| PART 10 |
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INSOLVENCY |
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Companies etc. |
| 248 |
Replacement of Part II of Insolvency
Act 1986
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(1) The following shall be
substituted for Part II of the Insolvency Act 1986
(c. 45) (administration orders)-
|
| |
 |
"PART II |
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ADMINISTRATION |
| 8 |
Administration
|
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Schedule B1 to this Act (which makes
provision about the administration of companies) shall have
effect."
|
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(2) The Schedule B1 set out
in Schedule 16 to this Act shall be inserted after Schedule A1 to
the Insolvency Act 1986.
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| |
(3) Schedule 17 (minor and
consequential amendments relating to administration) shall have
effect.
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(4) The Secretary of State
may by order amend an enactment in consequence of this section.
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(5) An order under subsection
(4)-
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(a) must be made by statutory instrument, and
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(b) shall be subject to annulment in pursuance of a resolution of
either House of Parliament.
|
| 249 |
Special administration regimes
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| |
(1) Section 248 shall have no
effect in relation to-
|
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(a) a company holding an appointment under Chapter I of Part II of
the Water Industry Act 1991 (c. 56) (water and sewerage
undertakers),
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(b) a protected railway company within the meaning of section 59
of the Railways Act 1993 (c. 43) (railway administration order) (including
that section as it has effect by virtue of section 19 of the
Channel Tunnel Rail Link Act 1996 (c. 61) (administration)),
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(c) a licence company within the meaning of section 26 of the
Transport Act 2000 (c. 38) (air traffic services),
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(d) a public-private partnership company within the meaning of
section 210 of the Greater London Authority Act 1999 (c. 29) (public-private
partnership agreement), or
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(e) a building society within the meaning of section 119 of the
Building Societies Act 1986 (c. 53) (interpretation).
|
| |
(2) A reference in an Act
listed in subsection (1) to a provision of Part II of the Insolvency
Act 1986 (or to a provision which has effect in relation to a
provision of that Part of that Act) shall, in so far as it relates
to a company or society listed in subsection (1), continue to have
effect as if it referred to Part II as it had effect immediately
before the coming into force of section 248.
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| |
(3) But the effect of
subsection (2) in respect of a particular class of company or
society may be modified by order of-
|
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(a) the Treasury, in the case of building societies, or
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(b) the Secretary of State, in any other case.
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(4) An order under subsection
(3) may make consequential amendment of an enactment.
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(5) An order under subsection
(3)-
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(a) must be made by statutory instrument, and
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| |
(b) may not be made unless a draft has been laid before and
approved by resolution of each House of Parliament.
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(6) An amendment of the Insolvency
Act 1986 (c. 45) made by this Act is without prejudice to any power
conferred by Part VII of the Companies Act 1989 (c. 40) (financial
markets) to modify the law of insolvency.
|
| 250 |
Prohibition of appointment of administrative
receiver
|
| |
(1) The following shall be
inserted after Chapter III of Part III of the Insolvency
Act 1986 (receivership: receivers' powers)-
|
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|
"CHAPTER IV |
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PROHIBITION OF APPOINTMENT OF
ADMINISTRATIVE RECEIVER |
| 72A |
Floating charge holder not to appoint
administrative receiver
|
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(1) The holder of a
qualifying floating charge in respect of a company's
property may not appoint an administrative receiver of the
company.
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(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.
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| |
(3) In subsections
(1) and (2)-
|
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"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
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"administrative receiver" has the meaning given
by section 251.
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(4) This section
applies-
|
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(a) to a floating charge created on or after a date
appointed by the Secretary of State by order made by
statutory instrument, and
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(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).
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(5) An order under
subsection (4)(a) may-
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(a) make provision which applies generally or only for a
specified purpose;
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(b) make different provision for different purposes;
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(c) make transitional provision.
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(6) This section is
subject to the exceptions specified in sections 72B to 72G.
|
| 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-
|
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(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
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(b) the arrangement involves the issue of a capital market
investment.
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(2) In subsection
(1)-
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"capital market arrangement" means an
arrangement of a kind described in paragraph 1 of Schedule
2A, and
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"capital market investment" means an investment
of a kind described in paragraph 2 or 3 of that Schedule.
|
| 72C |
Second exception: public-private
partnership
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(1) Section 72A does
not prevent the appointment of an administrative receiver of
a project company of a project which-
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(a) is a public-private partnership project, and
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(b) includes step-in rights.
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(2) In this section
"public-private partnership project" means a
project-
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(a) the resources for which are provided partly by one or
more public bodies and partly by one or more private
persons, or
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(b) which is designed wholly or mainly for the purpose of
assisting a public body to discharge a function.
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(3) In this section-
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"step-in rights" has the meaning given by
paragraph 6 of Schedule 2A, and
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"project company" has the meaning given by
paragraph 7 of that Schedule.
|
| 72D |
Third exception: utilities
|
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(1) Section 72A does
not prevent the appointment of an administrative receiver of
a project company of a project which-
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(a) is a utility project, and
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(b) includes step-in rights.
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(2) In this section-
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(a) "utility project" means a project designed
wholly or mainly for the purpose of a regulated business,
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(b) "regulated business" means a business of a
kind listed in paragraph 10 of Schedule 2A,
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(c) "step-in rights" has the meaning given by
paragraph 6 of that Schedule, and
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(d) "project company" has the meaning given by
paragraph 7 of that Schedule.
|
| 72E |
Fourth exception: project finance
|
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(1) Section 72A does
not prevent the appointment of an administrative receiver of
a project company of a project which-
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(a) is a financed project, and
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(b) includes step-in rights.
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(2) In this section-
|
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(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,
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(b) "project company" has the meaning given by
paragraph 7 of Schedule 2A, and
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(c) "step-in rights" has the meaning given by
paragraph 6 of that Schedule.
|
| 72F |
Fifth exception: financial market
|
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Section 72A does not prevent the appointment
of an administrative receiver of a company by virtue of-
|
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(a) a market charge within the meaning of section 173 of
the Companies Act 1989 (c. 40),
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(b) a system-charge within the meaning of the Financial
Markets and Insolvency Regulations 1996
(S.I. 1996/1469),
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(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: registered social
landlord
|
| |
Section 72A does not prevent the appointment
of an administrative receiver of a company which is
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).
|
| 72H |
Sections 72A to 72G: supplementary
|
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(1) Schedule 2A
(which supplements sections 72B to 72G) shall have effect.
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(2) The Secretary of
State may by order-
|
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(a) insert into this Act provision creating an additional
exception to section 72A(1) or (2);
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(b) provide for a provision of this Act which creates an
exception to section 72A(1) or (2) to cease to have
effect;
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(c) amend section 72A in consequence of provision made
under paragraph (a) or (b);
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(d) amend any of sections 72B to 72G;
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| |
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(3) An order under
subsection (2) must be made by statutory instrument.
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(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;
|
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(c) consequential or supplementary provision;
|
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(d) transitional provision.
|
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(5) An order under
subsection (2)-
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(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,
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(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
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(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."
|
|
| |
(2) The Schedule 2A set out
in Schedule 18 to this Act shall be inserted after Schedule 2 to the
Insolvency Act 1986 (c. 45).
|
| 251 |
Abolition of Crown preference
|
| |
(1) The following paragraphs
of Schedule 6 to the Insolvency Act 1986
(categories of preferential debts) shall cease to have effect-
|
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(a) paragraphs 1 and 2 (debts due to Inland Revenue),
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(b) paragraphs 3 to 5C (debts due to Customs and Excise), and
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(c) paragraphs 6 and 7 (social security contributions).
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(2) The following paragraphs
of Schedule 3 to the Bankruptcy (Scotland) Act 1985 (c. 66) (list of
preferred debts) shall cease to have effect-
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(a) paragraph 1 (debts due to Inland Revenue),
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(b) paragraph 2 (debts due to Customs and Excise), and
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(c) paragraph 3 (social security contributions).
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(3) In section 386 of the Insolvency
Act 1986 (categories of preferential debts) for the parenthetical
words after "Schedule 6 to this Act" there shall be
substituted "(contributions to occupational pension schemes;
remuneration, &c. of employees; levies on coal and steel
production)".
|
| 252 |
Unsecured creditors
|
| |
The following shall be inserted after section 176 of
the Insolvency Act 1986 (winding up: preferential
debt)-
|
| |
|
"Property subject to floating charge |
| 176A |
Share of assets for unsecured creditors
|
| |
(1) This section
applies where a floating charge relates to property of a
company-
|
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(a) which has gone into liquidation,
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(b) which is in administration,
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(c) of which there is a provisional liquidator, or
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(d) of which there is a receiver.
|
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(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
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| |
(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-
|
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(a) a voluntary arrangement in respect of the company, or
|
| |
(b) a compromise or arrangement agreed under section 425
of the Companies Act (compromise with creditors and
members).
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(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
|
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(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.
|
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(7) An order under
subsection (2) prescribing part of a company's net property
may, in particular, provide for its calculation-
|
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(a) as a percentage of the company's net property, or
|
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(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.
|
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(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.
|
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(10) An order under
this section may include transitional or incidental
provision."
|
|
| 253 |
Liquidator's powers
|
| |
The following shall be inserted in Part I of Schedule
4 to the Insolvency Act 1986 (c. 45) (liquidator's
powers in winding up: powers exercisable only with sanction) after
paragraph 3-
|
| |
"3A. Power to bring legal
proceedings under section 213, 214, 238, 239, 242, 243 or
423."
|
|
| 254 |
Application of insolvency law to
foreign company
|
| |
(1) The Secretary of State
may by order provide for a provision of the Insolvency
Act 1986 to apply (with or without modification) in relation to a
company incorporated outside Great Britain.
|
| |
(2) An order under this
section-
|
| |
(a) may make provision generally or for a specified purpose only,
|
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(b) may make different provision for different purposes, and
|
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(c) may make transitional, consequential or incidental provision.
|
| |
(3) An order under this
section-
|
| |
(a) must be made by statutory instrument, and
|
| |
(b) shall be subject to annulment in pursuance of a resolution of
either House of Parliament.
|
| 255 |
Application of law about company arrangement or
administration to non-company
|
| |
(1) The Treasury may with the
concurrence of the Secretary of State by order provide for a company
arrangement or administration provision to apply (with or without
modification) in relation to-
|
| |
(a) a society registered under the Industrial and Provident
Societies Act 1965 (c. 12),
|
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(b) a society registered under section 7(1)(b), (c), (d), (e) or
(f) of the Friendly Societies Act 1974 (c. 46),
|
| |
(c) a friendly society within the meaning of the Friendly
Societies Act 1992 (c. 40), or
|
| |
(d) an unregistered friendly society.
|
| |
(2) In subsection (1)
"company arrangement or administration provision" means-
|
| |
(a) a provision of Part I of the Insolvency Act
1986 (company voluntary arrangements),
|
| |
(b) a provision of Part II of that Act (administration), and
|
| |
(c) section 425 of the Companies Act 1985 (c. 6) (compromise or
arrangement with creditors).
|
| |
(3) An order under this
section may not provide for a company arrangement or administration
provision to apply in relation to a society which is 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).
|
| |
(4) An order under this
section-
|
| |
(a) may make provision generally or for a specified purpose only,
|
| |
(b) may make different provision for different purposes, and
|
| |
(c) may make transitional, consequential or incidental provision.
|
| |
(5) Provision by virtue of
subsection (4)(c) may, in particular-
|
| |
(a) apply an enactment (with or without modification);
|
| |
|
| |
(6) An order under this
section-
|
| |
(a) must be made by statutory instrument, and
|
| |
(b) shall be subject to annulment in pursuance of a resolution of
either House of Parliament.
|
| |
Individuals |
| 256 |
Duration of bankruptcy
|
| |
(1) The following shall be
substituted for section 279 of the Insolvency Act
1986 (c. 45) (duration of bankruptcy)-
|
| |
| "279 |
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."
|
|
| |
(2) Schedule 19 (which makes
transitional provision in relation to this section)-
|
| |
(a) shall have effect, and
|
| |
(b) is without prejudice to the generality of section 276.
|
| 257 |
Post-discharge restrictions
|
| |
(1) The following shall be
inserted after section 281 of the Insolvency Act
1986 (c. 45) (bankruptcy: effect of discharge)-
|
| |
| "281A |
Post-discharge restrictions
|
|
Schedule 4A to this Act (bankruptcy
restrictions order and bankruptcy restrictions undertaking)
shall have effect."
|
|
| |
(2) The Schedule 4A set out
in Schedule 20 to this Act shall be inserted after Schedule 4 to the
Insolvency Act 1986.
|
| |
(3) The amendments set out in
Schedule 21 (which specify the effect of a bankruptcy restrictions
order or undertaking) shall have effect.
|
| 258 |
Investigation by official receiver
|
| |
The following shall be substituted for section 289 of
the Insolvency Act 1986 (official receiver's duty
to investigate)-
|
| |
| "289 |
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."
|
|
| 259 |
Income payments order
|
| |
(1) Section 310 of the Insolvency
Act 1986 (income payments order) shall be amended as follows.
|
| |
(2) In subsection (1) omit
", on the application of the trustee,".
|
| |
(3) After subsection (1)
insert-
|
| |
|
"(1A) An income
payments order may be made only on an application
instituted-
|
| |
|
| |
(b) before the discharge of the bankrupt."
|
|
| |
(4) For subsection (6)
substitute-
|
| |
|
"(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)."
|
|
| 260 |
Income payments agreement
|
| |
The following shall be inserted after section 310 of
the Insolvency Act 1986 (c. 45) (income payments
order)-
|
| |
| "310A |
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)."
|
|
| 261 |
Bankrupt's home
|
| |
(1) The following shall be
inserted after section 283 of the Insolvency Act
1986 (definition of bankrupt's estate)-
|
| |
| "283A |
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-
|
| |
|
| |
(b) the bankrupt's spouse, or
|
| |
(c) a former spouse 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."
|
|
| |
(2) Section 313 of the Insolvency
Act 1986 (c. 45) (charge on bankrupt's home) shall be amended as
follows-
|
| |
(a) in subsection (2) for ", up to the value from time to
time of the property secured," substitute ", up to the
charged value from time to time,",
|
| |
(b) after subsection (2) insert-
|
| |
|
"(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.", and
|
|
| |
|
| |
|
"(5) But an
order under section 3(5) of that Act may not vary a charged
value."
|
|
| |
(3) The following shall be
inserted after section 313 of that Act-
|
| |
| "313A |
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-
|
| |
|
| |
(ii) the bankrupt's spouse, or
|
| |
(iii) a former spouse 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)."
|
|
| |
(4) The following shall be
inserted after section 307(2)(a) of the Insolvency
Act 1986 (c. 45) (after-acquired property: exclusions)-
|
| |
|
"(aa) any property vesting in the bankrupt by virtue
of section 283A in Chapter II,".
|
|
| |
(5) In section 384(2) of that
Act (prescribed amounts) after "section 273;" insert-
|
| |
|
"section 313A;". |
|
| |
(6) In section 418(1) of that
Act (monetary limits in bankruptcy) after the entry for section 273
insert-
|
| |
|
"section 313A (value of property below
which application for sale, possession or charge to be
dismissed);". |
|
| |
(7) In subsection (8)-
|
| |
(a) "pre-commencement bankrupt" means an individual who
is adjudged bankrupt on a petition presented before subsection (1)
above comes into force, and
|
| |
(b) "the transitional period" is the period of three
years beginning with the date on which subsection (1) above comes
into force.
|
| |
(8) If a pre-commencement
bankrupt's estate includes an interest in a dwelling-house which at
the date of the bankruptcy was the sole or principal residence of
him, his spouse or a former spouse of his, at the end of the
transitional period that interest shall-
|
| |
(a) cease to be comprised in the estate, and
|
| |
(b) vest in the bankrupt (without conveyance, assignment or
transfer).
|
| |
(9) But subsection (8) shall
not apply if before or during the transitional period-
|
| |
(a) any of the events mentioned in section 283A(3) of the Insolvency
Act 1986 (c. 45) (inserted by subsection (1) above) occurs in
relation to the interest or the dwelling-house, or
|
| |
(b) the trustee obtains any order of a court, or makes any
agreement with the bankrupt, in respect of the interest or the
dwelling-house.
|
| |
(10) Subsections 283A(4) to
(9) of that Act shall have effect, with any necessary modifications,
in relation to the provision made by subsections (7) to (9) above;
in particular-
|
| |
(a) a reference to the period mentioned in section 283A(2) shall
be construed as a reference to the transitional period,
|
| |
(b) in the application of section 283A(5) a reference to the date
of the bankruptcy shall be construed as a reference to the date on
which subsection (1) above comes into force, and
|
| |
(c) a reference to the rules is a reference to rules made under
section 412 of the Insolvency Act 1986 (for which
purpose this section shall be treated as forming part of Parts
VIII to XI of that Act).
|
| 262 |
Powers of trustee in bankruptcy
|
| |
The following shall be inserted in Part I of Schedule
5 to the Insolvency Act 1986 (powers of trustee in
bankruptcy: powers exercisable only with sanction) after paragraph
2-
|
| |
"2A. Power to bring
legal proceedings under section 339, 340 or 423."
|
|
| 263 |
Repeal of certain bankruptcy offences
|
| |
The following sections of the Insolvency
Act 1986 shall cease to have effect-
|
| |
(a) section 361 (offence of failure to keep proper accounting
records), and
|
| |
(b) section 362 (offence of gambling and speculation).
|
| 264 |
Individual voluntary arrangement
|
| |
(1) Schedule 22 (which makes
provision about individual voluntary arrangements) shall have
effect.
|
| |
(2) The Secretary of State
may by order amend the Insolvency Act 1986 so as to
extend the provisions of sections 263B to 263G (which are inserted
by Schedule 22 and provide a fast-track procedure for making an
individual voluntary arrangement) to some or all cases other than
those specified in section 263A as inserted by Schedule 22.
|
| |
(3) An order under subsection
(2)-
|
| |
(a) must be made by statutory instrument, and
|
| |
(b) may not be made unless a draft has been laid before and
approved by each House of Parliament.
|
| |
(4) An order under subsection
(2) may make-
|
| |
(a) consequential provision (which may include provision amending
the Insolvency Act 1986 or another enactment);
|
| |
(b) transitional provision.
|
| 265 |
Disqualification from office: justice of the peace
|
| |
Section 65 of the Justices of the Peace Act 1997 (c.
25) (disqualification of bankrupt from appointment as justice of the
peace) shall cease to have effect.
|
| 266 |
Disqualification from office: Parliament
|
| |
(1) The following shall be
inserted before section 427 of the Insolvency Act
1986 (c. 45) (the title to which becomes "Disqualification from
Parliament (Scotland and Northern Ireland)")-
|
| |
| "426A |
Disqualification from Parliament (England
and Wales)
|
| |
(1) A person in
respect of whom a bankruptcy 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 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 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.
|
| 426B |
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, the court shall
notify the presiding officer of that body.
|
| |
(2) If the Secretary
of State accepts a bankruptcy 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.
|
| 426C |
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."
|
|
| |
(2) In section 427 of the Insolvency
Act 1986 the following shall cease to have effect-
|
| |
(a) in subsection (1), the words "England and Wales or",
and
|
| |
|
| |
(3) The Secretary of State
may by order-
|
| |
(a) provide for section 426A or 426B of that Act (as inserted by
subsection (1) above) to have effect in relation to orders made or
undertakings accepted in Scotland or Northern Ireland under a
system which appears to the Secretary of State to be equivalent to
the system operating under Schedule 4A to that Act (as inserted by
section 257 of this Act);
|
| |
(b) make consequential amendment of section 426A or 426B of that
Act (as inserted by subsection (1) above);
|
| |
(c) make other consequential amendment of an enactment.
|
| |
(4) An order under this
section may make transitional, consequential or incidental
provision.
|
| |
(5) An order under this
section-
|
| |
(a) must be made by statutory instrument, and
|
| |
(b) may not be made unless a draft has been laid before and
approved by resolution of each House of Parliament.
|
| 267 |
Disqualification from office: local government
|
| |
(1) The following shall be
substituted for section 80(1)(b) of the Local Government Act 1972
(c. 70) (disqualification for membership of local authority:
bankrupt)-
|
| |
|
"(b) is the subject of a bankruptcy restrictions
order or interim order;".
|
|
| |
(2) Section 81(1) and (2) of
that Act (which amplify the provision substituted by subsection (1)
above) shall cease to have effect.
|
| 268 |
Disqualification from office: general
|
| |
(1) The Secretary of State
may make an order under this section in relation to a
disqualification provision.
|
| |
(2) A "disqualification
provision" is a provision which disqualifies (whether
permanently or temporarily and whether absolutely or conditionally)
a bankrupt or a class of bankrupts from-
|
| |
(a) being elected or appointed to an office or position,
|
| |
(b) holding an office or position, or
|
| |
(c) becoming or remaining a member of a body or group.
|
| |
(3) In subsection (2) the
reference to a provision which disqualifies a person conditionally
includes a reference to a provision which enables him to be
dismissed.
|
| |
(4) An order under subsection
(1) may repeal or revoke the disqualification provision.
|
| |
(5) An order under subsection
(1) may amend, or modify the effect of, the disqualification
provision-
|
| |
(a) so as to reduce the class of bankrupts to whom the
disqualification provision applies;
|
| |
(b) so as to extend the disqualification provision to some or all
individuals who are subject to a bankruptcy restrictions regime;
|
| |
(c) so that the disqualification provision applies only to some or
all individuals who are subject to a bankruptcy restrictions
regime;
|
| |
(d) so as to make the application of the disqualification
provision wholly or partly subject to the discretion of a
specified person, body or group.
|
| |
(6) An order by virtue of
subsection (5)(d) may provide for a discretion to be subject to-
|
| |
(a) the approval of a specified person or body;
|
| |
(b) appeal to a specified person or body.
|
| |
(7) An order by virtue of
subsection (5)(d) made with the concurrence of the Lord Chancellor
may provide for a discretion to be subject to appeal to a specified
court or tribunal.
|
| |
(8) The Secretary of State
may specify himself for the purposes of subsection (5)(d) or (6)(a)
or (b).
|
| |
(9) In this section
"bankrupt" means an individual-
|
| |
(a) who has been adjudged bankrupt by a court in England and Wales
or in Northern Ireland,
|
| |
(b) whose estate has been sequestrated by a court in Scotland, or
|
| |
(c) who has made an agreement with creditors of his for a
composition of debts, for a scheme of arrangement of affairs, for
the grant of a trust deed or for some other kind of settlement or
arrangement.
|
| |
(10) In this section
"bankruptcy restrictions regime" means an order or
undertaking-
|
| |
(a) under Schedule 4A to the Insolvency Act 1986
(c. 45) (bankruptcy restrictions orders), or
|
| |
(b) under any system operating in Scotland or Northern Ireland
which appears to the Secretary of State to be equivalent to the
system operating under that Schedule.
|
| |
(11) In this section-
|
| |
"body" includes Parliament and any other legislative
body, and
|
| |
|
| |
(a) a provision made by an Act of Parliament passed before or in
the same Session as this Act, and
|
| |
(b) a provision made, before or in the same Session as this Act,
under an Act of Parliament.
|
| |
(12) An order under this
section-
|
| |
(a) may make provision generally or for a specified purpose only,
|
| |
(b) may make different provision for different purposes, and
|
| |
(c) may make transitional, consequential or incidental provision.
|
| |
(13) An order under this
section-
|
| |
(a) must be made by statutory instrument, and
|
| |
(b) may not be made unless a draft has been laid before and
approved by resolution of each House of Parliament.
|
| |
(14) A reference in this
section to the Secretary of State shall be treated as a reference to
the National Assembly for Wales in so far as it relates to a
disqualification provision which-
|
| |
(a) is made by the National Assembly for Wales, or
|
| |
(b) relates to a function of the National Assembly.
|
| |
(15) Provision made by virtue
of subsection (7) is subject to any order of the Lord Chancellor
under section 56(1) of the Access to Justice Act 1999 (c. 22)
(appeals: jurisdiction).
|
| 269 |
Minor and consequential amendments
|
| |
Schedule 23 (minor and consequential amendments
relating to individual insolvency) shall have
effect.
|
| |
Money |
| 270 |
Fees
|
| |
(1) The following shall be
inserted after section 415 of the Insolvency Act
1986 (c. 45) (fees orders: individual insolvency)-
|
| |
| "415A |
Fees orders (general)
|
| |
(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)."
|
|
| |
(2) An order made by virtue
of subsection (1) may relate to the maintenance of recognition or
authorisation granted before this section comes into force.
|
| |
(3) At the end of section 392
of the Insolvency Act 1986 (c. 45) (authorisation
of insolvency practitioner) there shall be added-
|
| |
|
"(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)."
|
|
| |
(4) In section 440(2)(c) of
that Act (provisions not extending to Scotland) after
"415," there shall be inserted "415A(3),".
|
| 271 |
Insolvency Services Account:
interest
|
| |
(1) The following shall be
inserted after paragraph 16 of Schedule 8 to the Insolvency
Act 1986 (company insolvency rules: money)-
|
| |
"16A. Provision enabling the
Secretary of State to set the rate of interest paid on sums
which have been paid into the Insolvency
Services Account."
|
|
| |
(2) The following shall be
inserted after paragraph 21 of Schedule 9 to the Insolvency
Act 1986 (individual insolvency rules: money)-
|
| |
"21A. Provision enabling the
Secretary of State to set the rate of interest paid on sums
which have been paid into the Insolvency
Services Account."
|
|
| 272 |
Insolvency Services Accounts
|
| |
(1) Section 405 of the Insolvency
Act 1986 (operation of Investment Account) shall cease to have
effect.
|
| |
(2) The following shall be
substituted for section 408 of that Act (recourse to Consolidated
Fund)-
|
| |
| "408 |
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 |
|
