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Statutory Instruments

2005 No. 524

INSOLVENCY

INSOLVENCY 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 1986 M1 hereby makes the following Regulations:

Modifications etc. (not altering text)

C3Regulations applied (with modifications) (8.2.2011) by The Investment Bank Special Administration Regulations 2011 (S.I. 2011/245), reg. 1, Sch. 6 Pt. 1 (with reg. 27(a))

Marginal Citations

M11986 c. 45; section 390 of the Insolvency Act 1986 was amended by section 8 of, and paragraph 16 of Schedule 4 to, the Insolvency Act 2000 (c. 39).

PART 1 E+W+SIntroductory

Citation and commencement.E+W+S

1.  These Regulations may be cited as the Insolvency Practitioners Regulations 2005 and shall come into force on 1st April 2005.

Interpretation: generalE+W+S

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 [F1a person who is authorised to act as an insolvency practitioner under section 390A 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 1985 M2;

“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—

[F2(za)where the insolvency practitioner acts as the monitor in relation to a moratorium under Part A1 of the Act, whichever is the earlier of the date on which—

(i)the moratorium comes to an end, or

(ii)the insolvency practitioner otherwise ceases to act as the monitor in relation to the moratorium;]

(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)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.

Textual Amendments

Marginal Citations

Interpretation - meaning of initial and subsequent capacityE+W+S

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 provisionsE+W+S

4.—(1) Subject to paragraphs (2), (3) and (4), the Regulations listed in Schedule 1 are revoked.

F3(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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)before the commencement date; or

(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).

Textual Amendments

PART 2E+W+SAuthorisation of Insolvency Practitioners by Competent Authorities

Interpretation of PartE+W+S

F45.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Matters for determining whether an applicant for an authorisation is a fit and proper personE+W+S

F56.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Requirements as to education and training – applicants who have never previously been authorised to act as insolvency practitionersE+W+S

F67.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Requirements relating to education and training etc. – applicants previously authorised to act as insolvency practitionersE+W+S

F78.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Requirements relating to education and training etc. – further authorisation to act as insolvency practitionersE+W+S

F88A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Records of continuing professional development activitiesE+W+S

F99.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Maximum period of authorisationE+W+S

F1010.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Returns by insolvency practitioners authorised by the Secretary of StateE+W+S

F1111.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

PART 3 E+W+SThe Requirements for Security and Caution for the Proper Performance of the Functions of an Insolvency Practitioner etc.

12.—(1) Schedule 2 shall have effect in respect of the requirements prescribed for the purposes of section 390(3)(b) in relation to security or caution for the proper performance of the functions of an insolvency practitioner and for related matters.

(2) Where two or more persons are appointed jointly to act as insolvency practitioners in relation to any person, the provisions of this regulation shall apply to each of them individually.

[F12(3) Where, in accordance with sections 390(2) and 390A(2)(b) of the Act a person is qualified to act as an insolvency practitioner by virtue of an authorisation granted by the Department of Enterprise, Trade and Investment for Northern Ireland under Article 352 of the Insolvency (Northern Ireland) Order 1989, this Part applies in relation to that person as if that authorisation had been granted pursuant to section 393 of the Act immediately before 1st October 2015.]

Textual Amendments

PART 4 E+W+SRecords to be maintained by Insolvency Practitioners — Inspection of Records

Records to be maintained by insolvency practitionersE+W+S

13.—[F13(1) In respect of each case in which an insolvency practitioner acts, the insolvency practitioner shall maintain records containing information sufficient to show and explain—

(a)the administration of that case by the insolvency practitioner and the insolvency practitioner’s staff; and

(b)any decisions made by the insolvency practitioner which materially affect that case.]

(2) Where at any time the records referred to in paragraph (1) do not contain all the information referred to in [F14paragraph (1)], the insolvency practitioner shall forthwith make such changes to the records as are necessary to ensure that the records contains all such information.

F15(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F15(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Any records created in relation to a case pursuant to this regulation shall be preserved by the insolvency practitioner until whichever is the later of—

(a)the sixth anniversary of the date of the grant to the insolvency practitioner of his release or discharge in that case; or

(b)the sixth anniversary of the date on which any security or caution maintained in that case expires or otherwise ceases to have effect.

Textual Amendments

Notification of whereabouts of recordsE+W+S

F1614.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Inspection of recordsE+W+S

15.—(1) Any records maintained by an insolvency practitioner pursuant to this Part shall on the giving of reasonable notice be made available by him for inspection by—

(a)any professional body recognised under section 391 of the Act of which he is a member and the rules of membership of which entitle him to act as an insolvency practitioner;

F17(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)the Secretary of State.

(2) Any person who is entitled to inspect any record pursuant to paragraph (1) shall also be entitled to take a copy of those records.

Textual Amendments

Inspection of practice recordsE+W+S

F1816.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Inspection of records in administration and administrative receivershipsE+W+S

17.  On the giving of reasonable notice to the insolvency practitioner, the Secretary of State shall be entitled to inspect and take copies of any records in the possession or control of that insolvency practitioner which—

(a)were required to be created by or under any provision of the Act (or any provision made under the Act); and

(b)relate to an administration or an administrative receivership.

Gerry Sutcliffe

Parliamentary Under Secretary of State for Employment Relations, Consumers and Postal Services

Department of Trade and Industry

Regulation 4

SCHEDULE 1E+W+SREGULATIONS REVOKED

  • M3The Insolvency Practitioners Regulations 1990

  • M4The Insolvency Practitioners (Amendment) Regulations 1993

  • M5The Insolvency Practitioners (Amendment) Regulations 2002

  • M6The Insolvency Practitioners (Amendment) (No 2) Regulations 2002

  • M7The Insolvency Practitioners (Amendment) Regulations 2004

Marginal Citations

Regulation 12

SCHEDULE 2E+W+SREQUIREMENTS FOR SECURITY OR CAUTION AND RELATED MATTERS

PART 1 E+W+SInterpretation

InterpretationE+W+S

1.  In this Schedule—

“cover schedule” means the schedule referred to in paragraph 3(2)(c);

“the insolvent” means the individual or company in relation to which an insolvency practitioner is acting;

“general penalty sum” shall be construed in accordance with paragraph 3(2)(b);

“insolvent's assets” means all assets comprised in the insolvent's estate together with any monies provided by a third party for the payment of the insolvent's debts or the costs and expenses of administering the insolvent's estate;

[F19“professional liability insurance” means insurance taken out by the insolvency practitioner in respect of potential liabilities to the insolvent and third parties arising out of acting as an insolvency practitioner;]

“specific penalty sum” shall be construed in accordance with paragraph 3(2)(a).

Textual Amendments

PART 2E+W+SRequirements relating to security and caution

Requirements in respect of security or cautionE+W+S

2.  The requirements in respect of security or caution for the proper performance of the duties of insolvency practitioners prescribed for the purposes of section 390(3)(b) shall be as set out in this Part.

[F20Requirement for bond F21...E+W+S

2A.  Where an insolvency practitioner is appointed to act in respect of an insolvent there must be in force—

(a)a bond in a form approved by the Secretary of State which complies with paragraph 3; F22...

F22(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

[F23Terms of the bond]E+W+S

3.—[F24(1) The bond must—

(a)be in writing or in electronic form;

(b)contain provision whereby a surety or cautioner undertakes to be jointly and severally liable for losses in relation to the insolvent caused by—

(i)the fraud or dishonesty of the insolvency practitioner whether acting alone or in collusion with one or more persons; or

(ii)the fraud or dishonesty of any person committed with the connivance of the insolvency practitioner; and

(c)otherwise conform to the requirements of this paragraph and paragraphs 4 to 8.]

(2) The terms of the bond shall provide—

(a)for the payment, in respect of each case where the insolvency practitioner acts, of claims in respect of liabilities for losses of the kind mentioned in sub-paragraph (1) up to an aggregate maximum sum in respect of that case (“the specific penalty sum”) calculated in accordance with the provisions of this Schedule;

(b)in the event that any amounts payable under (a) are insufficient to meet all claims arising out of any case, for a further sum of £250,000 (“the general penalty sum”) out of which any such claims are to be met;

(c)for a schedule containing the name of the insolvent and the value of the insolvent's assets to be submitted to the surety or cautioner within such period as may be specified in the bond;

(d)that where at any time before the insolvency practitioner obtains his release or discharge in respect of his acting in relation to an insolvent, he forms the opinion that the value of that insolvent's assets is greater than the current specific penalty sum, a revised specific penalty sum shall be applicable on the submission within such time as may be specified in the bond of a cover schedule containing a revised value of the insolvent's assets;

(e)for the payment of losses of the kind mentioned in sub-paragraph (1), whether they arise during the period in which the insolvency practitioner holds office in the capacity in which he was initially appointed or a subsequent period where he holds office in a subsequent capacity;

(3) The terms of the bond may provide—

(a)that total claims in respect of the acts of the insolvency practitioner under all bonds relating to him are to be limited to a maximum aggregate sum (which shall not be less than than £25,000,000); and

(b)for a time limit within which claims must be made.

Textual Amendments

4.  Subject to paragraphs 5, 6 and 7, the amount of the specific penalty in respect of a case in which the insolvency practitioner acts, shall equal at least the value of the insolvent's assets as estimated by the insolvency practitioner as at the date of his appointment but ignoring the value of any assets—

(a)charged to a third party to the extent of any amount which would be payable to that third party; or

(b)held on trust by the insolvent to the extent that any beneficial interest in those assets does not belong to the insolvent.

5.  In a case where an insolvency practitioner acts as a nominee or supervisor of a voluntary arrangement under Part I or Part VIII of the Act, the amount of the specific penalty shall be equal to at least the value of those assets subject to the terms of the arrangement (whether or not those assets are in his possession) including, where under the terms of the arrangement the debtor or a third party is to make payments, the aggregate of any payments to be made.

6.  Where the value of the insolvent's assets is less than £5,000, the specific penalty sum shall be £5,000.

7.  Where the value of the insolvent's assets is more than £5,000,000 the specific penalty sum shall be £5,000,000.

8.  In estimating the value of an insolvent's assets, unless he has reason to doubt their accuracy, the insolvency practitioner may rely upon—

(a)any statement of affairs produced in relation to that insolvent pursuant to any provision of the Act; and

(b)in the case of a sequestration—

(i)the debtor's list of assets and liabilities under section 19 of the Bankruptcy (Scotland) Act 1985 M8;

(ii)the preliminary statement under that Act; or

(iii)the final statement of the debtor's affairs by the interim trustee under section 23 of the Bankruptcy (Scotland) Act 1985.

Marginal Citations

Compliance of professional liability insurance cover in another EEA stateE+W+S

F258A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Procedure for determining compliance of professional liability insurance or guaranteeE+W+S

F258B.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Procedure for determining compliance of supplementary guaranteeE+W+S

F258C.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Time for notification of determinationsE+W+S

F258D.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Notification of determination out of timeE+W+S

F258E.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

PART 3 E+W+SRecords relating to bonding and connected matters

Record of specific penalty sums to be maintained by insolvency practitionerE+W+S

9.—(1) An insolvency practitioner shall maintain a record of all specific penalty sums that are applicable in relation to any case where he is acting and such record shall contain the name of each person to whom the specific penalty sum relates and the amount of each penalty sum that is in force.

(2) Any record maintained by an insolvency practitioner pursuant to this paragraph shall, on the giving of reasonable notice, be made available for inspection by—

(a)any professional body recognised under section 391 of the Act of which he is or was a member and the rules of membership of which entitle or entitled him to act as an insolvency practitioner;

F26(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)the Secretary of State.

F27(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F27(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Retention of bond by recognised professional body or competent authorityE+W+S

10.—[F28(1)] [F29[F30The bond referred to in paragraph 3] or a copy must] be sent by the insolvency practitioner to—

(a)any professional body recognised under section 391 of the Act of which he is a member and the rules of membership of which entitle him to act as an insolvency practitioner; or

F31(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F32[F33(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) [F34The bond referred to in paragraph 3] or a copy of it may be sent electronically.]

Textual Amendments

F28Sch. 2 para. 10 renumbered as Sch. 2 para. 10(1) (28.12.2009) by virtue of The Provision of Services (Insolvency Practitioners) Regulations 2009 (S.I. 2009/3081), reg. 1, Sch. para. 8(7)(a) (with reg. 5)

Inspection and retention requirements relating to cover schedule – England and WalesE+W+S

11.—(1) This regulation applies to an insolvency practitioner appointed in insolvency proceedings under the Act to act—

(a)in relation to a company which the courts in England and Wales have jurisdiction to wind up; or

(b)in respect of an individual.

(2) The insolvency practitioner shall retain a copy of the cover schedule submitted by him in respect of his acting in relation to the company or, as the case may be, individual until the second anniversary of the date on which he is granted his release or discharge in relation to that company or, as the case may be, that individual.

(3) The copy of a schedule kept by an insolvency practitioner in pursuance of sub-paragraph (2) shall be produced by him on demand for inspection by—

(a)any creditor of the person to whom the schedule relates;

(b)where the schedule relates to an insolvent who is an individual, that individual;

(c)where the schedule relates to an insolvent which is a company, any contributory or director or other officer of the company; and

(d)the Secretary of State.

F35(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F35(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Inspection and retention requirements relating to the cover schedule– ScotlandE+W+S

12.—[F36(1) Where an insolvency practitioner is appointed to act in relation to a company which is in administration, or for which there is a proposal for a company voluntary arrangement, the practitioner shall retain in the sederunt book kept under rule 1.54 of the Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018 (sederunt book), the principal copy of any cover schedule containing entries in relation to the insolvency practitioner so acting.

(1A) Where an insolvency practitioner is appointed to act in relation to a company which is subject to proceedings for winding up, the practitioner shall retain in the sederunt book kept under rule 1.54 of the Insolvency (Scotland) (Receivership and Winding Up) Rules 2018 (sederunt book) the principal copy of any cover schedule containing entries in relation to the insolvency practitioner so acting.]

(2) Where an insolvency practitioner is appointed to act as interim trustee or permanent trustee or as a trustee under a trust deed for creditors, he shall retain in the sederunt book kept for those proceedings, the principal copy of any cover schedule containing entries in relation to his so acting.

Textual Amendments

Requirements to submit cover schedule to authorising bodyE+W+S

13.—(1) Every insolvency practitioner shall submit to his authorising body not later than 20 days after the end of each month during which he holds office in a case—

(a)the information submitted to a surety or cautioner in any cover schedule related to that month;

(b)where no cover schedule is submitted in relation to the month, a statement either that there are no relevant particulars to be supplied or, as the case may be, that it is not practicable to supply particulars in relation to any appointments taken in that month; and

(c)a statement identifying any case in respect of which he has been granted his release or discharge.

(2) In this regulation “authorising body” means in relation to an insolvency practitioner—

(a)any professional body recognised under section 391 of the Act of which he is a member and the rules of membership of which entitle him to act as an insolvency practitioner; or

F37(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Regulation 13

F38SCHEDULE 3E+W+SRECORDS TO BE MAINTAINED - MINIMUM REQUIREMENTS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Explanatory Note

(This note is not part of the Regulations)

These Regulations make provision in connection with the regulation of insolvency practitioners. These Regulations replace the Regulations listed in Schedule 1 subject to the transitional and saving provisions in regulation 4. Regulation 6 makes provision as regards the matters to be taken into account by a competent authority in determining whether an individual is a fit and proper person to hold an authorisation under section 393 of the Insolvency Act 1986. Regulations 7 and 8 set out prescribed requirements as to education and training in relation to insolvency practitioners seeking an authorisation from a competent authority. Regulation 9 sets out obligations imposed on insolvency practitioners authorised by the Secretary of State with regard to the keeping of records relating to continuing professional development. Regulation 10 sets the maximum period for an insolvency authorisation granted by a competent authority at 3 years. Regulation 11 makes provision in relation to annual returns to be made to the Secretary of State by insolvency practitioners authorised by her in relation to their insolvency practice. Regulation 12 and Schedule 2 make provision in relation to the security or caution that an insolvency practitioner must obtain for the proper performance of his duties. This is in the form of a bond against which claims may be made in the event of losses caused or facilitated by the fraud or dishonesty of the insolvency practitioner.

Regulation 13 makes provision for the creation and maintenance of records containing the details set out in Schedule 3 to the Regulations. Regulations 14 and 15 make provision about the inspection of those records by the Secretary of State and others. Regulation 16 allows the Secretary of State to inspect and take copies of the records of any person which record receipts and payments, time spent on the case and other management matters in relation to any case where an insolvency practitioner authorised by the Secretary of State acts. Regulation 17 makes provision for the inspection by the Secretary of State of records relating to an administration or an administrative receivership.

No Regulatory Impact Assessment has been prepared in relation to these Regulations as they will not impose any significant costs on business.

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