The Insolvency Rules (Northern Ireland) 1991

CHAPTER 2 BANKRUPTCY PETITION (OTHER THAN DEBTOR'S)

Preliminary

6.006.—(1) This Chapter relates to a creditor's petition, and the making of a bankruptcy order thereon; and in this Chapter “ the debt” means, except where the context otherwise requires, the debt (or debts) in respect of which the petition is presented.[FORM 6.07] [FORM 6.08] [FORM 6.09]

(2) Subject to paragraph (3), this Chapter also applies to a petition under Article 238(1)(c) (by supervisor of, or person bound by, voluntary arrangement) or Article 238(1)(d) (by Law Society of Northern Ireland as attorney of a solicitor), and the making of a bankruptcy order thereon, with any necessary modifications.[FORM 6.10] [FORM 6.11]

(3) Where to any Rule or paragraph there is given a number incorporating the letters “CP”, that signifies that the Rule or (as the case may be) the paragraph applies only to a creditor's petition.

[E.R.6.6]

Identification of debtor

6.007.—(1) The petition shall state the following matters with respect to the debtor, so far as they are within the petitioner's knowledge—

(a) his name, place of residence and occupation (if any);

(b) the name or names in which he carries on business, if other than his true name, and whether, in the case of any business of a specified nature, he carries it on alone or with others;

(c) the nature of his business, and the address or addresses at which he carries it on;

(d) any name or names, other than his true name, in which he has carried on business at or after the time when the debt was incurred, and whether he has done so alone or with others;

(e) any address or addresses at which he has resided or carried on business at or after that time, and the nature of that business.

(2) The particulars of the debtor given under this Rule determine the full title of the proceedings.

(3) If to the petitioner's personal knowledge the debtor has used any name other than the one specified under paragraph (1)(a), that fact shall be stated in the petition.

[E.R.6.7]

Identification of debt

6.008-CP.—(1) There shall be stated in the petition, with reference to every debt in respect of which it is presented—

(a) the amount of the debt, the consideration for it (or, if there is no consideration, the way in which it arises) and the fact that it is owed to the petitioner;

(b) when the debt was incurred or became due;

(c) if the amount of the debt includes—

(i) any charge by way of interest not previously notified to the debtor as a liability of his, or

(ii) any other charge accruing from time to time,

the amount or rate of the charge (separately identified) and the grounds on which it is claimed to form part of the debt, but such amount or rate must, in the case of a petition based on a statutory demand, be limited to that claimed in that demand;

(d) either—

(i) that the debt is for a liquidated sum payable immediately, and the debtor appears to be unable to pay it, or

(ii) that the debt is for a liquidated sum payable at some certain, future time (that time to be specified), and the debtor appears to have no reasonable prospect of being able to pay it,

and, in either case (subject to Article 243) that the debt is unsecured.

(2) Where the debt is one for which, under Article 242, a statutory demand must have been served on the debtor—

(a) there shall be specified the date and manner of service of the statutory demand, and

(b) it shall be stated that, to the best of the creditor's knowledge and belief—

(i) the demand has been neither complied with nor set aside in accordance with the Rules, and

(ii) no application to set it aside is outstanding.

(3) If the case is within Article 242(1)(b) (debt arising under judgment; certificate of unenforceability granted) the court in which the judgment was obtained, the date of the judgment and the date the certificate of unenforceability was granted shall be specified, and it shall be stated that the debt in respect of which the petition is presented is the amount remaining due on foot of the judgment.

[E.R.6.8]

Procedure for presentation and filing

6.009.—(1) The petition, verified by affidavit in accordance with Rule 6.011(1), shall be filed in court.

(2) No petition shall be filed unless there is produced with it the receipt for the deposit payable on presentation.

(3) The following copies of the petition shall also be delivered to the court with the petition—

(a) one for service on the debtor,

(b) one to be exhibited to the affidavit verifying that service, and

(c) if there is in force for the debtor a voluntary arrangement and the petitioner is not the supervisor of the arrangement, one copy for him.

(4) Each copy delivered to the court under paragraph (3) shall have applied to it the seal of the court, and shall be issued to the petitioner.

(5) The date and time of filing the petition shall be endorsed on the petition and on any copy issued under paragraph (3).

(6) The court shall fix a venue for hearing the petition, and this also shall be endorsed on the petition and on any copy so issued.

(7) Where a petition contains a request for the appointment of a person as trustee in accordance with Article 270(4) (appointment of former supervisor as trustee) the person whose appointment is sought shall, not less that 2 days before the day appointed for hearing the petition, file in court a report including particulars of—

(a) a date on which he gave written notification to creditors bound by the arrangement of the intention to seek his appointment as trustee, such date to be at least 10 days before the day on which the report under this paragraph is filed, and

(b) details of any response from creditors to that notice, including any objections to his appointment.

[E.R.6.10]

Proof of service of statutory demand

6.010-CP.—(1) Where under Article 242 the petition must have been preceded by a statutory demand, there must be filed in court, with the petition, an affidavit or affidavits proving service of the demand. [FORM 6.12] [FORM 6.13] [FORM 6.14]

(2) Every affidavit must have exhibited to it a copy of the demand as served.

(3) Subject to paragraph (4), if the demand has been served personally on the debtor, the affidavit must be made by the person who effected that service.

(4) If service of the demand (however effected) has been acknowledged in writing either by the debtor himself, or by some person stating himself in the acknowledgement to be authorised to accept service on the debtor's behalf, the affidavit must be made either by the creditor or by a person acting on his behalf, and the acknowledgement of service must be exhibited to the affidavit.

(5) If neither paragraph (3) nor paragraph (4) applies and subject to paragraph (8), the affidavit or affidavits must be made by a person or persons having direct personal knowledge of the means adopted for serving the statutory demand, and must—

(a) give particulars of the steps which have been taken with a view to serving the demand personally or refer to an accompanying affidavit containing such particulars, and

(b) state the means whereby (those steps having been ineffective) it was sought to bring the demand to the debtor's attention, and

(c) specify a date by which, to the best of the knowledge, information and belief of the person making the affidavit, the demand will have come to the debtor's attention.

(6) The steps of which particulars are given for the purposes of paragraph (5)(a) must be such as would have sufficed to justify an order for substituted service of a petition.

(7) If the affidavit specifies a date for the purposes of compliance with paragraph (5)(c), then unless the court otherwise orders, that date is deemed for the purposes of the Rules to have been the date on which the statutory demand was served on the debtor.

(8) Where the creditor has taken advantage of Rule 6.003(3) (newspaper advertisement), the affidavit must be made either by the creditor himself or by a person having direct personal knowledge of the circumstances; and there must be specified in the affidavit—

(a) the means of the creditor's knowledge or (as the case may be) belief required for the purposes of that Rule, and

(b) the date or dates on which, and the newspaper in which, the statutory demand was advertised under that Rule;

and there shall be exhibited to the affidavit a copy of any advertisement of the statutory demand.

(9) The court may decline to file the petition if not satisfied that the creditor has discharged the obligation imposed on him by Rule 6.003(2).

[E.R.6.11]

Verification of petition

6.011.—(1) The petition shall be verified by an affidavit that the statements in the petition are true, or are true to the best of the deponent's knowledge, information and belief. [FORM 6.15]

(2-CP) If the petition is in respect of debts to different creditors, the debts to each creditor must be separately verified.

(3) The petition shall be exhibited to the affidavit verifying it.

(4) The affidavit shall be made—

(a) by the petitioner (or if there are two or more petitioners, any one of them), or

(b) by some person such as a director, company secretary or similar company officer, or a solicitor, who has been concerned in the matters giving rise to the presentation of the petition, or

(c) by some responsible person who is duly authorised to make the affidavit and has the requisite knowledge of those matters.

(5) Where the maker of the affidavit is not the petitioner himself, or one of the petitioners, he must in the affidavit identify himself and state—

(a) the capacity in which, and the authority by which, he makes it, and

(b) the means of his knowledge of the matters sworn to in the affidavit.

(6) The affidavit is prima facie evidence of the truth of the statements in the petition to which it relates.

(7-CP) If the petition is based upon a statutory demand, and more than 4 months have elapsed between the service of the demand and the presentation of the petition, the affidavit must also state the reasons for the delay.

[E.R.6.12]

Notice and registration of petition

6.012.—(1) When the petition is filed, the court shall forthwith—

(a) send notice of its presentation to the Enforcement of Judgments Office,

(b) register the petition in the Registry of Deeds in accordance with section 3A(1) of the Registration of Deeds Act (Northern Ireland) 1970 (1), and

(c) where the petition is against a solicitor, send notice of its presentation to the Law Society of Northern Ireland.

(2) The copy of the document required by section 3A(1) of the Registration of Deeds Act (Northern Ireland) 1970 to be certified by the High Court shall be certified by the Master.

(3) If at any time after the petition is filed it appears to the Master that the person against whom it is presented is the registered owner of any land, he shall give notice of the presentation of the petition to the Registrar of Titles in accordance with section 67A(1) of the Land Registration Act (Northern Ireland) 1970 (2).

[E.R.6.13]

Service of petition

6.013.—(1) Subject to paragraphs (2) and (3), the petition shall be served personally on the debtor by the petitioner or his solicitor, or by a person instructed by the petitioner or his solicitor for that purpose; and service shall be effected by delivering to him a sealed copy of the petition.

(2) If the court is satisfied by affidavit or other evidence on oath that prompt personal service cannot be effected because the debtor is keeping out of the way to avoid service of the petition or other legal process, or for any other cause, it may order substituted service of the petition to be effected in such manner as it thinks fit.

(3) Where an order for substituted service has been carried out, the petition is deemed duly served on the debtor.[FORM 6.16] [FORM 6.17]

(4) If to the petitioner's knowledge there is in force for the debtor a voluntary arrangement, and the petitioner is not himself the supervisor of the voluntary arrangement, a copy of the petition shall be sent by him to the supervisor.

[E.R.6.14]

Proof of service

6.014.—(1) Service of the petition shall be proved by affidavit. [FORM 6.18] or [FORM 6.19]

(2) The affidavit shall have exhibited to it—

(a) a sealed copy of the petition, and

(b) if substituted service has been ordered, a sealed copy of the order;

and it shall be filed in court immediately after service.

[E.R.6.15]

Death of debtor before service

6.015.  If the debtor dies before service of the petition, the court may order service to be effected on his personal representatives, or on such other persons as it thinks fit.

[E.R.6.16]

Security for costs (Article 242(2) only)

6.016-CP.—(1) This Rule applies where the debt in respect of which the petition is presented is for a liquidated sum payable at some future time, it being claimed in the petition that the debtor appears to have no reasonable prospect of being able to pay it.

(2) The petitioning creditor may, on the debtor's application, be ordered to give security for the debtor's costs.

(3) The nature and amount of the security to be ordered is in the court's discretion.

(4) If an order is made under this Rule, there shall be no hearing of the petition until the whole amount of the security has been given.

[E.R.6.17]

Hearing of petition

6.017.—(1) Subject to paragraph (2), the petition shall not be heard until at least 14 days have elapsed since it was served on the debtor.

(2) The court may, on such terms as it thinks fit, hear the petition at an earlier date, if it appears that the debtor has absconded, or the court is satisfied that it is a proper case for an expedited hearing, or the debtor consents to a hearing within the 14 days.

(3) Any of the following may appear and be heard, that is to say, the petitioner, the debtor, the supervisor of any voluntary arrangement in force for the debtor and any creditor who has given notice under Rule 6.020.

[E.R.6.18]

Petition opposed by debtor

6.018.  Where the debtor intends to oppose the petition, he shall not later than 7 days before the hearing date—

(a) file in court a notice specifying the grounds on which he will object to the making of a bankruptcy order, and[FORM 6.20]

(b) send a copy of the notice to the petitioner or his solicitor.

[E.R.6.21]

Amendment of petition

6.019.  With the leave of the court (given on such terms, if any, as the court thinks fit to impose), the petition may be amended at any time after presentation by the omission of any creditor or any debt.

[E.R.6.22]

Notice by creditors intending to appear

6.020.—(1) Every creditor who intends to appear on the hearing of the petition shall give to the petitioner notice of his intention in accordance with this Rule. [FORM 6.21]

(2) The notice shall specify—

(a) the name and address of the creditor giving it, and any telephone number and reference which may be required for communication with him or with any other person (to be also specified in the notice) authorised to speak or act on his behalf;

(b) whether his intention is to support or oppose the petition; and

(c) the amount and nature of his debt.

(3) The notice shall be sent so as to reach the addressee not later than 16.00 hours on the business day before that which is appointed for the hearing (or, where the hearing has been adjourned, for the adjourned hearing).

(4) A creditor failing to comply with this Rule may appear on the hearing of the petition only with the leave of the court.

[E.R.6.23]

List of appearances

6.021.—(1) The petitioner shall prepare for the court a list of the creditors (if any) who have given notice under Rule 6.020, specifying their names and addresses and (if known to him) their respective solicitors. [FORM 6.23]

(2) Against the name of each creditor in the list it shall be stated whether his intention is to support the petition, or to oppose it.

(3) On the day appointed for the hearing of the petition, a copy of the list shall be handed to the court before the commencement of the hearing.

(4) If any leave is given under Rule 6.020(4), the petitioner shall add to the list the same particulars in respect of the person to whom leave has been given.

[E.R.6.24]

Decision on the hearing

6.022.—(1) On the hearing of the petition, the court may make a bankruptcy order if satisfied that the statements in the petition are true and, where it is founded on a debt, that Article 245(1) has been complied with.

(2-CP) The court may accept as proof that the debt in respect of which a creditor's petition was presented has not been paid or secured or compounded for a certificate signed by the person representing the petitioning creditor at the hearing.[FORM 6.22]

(3-CP) If the petition is presented in respect of a judgment debt, or a sum ordered by any court to be paid, the court may stay or dismiss the petition on the ground that an appeal is pending from the judgment or order, or that execution of the judgment has been stayed.[FORM 6.24]

(4-CP) A petition preceded by a statutory demand shall not be dismissed on the ground only that the amount of the debt was over-stated in the demand, unless the debtor, within the time allowed for complying with the demand, gave notice to the creditor disputing the validity of the demand on that ground; but, in the absence of such notice, the debtor is deemed to have complied with the demand if he has, within the time allowed, paid the correct amount.

[E.R.6.25]

Non-appearance of petitioning creditor

6.023-CP.  If the petitioning creditor fails to appear on the hearing of the petition, no subsequent petition against the same debtor, either alone or jointly with any other person, shall be presented by the same creditor in respect of the same debt, without the leave of the court.

[E.R.6.26]

Dismissal or withdrawal of petition or stay of proceedings

6.024.—(1) If an order is made dismissing the petition or giving leave to withdraw it, the order shall include provision permitting vacation of the registration of the petition in the Registry of Deeds and, if notice of the presentation of the petition has been given to the Registrar of Titles, permitting the cancellation of any entry in the register of the said notice and the court shall send to the debtor 2 sealed copies of the order together with the certificate required by section 3(4) of the Registration of Deeds Act (Northern Ireland) 1970, as applied by section 3A(3) of that Act, signed by the Master. [FORM 6.24]

(2) If the petition is dismissed or withdrawn, or if proceedings on it are stayed, the court shall send notice of the making of the order of dismissal or stay or of the withdrawal to the Enforcement of Judgments Office.

(3) Where, on the application of the debtor, the court is satisfied that, under Article 234(6), the petition is deemed to be dismissed by reason of an interim order ceasing to have effect, it shall—

(a) make an order permitting vacation of the registration of the petition in the Registry of Deeds and, if notice of the presentation of the petition has been given to the Registrar of Titles, permitting cancellation of any entry in the register of the said notice,

(b) send to the debtor 2 sealed copies of the order, and

(c) send notice of the dismissal of the petition to the Enforcement of Judgments Office.

[E.R.6.27]

Extension of time for hearing

6.025.—(1) The petitioner may, if the petition has not been served, apply to the court to appoint another venue for the hearing.

(2) The application shall state the reasons why the petition has not been served.

(3) No costs occasioned by the application shall be allowed in the proceedings except by order of the court.

(4) If the court appoints another hearing date, the petitioner shall forthwith—

(a) produce to the court the petition and all copies for amendment of the venue, and

(b) notify any creditor who has given notice under Rule 6.020

[E.R.6.28]

Adjournment

6.026.—(1) If the court adjourns the hearing of the petition, paragraph (2) applies. [FORM 6.25]

(2) Unless the court otherwise directs, the petitioner shall forthwith send—

(a) to the debtor, and

(b) where any creditor has given notice under Rule 6.020 but was not present at the hearing, to him,

notice of the making of the order of adjournment. The notice shall state the venue for the adjourned hearing.[FORM 6.26]

[E.R.6.29]

Substitution of petitioner

6.027.—(1) This Rule applies where a creditor petitions and is subsequently found not entitled to do so, or where the petitioner—

(a) consents to withdraw his petition or to allow it to be dismissed, or consents to an adjournment, or fails to appear in support of his petition when it is called on in court on the original hearing date, or on a date to which it is adjourned, or

(b) appears, but does not apply for an order in the terms of the prayer of his petition.

(2) The court may, on such terms as it thinks just, order that there be substituted as petitioner any creditor who—[FORM 6.27]

(a) has under Rule 6.020 given notice of his intention to appear at the hearing or who has been given leave to appear under that Rule,

(b) is desirous of prosecuting the petition, and

(c) was, at the date on which the petition was presented, in such a position in relation to the debtor as would have enabled him (the creditor) on that date to present a bankruptcy petition in respect of a debt or debts owed to him by the debtor, sub-paragraphs (a) to (d) of Article 241 (2) being satisfied in respect of that debt or those debts.

[E.R.6.30]

Change of carriage of petition

6.028-CP.—(1) On the hearing of a creditor's petition, any person who claims to be a creditor of the debtor, and who has given notice under Rule 6.020 of his intention to appear at the hearing or has been given leave to appear under that Rule, may apply to the court for an order giving him carriage of the petition in place of the petitioning creditor, but without requiring any amendment of the petition.

(2) The court may, on such terms as it thinks just, make a change of carriage order if satisfied that—[FORM 6.28]

(a) the applicant is an unpaid and unsecured creditor of the debtor, and

(b) the petitioning creditor either—

(i) intends by any means to secure the postponement, adjournment or withdrawal of the petition, or

(ii) does not intend to prosecute the petition, either diligently or at all.

(3) The court shall not make the order if satisfied that the petitioning creditor's debt has been paid, secured or compounded for by means of—

(a) a disposition of property made by some person other than the debtor, or

(b) a disposition of the debtor's own property made with the approval of, or ratified by, the court.

(4) A change of carriage order may be made whether or not the petitioning creditor appears at the hearing.

(5) If the order is made, the person given the carriage of the petition is entitled to rely on all evidence previously adduced in the proceedings (whether by affidavit or otherwise).

[E.R.6.31]

Petitioner seeking dismissal or leave to withdraw

6.029.—(1) Where the petitioner applies to the court for the petition to be dismissed, or for leave to withdraw it, he must, unless the court otherwise orders, file in court an affidavit specifying the grounds of the application and the circumstances in which it is made.

(2-CP) If, since a creditor's petition was filed, any payment has been made to the petitioner by way of settlement (in whole or in part) of the debt or debts in respect of which the petition was presented, or any arrangement has been entered into for securing or compounding it or them, the affidavit must state—

(a) what dispositions of property have been made for the purposes of the settlement or arrangement, and

(b) whether, in the case of any disposition, it was property of the debtor himself, or of some other person, and

(c) whether, if it was property of the debtor, the disposition was made with the approval of, or has been ratified by, the court (if so, specifying the relevant court order).

(3) No order giving leave to withdraw a petition shall be given before the petition is heard.[FORM 6.24]

[E.R.6.32]

Settlement, content and certification of bankruptcy order

6.030.—(1) The bankruptcy order shall be settled by the court. [FORM 6.29]

(2) The order shall—

(a) state the date of the presentation of the petition on which the order is made, and the date and time of the making of the order, and

(b) contain a notice requiring the bankrupt, forthwith after service of the order on him, to attend on the official receiver at the place stated in the order.

(3) Subject to Article 88 of the Judgments Enforcement (Northern Ireland) Order 1981 (3) (effect of bankruptcy on enforcement), the order may include provision staying any action or proceeding against the bankrupt.

(4) Where the petitioner is represented by a solicitor, the order shall be endorsed with the latter's name, address, telephone number, fax number (if any) and reference (if any).

(5) The copy of the order required by section 3B(1) of the Registration of Deeds Act (Northern Ireland) 1970 to be certified by the High Court shall be certified by the Master.

[E.R.6.33]

Action to follow making of order

6.031.—(1) The court shall forthwith after the making of the bankruptcy order—

(a) send at least 5 sealed copies (one of which shall be certified by the Master) to the official receiver,

(b) send one sealed copy to the Clerk of the Crown, and

(c) where the order is made against a solicitor, send one sealed copy to the Law Society of Northern Ireland.

(2) On receiving the copy orders the official receiver shall—

(a) forthwith send one of the uncertified copies to the bankrupt, and

(b) subject to paragraph (3)—

(i) send notice of the making of the order to the Enforcement of Judgments Office,

(ii) register the order in the Registry of Deeds in accordance with section 3B(1) of the Registration of Deeds Act (Northern Ireland) 1970 (4)

(iii) cause the order to be advertised in such newspaper as he thinks fit, and

(iv) cause the order to be gazetted.

(3) The court may, on the application of the bankrupt or a creditor, order the official receiver to suspend action under paragraph (2), pending a further order of the court.

(4) An application under paragraph (3) shall be supported by an affidavit stating the grounds on which it is made.

(5) Where an order is made under paragraph (3), the applicant for the order shall forthwith deliver a copy of it to the official receiver.

[E.R.6.34]

Amendment of title of proceedings

6.032.—(1) At any time after the making of the bankruptcy order, the official receiver, the trustee or any person aggrieved may apply to the court for an order amending the full title of the proceedings.

(2) Where such an order is made, the official receiver shall forthwith—

(a) send a sealed copy of the order to the Enforcement of Judgments Office,

(b) send 2 sealed copies of the order (one of which shall be certified by the Master) to the Registrar of Deeds for registration, and

(c) if notice of the presentation of the petition or of the bankruptcy order has been given to the Registrar of Titles, send a sealed and certified copy of the order to him, for registration.

(3) If the court so directs, the official receiver shall also—

(a) cause notice of the order to be gazetted, and

(b) cause notice of the order to be advertised in such newspaper as he thinks appropriate.

[E.R.6.35]

Old debtor's summonses

6.033-CP.—(1) Subject to paragraphs (2) and (3), a person who has before the appointed day served a debtor's summons under the Bankruptcy (Ireland) Amendment Act 1872(5) may, on or after that day, proceed on the summons as if it were a statutory demand duly served under Chapter 1.

(2) The conditions of the application of this Rule are that—

(a) the debt in respect of which the debtor's summons was served has not been paid, secured or compounded for in the terms of the debtor's summons and the Bankruptcy (Ireland) Amendment Act 1872;

(b) the date by which compliance with the debtor's summons was required was not more than 6 months before the date of presentation of the petition; and

(c) there has not, before the appointed day, been presented any bankruptcy petition with reference to an act of bankruptcy arising from non-compliance with the debtor's summons.

(3) If before, on or after the appointed day, application is made (under the Bankruptcy (Ireland) Amendment Act 1872) to dismiss the debtor's summons, that application is to be treated, on and after that day, as an application duly made (on the date on which it was in fact made) to set aside a statutory demand duly served on the date on which the debtor's summons was in fact served.

(4) In this Rule, “appointed day” means the day appointed under Article 1(2) by the Head of the Department for the coming into operation of Article 242.

[E.R.6.36]

(1)

1970 c.25 (N.I.) as inserted by S.I. 1989/2405 (N.I. 19) Schedule 9, paragraph 77

(2)

1970 c.18 (N.I.) as inserted by S.I. 1989/2405 (N.I. 19) Schedule 9, paragraph 72

(3)

S.I. 1981/226 (N.I. 6) as amended by S.I. 1989/2405 (N.I. 19), Schedule 9, paragraph 96

(4)

1970 c.25 (N.I.) as inserted by S.l. 1989/2405 (N.I. 19), Schedule 9, paragraph 77

(5)

1872 c.58