Enterprise and Regulatory Reform Bill

Session 2012 - 13
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Other Bills before Parliament

Enterprise and Regulatory Reform Bill

Enterprise and Regulatory Reform Bill
Schedule 18 — Adjudicators: bankruptcy applications by debtors and bankruptcy orders
248

15
In section 82A(2) (application to the Crown), after paragraph (c) insert—
“(ca)
section 26J;”.
16
In section 88(2)(c) (rights of entry) after “11” insert “, 26J”.
17
In section 92(2)(b) (application to Isles of Scilly), after “Schedules 1, 2” insert
“, 2A”.
5
18
In section 93(5) (orders subject to affirmative procedure), after “section”
insert “26C,”.
19    (1)
Schedule 3 (determination of certain appeals by person appointed by
Secretary of State) is amended as follows.
      (2)
In paragraph 1(1), 2(8)(a) and 3(3) after “20” insert “, 26K”.
10
      (3)
In paragraph 2(1) after paragraph (a) (before “and” at the end) insert—
“(aa)
in relation to an appeal under section 26K, as the Secretary
of State has under section 26K(4) to (6);”.
Application
20
Paragraph 8 applies in relation to entries for buildings that are listed, or
15
entries that are amended, on or after the date on which that paragraph
comes into force.
Schedule 18
Section 64(2)

Adjudicators: bankruptcy applications by debtors and bankruptcy orders
“Chapter A1
20
Adjudicators: bankruptcy applications by debtors and bankruptcy orders
263H
Bankruptcy applications to an adjudicator
(1)
An individual may make an application to an adjudicator in
accordance with this Chapter for a bankruptcy order to be made
against him or her.
25
(2)
An individual may make a bankruptcy application only on the
ground that the individual is unable to pay his or her debts.
263I
Debtors against whom an adjudicator may make a bankruptcy order
(1)
An adjudicator has jurisdiction to determine a bankruptcy
application only if—
30
(a)
the centre of the debtor’s main interests is in England and
Wales, or
(b)
the centre of the debtor’s main interests is not in a member
state of the European Union which has adopted the EC
Regulation, but the test in subsection (2) is met.
35
(2)
The test is that—
(a)
the debtor is domiciled in England and Wales, or

Enterprise and Regulatory Reform Bill
Schedule 18 — Adjudicators: bankruptcy applications by debtors and bankruptcy orders
249

(b)
at any time in the period of three years ending with the day
on which the application is made to the adjudicator, the
debtor—
(i)
has been ordinarily resident, or has had a place of
residence, in England and Wales, or
5
(ii)
has carried on business in England and Wales.
(3)
The reference in subsection (2) to the debtor carrying on business
includes—
(a)
the carrying on of business by a firm or partnership of which
the debtor is a member, and
10
(b)
the carrying on of business by an agent or manager for the
debtor or for such a firm or partnership.
(4)
In this section, references to the centre of the debtor’s main interests
have the same meaning as in Article 3 of the EC Regulation.
263J
Conditions applying to bankruptcy application
15
(1)
A bankruptcy application must include—
(a)
such particulars of the debtor’s creditors, debts and other
liabilities, and assets, as may be prescribed, and
(b)
such other information as may be prescribed.
(2)
A bankruptcy application is not to be regarded as having been made
20
unless any fee or deposit required in connection with the application
by an order under section 415 has been paid to such person, and
within such period, as may be prescribed.
(3)
A bankruptcy application may not be withdrawn.
(4)
A debtor must notify the adjudicator if, at any time before a
25
bankruptcy order is made against the debtor or the adjudicator
refuses to make such an order—
(a)
the debtor becomes able to pay his or her debts, or
(b)
a bankruptcy petition has been presented to the court in
relation to the debtor.
30
263K
Determination of bankruptcy application
(1)
After receiving a bankruptcy application, an adjudicator must
determine whether the following requirements are met—
(a)
the adjudicator had jurisdiction under section 263I to
determine the application on the date the application was
35
made,
(b)
the debtor is unable to pay his or her debts at the date of the
determination,
(c)
no bankruptcy petition is pending in relation to the debtor at
the date of the determination, and
40
(d)
no bankruptcy order has been made in respect of any of the
debts which are the subject of the application at the date of
the determination.
(2)
If the adjudicator is satisfied that each of the requirements in
subsection (1) are met, the adjudicator must make a bankruptcy
45
order against the debtor.

Enterprise and Regulatory Reform Bill
Schedule 18 — Adjudicators: bankruptcy applications by debtors and bankruptcy orders
250

(3)
If the adjudicator is not so satisfied, the adjudicator must refuse to
make a bankruptcy order against the debtor.
(4)
The adjudicator must make a bankruptcy order against the debtor or
refuse to make such an order before the end of the prescribed period
(“the determination period”).
5
263L
Adjudicator’s requests for further information
(1)
An adjudicator may at any time during the determination period
request from the debtor information that the adjudicator considers
necessary for the purpose of determining whether a bankruptcy
order must be made.
10
(2)
The adjudicator may specify a date before which information
requested under subsection (1) must be provided; but that date must
not be after the end of the determination period.
(3)
If the rules so prescribe, a request under subsection (1) may include
a request for information to be given orally.
15
(4)
The rules may make provision enabling or requiring an adjudicator
to request information from persons of a prescribed description in
prescribed circumstances.
263M
Making of bankruptcy order
(1)
This section applies where an adjudicator makes a bankruptcy order
20
as a result of a bankruptcy application.
(2)
The order must be made in the prescribed form.
(3)
The adjudicator must—
(a)
give a copy of the order to the debtor, and
(b)
give notice of the order to persons of such description as may
25
be prescribed.
263N
Refusal to make a bankruptcy order: review and appeal etc.
(1)
Where an adjudicator refuses to make a bankruptcy order on a
bankruptcy application, the adjudicator must give notice to the
debtor—
30
(a)
giving the reasons for the refusal, and
(b)
explaining the effect of subsections (2) to (5).
(2)
If requested by the debtor before the end of the prescribed period, the
adjudicator must review the information which was available to the
adjudicator when the determination that resulted in the refusal was
35
made.
(3)
Following a review under subsection (2) the adjudicator must—
(a)
confirm the refusal to make a bankruptcy order, or
(b)
make a bankruptcy order against the debtor.
(4)
Where the adjudicator confirms a refusal under subsection (3), the
40
adjudicator must give notice to the debtor—
(a)
giving the reasons for the confirmation, and
(b)
explaining the effect of subsection (5).

Enterprise and Regulatory Reform Bill
Schedule 19 — Adjudicators: minor and consequential amendments
251

(5)
If the refusal is confirmed under subsection (3), the debtor may
appeal against the refusal to the court before the end of the
prescribed period.
263O
False representations and omissions
(1)
It is an offence knowingly or recklessly to make any false
5
representation or omission in—
(a)
making a bankruptcy application to an adjudicator, or
(b)
providing any information to an adjudicator in connection
with a bankruptcy application.
(2)
It is an offence knowingly or recklessly to fail to notify an adjudicator
10
of a matter in accordance with a requirement imposed by or under
this Part.
(3)
It is immaterial for the purposes of an offence under this section
whether or not a bankruptcy order is made as a result of the
application.
15
(4)
It is not a defence in proceedings for an offence under this section
that anything relied on, in whole or in part, as constituting the
offence was done outside England and Wales.
(5)
Proceedings for an offence under this section may only be
instituted—
20
(a)
by the Secretary of State, or
(b)
by or with the consent of the Director of Public Prosecutions.”
Schedule 19
Section 64(3)

Adjudicators: minor and consequential amendments
1
The Insolvency Act 1986 is amended in accordance with this Schedule.
25
2
In section 253 (application for interim order), omit subsection (5).
3
In section 255 (cases in which interim order can be made), in subsection
(1)(b) for “petition for his own bankruptcy” substitute “make a bankruptcy
application”.
4     (1)
Section 256A (debtor’s proposal and nominee’s report) is amended as
30
follows.
      (2)
In subsection (1) omit the words from “unless” to the end.
      (3)
In subsection (3) for “petition for his own bankruptcy” substitute “make a
bankruptcy application”.
5
For the heading to Chapter 1 of Part 9 substitute “The court: bankruptcy
35
petitions and bankruptcy orders”.
6
In section 264 (who may present a bankruptcy petition), in subsection (1)
omit paragraph (b).

Enterprise and Regulatory Reform Bill
Schedule 19 — Adjudicators: minor and consequential amendments
252

7
For section 265 (conditions to be satisfied in respect of debtor) substitute—
“265
Creditor’s petition: debtors against whom the court may make a
bankruptcy order
(1)
A bankruptcy petition may be presented to the court under section
264(1)(a) only if—
5
(a)
the centre of the debtor’s main interests is in England and
Wales, or
(b)
the centre of the debtor’s main interests is not in a member
state of the European Union which has adopted the EC
Regulation, but the test in subsection (2) is met.
10
(2)
The test is that—
(a)
the debtor is domiciled in England and Wales, or
(b)
at any time in the period of three years ending with the day
on which the petition is presented, the debtor—
(i)
has been ordinarily resident, or has had a place of
15
residence, in England and Wales, or
(ii)
has carried on business in England and Wales.
(3)
The reference in subsection (2) to the debtor carrying on business
includes—
(a)
the carrying on of business by a firm or partnership of which
20
the debtor is a member, and
(b)
the carrying on of business by an agent or manager for the
debtor or for such a firm or partnership.
(4)
In this section, references to the centre of the debtor’s main interests
have the same meaning as in Article 3 of the EC Regulation.”
25
8
In section 266 (bankruptcy petitions: other preliminary conditions), in
subsection (4) omit “, (b)”.
9     (1)
Sections 272 to 274A (and the cross-heading immediately preceding those
sections) (debtor’s petition) are repealed.
      (2)
In consequence of the repeal of section 274A by paragraph (1), omit
30
paragraph 3 of Schedule 20 to the Tribunals, Courts and Enforcement Act
2007 (debt relief orders: consequential amendments).
10
For the cross-heading immediately before section 278 substitute—
“Chapter 1A
Commencement and duration of bankruptcy”.
35
11
In section 278 (commencement and continuance), in paragraph (b)
(discharge of bankruptcy order) omit “the following provisions of”.
12
In section 279 (duration of bankruptcy), in subsection (6) for “adjudged”
substitute “made”.
13
In section 282 (court’s power to annul bankruptcy order), in subsection (2)—
40
(a)
omit “, (b)”,
(b)
after “section 264(1)” insert “or on a bankruptcy application”, and

Enterprise and Regulatory Reform Bill
Schedule 19 — Adjudicators: minor and consequential amendments
253

(c)
in paragraph (a) after “pending” insert “or the application was
ongoing”.
14
In section 283 (definition of bankrupt’s estate), in subsection (5)(a) for
“adjudged” substitute “made”.
15    (1)
Section 284 (restrictions on dispositions of property) is amended as follows.
5
      (2)
In subsection (1) for “adjudged” substitute “made”.
      (3)
In subsection (3) for “presentation of the petition for the bankruptcy order”
substitute “making of the bankruptcy application or (as the case may be) the
presentation of the bankruptcy petition”.
      (4)
In subsection (4), in paragraph (a) before “petition” insert “bankruptcy
10
application had been made or (as the case may be) that the bankruptcy”.
16    (1)
Section 285 (restriction on proceedings and remedies) is amended as follows.
      (2)
In subsection (1)—
(a)
after “when” insert “proceedings on a bankruptcy application are
ongoing or”, and
15
(b)
for “adjudged” substitute “made”.
      (3)
In subsection (2) after “proof that” insert “a bankruptcy application has been
made or”.
17    (1)
Section 286 is amended as follows.
      (2)
Omit subsection (2).
20
      (3)
In subsection (8), for “adjudged” substitute “made”.
18
In section 288 (statement of affairs), in subsection (1) for “debtor’s petition”
substitute “bankruptcy application”.
19
In section 290 (public examination of bankrupt), in subsection (4)(a) for
“adjudged” substitute “made”.
25
20
In section 293 (summoning of meeting to appoint first trustee), in
subsections (2) and (3) for “court” substitute “prescribed person”.
21
In section 295 (failure of meeting to appoint trustee), in subsection (3) for
“court” substitute “prescribed person”.
22    (1)
Section 297 (appointment of trustee of bankrupt’s estate: special cases) is
30
amended as follows.
      (2)
Omit subsection (4).
      (3)
In subsection (6) omit “(4) or”.
23
In section 298 (removal of trustee and vacation of office), in subsections (7)
and (8) for “court” substitute “prescribed person”.
35
24    (1)
Section 299 (release of trustee) is amended as follows.
      (2)
In subsection (1)(a) for “to the court” substitute “under this paragraph to the
prescribed person”.
      (3)
In subsection (3)(a) for “court” substitute “prescribed person”.

Enterprise and Regulatory Reform Bill
Schedule 19 — Adjudicators: minor and consequential amendments
254

25    (1)
Section 320 (court order vesting disclaimed property) is amended as follows.
      (2)
In subsection (2)(c) before “bankruptcy” insert “bankruptcy application was
made or (as the case may be) the”.
      (3)
In subsection (3)(c) before “bankruptcy” insert “bankruptcy application was
made or (as the case may be) the”.
5
26
In section 321 (orders under section 320 in respect of leaseholds), in
subsection (1)(a) before “bankruptcy” insert “bankruptcy application was
made or (as the case may be) the”.
27
In section 323 (mutual credit and set-off), in subsection (3) before “a
bankruptcy” insert “proceedings on a bankruptcy application relating to the
10
bankrupt were ongoing or that”.
28
In section 334 (stay of distribution in case of second bankruptcy), in
subsection (2) before “presentation of the petition” insert “making of the
application or (as the case may be) the”.
29    (1)
Section 336 (rights of occupation etc of bankrupt’s spouse or civil partner) is
15
amended as follows.
      (2)
In subsection (1) for “presentation of the petition for the bankruptcy order”
substitute “making of the bankruptcy application or (as the case may be) the
presentation of the bankruptcy petition”.
      (3)
In subsection (2) for “adjudged” substitute “made”.
20
30
In section 337 (rights of occupation of bankrupt), in subsection (1)—
(a)
in paragraph (a) for “adjudged” substitute “made”, and
(b)
in paragraph (b) before “bankruptcy petition” insert “bankruptcy
application was made or (as the case may be) the”.
31
In section 339 (transactions at an undervalue), in subsection (1) for
25
“adjudged” substitute “made”.
32
In section 340 (preferences), in subsection (1) for “adjudged” substitute
“made”.
33
In section 341 (meaning of “relevant time” under sections 339 and 340), in
subsection (1)(a) for “presentation of the bankruptcy petition on which the
30
individual is adjudged” substitute “making of the bankruptcy application as
a result of which, or (as the case may be) the presentation of the bankruptcy
petition on which, the individual is made”.
34    (1)
Section 342 (orders under sections 339 and 340) is amended as follows.
      (2)
In subsection (1) for “adjudged” substitute “made”.
35
      (3)
In subsection (5)—
(a)
for paragraph (a) substitute—
“(a)
of the fact that the bankruptcy application as a result
of which, or (as the case may be) the bankruptcy
petition on which, the individual in question is made
40
bankrupt has been made or presented; or”, and
(b)
in paragraph (b) for “adjudged” substitute “made”.
35
In section 342A (recovery of excessive pension contributions), in subsection
(1) for “adjudged” substitute “made”.