Corporate Insolvency and Governance Bill (HC Bill 128)

(a) begins with 1 March 2020, and

(b) ends with 30 June 2020 or one month after the coming into force of
this Schedule, whichever is the later.

(4) This paragraph is to be regarded as having come into force on 27 April 2020.

5Part 2 Restriction on winding-up petitions and orders

Restriction on winding-up petitions: registered companies

2 (1) A creditor may not during the relevant period present a petition under
Article 104 of the 1989 Order for the winding up of a registered company on
10a ground specified in Article 103(1)(a) to (d) of that Order (“the relevant
ground”), unless the condition in sub-paragraph (2) is met.

(2) The condition referred to in sub-paragraph (1) is that the creditor has
reasonable grounds for believing that—

(a) coronavirus has not had a financial effect on the company, or

(b) 15the facts by reference to which the relevant ground applies would
have arisen even if coronavirus had not had a financial effect on the
company.

(3) A creditor may not during the relevant period present a petition under
Article 104 of the 1989 Order for the winding up of a registered company on
20the ground specified in Article 103(1)(e) or (2) of that Order (“the relevant
ground”), unless the condition in sub-paragraph (4) is met.

(4) The condition referred to in sub-paragraph (3) is that the creditor has
reasonable grounds for believing that—

(a) coronavirus has not had a financial effect on the company, or

(b) 25the relevant ground would apply even if coronavirus had not had a
financial effect on the company.

(5) This paragraph is to be regarded as having come into force on 27 April 2020.

Restriction on winding-up petitions: unregistered companies

3 (1) A creditor may not during the relevant period present a petition under
30Article 104 of the 1989 Order for the winding up of an unregistered company
on a ground specified in Article 186, 187 or 188(1)(a) to (c) of that Order (“the
relevant ground”), unless the condition in sub-paragraph (2) is met.

(2) The condition referred to in sub-paragraph (1) is that the creditor has
reasonable grounds for believing that—

(a) 35coronavirus has not had a financial effect on the company, or

(b) the facts by reference to which the relevant ground applies would
have arisen even if coronavirus had not had a financial effect on the
company.

(3) A creditor may not during the relevant period present a petition under
40Article 104 of the 1989 Order for the winding up of an unregistered company
on the ground specified in Article 188(1)(d) or (2) of that Order (“the relevant
ground”), unless the condition in sub-paragraph (4) is met.

(4) The condition referred to in sub-paragraph (3) is that the creditor has
reasonable grounds for believing that—

(a) coronavirus has not had a financial effect on the company, or

(b) the relevant ground would apply even if coronavirus had not had a
5financial effect on the company.

(5) This paragraph is to be regarded as having come into force on 27 April 2020.

Restriction on winding-up petitions: petitions made before commencement

4 (1) This paragraph applies where a creditor presents a petition under Article
104 of the 1989 Order—

(a) 10on or after 27 April 2020, but

(b) before the day on which this Schedule comes into force.

(2) If the High Court is satisfied that the creditor presented the petition without
the condition in paragraph 2(2) or (4) or paragraph 3(2) or (4) (as the case
may be) being met, the court may make such order as it thinks appropriate
15to restore the position to what it would have been if the petition had not been
presented.

(3) If it appears to the official receiver that the person who presented the
petition did so without the condition in paragraph 2(2) or (4) or paragraph
3(2) or (4) (as the case may be) being met, the official receiver must refer the
20matter to the High Court to determine whether to make an order under sub-
paragraph (2).

(4) For the purposes of the 1991 Insolvency Rules, a reference under sub-
paragraph (3) is to be treated as if it were an application under Article 125 of
the 1989 Order.

25Restriction on winding-up orders: registered companies

5 (1) This paragraph applies where—

(a) a creditor presents a petition for the winding up of a registered
company under Article 104 of the 1989 Order in the relevant period,

(b) the company is deemed unable to pay its debts on a ground specified
30in Article 103(1) or (2) of that Order, and

(c) it appears to the High Court that coronavirus had a financial effect
on the company before the presentation of the petition.

(2) The High Court may wind the company up under Article 102(f) of the 1989
Order on a ground specified in Article 103(1)(a) to (d) of that Order only if
35the court is satisfied that the facts by reference to which that ground applies
would have arisen even if coronavirus had not had a financial effect on the
company.

(3) The High Court may wind the company up under Article 102(f) of the 1989
Order on the ground specified in Article 103(1)(e) or (2) of that Order only if
40the court is satisfied that the ground would apply even if coronavirus had
not had a financial effect on the company.

(4) This paragraph is to be regarded as having come into force on 27 April 2020.

Restriction on winding-up orders: unregistered companies

6 (1) This paragraph applies where—

(a) a creditor presents a petition for the winding up of an unregistered
company under Article 104 of the 1989 Order in the relevant period,

(b) 5the company is deemed unable to pay its debts on a ground specified
in Article 186, 187 or 188 of that Order, and

(c) it appears to the High Court that coronavirus had a financial effect
on the company before the presentation of the petition.

(2) The High Court may wind the company up under Article 185(4)(b) of the
101989 Order on a ground specified in Article 186, 187 or 188(1)(a) to (c) of that
Order only if the court is satisfied that the facts by reference to which that
ground applies would have arisen even if coronavirus had not had a
financial effect on the company.

(3) The High Court may wind the company up under Article 185(4)(b) of the
151989 Order on the ground specified in Article 188(1)(d) or (2) of that Order
only if the court is satisfied that the ground would apply even if coronavirus
had not had a financial effect on the company.

(4) This paragraph is to be regarded as having come into force on 27 April 2020.

Restriction on winding-up orders: orders made before commencement

7 (1) 20This paragraph applies where—

(a) the High Court makes an order under Article 102(f) or 185(4)(b) of
the 1989 Order on or after 27 April 2020 but before the day on which
this Schedule comes into force, and

(b) the order was not one which the court would have made had
25paragraphs 5 and 6 been in force at the time.

(2) The High Court is to be regarded as having had no power to make the order
(and, accordingly, the order is to be regarded as void).

(3) Neither the official receiver nor the liquidator or provisional liquidator is
liable in any civil or criminal proceedings for anything done pursuant to the
30order.

(4) The High Court may give such directions to the official receiver, liquidator
or provisional liquidator as it thinks fit for the purpose of restoring the
company to which the order relates to the position it was in immediately
before the petition was presented.

(5) 35If at any time it appears to the official receiver that—

(a) an order made by the High Court under Article 102(f) or 185(4)(b) of
the 1989 Order is void by virtue of sub-paragraph (2), and

(b) it might be appropriate for the court to give directions under sub-
paragraph (4),

40the official receiver must refer the matter to the court to determine whether
to give such directions.

(6) For the purposes of the 1991 Insolvency Rules a reference under sub-
paragraph (5) is to be treated as if it were an application under Article 125 of
the 1989 Order.

Modifications of 1989 Order

8 (1) Paragraphs 9 to 16 apply where—

(a) a creditor presents a petition under Article 104 of the 1989 Order
during the relevant period in relation to a registered or unregistered
5company, and

(b) the High Court makes an order under Article 102(f) or 185(4)(b) of
that Order (“the winding-up order”).

(2) Paragraphs 9 to 16 are to be regarded as having come into force on 27 April
2020.

9 10If the winding up would by virtue of Article 109(2) of the 1989 Order be
deemed to commence at the time of the presentation of the petition, the
winding up is instead for the purposes of that Order to be deemed to
commence on the making of the winding-up order.

10 In Article 61 of the 1989 Order (liability as contributories of present and past
15members), paragraph (2)(a) has effect as if the reference to one year or more
before the commencement of the winding up were to—

(a) one year or more before the day on which the petition was presented,
or

(b) if the winding-up order was made more than 6 months after the day
20on which the petition was presented, 18 months or more before the
day on which the winding-up order was made.

11 In Article 170 of the 1989 Order (fraud etc in anticipation of winding up),
paragraph (1) has effect as if the reference to 12 months immediately
preceding the commencement of the winding up were to a period which—

(a) 25begins with whichever is the later of—

(i) the day 12 months before the day on which the petition was
presented, and

(ii) the day 18 months before the day on which the winding-up
order was made, and

(b) 30ends with the day on which the winding-up order was made.

12 In Article 171 of the 1989 Order (transactions in fraud of creditors),
paragraph (1)(a) has effect as if the reference to 5 years immediately
preceding the commencement of the winding up were to—

(a) 5 years immediately preceding the day on which the petition was
35presented, or

(b) if the winding-up order was made more than 6 months after the day
on which the petition was presented, 5 years and 6 months
immediately preceding the day on which the winding-up order was
made.

13 40In Article 172 of the 1989 Order (misconduct in course of winding up),
paragraph (2) has effect as if the reference to 12 months immediately
preceding the commencement of the winding up were to a period which—

(a) begins with whichever is the later of—

(i) the day 12 months before the day on which the petition was
45presented, and

(ii) the day 18 months before the day on which the winding-up
order was made, and

(b) ends with the day on which the winding-up order was made.

14 (1) Article 178A of the 1989 Order (as inserted for the purposes of limited
liability partnerships by the Limited Liability Partnership Regulations
(Northern Ireland) 2004 (S.R. (N.I.) 2004/307)) has effect as follows.

(2) Paragraph (2) has effect as if the reference to 2 years ending with the
5commencement of the winding up were to a period which—

(a) begins with whichever is the later of—

(i) the day 2 years before the day on which the petition was
presented, and

(ii) the day 2 years and 6 months before the day on which the
10winding-up order was made, and

(b) ends with the day on which the winding-up order was made.

15 (1) Article 204 of the 1989 Order (definition of “relevant time”) has effect as
follows.

(2) Paragraph (1)(a) has effect as if the reference to the period of 2 years ending
15with the onset of insolvency were to the period which—

(a) begins with whichever is the later of—

(i) the day 2 years before the day on which the petition was
presented, and

(ii) the day 2 years and 6 months before the day on which the
20winding-up order was made, and

(b) ends with the day on which the winding-up order was made.

(3) Paragraph (1)(b) has effect as if the reference to the period of 6 months
ending with the onset of insolvency were to the period which—

(a) begins with whichever is the later of—

(i) 25the day 6 months before the day on which the petition was
presented, and

(ii) the day 12 months before the day on which the winding-up
order was made, and

(b) ends with the day on which the winding-up order was made.

16 (1) 30Article 207 of the 1989 Order (avoidance of certain floating charges) has
effect as follows.

(2) Paragraph (3)(a) has effect as if the reference to the period of 2 years ending
with the onset of insolvency were to the period which—

(a) begins with whichever is the later of—

(i) 35the day 2 years before the day on which the petition was
presented, and

(ii) the day 2 years and 6 months before the day on which the
winding-up order was made, and

(b) ends with the day on which the winding-up order was made.

(3) 40Paragraph (3)(b) has effect as if the reference to the period of 12 months
ending with the onset of insolvency were to the period which—

(a) begins with whichever is the later of—

(i) the day 12 months before the day on which the petition was
presented, and

(ii) 45the day 18 months before the day on which the winding-up
order was made, and

(b) ends with the day on which the winding-up order was made.

Modification of Insolvency Rules

17 (1) This paragraph applies in relation to a petition which is presented by a
creditor under Article 104 of the 1989 Order—

(a) on or after the day on which this Schedule comes into force, but

(b) 5before the end of the relevant period.

(2) Any provision of the 1991 Insolvency Rules which requires or permits (or
authorises the High Court to require or permit) notice, publication or
advertisement of the petition does not apply until such time as the High
Court has made a determination in relation to the question of whether it is
10likely that the court will be able to make an order under Article 102(f) or
185(4)(b) of the 1989 Order.

(3) The 1991 Insolvency Rules have effect as if they required the petition to
contain a statement that the petitioner considers that the condition described
in paragraph 2(2) or (4) or 3(2) or (4) of this Schedule (as the case may be) is
15met.

(4) The rights referred to in the following provisions of the 1991 Insolvency
Rules are not exercisable without the permission of the High Court—

(a) paragraph (1) of Rule 7.25 (right to inspect court record);

(b) paragraphs (1) to (3) of Rule 7.27 (right to inspect court file);

(c) 20paragraphs (1) and (2) of Rule 7.55 (right to copy of document in
court file).

Interpretation

18 (1) In this Part of this Schedule, “relevant period” means the period which—

(a) begins with 27 April 2020, and

(b) 25ends with 30 June 2020 or one month after the coming into force of
this Schedule, whichever is the later.

(2) For the purposes of this Part of this Schedule, references to a petition
presented by a creditor—

(a) do not include a petition presented by one or more creditors together
30with one or more other persons, but

(b) subject to that, do include a petition presented by more than one
creditor (in which case the condition referred to in paragraph 3(2) or
(4) or 4(2) or (4) must be met in relation to each creditor presenting
the petition).

(3) 35For the purposes of this Part of this Schedule—

• “the 1991 Insolvency Rules” means the Insolvency Rules (Northern
  Ireland) 1991 (S.R. (N.I.) 1991/364);

• “coronavirus” means severe acute respiratory syndrome coronavirus 2

  (d) (SARS-CoV-2);

• 40coronavirus has a “financial effect” on a company if (and only if) the
  company’s financial position worsens in consequence of, or for
  reasons relating to, coronavirus.

Part 3 General

19 In this Schedule—

• “the 1989 Order” means the Insolvency (Northern Ireland) Order 1989
  5(S.I. 1989/2405 (N.I. 19)S.I. 1989/2405 (N.I. 19));

• “registered company” means a company registered under the
  Companies Act 2006 in Northern Ireland;

• “unregistered company” has the same meaning as in Part 6 of the 1989
  Order.

20 (1) 10The provisions of this Schedule, so far as relating to registered companies,
have effect as if they were included in Part 5 of the 1989 Order.

(2) Sub-paragraph (1) does not apply in relation to paragraph 17 (modification
of insolvency rules).

Section 12

SCHEDULE 12 15Protection of supplies of goods and services

Part 1 Exclusions

1 In the Insolvency Act 1986, after Schedule 4 insert—

Section 233B

““Schedule 4ZZA Protection of supplies under section 233B: exclusions

20Part 1 Essential supplies

Essential supplies

1 (1) Section 233B(3) and (4) do not apply in relation to provision of a
contract if—

(a) 25the company becomes subject to a relevant insolvency
procedure as specified in section 233B(2)(b) or (d), and

(b) the provision of the contract ceases to have effect under
section 233A(1).

(2) Section 233B(7) does not apply in relation to a supply to the
30company if—

(a) the company becomes subject to a relevant insolvency
procedure as specified in section 233B(2)(b) to (f), and

(b) the supply is a supply mentioned in section 233(3).

Part 2 Persons involved in financial services

Introductory

2 Section 233B does not apply in relation to a contract for the supply
5of goods or services to a company (“the company”) where any of
paragraphs 3 to 11 applies.

Insurers

3 (1) This paragraph applies where either the company or the
supplier—

(a) 10carries on the regulated activity of effecting or carrying out
contracts of insurance, and

(b) is not an exempt person in relation to that activity.

(2) In this paragraph—

• “exempt person”, in relation to a regulated activity, has the
  15meaning given by section 417 of the Financial Services and
  Markets Act 2000;

• “regulated activity” has the meaning given by section 22 of
  that Act, taken with Schedule 2 to that Act and any order
  under that section.

20Banks

4 (1) This paragraph applies where either the company or the
supplier—

(a) has permission under Part 4A of the Financial Services and
Markets Act 2000 to carry on the regulated activity of
25accepting deposits,

(b) is a banking group company within the meaning of Part 1
of the Banking Act 2009 (see section 81D of that Act), or

(c) has a liability in respect of a deposit which it accepted in
accordance with the Banking Act 1979 or the Banking Act
301987.

(2) In sub-paragraph (1)(a) “regulated activity” has the meaning
given by section 22 of the Financial Services and Markets Act 2000
2000, taken with Schedule 2 to that Act and any order under that
section.

35Electronic money institutions

5 This paragraph applies where either the company or the supplier
is an electronic money institution within the meaning of the
Electronic Money Regulations 2011 (S.I. 2011/99S.I. 2011/99) (see regulation 2
of those Regulations).

40Investment banks and investment firms

6 (1) This paragraph applies where either the company or the supplier
is an investment bank or an investment firm.

(2) In this paragraph—

• “investment bank” means a company or other entity that has
  permission under Part 4A of the Financial Services and
  Markets Act 2000 to carry on the regulated activity of—

  (a)

  5safeguarding and administering investments,

  (b)

  managing an AIF or a UCITS,

  (c)

  acting as trustee or depositary of an AIF or a UCITS,

  (d)

  dealing in investments as principal, or

  (e)

  dealing in investments as agent;

• 10“investment firm” has the same meaning as in the Banking
  Act 2009 (see section 258A of that Act), disregarding any
  order made under section 258A(2)(b) of that Act;

• “regulated activity” has the meaning given by section 22 of
  the Financial Services and Markets Act 2000, taken with
  15Schedule 2 to that Act and any order under that section.

Payment institutions

7 This paragraph applies where either the company or the supplier
is an authorised payment institution, a small payment institution
or a registered account information service provider within the
20meaning of the Payment Services Regulations 2017 (S.I. 2017/752S.I. 2017/752)
(see regulation 2 of those Regulations).

Operators of payment systems, infrastructure providers etc

8 This paragraph applies where either the company or the supplier
is—

(a) 25the operator of a payment system or an infrastructure
provider within the meaning of Part 5 of the Financial
Services (Banking Reform) Act 2013 (see section 42 of that
Act), or

(b) an infrastructure company within the meaning of Part 6 of
30that Act (see section 112 of that Act).

Recognised investment exchanges etc

9 This paragraph applies where either the company or the supplier
is a recognised investment exchange, a recognised clearing house
or a recognised CSD within the meaning of the Financial Services
35and Markets Act 2000 (see section 285 of that Act).

Securitisation companies

10 This paragraph applies where either the company or the supplier
is a securitisation company within the meaning of the Taxation of
Securitisation Companies Regulations 2006 (S.I. 2006/3296S.I. 2006/3296) (see
40regulation 4 of those Regulations).

Overseas activities

11 This paragraph applies where either the company or the supplier
does or has done anything outside the United Kingdom which, if

done in the United Kingdom, would cause any of the preceding
paragraphs of this Part of this Schedule to apply.

Part 3 Contracts involving financial services

5Introductory

12 To the extent that anything to which any of paragraphs 13 to 18
applies is a contract for the supply of goods or services, section
233B does not apply in relation to it.

Financial contracts

13 (1) 10This paragraph applies to a financial contract.

(2) “Financial contract” means—

(a) a contract for the provision of financial services consisting
of—

(i) lending (including the factoring and financing of
15commercial transactions),

(ii) financial leasing, or

(iii) providing guarantees or commitments;

(b) a securities contract, including—

(i) a contract for the purchase, sale or loan of a security
20or group or index of securities;

(ii) an option on a security or group or index of
securities;

(iii) a repurchase or reverse repurchase transaction on
any such security, group or index;

(c) 25a commodities contract, including—

(i) a contract for the purchase, sale or loan of a
commodity or group or index of commodities for
future delivery;

(ii) an option on a commodity or group or index of
30commodities;

(iii) a repurchase or reverse repurchase transaction on
any such commodity, group or index;

(d) a futures or forwards contract, including a contract (other
than a commodities contract) for the purchase, sale or
35transfer of a commodity or property of any other
description, service, right or interest for a specified price at
a future date;

(e) a swap agreement, including—

(i) a swap or option relating to interest rates, spot or
40other foreign exchange agreements, currency, an
equity index or equity, a debt index or debt,
commodity indexes or commodities, weather,
emissions or inflation;

(ii) a total return, credit spread or credit swap;

(iii) 45any agreement or transaction similar to an
agreement that is referred to in sub-paragraph (i) or