The Insolvency Practitioners Regulations 2005
| Year | 2005 |
2005 No. 524
INSOLVENCYINSOLVENCY PRACTITIONERS
The Insolvency Practitioners Regulations 2005
Made 8th March 2005
Laid before Parliament 8th March 2005
Coming into force 1st April 2005
The Secretary of State, in exercise of the powers conferred upon her by sections 390, 392, 393 and 419 of the Insolvency Act 19861hereby makes the following Regulations:
PART 1
Introductory
Citation and commencement.
1. These Regulations may be cited as the Insolvency Practitioners Regulations 2005 and shall come into force on 1st April 2005.
Interpretation: general
2.—(1) In these Regulations—
“the Act” means the Insolvency Act 1986;
“commencement date” means the date on which these Regulations come into force;
“initial capacity” shall be construed in accordance with regulation 3;
“insolvency practitioner” means a person who is authorised to act as an insolvency practitioner by virtue of—
(a) membership of a body recognised pursuant to section 391 of the Act; or
(b) an authorisation granted pursuant to section 393 of the Act;
“insolvent” means a person in respect of whom an insolvency practitioner is acting;
“interim trustee”, “permanent trustee” and “trust deed for creditors” have the same meanings as in the Bankruptcy (Scotland) Act 19852;
“subsequent capacity” shall be construed in accordance with regulation 3.
(2) In these Regulations a reference to the date of release or discharge of an insolvency practitioner includes—
(a)
(a) where the insolvency practitioner acts as nominee in relation to proposals for a voluntary arrangement under Part I or VIII of the Act, whichever is the earlier of the date on which—
(i) the proposals are rejected by creditors;
(ii) he is replaced as nominee by another insolvency practitioner; or
(iii) the arrangement takes effect without his becoming supervisor in relation to it; and
(b)
(b) where an insolvency practitioner acts as supervisor of a voluntary arrangement, whichever is the earlier of the date on which —
(i) the arrangement is completed or terminated; or
(ii) the insolvency practitioner otherwise ceases to act as supervisor in relation to the arrangement.
Interpretation - meaning of initial and subsequent capacity
3.—(1) In these Regulations an insolvency practitioner holds office in relation to an insolvent in a “subsequent capacity” where he holds office in relation to that insolvent in one of the capacities referred to in paragraph (3) and immediately prior to his holding office in that capacity, he held office in relation to that insolvent in another of the capacities referred to in that paragraph.
(2) The first office held by the insolvency practitioner in the circumstances referred to in paragraph (1) is referred to in these Regulations as the “initial capacity”.
(3) The capacities referred to in paragraph (1) are, nominee in relation to proposals for a voluntary arrangement under Part I of the Act, supervisor of a voluntary arrangement under Part I of the Act, administrator, provisional liquidator, liquidator, nominee in relation to proposals for a voluntary arrangement under Part VIII of the Act, supervisor of a voluntary arrangement under Part VIII of the Act, trustee, interim trustee and permanent trustee.
Revocations and transitional and saving provisions
4.—(1) Subject to paragraphs (2), (3) and (4), the Regulations listed in Schedule 1 are revoked.
(2) Parts I and II of the Insolvency Practitioners Regulations 19903shall continue to apply in relation to an application for authorisation under section 393 of the Act to act as an insolvency practitioner made to the Secretary of State before the commencement date and accordingly nothing in these Regulations shall apply to such an application.
(3) Parts I, III and IV of the Insolvency Practitioners Regulations 1990 shall continue to apply in relation to any case in respect of which an insolvency practitioner is appointed —
(a)
(a) before the commencement date; or
(b)
(b) in a subsequent capacity and he was appointed in an initial capacity in that case before the commencement date.
(4) Only regulations 16 and 17 of these Regulations shall apply in relation to the cases mentioned in paragraph (3).
PART 2
Authorisation of Insolvency Practitioners by Competent Authorities
Interpretation of Part
5. In this Part—
“advisory work experience” means experience obtained in providing advice to the office-holder in insolvency proceedings or anyone who is a party to, or whose interests are affected by, those proceedings;
“application” means an application made by an individual to the competent authority for authorisation under section 393 of the Act to act as an insolvency practitioner and “applicant” shall be construed accordingly;
“authorisation” means an authorisation to act as an insolvency practitioner granted under section 393 of the Act;
“continuing professional development” has the meaning given to it by regulation 8(3);
“higher insolvency work experience” means engagement in work in relation to insolvency proceedings where the work involves the management or supervision of the conduct of those proceedings on behalf of the office-holder acting in relation to them;
“insolvency legislation” means the provisions of, or any provision made under, the Act, the Bankruptcy (Scotland) Act 19854or the Deeds of Arrangement Act 19145and any other enactment past or present applying to Great Britain (or any part of it) that relates to the insolvency of any person;
“insolvency practice” means the carrying on of the business of acting as an insolvency practitioner or in a corresponding capacity under the law of any country or territory outside Great Britain, and for this purpose acting as an insolvency practitioner shall include acting as a judicial factor on the bankrupt estate of a deceased person;
“insolvency proceedings” means any proceedings in which an office-holder acts under any provision of insolvency legislation or the corresponding provision of the law of any country or territory outside Great Britain;
“insolvency work experience” means engagement in work related to the administration of insolvency proceedings—
(a) as the office-holder in those proceedings;
(b) in the employment of a firm or body whose members or employees act as insolvency practitioners; or
(c) in the course of employment in the Insolvency Service of the Department of Trade and Industry.
“office-holder” means a person who acts as an insolvency practitioner or a judicial factor on the bankrupt estate of a deceased person or in a corresponding capacity under the law of any country or territory outside Great Britain and includes the official receiver acting as liquidator, provisional liquidator, trustee, interim receiver or nominee or supervisor of a voluntary arrangement; and
“regulatory work experience” means experience of work relating to the regulation of insolvency practitioners for or on behalf of a competent authority or a body recognised pursuant to section 391 of the Act or experience of work in connection with any function of the Secretary of State under that section.
Matters for determining whether an applicant for an authorisation is a fit and proper person
6. The matters to be taken into account by a competent authority in deciding whether an individual is a fit and proper person to act as an insolvency practitioner for the purpose of section 393(2)(a) or 393(4)(a) shall include :—
(a) whether the applicant has been convicted of any offence involving fraud or other dishonesty or violence;
(b) whether the applicant has contravened any provision in any enactment contained in insolvency legislation;
(c) whether the applicant has engaged in any practices in the course of carrying on any trade, profession or vocation or in the course of the discharge of any functions relating to any office or employment appearing to be deceitful or oppressive or otherwise unfair or improper, whether unlawful or not, or which otherwise cast doubt upon his probity or competence for discharging the duties of an insolvency practitioner;
(d) whether in respect of any insolvency practice carried on by the applicant at the date of or at any time prior to the making of the application, there were established adequate systems of control of the practice and adequate records relating to the practice, including accounting records, and whether such systems of control and records have been or were maintained on an adequate basis;
(e) whether the insolvency practice of the applicant is, has been or, where the applicant is not yet carrying on such a practice, will be, carried on with the independence, integrity and the professional skills appropriate to the range and scale of the practice and the proper performance of the duties of an insolvency practitioner and in accordance with generally accepted professional standards, practices and principles;
(f) whether the applicant, in any case where he has acted as an insolvency practitioner, has failed to disclose fully to such persons as might reasonably be expected to be affected thereby circumstances where there is or appears to be a conflict of interest between his so acting and any interest of his own, whether personal, financial or otherwise, without having received such consent as might be appropriate to his acting or continuing to act despite the existence of such circumstances.
Requirements as to education and training – applicants who have never previously been authorised to act as insolvency...
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