Company Directors Disqualification (Northern Ireland) Order 2002
2002 No. 3150 (N.I. 4)
NORTHERN IRELAND
The Company Directors Disqualification (Northern Ireland) Order 2002
17thDecember 2002
Arrangement of Order
Introductory
1. |
Title and commencement |
2. |
Interpretation |
3. |
Disqualification orders: general |
4. |
Disqualification undertakings: general |
Disqualification for general misconduct in connection with companies
5. |
Disqualification on conviction of offence punishable only on indictment or either on conviction on indictment or on summary conviction |
6. |
Disqualification for persistent default under companies legislation |
7. |
Disqualification for fraud, etc., in winding up |
8. |
Disqualification on summary conviction of offence |
Disqualification for unfitness
9. |
Duty of High Court to disqualify unfit directors of insolvent companies |
10. |
Disqualification order or undertaking; and reporting provisions |
11. |
Disqualification after investigation of company |
12. |
Variation etc. of disqualification undertaking |
13. |
Matters for determining unfitness of directors |
Other cases of disqualification
14. |
Participation in wrongful trading |
15. |
Undischarged bankrupts |
16. |
Failure to pay under administration order |
17. |
Persons disqualified in Great Britain |
Consequences of contravention
18. |
Offences |
19. |
Personal liability for company's debts where person acts while disqualified |
Supplementary provisions
20. |
Application for disqualification order |
21. |
Application for leave under an order or undertaking |
22. |
Register of disqualification orders and undertakings |
Miscellaneous and general
23. |
Admissibility in evidence of statements |
24. |
Interaction with the Insolvency Order |
25. |
Application of Order to incorporated friendly societies |
26. |
Transitional provisions, savings, amendments and repeals |
SCHEDULES:
Schedule 1 |
Matters for determining unfitness of directors |
Part I |
Matters applicable in all cases |
Part II |
Matters applicable where company has become insolvent |
Schedule 2 |
Transitional provisions and savings |
Schedule 3 |
Consequential amendments |
Schedule 4 |
Repeals |
At the Court at Buckingham Palace, the 17th day of December 2002
Present,
The Queen's Most Excellent Majesty in Council
Whereas a draft of this Order in Council has been approved by resolution of each House of Parliament:
Now, therefore, Her Majesty, in exercise of the powers conferred by paragraph 1(1) of the Schedule to the Northern Ireland Act 2000 (c.1) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:-
Introductory
Title and commencement
1. - (1) This Order may be cited as the Company Directors Disqualification (Northern Ireland) Order 2002.
(2) This Order shall come into operation on such day or days as the Department may by order appoint.
Interpretation
2. - (1) The Interpretation Act (Northern Ireland) 1954 (c. 33) applies to this Order as it applies to an Act of the Assembly.
(2) In this Order -
"administrative receiver" has the meaning given by Article 5(1) of the Insolvency Order;
"company" -
(a) includes a company within the meaning of the Companies Act 1985 (c. 6);(b) includes any company which may be wound up under Part VI of the Insolvency Order or Part V of the Insolvency Act 1986 (c. 45); and(c) except in Article 11, includes a building society within the meaning of the Building Societies Act 1986 (c. 53);"the companies legislation", in Articles 6(1) and 8(1) means the Companies Orders (except Part V of the Criminal Justice Act 1993 (c. 36) (insider dealing)) and Parts II to VII and Articles 359, 360, 361 and 362 of the Insolvency Order;
"the Companies Order" means the Companies (Northern Ireland) Order 1986 (NI 6);
"the Companies Orders" has the meaning given by Article 2(3) of the Companies Order;
"the Department" means the Department of Enterprise, Trade and Investment;
"director" -
(a) includes any person occupying the position of director by whatever name called; and(b) in Articles 9, 10, 13 and 19, includes a director (but not a shadow director) of a building society;"the Insolvency Order" means the Insolvency (Northern Ireland) Order 1989;
"officer" has the meaning given by Article 2(3) of the Companies Order;
"the official receiver" means, in relation to the winding up of a company or the bankruptcy of an individual, any officer of the Department who by virtue of Article 355 or 357 of the Insolvency Order is authorised to act as the official receiver in relation to that winding up or bankruptcy;
"prescribed" means prescribed by regulations;
"the registrar" means the registrar of companies appointed under Article 653 of the Companies Order and, for the purposes of this Order, includes an assistant registrar;
"regulations" means regulations made by the Department subject (except in Article 23(3)(a)(ii)) to negative resolution;
"shadow director", in relation to a company, means a person in accordance with whose directions or instructions the directors of the company are accustomed to act (but so that a person is not deemed a shadow director by reason only that the directors act on advice given by him in a professional capacity);
"statutory provision" has the meaning assigned to it by section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c. 33).
(3) Article 6 of the Insolvency Order (interpretation for Parts II to VII of that Order) applies as regards references to a company's insolvency and to its going into liquidation; and references to acting as an insolvency practitioner are to be read in accordance with Article 3 of that Order.
(4) Any reference to provisions, or a particular provision, of the Companies Orders or the Insolvency Order includes the corresponding provisions or provision of the former Companies Acts (as defined by Article 2(3) of the Companies Order, but including also that Order itself).
(5) Any expression for whose interpretation provision is made by Part I of the Companies Order (and not by paragraphs (2) to (4)) is to be construed in accordance with that provision.
(6) Any reference to acting as receiver -
(a) includes acting as manager or as both receiver and manager, but(b) does not include acting as administrative receiver3. - (1) In the circumstances specified in this Order a court may, and under Article 9 shall, make against a person a disqualification order, that is to say an order that, for a period specified in the order -
(a) he shall not be a director of a company, act as receiver of a company's property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of the High Court, and(b) he shall not act as an insolvency practitioner.(2) In each Article which gives to a court power or, as the case may be, imposes on it the duty to make a disqualification order there is specified the maximum (and, in Article 9, the minimum) period of disqualification which may or (as the case may be) must be imposed by means of the order and, unless the court otherwise orders, the period of disqualification so imposed shall begin at the end of the period of 21 days beginning with the date of the order.
(3) Where a disqualification order is made against a person who is already subject to such an order or to a disqualification undertaking, the periods specified in those orders or, as the case may be, in the order and the undertaking shall run concurrently.
(4) A disqualification order may be made on grounds which are or include matters other than criminal convictions, notwithstanding that the person in respect of whom it is to be made may be criminally liable in respect of those matters.
Disqualification undertakings: general
4. - (1) In the circumstances specified in Articles 10 and 11 the Department may accept a disqualification undertaking, that is to say an undertaking by any person that, for a period specified in the undertaking, the person -
(a) will not be a director of a company, act as receiver of a company's property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of the High Court, and(b) will not act as an insolvency practitioner.(2) The maximum period which may be specified in a disqualification undertaking is 15 years; and the minimum period which may be specified in a disqualification undertaking under Article 10 is two years.
(3) Where a disqualification undertaking by a person who is already subject to such an undertaking or to a disqualification order is accepted, the periods specified in those undertakings or (as the case may be) the undertaking and the order shall run concurrently.
(4) In determining whether to accept a disqualification undertaking by any person, the Department may take account of matters other than criminal convictions, notwithstanding that the person may be criminally liable in respect of those matters.
Disqualification for general misconduct in connection with companies
Disqualification on conviction of offence punishable only on indictment or either on conviction on indictment or on summary conviction
5. - (1) The court may make a disqualification order against a person where he is convicted of an offence punishable only on conviction on indictment or either on conviction on indictment or on summary conviction (whether on indictment or on summary conviction) in connection with the promotion, formation, management, liquidation or striking off of a company, with the receivership of a company's property or with his being an administrative receiver of a company.
(2) "The court" for this purpose means -
(a) the High Court, or(b) the court by or before which the person is convicted of the offence, or(c) in the case of a summary conviction, any other court of summary jurisdiction acting for the same petty sessions district.(3) The maximum period of...
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