The Insolvency (Amendment) Rules (Northern Ireland) 2008

Consequential amendments

7.  For Rule 4.238 substitute—

“First excepted case

(1) This rule applies where a person (“the person”) has, within the period mentioned in Article 180(1), been a director, or shadow director of an insolvent company (“the insolvent company”) which goes into insolvent liquidation.

(2) On and after the date on which the insolvent company goes into insolvent liquidation it shall, in the circumstances mentioned in paragraph (3), be lawful for the person to act in all or any of the ways specified in Article 180(3), provided that the person complies with the requirements stated in paragraph (4).

(3) The circumstances referred to in paragraph (2) are—

(a) that the person acts in connection with, or for the purposes of, the carrying on or the proposed carrying on of the whole or substantially the whole of the business of the insolvent company; and

(b) that the business has been or is to be acquired under either—

(i) arrangements made by the liquidator of the insolvent company; or

(ii) arrangements made prior to the date on which the insolvent company entered into insolvent liquidation by an office-holder acting in relation to it as administrator, administrative receiver or supervisor of a voluntary arrangement under Part II of the Order.

(4) The requirements referred to in paragraph (2) are that, for the person to be able to act or continue to act lawfully in all or any of the ways specified in Article 180(3), after the date on which the insolvent company goes into insolvent liquidation—

(a) in all cases the person must, before he acts in any of the ways specified in Article 180(3), have given and published the notice in accordance with the requirements of paragraph (5);

(b) subject to compliance with the requirement in sub-paragraph (a), the notice may, in the circumstances mentioned in paragraph 3(b)(ii), be given and published before or after the date on which the insolvent company enters insolvent liquidation, but must in either event, be given and published no later than 28 days after the date on which the arrangements referred to in paragraph 3(b)(ii) are completed;

(c) subject to compliance with the requirement in sub-paragraph (a), the notice may, in the circumstances mentioned in paragraph 3(b)(ii) be given prior to completion of the arrangements referred to in paragraph 3(b)(ii).

(5) The notice as referred to in paragraph (4) must—

(a) be given by the person, to every creditor of the insolvent company whose name and address—

(i) is known by him; or

(ii) is ascertainable by him on the making of such enquiries as are reasonable in the circumstances;

(b) be given using Form 4.75;

(c) be published in the Gazette;

(d) state—

(i) the name and registered number of the insolvent company;

(ii) the name of the person;

(iii) particulars of the function and duration of the person’s directorship of the insolvent company, including whether or not he was registered as a director and if so the date of registration;

(iv) that it is his intention to act (or, in a case where the notice is being given and published before the insolvent company has entered insolvent liquidation, to act or continue to act in the event of its doing so) in any of the ways specified in Article 180(3) in connection with, or for the purposes of, the carrying on of the whole or substantially the whole of the business of the insolvent company; and

(v) the prohibited name or, where the notice is being given and published before the insolvent company has entered insolvent liquidation, the name under which the business is being, or is to be, carried on which would be a prohibited name in respect of the person in the event of the insolvent company entering insolvent liquidation.

(6) Notice may in particular be given under this Rule—

(a) prior to the insolvent company entering insolvent liquidation where the business (or substantially the whole of the business) is, or is to be acquired by another company under arrangements made by an office-holder acting in relation to the insolvent company as administrator, administrative receiver or supervisor of a voluntary arrangement (whether or not at the time of the giving of the notice the director is a director of that other company); or

(b) at a time where the person is a director of another company where—

(i) the other company has acquired, or is to acquire the whole, or substantially the whole, of the business of the insolvent company under arrangements made by its liquidator; and

(ii) it is proposed that after the giving of the notice a prohibited name should be adopted by the other company.”