extend to any of the Channel Islands or any colony with such modifications as may be so specified.
443 Commencement.
This Act comes into force on the day appointed under section 236(2) of the Insolvency Act 1985 for the coming into force of Part III of that Act (individual insolvency and bankruptcy), immediately after that Part of that Act comes into force for England and Wales.
444 Citation.
This Act may be cited as the Insolvency Act 1986.