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The Insolvency Rules (Northern Ireland) 1991

Type Ni-Statutory-Rule

Publication 1991-08-05

State In force

Jurisdiction Northern Ireland

Department Government Printer for Northern Ireland

Source legislation.gov.uk

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(4) Where under paragraph (3) security has been given in the case of an untraced creditor, the court may direct that particulars of the alleged debt, and the security, be advertised in such manner as it thinks fit.

(5) If advertisement is ordered under paragraph (4), and no claim on the security is made within 12 months from the date of the advertisement (or the first advertisement, if more than one), the court shall, on application in that behalf, order the security to be released.

Notice to creditors

6.209

(1) Where the official receiver has notified creditors of the debtor's bankruptcy, and the bankruptcy order is annulled, he shall forthwith notify them of the annulment.

(2) Expenses incurred by the official receiver in giving notice under this Rule are a charge in his favour on the property of the former bankrupt, whether or not actually in his hands.

(3) Where any property is in the hands of a trustee or any person other than the former bankrupt himself, the official receiver's charge is valid subject only to any costs that may be incurred by the trustee or that other person in effecting realisation of the property for the purpose of satisfying the charge.

Annulment under Article 235 or 256(3)(a)

6.210

Rules 6.203, 6.205, 6.207 and 6.209 apply to an application for annulment under Article 235 or 256(3) as they apply to such an application under Article 256(1)(a).

Other matters arising on annulment

6.211

(1) In an order under Article 235 or 256 the court shall include provision permitting vacation of the registration of the bankruptcy petition and of the bankruptcy order in the Registry of Deeds and, if notice of the presentation of the petition or of the bankruptcy order has been given to the Registrar of Titles, permitting the cancellation of any entry in the register of the said notice or of any bankruptcy inhibition against the title of the bankrupt as the registered owner of land.

(2) The court shall—

(a) forthwith give notice of the making of the order to—

(i) the Department,

(ii) the Enforcement of Judgments Office, and

(iii) where the bankruptcy order was made against a solicitor, to the Law Society of Northern Ireland;

(b) send copies of the order to the official receiver and (if other) the trustee;

(c) send 2 sealed copies of the order to the former bankrupt, together with the certificate required by section 3(4) of the Registration of Deeds Act (Northern Ireland) 1970[^f00027], as applied by section 3B(3) of that Act, signed by the Master.

(3) The former bankrupt may require the Department to give notice of the making of the order—

(a) in the Gazette, or

(b) in any newspaper in which the bankruptcy order was advertised, or

(4) Any requirement by the former bankrupt under paragraph (3) shall be addressed to the Department in writing. The Department shall notify him forthwith as to the cost of the advertisement, and is under no obligation to advertise until that sum has been paid.

(5) Where the former bankrupt has died, or is a person incapable of managing his affairs (within the meaning of Chapter 7 in Part 7), the references to him in paragraphs (3) and (4) are to be read as referring to his personal representative or, as the case may be, a person appointed by the court to represent or act for him.

Trustee's final account

6.212

(1) Where a bankruptcy order is annulled under Article 235 or 256, this does not of itself release the trustee from any duty or obligation, imposed on him by or under the Order or the Rules, to account for all his transactions in connection with the former bankrupt's estate.

(2) The trustee shall submit a copy of his final account to the Department, as soon as practicable after the court's order annulling the bankruptcy order; and he shall file a copy of the final account in court.

(3) The final account must include a summary of the trustee's receipts and payments in the administration, and contain a statement to the effect that he has reconciled his account with that which is held by the Department in respect of the bankruptcy.

(4) The trustee is released from such time as the court may determine, having regard to whether—

(a) paragraph (2) has been complied with, and

(b) any security given under Rule 6.208(3) has been, or will be, released.

CHAPTER 22 — DISCHARGE

Application for suspension of discharge

6.213

(1) This Rule applies where the official receiver applies to the court for an order under Article 253(3) (suspension of automatic discharge), but not where he makes that application, pursuant to Rule 6.173(4), on the adjournment of the bankrupt's public examination.

(2) The official receiver shall with his application file a report setting out the reasons why it appears to him that such an order should be made.

(3) The court shall fix a venue for the hearing of the application, and give notice of it to the official receiver, the trustee and the bankrupt.

(4) Copies of the official receiver's report under this Rule shall be sent by him to the trustee and the bankrupt, so as to reach them at least 21 days before the hearing date.

(5) The bankrupt may, not later than 7 days before the hearing date, file in court a notice specifying any statements in the official receiver's report which he intends to deny or dispute.

(6) If the bankrupt files a notice under paragraph (5), he shall send copies of it, not less than 4 days before the hearing date, to the official receiver and the trustee.

(7) If on the hearing the court makes an order suspending the bankrupt's discharge, copies of the order shall be sent by the court to the official receiver, the trustee and the bankrupt.

Lifting of suspension of discharge

6.214

(1) Where the court has made an order under Article 253(3) that the relevant period (that is to say, the period after which the bankrupt may under that Article have his discharge) shall cease to run, the bankrupt may apply to it for the order to be discharged.

(2) The court shall fix a venue for the hearing of the application; and the bankrupt shall, not less than 28 days before the hearing date, give notice of the venue to the official receiver and the trustee, accompanied in each case by a copy of the application.

(3) The official receiver and the trustee may appear and be heard on the bankrupt's application; and, whether or not he appears, the official receiver may file in court a report of any matters which he considers ought to be drawn to the court's attention.

(4) If the court's order under Article 253(3) was for the relevant period to cease to run until the fulfilment of specified conditions, the court may request a report from the official receiver as to whether those conditions have or have not been fulfilled.

(5) If a report is filed under paragraph (3) or (4), copies of it shall be sent by the official receiver to the bankrupt and the trustee, not later than 14 days before the hearing date.

(6) The bankrupt may, not later than 7 days before the hearing date, file in court a notice specifying any statements in the official receiver's report which he intends to deny or dispute.

(7) If the bankrupt files a notice under paragraph (6), he shall send copies of it, not less than 4 days before the hearing date, to the official receiver and the trustee.

(8) If on the bankrupt's application the court discharges the order under Article 253(3) (being satisfied that the relevant period should begin to run again), it shall issue to the bankrupt a certificate that it has done so, with effect from a specified date.

Application by bankrupt for discharge

6.215

(1) If the bankrupt applies under Article 254 for an order discharging him from bankruptcy, he shall give to the official receiver notice of the application, and deposit with him such sum as the latter may require to cover his costs of the application.

(2) The court, if satisfied that paragraph (1) has been complied with, shall fix a venue for the hearing of the application, and give at least 42 days' notice of it to the official receiver and the bankrupt.

(3) The official receiver shall give notice accordingly—

(a) to the trustee,

(b) to every creditor who, to the official receiver's knowledge, has a claim outstanding against the estate which has not been satisfied, and

(4) Notices under paragraph (3) shall be given not later than 14 days before the date fixed for the hearing of the bankrupt's application.

Report of official receiver

6.216

(1) Where the bankrupt makes an application under Article 254, the official receiver shall, at least 21 days before the date fixed for the hearing of the application, file in court a report containing the following information with respect to the bankrupt—

(a) any failure by him to comply with his obligations under Parts VIII to X of the Order;

(b) the circumstances surrounding the present bankruptcy, and those surrounding any previous bankruptcy of his;

(d) particulars of any distribution which has been, or is expected to be, made to creditors in the present bankruptcy or, if such is the case, that there has been and is to be no distribution;

and the official receiver shall include in his report any other matters which in his opinion ought to be brought to the court's attention.

(2) The official receiver shall send a copy of the report to the bankrupt and the trustee, so as to reach them at least 14 days before the date of the hearing of the application under Article 254.

(3) The bankrupt may, not later than 7 days before the hearing date, file in court a notice specifying any statements in the official receiver's report which he intends to deny or dispute.

(4) If the bankrupt files a notice under paragraph (3), he shall send copies of it, not less than 4 days before the hearing date, to the official receiver and the trustee.

(5) The official receiver, the trustee, any creditor and, where the bankruptcy order was made against a solicitor, the Law Society of Northern Ireland may appear on the hearing of the bankrupt's application, and may make representations and put to the bankrupt such questions as the court may allow.

Order of discharge on application

6.217

(1) An order of the court under Article 254(2)(b) (discharge absolutely) or (c) (discharge subject to conditions with respect to income or property) shall bear the date on which it is made, but does not take effect until such time as it is drawn up by the court.

(2) The order then has effect retrospectively to the date on which it was made.

(3) Copies of any order made by the court on an application by the bankrupt for discharge under Article 254 shall be sent by the court to the bankrupt, the trustee and the official receiver.

Certificate of discharge

6.218

(1) Where it appears to the court that a bankrupt is discharged, whether by expiration of time or otherwise, the court shall, on his application, issue to him a certificate of his discharge, and the date from which it is effective.

(2) The discharged bankrupt may require the Department to give notice of the discharge—

(a) in the Gazette, or

(b) in any newspaper in which the bankruptcy was advertised, or

(3) Any requirements by the former bankrupt under paragraph (2) shall be addressed to the Department in writing. The Department shall notify him forthwith as to the cost of the advertisement, and is under no obligation to advertise until that sum has been paid.

(4) Where the former bankrupt has died, or is a person incapable of managing his affairs (within the meaning of Chapter 7 in Part 7), the references to him in paragraph (2) and (3) are to be read as referring to his personal representative or, as the case may be, a person appointed by the court to represent or act for him.

Deferment of issue and advertisement of order pending appeal

6.219

An order made by the court on an application by the bankrupt for discharge under Article 254 shall not be issued, otherwise than for the purposes of an appeal, and shall not be advertised until the time allowed for appealing has expired or, if an appeal is entered, until the appeal has been determined.

Costs under this Chapter

6.220

In no case do any costs arising under this Chapter fall on the official receiver personally.

Bankrupt's debts surviving discharge

6.221

Discharge does not release the bankrupt from any obligation arising under a confiscation order made under Article 4 or 5 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 [^f00028].

CHAPTER 23 — ORDER OF PAYMENT OF COSTS OUT OF ESTATE

General rule as to priority

6.222

(1) The expenses of the bankruptcy are, subject to any order of the court, payable out of the estate in the following order of priority—

(a) expenses properly chargeable or incurred by the official receiver or the trustee in preserving, realising or getting in any of the assets of the bankrupt, including those incurred in acquiring title to after acquired property;

(b) any other expenses incurred or disbursements made by the official receiver or under his authority, including those incurred or made in carrying on the business of a debtor or bankrupt;

(i) the fee payable under any order made under Article 361 for the performance by the official receiver of his general duties as official receiver;

(ii) any repayable deposit lodged by the petitioner under any such order as security for the fee mentioned in head (i) (except where the deposit is applied to the payment of the remuneration of an insolvency practitioner appointed under Article 247 (debtor's petition));

(d) any other fees payable under any order made under Article 361, including those payable to the official receiver, and any remuneration payable to him under general regulations;

(e) the cost of any security provided by an interim receiver, trustee or special manager in accordance with the Order or the Rules;

(f) the remuneration of the interim receiver (if any);

(g) any deposit lodged on an application for the appointment of an interim receiver;

(h) the costs of the petitioner, and of any person appearing on the petition whose costs are allowed by the court;

(j) the remuneration of the special manager (if any);

(k) any amount payable to a person employed or authorised, under Chapter 5, to assist in the preparation of a statement of affairs or of accounts;

(l) any allowance made, by order of the court, towards costs on an application for release from the obligation to submit a statement of affairs, or for an extension of time for submitting such a statement;

(m) any necessary disbursements by the trustee in the course of his administration (including any expenses incurred by members of the creditors' committee or their representatives and allowed by the trustee under Rule 6.161, but not including any payment of capital gains tax in circumstances referred to in sub-paragraph (p));

(n) the remuneration or emoluments of any person (including the bankrupt) who has been employed by the trustee to perform any services for the estate, as required or authorised by or under the Order or the Rules;

(o) the remuneration of the trustee, up to any amount not exceeding that which is payable to the official receiver under general regulations;

(p) the amount of any capital gains tax on chargeable gains accruing on the realisation of any asset of the bankrupt (without regard to whether the realisation is effected by the trustee, a secured creditor, or a receiver or manager appointed to deal with a security);

(q) the balance, after payment of any sums due under sub-paragraph (o), of any remuneration due to the trustee.

(2) The costs of employing a shorthand writer, if appointed by an order of the court made at the instance of the official receiver in connection with an examination, rank in priority with those specified in paragraph (1)(a). The costs of employing a shorthand writer so appointed in any other case rank after the allowance mentioned in paragraph (1)(l) and before the disbursements mentioned in paragraph (1)(m).

(3) Paragraph (2) shall apply to the costs of a mechanical recording as it applies to the costs of a shorthand writer.

(4) Any expenses incurred in holding an examination under Rule 6.171 (examinee unfit), where the application for it is made by the official receiver, rank in priority with those specified in paragraph (1)(a).

CHAPTER 24 — SECOND BANKRUPTCY

Scope of this Chapter

6.223

(1) This Chapter relates to the manner in which, in the case of a second bankruptcy, the trustee in the earlier bankruptcy is to deal with property and money to which Article 307(3) applies, until there is a trustee of the estate in the later bankruptcy.

(2) “The earlier bankruptcy”, “the later bankruptcy” and “the existing trustee” have the meanings given by Article 307(1).

General duty of existing trustee

6.224

(1) Subject to paragraphs (2) and (3), the existing trustee shall take into his custody or under his control all such property and money, in so far as he has not already done so as part of his duties as trustee in the earlier bankruptcy.

(2) Where any of that property consists of perishable goods, or goods the value of which is likely to diminish if they are not disposed of, the existing trustee has power to sell or otherwise dispose of those goods.

(3) The proceeds of any such sale or disposal shall be held, under the existing trustee's control, with the other property and money comprised in the bankrupt's estate.

Delivery up to later trustee

6.225

The existing trustee shall, as and when requested by the trustee for the purposes of the later bankruptcy, deliver up to the latter all such property and money as is in his custody or under his control in pursuance of Rule 6.224.

Existing trustee's expenses

6.226

Any expenses incurred by the existing trustee in compliance with Article 308(1) and this Chapter shall be defrayed out of, and are a charge on, all such property and money as is referred to in Article 307(3), whether in the hands of the existing trustee or of the trustee for the purposes of the later bankruptcy.

CHAPTER 25 — MISCELLANEOUS RULES IN BANKRUPTCY

Rescission of bankruptcy order against solicitor

6.227

Where a bankruptcy order made against a solicitor is rescinded, the court shall forthwith send to the Law Society of Northern Ireland a copy of the order that it has made.

Consolidation of petitions

6.228

Where 2 or more bankruptcy petitions are presented against the same debtor, the court may order the consolidation of the proceedings, on such terms as it thinks fit.

Bankrupt's dwelling-house and home

6.229

(1) This Rule applies where the trustee applies to the court under Article 286 for an order imposing a charge on property consisting of an interest in a dwelling-house.

(2) The bankrupt's spouse or former spouse shall be made respondent to the application; and the court may, if it thinks fit, direct other persons to be made respondents also, in respect of any interest which they may have in the property.

(3) The trustee shall make a report to the court, containing the following particulars—

(a) the extent of the bankrupt's interest in the property which is the subject of the application; and

(b) the amount which, at the date of the application, remains owing to unsecured creditors of the bankrupt.

(4) The terms of the charge to be imposed shall be agreed between the trustee and the bankrupt or, failing agreement, shall be settled by the court.

(5) The rate of interest applicable under Article 286(2) is the rate applicable to a money judgment of the High Court on the day on which the charge is imposed, and the rate so applicable shall be stated in the court's order imposing the charge.

(6) The order shall also—

(a) describe the property to be charged;

(b) state whether the title to the property is registered and, if it is, specify the folio number;

(d) indicate, by reference to any, or the total, amount which is payable otherwise than to the bankrupt out of the estate and of interest on that amount, how the amount of the charge to be imposed is to be ascertained;

(e) set out the conditions (if any) imposed by the court under Article 286(4); and

(f) identify when any property charged under Article 286 shall cease to be comprised in the bankrupt's estate and, subject to the charge (and any prior charge), to vest in the bankrupt.

(7) Unless the court is of opinion that a different date is appropriate, the date under paragraph (6)(f) shall be that of the registration of the order in the Land Registry or the Registry of Deeds, as the case may be.

(8) The trustee shall, forthwith after the making of the order—

(a) if the title to the property is registered, send a sealed and certified copy of the order to the Registrar of Titles for registration, or

(b) in any other case, send 2 sealed copies of the order (one of which shall be certified by the Master) to the Registrar of Deeds, for registration.

(9) Where the order imposing a charge on the property is discharged or varied under Article 286(6) and the court orders the vacation or amendment of the entry in the Land Registry or in the Registry of Deeds, the trustee shall, forthwith after the making of such order of discharge or variation—

(a) if the order imposing the charge has been registered in the Land Registry, send a sealed and certified copy of the order of discharge or variation to the Registrar of Titles, for registration, or

(b) if the order imposing the charge has been registered in the Registry of Deeds, send 2 sealed copies of the order of discharge or variation (one of which shall be certified by the Master) to the Registrar of Deeds, for registration.

Bankrupt leaving Northern Ireland

6.230

(1) Subject to paragraph (2), an undischarged bankrupt shall not leave Northern Ireland without the leave of the court, which may be granted on such terms as the court thinks just.

(2) A bankrupt may, with the written consent of the official receiver, travel to Great Britain or the Republic of Ireland.

(3) A bankrupt remaining outside Northern Ireland with the leave of the court or the consent of the official receiver for a period exceeding 2 weeks shall inform the official receiver in writing of his address and of every change of address, if any.

PARTS 7 TO 12

PART 7 — COURT PROCEDURE AND PRACTICE

CHAPTER 1 — GENERAL PROCEDURE

Heading and title of proceedings

7.01

(1) Every proceeding under Parts II to VII of the Order shall be headed and, with any necessary additions, be intituled—

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND CHANCERY DIVISION (COMPANY INSOLVENCY) or in respect of proceedings in the winding up of companies (COMPANIES WINDING UP) IN THE MATTER OF (name of company to which the proceedings relate) AND IN THE MATTER OF THE INSOLVENCY (NORTHERN IRELAND) ORDER 1989

(2) Every proceeding under Parts VIII to X of the Order shall be headed and, with any necessary additions, intituled—

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND CHANCERY DIVISION (BANKRUPTCY) Re (name and short description, including any current trading name, of debtor or bankrupt to which the proceedings relate)

Court and chambers

7.02

(1) The following matters and applications shall be heard in open court—

(a) matters and applications heard by the Judge, except those referred by the Master to be heard by the Judge in chambers or directed by the Judge to be so heard;

(b) petitions to wind up companies;

(c) applications by bankrupts for leave to be a director of or directly or indirectly to take part or be concerned in the promotion, formation or management of a company;

(d) public examinations of bankrupts or officers of a company; and

(e) opposed applications for discharge of bankrupts or for the suspension or the lifting of the suspension of discharge.

(2) Every other matter or application before the Master shall be heard in chambers.

Judge and Master

7.03

(1) The following applications shall be made direct to the Judge—

(a) applications for the commital of any person to prison for contempt;

(b) applications for injunctions or for the modification or discharge of injunctions;

(d) appeals from an order or decision of the Master;

(e) applications pursuant to Article 107 (sanctioning dispositions made after commencement of winding up of company);

(f) petitions for administration orders;

(g) applications after an administration order has been made, pursuant to Article 27(3) (for directions) or Article 30(3) (to discharge or vary the order, etc.); and

(h) applications pursuant to Article 18(3) (to stay a winding up or discharge an administration order or for directions where a company voluntary arrangement has been approved).

(2) Subject to paragraph (1), unless the Judge has given a general or special direction to the contrary, the jurisdiction of the court to hear and determine an application may be exercised by the Master, and the application shall be made to the Master in the first instance.

(3) Where the application is made to the Master he may, after giving any necessary directions, refer to the Judge any matter which he thinks should properly be decided by the Judge, and the Judge may either dispose of the matter or refer it back to the Master with such directions as he thinks fit.

(4) Nothing in this Rule precludes an application being made directly to the Judge in a proper case.

(5) Subject to this Rule, anything to be done under or by virtue of the Order or the Rules by, to or before the court may be done by, to or before the Judge or the Master.

(6) Order 32, rules 11 and 12 of the Supreme Court Rules do not apply in insolvency proceedings.

Transfer of certain proceedings

7.04

(1) This Rule applies where—

(a) an order for the winding up of a company, or a bankruptcy order in the case of an individual, has been made by the court, or

(b) in either such case, a provisional liquidator or (as the case may be) an interim receiver has been appointed.

(2) The Judge may, of his own motion, order the transfer to the Chancery Division of any such proceedings as are mentioned in paragraph (3) and are pending against the company or individual concerned (“the insolvent”) in another Division of the High Court.

(3) Proceedings which may be so transferred are those brought by or against the insolvent for the purpose of enforcing a claim against the insolvent estate, or brought by a person other than the insolvent for the purpose of enforcing any such claim (including in either case proceedings of any description by a debenture-holder or mortgagee).

(4) Where proceedings are transferred under this Rule, the Master may (subject to general or special directions of the Judge) dispose of any matter arising in the proceedings which would, but for the transfer, have been disposed of in chambers.

CHAPTER 2 — APPLICATIONS

Preliminary

7.05

This Chapter applies to any application made to the court under the Order or the Rules except a petition for—

(a) an administration order under Part III,

(b) a winding-up order under Part V, or

of the Order.

Interpretation

7.06

(1) In this Chapter, except in so far as the context otherwise requires—

“originating application” means an application to the court which is not an application in pending proceedings before the court; and

“ordinary application” means any other application to the court.

(2) Every application shall be in the form appropriate to the application concerned.

Form and contents of application

7.07

(1) Each application shall be in writing and shall state—

(a) the names of the parties;

(b) the nature of the relief or order applied for or the directions sought from the court;

(c) the names and addresses of the persons (if any) on whom it is intended to serve the application or that no person is intended to be served;

(d) where the Order or the Rules require that notice of the application is to be given to specified persons, the names and addresses of all those persons (so far as known to the applicant); and

(e) the applicant's address for service.

(2) An originating application shall set out the grounds on which the applicant claims to be entitled to the relief or order sought.

(3) The application must be signed by the applicant if he is acting in person or, when he is not so acting, by or on behalf of his solicitor.

Filing and service of application

7.08

(1) The application shall be filed in court, accompanied by one copy and a number of additional copies equal to the number of persons who are to be served with the application.

(2) Subject to paragraph (6) and Rule 7.09, or unless the Rule under which the application is brought provides otherwise, or the court otherwise orders, upon the presentation of the documents mentioned in paragraph (1), the court shall fix a venue for the application to be heard.

(3) Unless the court otherwise directs, the applicant shall serve a sealed copy of the application, endorsed with the venue for the hearing, on the respondent named in the application (or on each respondent if more than one).

(4) The court may give any of the following directions—

(a) that the application be served upon persons other than those specified by the relevant provision of the Order or the Rules;

(b) that the giving of notice to any person may be dispensed with;

(5) Unless the provision of the Order or the Rules under which the application is made provides otherwise, and subject to paragraph (6), the application must be served at least 14 days before the hearing date.

(6) Where the case is one of urgency, the court may (without prejudice to its general power to extend or abridge time limits)—

(a) hear the application immediately, either with or without notice to, or the attendance of, other parties, or

(b) authorise a shorter period of service than that provided for by paragraph (5);

and any such application may be heard on terms providing for the filing or service of documents, or the carrying out of other formalities, as the court thinks fit.

Other hearings ex parte

7.09

(1) Where the relevant provisions of the Order or the Rules do not require service of the application on, or notice of it to be given to, any person, the court may hear the application ex parte.

(2) Where the application is properly made ex parte, the court may hear it forthwith, without fixing a venue as required by Rule 7.08(2).

(3) Alternatively, the court may fix a venue for the application to be heard, in which case Rule 7.08 applies (so far as relevant).

Use of affidavit evidence

7.10

(1) In any proceedings evidence may be given by affidavit unless by any provision of the Rules it is otherwise provided or the court otherwise directs; but the court may, on the application of any party, order the attendance for cross-examination of the person making the affidavit.

(2) Where, after such an order has been made, the person in question does not attend, his affidavit shall not be used in evidence without the leave of the court.

Filing and service of affidavits

7.11

Unless the provision of the Order or the Rules under which the application is made provides otherwise, or the court otherwise allows—

(a) if the applicant intends to rely at the first hearing on affidavit evidence, he shall file the affidavit or affidavits (if more than one) in court and serve a copy or copies on the respondent, not less than 14 days before the hearing date, and

(b) where a respondent to an application intends to oppose it and to rely for that purpose on affidavit evidence, he shall file the affidavit or affidavits (if more than one) in court and serve a copy or copies on the applicant, not less than 7 days before the hearing date.

Use of reports

7.12

(1) A report may be filed in court instead of an affidavit—

(a) in any case, by the official receiver (whether or not he is acting in any capacity mentioned in sub-paragraph (b)), or

(b) unless the application involves other parties or the court otherwise orders, by—

(i) an administrator, a liquidator or a trustee in bankruptcy,

(ii) a provisional liquidator or an interim receiver,

(iii) a nominee or a supervisor of a voluntary arrangement under Part II or VIII of the Order,

(iv) a special manager, or

(v) an insolvency practitioner appointed under Article 247(2).

(2) In any case where a report is filed instead of an affidavit, the report shall be treated for the purposes of Rule 7.11 and any hearing before the court as if it were an affidavit.

(3) Any report filed by the official receiver in accordance with the Order or the Rules is prima facie evidence of any matter contained in it.

Adjournment of hearing; directions

7.13

(1) The court may adjourn the hearing of an application on such terms (if any) as it thinks fit.

(2) The court may at any time give such directions as it thinks fit as to—

(a) service or notice of the application on or to any person, whether in connection with the venue of a resumed hearing or for any other purpose;

(b) whether particulars of claim and defence are to be delivered and generally as to the procedure on the application;

(c) the manner in which any evidence is to be adduced at a resumed hearing and in particular (but without prejudice to the generality of this sub-paragraph) as to—

(i) the taking of evidence wholly or in part by affidavit or orally;

(ii) the cross-examination either before the Judge or the Master on the hearing in court or in chambers, of any deponents to affidavits;

(iii) any report to be given by the official receiver or any person mentioned in Rule 7.12(1)(b);

(d) the matters to be dealt with in evidence.

CHAPTER 3 — SHORTHAND WRITERS

Nomination and appointment of shorthand writers

7.14

(1) The Judge may in writing nominate one or more persons to be official shorthand writers to the court.

(2) The court may, at any time in the course of insolvency proceedings, appoint a shorthand writer to take down the evidence of a person examined under Article 113, 200,2 63 or 337.

(3) Where the official receiver applies to the court for an order appointing a shorthand writer, he shall name the person he proposes for appointment; and that appointment shall be made, unless the court otherwise orders.

Cost of shorthand note

7.15

Where in insolvency proceedings the court appoints a shorthand writer on the application of the official receiver, in order that a written record may be taken of the evidence of a person to be examined, the cost of the written record is deemed an expense of the official receiver in the proceedings.

Remuneration

7.16

The remuneration of the shorthand writer shall be paid by the party at whose instance the appointment was made or out of the insolvent estate, or otherwise as the court may direct, at the rates payable for taking a note of evidence and making a transcript for use in the Court of Appeal.

Mechanical recording

7.17

(1) The court may, instead of appointing a shorthand writer to take down evidence, direct that the whole or part of such evidence be recorded by mechanical means.

(2) Where evidence is recorded by mechanical means the person who operated the recording machine shall file in court the mechanical record so made, accompanied by a certificate attached to each recording that it is a complete recording or a continuous part of a complete recording taken at the proceedings to which it relates.

(3) Where the court directs that a transcript be made of evidence recorded by mechanical means the transcript shall be certified by the person responsible for transcribing the record as a correct and complete transcript of the mechanical record referred to in the certificate.

(4) The costs of a mechanical recording of an examination of a person made at the instance of the official receiver shall be deemed an expense of the official receiver in the proceedings.

(5) The costs of the mechanical recording shall be paid by the party at whose instance it was made, or out of the insolvent estate, or otherwise as the court may direct.

CHAPTER 4 — ENFORCEMENT PROCEDURES

Meaning of “property”

7.18

In this Chapter references to property include books, papers and records.

Enforcement of court orders

7.19

In any insolvency proceedings, orders of the court may be enforced in the same manner as a judgment to the same effect.

Orders enforcing compliance with the Order

7.20

(1) The court may, on application by the competent person, make such orders as it thinks necessary for the enforcement of obligations falling on any person in accordance with—

(a) Article 34, 57 or 111 (duty to submit statement of affairs in administration, administrative receivership or winding up),

(b) Article 121(2) (liquidator to furnish information, books, papers, etc.), or

(2) The competent person for this purpose is—

(a) under Article 34, the administrator,

(b) under Article 57, the administrative receiver,

(d) under Article 199, the official receiver, the administrator, the administrative receiver, the liquidator or the provisional liquidator, as the case may be.

(3) An order of the court under this Rule may provide that all costs of and incidental to the application for it shall be borne by the person against whom the order is made.

Warrants under Article 114 or 335

7.21

When a person is arrested under a warrant issued by the court under Article 114 (officer of company failing to attend for public examination), or Article 335 (arrest of debtor or bankrupt)—

(a) the constable apprehending him shall give him into the custody of the governor of the prison named in the warrant, who shall keep him in custody until such time as the court otherwise orders and shall produce him before the court as it may from time to time direct; and

(b) any property in the arrested person's possession which may be seized shall be—

(i) lodged with, or otherwise dealt with as instructed by, whoever is specified in the warrant as authorised to receive it, or

(ii) kept by the constable seizing it pending the receipt of written orders from the court as to its disposal,

as may be directed by the court in the warrant.

Warrants under Article 200 or 337

7.22

(1) When a person is arrested under a warrant issued under Article 200 (inquiry into insolvent company's dealings) or 337 (the equivalent in bankruptcy), the constable arresting him shall forthwith bring him before the court in order that he may be examined.

(2) If he cannot immediately be brought up for examination, the constable shall deliver him into the custody of the governor of the prison named in the warrant, who shall keep him in custody and produce him before the court as it may from time to time direct.

(3) After arresting the person named in the warrant, the constable shall forthwith report to the court the arrest or delivery into custody (as the case may be) and apply to the court to fix a venue for the person's examination.

(4) The court shall appoint the earliest practicable time for the examination, and shall—

(a) direct the governor of the prison to produce the person for examination at the time and place appointed, and

(b) forthwith give notice of the venue to the person who applied for the warrant.

(5) Any property in the arrested person's possession which may be seized shall be—

(a) lodged with, or otherwise dealt with as instructed by, whoever is specified in the warrant as authorised to receive it, or

(b) kept by the constable seizing it pending the receipt of written orders from the court as to its disposal,

as may be directed by the court.

Warrants under Article 336

7.23

(1) A warrant issued under Article 336(3) (search of premises not belonging to the bankrupt) shall authorise any person executing it to seize any property of the bankrupt found as a result of the execution of the warrant.

(2) Any property seized under a warrant issued under Article 336(2) or (3) shall be—

(a) lodged with, or otherwise dealt with as instructed by, whoever is specified in the warrant as authorised to receive it, or

(b) kept by the person seizing it pending the receipt of written orders from the court as to its disposal,

as may be directed by the warrant.

CHAPTER 5 — COURT RECORDS AND RETURNS

Court records

7.24

The court shall keep records of all insolvency proceedings, and shall cause to be entered in the records the taking of any step in the proceedings and such decisions of the court in relation thereto, as the court thinks fit.

Inspection of records

7.25

(1) Subject to paragraph (2), the court's records of insolvency proceedings shall be open to inspection by any person.

(2) If in the case of a person applying to inspect the records the Master is not satisfied as to the propriety of the purpose for which inspection is required, he may refuse to allow it. The person may then apply forthwith and ex parte to the Judge, who may refuse the inspection, or allow it on such terms as he thinks fit.

(3) The Judge's decision under paragraph (2) is final.

File of court proceedings

7.26

(1) In respect of all insolvency proceedings, the court shall open and maintain a file for each case; and (subject to directions of the Master) all documents relating to such proceedings shall be placed on the relevant file.

(2) No proceedings shall be filed in the Central Office of the Supreme Court.

Right to inspect the file

7.27

(1) In the case of any insolvency proceedings, the following have the right, at all reasonable times, to inspect the court's file of the proceedings—

(a) the person who, in relation to those proceedings, is the responsible insolvency practitioner;

(b) any duly authorised officer of the Department; and

(c) any person stating himself in writing to be a creditor of the company to which, or the individual to whom, the proceedings relate.

(2) The same right of inspection is exercisable—

(a) in proceedings under Parts II to VII of the Order, by every person who is, or at any time has been, a director or officer of the company to which the proceedings relate, or who is a member of the company or a contributory in its winding up;

(b) in proceedings with respect to a voluntary arrangement proposed by a debtor under Part VIII of the Order, by the debtor;

(i) the bankrupt,

(ii) any person against whom, or by whom, a bankruptcy petition has been presented, and

(iii) any person who has been served, in accordance with Chapter 1 of Part 6, with a statutory demand.

(3) The right of inspection conferred by paragraph (1) or (2) on any person may be exercised on his behalf by a person properly authorised by him.

(4) Any person may, by special leave of the court, inspect the file.

(5) The right of inspection conferred by this Rule is not exercisable in the case of documents, or parts of documents, as to which the court directs (either generally or specially) that they are not to be made open to inspection without the court's leave.

(6) An application for a direction of the court under paragraph (5) may be made by the official receiver, by the person who in relation to any proceedings is the responsible insolvency practitioner, or by any party appearing to the court to have an interest.

(7) If, for the purpose of powers conferred by the Order or the Rules, the Department or the official receiver requires to inspect the file of any insolvency proceedings, and requests the transmission of the file, the court shall comply with the request (unless the file is for the time being in use for the court's own purposes).

(8) Paragraphs (2) and (3) of Rule 7.25 apply in respect of the court's file of any proceedings as they apply in respect of court records.

Filing of Gazette notices and advertisements

7.28

(1) A copy of every issue of the Gazette shall be preserved in the court for a period of not less than 2 years.

(2) Where there appears in a newspaper an advertisement relating to insolvency proceedings, the person inserting the advertisement shall file a copy of it in the court and the copy shall be accompanied by, or have endorsed on it, such particulars as are necessary to identify the proceedings and the date of the advertisement's appearance.

(3) An officer of the court shall from time to time file a memorandum giving the dates of, and other particulars relating to, any notice published in the Gazette, and any newspaper advertisements, which relate to insolvency proceedings.

(4) The officer's memorandum is prima facie evidence that any notice or advertisement mentioned in it was duly inserted in the issue of the newspaper or the Gazette which is specified in the memorandum.

CHAPTER 6 — COSTS AND TAXATION

Application of Supreme Court Rules

7.29

Subject to provision to inconsistent effect made in this Chapter, Order 62 of the Supreme Court Rules applies to insolvency proceedings in the High Court with any necessary modifications.

Requirement to tax costs

7.30

(1) Subject to paragraphs (2) and (4), where the costs of any person are payable out of the insolvent estate, those costs shall be taxed unless agreed between the responsible insolvency practitioner and the person entitled to payment, and in the absence of such agreement the responsible insolvency practitioner may require taxation by notice in writing requiring that person to deliver his bill of costs to the Taxing Master for taxation.

(2) If a liquidation or creditors' committee established in insolvency proceedings (except administrative receivership) resolves that any such costs be taxed, the responsible insolvency practitioner shall require taxation.

(3) Where the costs of any person employed by a responsible insolvency practitioner in insolvency proceedings are required to be taxed or fixed by order of the court, this does not preclude the responsible insolvency practitioner from making payments on account to such person on the basis of an undertaking by that person to repay immediately any money which may, on taxation or when fixed by the court, prove to have been overpaid, with interest at the rate applicable to a money judgment of the High Court on the date payment was made and for the period from the date of payment to that of repayment.

(4) In any proceedings before the court, including proceedings on a petition, the court may order costs to be taxed.

(5) Unless otherwise directed or authorised, the costs of a trustee in bankruptcy or a liquidator are to be allowed on the standard basis specified in Order 62, rule 12 of the Supreme Court Rules.

(6) This Rule applies additionally (with any necessary modifications) to winding-up and bankruptcy proceedings commenced before the coming into operation of the Rules and in its application to such proceedings “the responsible insolvency practitioner” includes the Official Assignee for bankruptcy for Northern Ireland and the Official Assignee for company liquidations for Northern Ireland.

(7) In this Rule “costs” does not include the remuneration of the responsible insolvency practitioner.

Measurement of remuneration by Taxing Master

7.31

(1) Where under the Rules the court is required to fix or is authorised to allow the remuneration of a responsible insolvency practitioner or of any person employed by him in insolvency proceedings, it may direct that such remuneration be measured by the Taxing Master.

(2) Paragraphs (3) to (9) apply where a direction is given under paragraph (1).

(3) The person whose remuneration is to be measured shall lodge in the Taxing Master's Office a bill containing particulars of his charges and disbursements and a copy of the court's direction.

(4) Upon lodgment of the bill the Taxing Master shall appoint a time and place at which he will proceed to measure the remuneration and shall give notice thereof to the person lodging the bill and to such other persons, if any, to whom he considers notice ought to be given.

(5) Upon receiving such notice the person lodging the bill shall attend on the Taxing Master in accordance therewith and shall produce such information as the Taxing Master may require.

(6) Order 62, rule 22 of the Supreme Court Rules applies in respect of the certification of such measurement as it applies in respect of the issue of a certificate of taxation, with the necessary modifications.

(7) Any party who is dissatisfied with any decision of the Taxing Master on the measurement of the bill as provided by paragraph (4) may apply to the Taxing Master to review his decision.

(8) Part VI of Order 62 of the Supreme Court Rules applies in respect of the review of such measurement as it applies in respect of the review of taxation, with the necessary modifications.

(9) Paragraphs (3) to (8) apply additionally (with any necessary modifications) to the measurement by the Taxing Master of the remuneration of a liquidator or accountant in winding-up proceedings commenced before the coming into operation of the Rules under the Companies (Winding-up) Rules (Northern Ireland) 1984 [^f00029] and of the remuneration of an accountant in bankruptcy proceedings commenced before that date under the Bankruptcy Rules (Northern Ireland) 1983[^f00030].

Procedure where taxation required

7.32

(1) Before taxing the costs of any person employed in insolvency proceedings by a responsible insolvency practitioner, the Taxing Master shall require a certificate of employment, which shall be endorsed on the bill and signed by the responsible insolvency practitioner.

(2) The certificate shall include—

(a) the name and address of the person employed,

(b) details of the functions to be carried out under the employment, and

(3) Every person whose costs are required to be taxed in insolvency proceedings shall, on being required in writing to do so by the responsible insolvency practitioner, deliver his bill of costs to the Taxing Master for taxation.

(4) If that person does not so deliver his bill within 3 months of the requirement under paragraph (3), or within such further time as the court, on application, may grant, the responsible insolvency practitioner may deal with the insolvent estate without regard to any claim by that person, whose claim is forfeited.

(5) Where in any such case such a claim lies additionally against a responsible insolvency practitioner in his personal capacity, that claim is also forfeited.

Petitions presented by insolvents

7.33

(1) In any case where a petition is presented by a company or individual (“the insolvent”) against himself, any solicitor acting for the insolvent shall in his bill of costs give credit for any sum or security received from the insolvent as a deposit on account of the costs to be incurred in respect of the filing and prosecution of the petition; and the deposit shall be noted by the Taxing Master on the certificate of taxation.

(2) Paragraph (3) applies where a petition is presented by a person other than the insolvent to whom the petition relates and before it is heard the insolvent presents a petition for the same order, and that order is made.

(3) Unless the court considers that the insolvent estate has benefitted by the insolvent's conduct, or that there are otherwise special circumstances justifying the allowance of costs, no costs shall be allowed to the insolvent or his solicitor out of the insolvent estate.

Costs paid otherwise than out of the insolvent estate

7.34

Where a bill of costs is taxed under an order of the court directing that the costs are to be paid otherwise than out of the insolvent estate, the Taxing Master shall note on the certificate of taxation by whom, or the manner in which, the costs are to be paid.

Award of costs against official receiver or responsible insolvency practitioner

7.35

Without prejudice to any provision of the Order or the Rules by virtue of which the official receiver is not in any event to be liable for costs, where the official receiver or a responsible insolvency practitioner is made a party to any proceedings on the application of another party to the proceedings, he shall not be personally liable for costs unless the court otherwise directs.

Applications for costs

7.36

(1) This Rule applies where a party to, or person affected by, any proceedings in an insolvency—

(a) applies to the court for an order allowing his costs, or part of them, incidental to the proceedings, and

(b) that application is not made at the time of the proceedings.

(2) The person concerned shall serve a sealed copy of his application on the responsible insolvency practitioner, and, in a winding up by the court or bankruptcy, on the official receiver.

(3) The responsible insolvency practitioner and, where appropriate, the official receiver may appear on the application.

(4) No costs of or incidental to the application shall be allowed to the applicant unless the court is satisfied that the application could not have been made at the time of the proceedings.

Costs and expenses of witnesses

7.37

(1) Except as directed by the court, no allowance as a witness in any examination or other proceedings before the court shall be made to the bankrupt or an officer of the insolvent company to which the proceedings relate.

(2) A person presenting any petition in insolvency proceedings shall not be regarded as a witness on the hearing of the petition, but the Taxing Master may allow his expenses of travelling and subsistence.

CHAPTER 7 — PERSONS INCAPABLE OF MANAGING THEIR AFFAIRS

Introductory

7.38

(1) This Chapter applies where in insolvency proceedings it appears to the court that a person affected by the proceedings is one who is incapable of managing and administering his property and affairs either—

(a) by reason of mental disorder within the meaning of the Mental Health (Northern Ireland) Order 1986[^f00031], or

(b) due to physical affliction or disability.

(2) The person concerned is referred to as “the incapacitated person”.

Appointment of another person to act

7.39

(1) The court may appoint such person as it thinks fit to appear for, represent or act for the incapacitated person.

(2) The appointment may be made either generally or for the purpose of any particular application or proceeding, or for the exercise of particular rights or powers which the incapacitated person might have exercised but for his incapacity.

(3) The court may make the appointment either of its own motion or on application by—

(a) a person who has been appointed by a court in the United Kingdom or elsewhere to manage the affairs of, or to represent, the incapacitated person, or

(b) any relative or friend of the incapacitated person who appears to the court to be a proper person to make the application, or

(d) the person who, in relation to the proceedings, is the responsible insolvency practitioner.

(4) Application under paragraph (3) may be made ex parte; but the court may require such notice of the application as it thinks necessary to be given to the person alleged to be incapacitated, or any other person, and may adjourn the hearing of the application to enable the notice to be given.

Affidavit in support of application

7.40

(1) Except where made by the official receiver, an application under Rule 7.39(3) shall, subject to paragraph (3), be supported by an affidavit of a registered medical practitioner as to the mental or physical condition of the incapacitated person.

(2) In the excepted case, the application shall, subject to paragraph (3), be supported by a report by the official receiver referring to a report from a registered medical practitioner as to the mental or physical condition of the incapacitated person.

(3) The affidavit of, or report by, a registered medical practitioner shall not be required where the incapacitated person is a patient within the meaning of the Mental Health (Northern Ireland) Order 1986.

Service of notices following appointment

7.41

Any notice served on, or sent to, a person appointed under Rule 7.39 has the same effect as if it had been served on, or given to, the incapacitated person.

CHAPTER 8 — APPEALS IN INSOLVENCY PROCEEDINGS

Appeals from Master

7.42

(1) Without prejudice to the power of the Master to review an order made by him under Article 371, an order or decision of the Master in insolvency proceedings may be reviewed by an appeal to the Judge.

(2) Order 58, rule 1(2) to (4) of the Supreme Court Rules applies to such an appeal, with the substitution in paragraph (3) of the words “28 days” for the words “5 days” and the words “7 days” for the words “2 clear days”.

Appeals in bankruptcy

7.43

In bankruptcy proceedings, an appeal lies at the instance of the Department from any order of the court made on an application for the rescission or annulment of a bankruptcy order, or for a bankrupt's discharge.

Appeal against decision of Department or official receiver

7.44

An appeal under the Order or the Rules against a decision of the Department or the official receiver shall be brought within 28 days of the notification of the decision.

CHAPTER 9 — GENERAL

Principal court rules and practice to apply

7.45

Except so far as inconsistent with the Rules, the Supreme Court Rules and the practice of the High Court apply to insolvency proceedings with any necessary modifications.

Right of audience

7.46

Official receivers have right of audience in insolvency proceedings.

Right of attendance (company insolvency)

7.47

(1) Subject to paragraphs (2) to (6), in company insolvency proceedings any person stating himself in writing, in records kept by the court for that purpose, to be a creditor or member of the company or, where the company is being wound up, a contributory, is entitled, at his own cost, to attend in court or in chambers at any stage of the proceedings.

(2) Attendance may be by the person himself, or his solicitor.

(3) A person so entitled may request the court in writing to give him notice of any step in the proceedings; and, subject to his paying the costs involved and keeping the court informed as to his address, the court shall comply with the request.

(4) If the court is satisfied that the exercise by a person of his rights under this Rule has given rise to costs for the insolvent estate which would not otherwise have been incurred and ought not, in the circumstances, to fall on that estate, it may direct that the costs be paid by the person concerned, to an amount specified.

(5) The person's rights under this Rule are in abeyance so long as those costs are not paid.

(6) The court may appoint one or more persons to represent the creditors, the members or the contributories of an insolvent company, or any class of them, to have the rights conferred by this Rule, instead of the rights being exercisable by any or all of them individually.

(7) If two or more persons are appointed under paragraph (6) or represent the same interest, they must (if at all) instruct the same solicitor.

Responsible insolvency practitioner's solicitor

7.48

Where in any proceedings the attendance of the responsible insolvency practitioner's solicitor is required, whether in court or in chambers, the responsible insolvency practitioner himself need not attend, unless directed by the court.

Drawing up and filing of orders

7.49

(1) Subject to paragraph (2), every order of the court shall be drawn up, sealed and filed.

(2) The Judge may direct that specified categories of orders need not be drawn up unless the Judge or the Master making the order otherwise directs.

(3) Where no order is drawn up, a note or memorandum of the order, signed or initialled by the Judge or the Master making the order and filed, shall be sufficient evidence of the order having been made.

(4) Where an order has not been drawn up, a party to the proceedings in which the order is made may, and if he wishes to appeal against the order shall, within 7 days after the order is made, apply to the Master to have the order drawn up, and on such application the order shall be drawn up, sealed and filed.

Formal defects

7.50

No insolvency proceedings shall be invalidated by any formal defect or by any irregularity, unless the court before which objection is made considers that substantial injustice has been caused by the defect or irregularity, and that the injustice cannot be remedied by any order of the court.

Restriction on concurrent proceedings and remedies

7.51

Where in insolvency proceedings the court makes an order staying any action, execution or other legal process against the property of a company, or against the property or person of an individual debtor or bankrupt, service of the order may be effected by sending a sealed copy of the order to whatever is the address for service of the plaintiff or other party having the carriage of the proceedings to be stayed.

Affidavits

7.52

(1) Subject to paragraphs (2) to (5), the rules and practice obtaining in the High Court with regard to affidavits, their form and contents, and the procedure governing their use, are to be taken as applicable in all insolvency proceedings.

(2) In applying Order 41 of the Supreme Court Rules (which relates to affidavits generally), there are to be disregarded provisions which are inconsistent with, or necessarily excluded by, paragraphs (3) to (5).

(3) Where in insolvency proceedings an affidavit is made by the official receiver or the responsible insolvency practitioner, the deponent shall state the capacity in which he makes it, the position which he holds, and the address at which he works.

(4) Notwithstanding Order 41, rule 8 of the Supreme Court Rules (affidavit not to be sworn before party's own solicitor), a creditor's affidavit of debt may be sworn before his own solicitor.

(5) The official receiver or any officer of the court duly authorised in that behalf, may take affidavits and declarations.

Security in court

7.53

(1) Subject to paragraph (3), where security has to be given to the court (otherwise than in relation to costs) it shall be given by bond.

(2) The bond shall be taken in a penal sum which, except with the consent of the opposite party, shall be not less than the sum for which security is to be given and probable costs.

(3) A person required to give security may, in lieu thereof, lodge in court a sum equal to the sum for which security is to be given and probable costs, together with a memorandum approved by the Master and signed by such person or his solicitor stating the conditions on which the money is deposited.

(4) Upon the lodgment the Master shall forthwith notify the persons for whose protection the security is given that the money has been lodged in court.

Discovery

7.54

(1) Any party to insolvency proceedings may, with the leave of the court, administer interrogatories to, or obtain discovery from, any other party to those proceedings.

(2) Application under this Rule may be made ex parte.

Office copies of documents

7.55

(1) Any person who has under the Rules the right to inspect the court file of insolvency proceedings may require the court to provide him with an office copy of any document from the file.

(2) A person's rights under this Rule may be exercised on his behalf by his solicitor.

(3) An office copy provided by the court under this Rule shall be in such form as the Master thinks appropriate, and shall bear the court's seal.

PART 8 — PROXIES AND COMPANY REPRESENTATION

Definition of “proxy”

8.1

(1) For the purposes of the Rules, a proxy is an authority given by a person (“the principal”) to another person (“the proxy-holder”) to attend a meeting and speak and vote as his representative.

(2) Proxies are for use at creditors', company or contributories' meetings summoned or called under the Order or the Rules.

(3) Only one proxy may be given by a person for any one meeting at which he desires to be represented; and it may only be given to one person, being an individual aged 18 or over. But the principal may specify one or more other such individuals to be proxy-holder in the alternative, in the order in which they are named in the proxy.

(4) Without prejudice to the generality of paragraph (3), a proxy for a particular meeting may be given to whoever is to be the chairman of the meeting; and for a meeting held as part of the proceedings in a winding up by the court, or in a bankruptcy, it may be given to the official receiver.

(5) A person given a proxy under paragraph (4) cannot decline to be the proxy-holder in relation to that proxy.

(6) A proxy requires the holder to give the principal's vote oil matters arising for determination at the meeting, or to abstain, or to propose, in the principal' s name, a resolution to be voted on by the meeting, either as directed or in accordance with the holder's own discretion.

Issue and use of forms

8.2

(1) When notice is given of a meeting to be held in insolvency proceedings, and forms of proxy are sent out with the notice, no form so sent out shall have inserted in it the name or description of any person.

(2) No form of proxy shall be used at any meeting except that which is sent out with the notice summoning the meeting, or a substantially similar form.

(3) A form of proxy shall be signed by the principal, or by some person authorised by him (either generally or with reference to a particular meeting). If the form is signed by a person other than the principal, the nature of the person's authority shall be stated.

Use of proxies at meetings

8.3

(1) A proxy given for a particular meeting may be used at any adjournment of that meeting.

(2) Where the official receiver holds proxies for use at any meeting, his deputy, or any other official receiver, may act as proxy-holder in his place or, alternatively, the official receiver may in writing authorise another officer of the Department to act for him at the meeting and use the proxies as if that other officer were himself proxy-holder.

(3) Where the responsible insolvency practitioner holds proxies to be used by him as chairman of a meeting, and some other person acts as chairman, the other person may use the responsible insolvency practitioner's proxies as if he were himself proxy-holder.

(4) Where a proxy directs a proxy-holder to vote for or against a resolution for the nomination or appointment of a person as the responsible insolvency practitioner, the proxy-holder may, unless the proxy states otherwise, vote for or against (as he thinks fit) any resolution for the nomination or appointment of that person jointly with another or others.

(5) A proxy-holder may propose any resolution which, if proposed by another, would be a resolution in favour of which by virtue of the proxy he would be entitled to vote.

(6) Where a proxy gives specific directions as to voting, this does not, unless the proxy states otherwise, preclude the proxy-holder from voting at his discretion on resolutions put to the meeting which are not dealt with in the proxy.

Retention of proxies

8.4

(1) Subject to paragraph (2), proxies used for voting at any meeting shall be retained by the chairman of the meeting.

(2) The chairman shall deliver the proxies, forthwith after the meeting, to the responsible insolvency practitioner (where that is someone other than himself).

Right of inspection

8.5

(1) The responsible insolvency practitioner shall, so long as proxies lodged with him are in his hands, allow them to be inspected, at all reasonable times on any business day, by—

(a) the creditors, in the case of proxies used at a meeting of creditors, and

(b) a company's members or contributories, in the case of proxies used at a meeting of the company or of its contributories.

(2) The reference in paragraph (1) to creditors is—

(a) in the case of a company in liquidation or of an individual's bankruptcy, those creditors who have proved their debts, and

(b) in any other case, persons who have submitted in writing a claim to be creditors of the company or individual concerned;

but in neither case does it include a person whose proof or claim has been wholly rejected for purposes of voting, dividend or otherwise.

(3) The right of inspection given by this Rule is also exercisable—

(a) in the case of an insolvent company, by its directors, and

(b) in the case of an insolvent individual, by him.

(4) Any person attending a meeting in insolvency proceedings is entitled, immediately before or in the course of the meeting, to inspect proxies and associated documents (including proofs) sent or given, in accordance with directions contained in any notice convening the meeting, to the chairman of that meeting or to any other person by a creditor, member or contributory for the purpose of that meeting.

Proxy-holder with financial interest

8.6

(1) A proxy-holder shall not vote in favour of any resolution which would directly or indirectly place him, or any associate of his, in a position to receive any remuneration out of the insolvent estate, unless the proxy specifically directs him to vote in that way.

(2) Where a proxy-holder has signed the proxy as being authorised to do so by his principal and the proxy specifically directs him to vote in the way mentioned in paragraph (1), he shall nevertheless not vote in that way unless he produces to the chairman of the meeting written authorisation from his principal sufficient to show that the proxy-holder was entitled so to sign the proxy.

(3) This Rule applies also to any person acting as chairman of a meeting and using proxies in that capacity under Rule 8.3; and in its application to him, the proxy-holder is deemed an associate of his.

Company representation

8.7

(1) Where a person is authorised under Article 383 of the Companies Order to represent a corporation at a meeting of creditors or of the company or its contributories, he shall produce to the chairman of the meeting a copy of the resolution from which he derives his authority.

(2) The copy resolution must be under the seal of the corporation, or certified by the secretary or a director of the corporation to be a true copy.

(3) Nothing in this Rule requires the authority of a person to sign a proxy on behalf of a principal which is a corporation to be in the form of a resolution of that corporation.

PART 9 — EXAMINATION OF PERSONS CONCERNED IN COMPANY AND INDIVIDUAL INSOLVENCY

Preliminary

9.1

(1) This Part relates to applications to the court for an order under—

(a) Article 200 (inquiry into company's dealings when it is, or is alleged to be, insolvent), or

(b) Article 337 (inquiry in bankruptcy, with respect to the bankrupt's dealings).

(2) The following definitions apply—

(a) the person in respect of whom an order is applied for is “the respondent”;

(b) “the applicable Article” is Article 200 or Article 337, according to whether the affairs of a company or those of a bankrupt or (where the application under Article 337 is made by virtue of Article 339) a debtor are in question;

Form and contents of application

9.2

(1) The application shall be accompanied by a brief statement of the grounds on which it is made.

(2) The respondent must be sufficiently identified in the application.

(3) It shall be stated whether the application is for the respondent—

(a) to be ordered to appear before the court, or

(b) to answer interrogatories (if so, particulars to be given of the matters in respect of which answers are required), or

(d) to produce books, papers or other records (if so, the items in question to be specified),

or for any 2 or more of those purposes.

(4) The application may be made ex parte.

Order for examination, etc.

9.3

(1) The court may, whatever the purpose of the application, make any order which it has power to make under the applicable Article.

(2) The court, if it orders the respondent to appear before it, shall specify a venue for his appearance, which shall be not less than 14 days from the date of the order.

(3) If he is ordered to submit affidavits, the order shall specify—

(a) the matters which are to be dealt with in his affidavits, and

(b) the time within which they are to be submitted to the court.

(4) If the order is to produce books, papers or other records, the time and manner of compliance shall be specified.

(5) The order must be served forthwith on the respondent; and it must be served personally, unless the court otherwise orders.

Procedure for examination

9.4

(1) At any examination of the respondent, the applicant may attend in person, or be represented by a solicitor with or without counsel, and may put such questions to the respondent as the court may allow.

(2) Any other person who could have applied for an order under the applicable Article in respect of the insolvent's affairs may, with the leave of the court and if the applicant does not object, attend the examination and put questions to the respondent (but only through the applicant).

(3) If the respondent is ordered to answer interrogatories, the court shall direct him as to the questions which he is required to answer, and as to whether his answers (if any) are to be made on affidavit.

(4) Where application has been made under the applicable Article on information provided by a creditor of the insolvent, that creditor may, with the leave of the court and if the applicant does not object, attend the examination and put questions to the respondent (but only through the applicant).

(5) The respondent may at his own expense employ a solicitor with or without counsel, who may put to him such questions as the court may allow for the purpose of enabling him to explain or qualify any answers given by him, and may make representations on his behalf.

(6) There shall be made in writing such record of the examination as the court thinks proper. The record shall be read over either to or by the respondent and signed by him at a venue fixed by the court.

(7) The written record may, in any proceedings (whether under the Order or otherwise) be used as evidence against the respondent of any statement made by him in the course of his examination.

Record of examination

9.5

(1) Unless the court otherwise directs, the written record of the respondent's examination, and any answer given by him to interrogatories, and any affidavits submitted by him in compliance with an order of the court under the applicable Article, shall not be filed in court.

(2) The written record, answers and affidavits shall not be open to inspection, without an order of the court, by any person other than—

(a) the applicant for an order under the applicable Article, or

(b) any person who could have applied for such an order in respect of the affairs of the same insolvent.

(3) Paragraph (2) applies also to so much of the court file as shows the grounds of the application for an order under the applicable Article and to any copy of proposed interrogatories.

(4) The court may from time to time give directions as to the custody and inspection of any documents to which this Rule applies, and as to the furnishing of copies of, or extracts from, such documents.

Costs of proceedings under Articles 200 and 337

9.6

(1) Where the court has ordered an examination of any person under the applicable Article, and it appears to it that the examination was made necessary because information had been unjustifiably refused by the respondent, it may order that the costs of the examination be paid by him.

(2) Where the court makes an order against a person under—

(a) Article 201(1) or 338(1) (to deliver up property in his possession which belongs to the insolvent), or

(b) Article 201(2) or 338(2) (to pay any amount in discharge of a debt due to the insolvent),

the costs of the application for the order may be ordered by the court to be paid by the respondent.

(3) Subject to paragraphs (1) and (2), the applicant's costs shall, unless the court otherwise orders, be paid out of the insolvent estate.

(4) A person summoned to attend for examination under this Chapter shall be tendered a reasonable sum in respect of travelling expenses incurred in connection with his attendance. Other costs falling on him are at the court's discretion.

(5) Where the examination is on the application of the official receiver otherwise than in the capacity of liquidator or trustee, no order shall be made for the payment of costs by him.

PART 10 — OFFICIAL RECEIVERS

Appointment of official receivers

10.1

Judicial notice shall be taken of the appointment under Articles 355 to 357 of official receivers and deputy official receivers.

Persons entitled to act on official receiver's behalf

10.2

(1) In the absence of the official receiver an officer authorised in writing for the purpose by the Department, or by the official receiver himself, may, with the leave of the court, act on the official receiver's behalf and in his place—

(a) in any examination under Article 113,200,263 or 337, and

(b) in respect of any application to the court.

(2) In case of emergency, where there is no official receiver capable of acting, anything to be done by, to or before the official receiver may be done by, to or before the Master.

Application for directions

10.3

The official receiver may apply to the court for directions in relation to any matter arising in insolvency proceedings.

Official receiver's expenses

10.4

(1) Any expenses incurred by the official receiver (in whatever capacity he may be acting) in connection with proceedings taken against him in insolvency proceedings are to be treated as expenses of the insolvency proceedings.

(2) In respect of any sums due to him under paragraph (1), the official receiver has a charge on the insolvent estate.

(3) In this Rule, “expenses” includes damages.

PART 11 — DECLARATION AND PAYMENT OF DIVIDEND (WINDING UP AND BANKRUPTCY)

Preliminary

11.01

(1) This Part relates to the declaration and payment of dividends in companies winding up and in bankruptcy.

(2) The following definitions apply—

(a) “the insolvent” means the company in liquidation or, as the case may be, the bankrupt; and

(b) “creditors” means those creditors of the insolvent of whom the responsible insolvency practitioner is aware, or who are identified in the insolvent's statement of affairs.

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