The Insolvent Partnerships (Amendment) Order 2002

Statutory Instruments

2002 No. 1308

INSOLVENCY, ENGLAND AND WALES

The Insolvent Partnerships (Amendment) Order 2002

Made

9th May 2002

Laid before Parliament

10th May 2002

Coming into force

31st May 2002

The Lord Chancellor, in exercise of the powers conferred upon him by section 420(1) and (2) of the Insolvency Act 1986(1), with the concurrence of the Secretary of State, hereby makes the following Order:

Citation, commencement and interpretation

1.—(1) This Order may be cited as the Insolvent Partnerships (Amendment) Order 2002 and shall come into force on 31st May 2002.

(2) In this Order—

“the Act” means the Insolvency Act 1986, and

“the 1994 Order” means the Insolvent Partnerships Order 1994(2).

(3) In this Order a reference to a “modified section” means a section of the Act as modified by, and set out in, the 1994 Order.

Amendments to the Insolvent Partnerships Order 1994

2.—(1) The 1994 Order is amended as provided in this Order.

(2) Anything done before 31st May 2002 under or for the purposes of any provision of the 1994 Order is not invalidated by the amendment of that provision by this Order, but it has effect as if done under or for the purposes of the provision as amended.

Amendment to Article 7 of the Insolvent Partnerships Order 1994

3.  In Article 7(1) of the 1994 Order (winding up of insolvent partnership as unregistered company (no concurrent petition)) after “petition of a creditor,” insert—

• “of a liquidator (within the meaning of Article 2(b) of the EC Regulation(3)) appointed in proceedings by virtue of Article 3(1) of the EC Regulation, of a temporary administrator (within the meaning of Article 38 of the EC Regulation),”.

Amendment to Article 8 of the Insolvent Partnerships Order 1994

4.—(1) In Article 8(1) of the 1994 Order (winding up of insolvent partnership as unregistered company (concurrent petition)) for “a creditor’s petition” substitute—

• “the petition of a creditor, of a liquidator (within the meaning of Article 2(b) of the EC Regulation) appointed in proceedings by virtue of Article 3(1) of the EC Regulation, or of a temporary administrator (within the meaning of Article 38 of the EC Regulation)”.

(2) For the heading of Article 8 of the 1994 Order substitute—

• “Winding up of insolvent partnership as unregistered company on the petition of creditor etc. where concurrent petitions presented against one or more members”.

Amendments to the Schedules 3, 4, 5 and 6 to the Insolvent Partnerships Order 1994

5.—(1) In paragraph 3 of Schedule 3 to the 1994 Order (section 221: winding up of unregistered companies), paragraph 3 of Schedule 4 to the 1994 Order, paragraph 2 of Schedule 5 to the 1994 Order and paragraph 4 of Schedule 6 to the 1994 Order, in each case, after modified section 221(3) insert—

“(3A) The preceding subsections are subject to Article 3 of the EC Regulation (jurisdiction under the EC Regulation).”.

(2) In paragraph 6 of Schedule 3 to the 1994 Order (section 117: High Court and county court jurisdiction) and paragraph 1 of Schedule 5 to the 1994 Order, in each case, after modified section 117(6) insert—

“(7) This section is subject to Article 3 of the EC Regulation (jurisdiction under the EC Regulation).”.

(3) In paragraph 5 of Schedule 4 to the 1994 Order (sections 117 and 265: High Court and county court jurisdiction) and paragraph 1 of Schedule 6 to the 1994 Order, in each case, after modified sections 117(8) and 265(8) insert—

“(9) This section is subject to Article 3 of the EC Regulation (jurisdiction under the EC Regulation).”.

(4) In paragraph 8 of Schedule 4 to the 1994 Order (sections 124 and 264: applications to wind up insolvent partnerships and to wind up or bankrupt insolvent member) in subsection (2) of modified sections 124 and 264 after “may be presented by” insert—

• “a liquidator (within the meaning of Article 2(b) of the EC Regulation) appointed in proceedings by virtue of Article 3(1) of the EC Regulation, a temporary administrator (within the meaning of Article 38 of the EC Regulation) or”.

Amendments to Schedule 9 to the Insolvent Partnerships Order 1994

6.  The forms contained in the Schedule to this Order are substituted for the forms identically numbered in Schedule 9 to the 1994 Order.

Irvine of Lairg, C.

7th May 2002

I concur,

Patricia Hewitt,

Secretary of State for Trade and Industry

9th May 2002

Article 6

SCHEDULE AMENDED FORMS

Explanatory Note

(This note is not part of the Order)

This Order amends the Insolvent Partnerships Order 1994 (S.I. 1994/2421) (“the 1994 Order”) in the light of Council Regulation (EC) No. 1346/2000 of 29th May 2000 on insolvency proceedings (“the EC Regulation”) which comes into force on 31st May 2002.

The EC Regulation aims to provide for the efficient and effective functioning of cross-border insolvency proceedings in the European Union. Information concerning the EC Regulation is provided in Guidance Notes issued by the Insolvency Service which may be found, together with the text of the EC Regulation, on the Insolvency Service website, the address of which is www.insolvency.gov.uk.

The amendments made by this Order are—

• to provide in the 1994 order that a liquidator appointed in proceedings by virtue of Article 3(1) of the EC Regulation and a temporary administrator (within the meaning of Article 38 of the EC Regulation) are included among those entitled to present a petition or petitions under the order (Articles 3, 4 and 5(4)) (“main proceedings” and “temporary administrator” are defined in the EC Regulation);

• to clarify the scope of the jurisdiction of the courts in England and Wales where the EC Regulation applies (Article 5(1) to (3));

• to substitute the forms in the 1994 Order with forms which require consideration of whether the EC Regulation applies to the proceedings in question (Article 6).

(1)

1986 c. 45; section 420 of the Act was amended, and the definition of “EC Regulation” was inserted in section 436, by the Insolvency Act 1986 (Amendment) Regulations 2002, S.I. 2002/1037; sections 1, 8, 117, 120, 124, 221, 225, 240, 247, 264, 265, 330, 387 and 388 were amended, and section 436A was inserted, by the Insolvency Act 1986 (Amendment) (No. 2) Regulations 2002, S.I. 2002/1240.

(2)

S.I. 1994/2421; amended by S.I. 1996/1308, S.I. 2001/767 and S.I. 2001/3649.

(3)

Council Regulation (EC) 1346/2000, OJ No. L160, 30.06.00 p.1.