Enterprise Act 2002 (c. 40)

(The document as of February, 2008)

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(a) any bankruptcy restrictions order, interim order or undertaking which is in force in respect of the bankrupt shall be annulled,

(b) no new bankruptcy restrictions order or interim order may be made in respect of the bankrupt, and

11 Where a bankruptcy order is annulled under section 261, 263D or 282(1)(b)--

(a) the annulment shall not affect any bankruptcy restrictions order, interim order or undertaking in respect of the bankrupt,

(b) the court may make a bankruptcy restrictions order in relation to the bankrupt on an application instituted before the annulment,

(d) an application for a bankruptcy restrictions order or interim order in respect of the bankrupt may not be instituted after the annulment.

Registration

12 The Secretary of State shall maintain a register of--

(a) bankruptcy restrictions orders,

(b) interim bankruptcy restrictions orders, and

Section 257

SCHEDULE 21 Effect of bankruptcy restrictions order and undertaking

Disqualification for acting as receiver or manager

1 The following shall be substituted for section 31 of the Insolvency Act 1986 (c. 45) (receiver and manager: disqualification)--

" 31 Disqualification of bankrupt

(1) A person commits an offence if he acts as receiver or manager of the property of a company on behalf of debenture holders while--

(a) he is an undischarged bankrupt, or

(b) a bankruptcy restrictions order is in force in respect of him.

(2) A person guilty of an offence under subsection (1) shall be liable to imprisonment, a fine or both.

(3) This section does not apply to a receiver or manager acting under an appointment made by the court. "

Bankruptcy offences after discharge

2 After section 350(3) of the Insolvency Act 1986 (c. 45) (bankruptcy offences: general: no liability after discharge) there shall be inserted--

" (3A) Subsection (3) is without prejudice to any provision of this Chapter which applies to a person in respect of whom a bankruptcy restrictions order is in force. "

3 At the end of section 360 of that Act (obtaining credit and doing business) there shall be inserted--

" (5) This section applies to the bankrupt after discharge while a bankruptcy restrictions order is in force in respect of him.

(6) For the purposes of subsection (1)(a) as it applies by virtue of subsection (5), the relevant information about the status of the person in question is the information that a bankruptcy restrictions order is in force in respect of him. "

Disqualification for acting as insolvency practitioner

4 At the end of section 390 of that Act (disqualification for insolvency practitioner) there shall be added--

" (5) A person is not qualified to act as an insolvency practitioner while a bankruptcy restrictions order is in force in respect of him. "

Prohibition against involvement in company

5 The following shall be substituted for section 11(1) of the Company Directors Disqualification Act 1986 (c. 46) (bankrupt)--

" (1) It is an offence for a person to act as director of a company or directly or indirectly to take part in or be concerned in the promotion, formation or management of a company, without the leave of the court, at a time when--

(a) he is an undischarged bankrupt, or

(b) a bankruptcy restrictions order is in force in respect of him. "

Section 264

SCHEDULE 22 Individual voluntary arrangement

Annulment of bankruptcy on making of voluntary arrangement

1 The following shall be substituted for section 261 of the Insolvency Act 1986 (effect of voluntary arrangement: undischarged bankrupt)--

" 261 Additional effect on undischarged bankrupt

(1) This section applies where--

(a) the creditors' meeting summoned under section 257 approves the proposed voluntary arrangement (with or without modifications), and

(b) the debtor is an undischarged bankrupt.

(2) Where this section applies the court shall annul the bankruptcy order on an application made--

(a) by the bankrupt, or

(b) where the bankrupt has not made an application within the prescribed period, by the official receiver.

(3) An application under subsection (2) may not be made--

(a) during the period specified in section 262(3)(a) during which the decision of the creditors' meeting can be challenged by application under section 262,

(b) while an application under that section is pending, or

(4) Where this section applies the court may give such directions about the conduct of the bankruptcy and the administration of the bankrupt's estate as it thinks appropriate for facilitating the implementation of the approved voluntary arrangement. "

Fast-track for making voluntary arrangement

2 The following shall be inserted after section 263 of that Act (implementation of voluntary arrangement)--

" Fast-track voluntary arrangement

263A Availability

Section 263B applies where an individual debtor intends to make a proposal to his creditors for a voluntary arrangement and--

(a) the debtor is an undischarged bankrupt,

(b) the official receiver is specified in the proposal as the nominee in relation to the voluntary arrangement, and

263B Decision

(1) The debtor may submit to the official receiver--

(a) a document setting out the terms of the voluntary arrangement which the debtor is proposing, and

(b) a statement of his affairs containing such particulars as may be prescribed of his creditors, debts, other liabilities and assets and such other information as may be prescribed.

(2) If the official receiver thinks that the voluntary arrangement proposed has a reasonable prospect of being approved and implemented, he may make arrangements for inviting creditors to decide whether to approve it.

(3) For the purposes of subsection (2) a person is a "creditor" only if--

(a) he is a creditor of the debtor in respect of a bankruptcy debt, and

(b) the official receiver is aware of his claim and his address.

(4) Arrangements made under subsection (2)--

(a) must include the provision to each creditor of a copy of the proposed voluntary arrangement,

(b) must include the provision to each creditor of information about the criteria by reference to which the official receiver will determine whether the creditors approve or reject the proposed voluntary arrangement, and

(5) Where a debtor submits documents to the official receiver under subsection (1) no application under section 253 for an interim order may be made in respect of the debtor until the official receiver has--

(a) made arrangements as described in subsection (2), or

(b) informed the debtor that he does not intend to make arrangements (whether because he does not think the voluntary arrangement has a reasonable prospect of being approved and implemented or because he declines to act).

263C Result

As soon as is reasonably practicable after the implementation of arrangements under section 263B(2) the official receiver shall report to the court whether the proposed voluntary arrangement has been approved or rejected.

263D Approval of voluntary arrangement

(1) This section applies where the official receiver reports to the court under section 263C that a proposed voluntary arrangement has been approved.

(2) The voluntary arrangement--

(a) takes effect,

(b) binds the debtor, and

(3) The court shall annul the bankruptcy order in respect of the debtor on an application made by the official receiver.

(4) An application under subsection (3) may not be made--

(a) during the period specified in section 263F(3) during which the voluntary arrangement can be challenged by application under section 263F(2),

(b) while an application under that section is pending, or

(5) The court may give such directions about the conduct of the bankruptcy and the administration of the bankrupt's estate as it thinks appropriate for facilitating the implementation of the approved voluntary arrangement.

(6) The Deeds of Arrangement Act 1914 (c. 47) does not apply to the voluntary arrangement.

(7) A reference in this Act or another enactment to a voluntary arrangement approved under this Part includes a reference to a voluntary arrangement which has effect by virtue of this section.

263E Implementation

Section 263 shall apply to a voluntary arrangement which has effect by virtue of section 263D(2) as it applies to a voluntary arrangement approved by a creditors' meeting.

263F Revocation

(1) The court may make an order revoking a voluntary arrangement which has effect by virtue of section 263D(2) on the ground--

(a) that it unfairly prejudices the interests of a creditor of the debtor, or

(b) that a material irregularity occurred in relation to the arrangements made under section 263B(2).

(2) An order under subsection (1) may be made only on the application of--

(a) the debtor,

(b) a person who was entitled to participate in the arrangements made under section 263B(2),

(d) the official receiver.

(3) An application under subsection (2) may not be made after the end of the period of 28 days beginning with the date on which the official receiver makes his report to the court under section 263C.

(4) But a creditor who was not made aware of the arrangements under section 263B(2) at the time when they were made may make an application under subsection (2) during the period of 28 days beginning with the date on which he becomes aware of the voluntary arrangement.

263G Offences

(1) Section 262A shall have effect in relation to obtaining approval to a proposal for a voluntary arrangement under section 263D.

(2) Section 262B shall have effect in relation to a voluntary arrangement which has effect by virtue of section 263D(2) (for which purposes the words "by a creditors' meeting summoned under section 257" shall be disregarded). "

Role of official receiver

3 The following shall be inserted after section 389A of that Act (authorisation of nominees and supervisors)--

" 389B Official receiver as nominee or supervisor

(1) The official receiver is authorised to act as nominee or supervisor in relation to a voluntary arrangement approved under Part VIII provided that the debtor is an undischarged bankrupt when the arrangement is proposed.

(2) The Secretary of State may by order repeal the proviso in subsection (1).

(3) An order under subsection (2)--

(a) must be made by statutory instrument, and

(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament. "

Section 269

SCHEDULE 23 Individual insolvency: minor and consequential amendments

1 The Insolvency Act 1986 (c. 45) shall be amended as follows.

2 Section 275 (bankruptcy: summary administration) shall cease to have effect.

3 In section 280(1) (bankruptcy: discharge by order of court)--

(a) for "section 279(1)(a)" substitute "section 279(6)", and

(b) for "commencement of the bankruptcy" substitute "date on which the bankruptcy commences".

4 In section 282 (annulment of bankruptcy)--

(a) in subsection (4) (effect of annulment) after "section 261" insert "or 263D", and

(b) omit subsection (5) (previous bankruptcy: disregard of annulled bankruptcy).

5 For section 291(4) (co-operation with official receiver) substitute--

" (4) The bankrupt shall give the official receiver such inventory of his estate and such other information, and shall attend on the official receiver at such times, as the official receiver may reasonably require--

(a) for a purpose of this Chapter, or

(b) in connection with the making of a bankruptcy restrictions order. "

6 In section 292(1)(a) (trustee in bankruptcy: power to appoint) omit the words "except at a time when a certificate for the summary administration of the bankrupt's estate is in force,".

7 In section 293(1) (trustee in bankruptcy: meeting to appoint) omit the words "and no certificate for the summary administration of the bankrupt's estate has been issued,".

8 In section 294(1) (power of creditors to requisition meeting) omit the words-- " and

(b) a certificate for the summary administration of the estate is not for the time being in force, " .

9 In section 297 (trustee: special cases)--

(a) omit subsections (2) and (3), and

(b) in subsection (4) omit the words "but no certificate for the summary administration of the estate is issued".

10 Omit section 298(3) (removal of trustee: summary administration).

11 In section 300 (trustee: vacancy)--

(a) omit subsection (5), and

(b) in subsections (6) and (7) omit the words "or (5)".

12 In section 354(3) (concealment of property) after "the official receiver" insert ", the trustee".

13 At the end of section 355 (concealment and falsification of records) add--

" (4) In their application to a trading record subsections (2)(d) and (3)(b) shall have effect as if the reference to 12 months were a reference to two years.

(5) In subsection (4) "trading record" means a book, document or record which shows or explains the transactions or financial position of a person's business, including--

(a) a periodic record of cash paid and received,

(b) a statement of periodic stock-taking, and

(c) except in the case of goods sold by way of retail trade, a record of goods sold and purchased which identifies the buyer and seller or enables them to be identified. "

14 In the following provisions of section 399 (appointment of official receiver) for "or winding up" substitute ", winding up or individual voluntary arrangement"--

(a) subsection (1) (twice), and

(b) subsection (4).

15 In section 429(2)(b) (disability imposed on revoking administration order under County Courts Act 1984) for "not exceeding 2 years" there shall be substituted "not exceeding one year".

16 (1) Schedule 9 (scope of insolvency rules) shall be amended as follows.

(2) After paragraph 8 (registration of voluntary arrangements) insert--

" Official receiver acting on voluntary arrangement

8A Provision about the official receiver acting as nominee or supervisor in relation to a voluntary arrangement under Part VIII of this Act, including--

(a) provision requiring the official receiver to act in specified circumstances;

(b) provision about remuneration;

(c) provision prescribing terms or conditions to be treated as forming part of a voluntary arrangement in relation to which the official receiver acts as nominee or supervisor;

(d) provision enabling those terms or conditions to be varied or excluded, in specified circumstances or subject to specified conditions, by express provision in an arrangement. "

(3) After paragraph 29 (records) insert--

" Bankruptcy restrictions orders and undertakings

29A Provision about bankruptcy restrictions orders, interim orders and undertakings, including--

(a) provision about evidence;

(b) provision enabling the amalgamation of the register mentioned in paragraph 12 of Schedule 4A with another register;

17 In Schedule 10 (punishment of offences)--

(a) in the entry for section 31 omit "Undischarged", and

(b) omit the entries for sections 361 and 362.

Section 276

SCHEDULE 24 Transitional and transitory provisions and savings

Operation of references to OFT before commencement of section 2(3)

1 (1) This paragraph applies to any provision contained in this Act, or made by virtue of this Act, which contains a reference to the OFT but comes into force before the time at which section 2(3) comes into force.

(2) Until that time any reference to the OFT is to be taken as a reference to the Director.

Pensions etc. of former Directors

2 In the case of any such person who has held the office of the Director as may be determined by the Secretary of State with the approval of the Minister for the Civil Service--

(a) such pension, allowance or gratuity shall be paid to or in respect of him on his retirement or death, or

(b) such contributions or payments shall be paid towards provision for such a pension, allowance or gratuity,

as may be so determined.

First financial year of the OFT

3 (1) If the period beginning with the day on which the OFT is established and ending with the next 31st March is six months or more, the first financial year of the OFT is that period.

(2) Otherwise the first financial year of the OFT is the period beginning with the day on which it is established and ending with 31st March in the following year.

First annual plan of the OFT

4 (1) The OFT's first annual plan (as required by section 3(1)) shall be published within the period of three months beginning with the day on which it is established.

(2) Subject to sub-paragraph (3), that annual plan shall relate to the period beginning with the date of publication and ending with the next 31st March.

(3) If the period mentioned in sub-paragraph (2) is three months or less, that annual plan shall relate to the period beginning with the date of publication and ending with the 31st March in the following year.

Last annual report of the Director General of Fair Trading

5 (1) After the abolition of the office of the Director, any duty of his to make an annual report, in relation to any calendar year for which such a report has not been made, shall be performed by the OFT.

(2) The period between the abolition of that office and the end of the preceding calendar year (if less than 12 months) shall be treated as the calendar year for which the last annual report is required.

(3) If that period is nine months or more, the OFT shall make the last annual report as soon as practicable after the end of that period.

(4) Otherwise the OFT shall make the last annual report no later than the making of its first report under section 4(1).

(5) In this paragraph "annual report" means a report required by section 125(1) of the 1973 Act.

Effect of transfers under section 2

6 (1) In this paragraph--

"commencement" means the commencement of section 2(1);
"transferred" means transferred by section 2(1).

(2) Anything which--

(a) has been done by or in relation to the Director for the purposes of or in connection with anything transferred; and

(b) is in effect immediately before commencement,

shall be treated as if done by or in relation to the OFT.

(3) Anything (including legal proceedings) which--

(a) relates to anything transferred; and

(b) is in the process of being done by or in relation to the Director immediately before it is transferred,

may be continued by or in relation to the OFT.

(4) Nothing in section 2 or this paragraph affects the validity of anything done by or in relation to the Director before commencement.

First President and Registrar of the Competition Appeal Tribunal

7 The person who is President of the Competition Commission Appeal Tribunals (under paragraph 4 of Schedule 7 to the 1998 Act) immediately before the commencement of section 12 is on that date to become the President of the Competition Appeal Tribunal as if duly appointed under that section, on the same terms.

8 The person who is Registrar of Appeal Tribunals (under paragraph 5 of Schedule 8 to the 1998 Act) immediately before the commencement of section 12 is on that date to become the Registrar of the Competition Appeal Tribunal as if duly appointed under that section, on the same terms.

9 Any person who is a member of the Competition Commission appeal panel (but not a member of the panel of chairmen) immediately before the commencement of section 12 is on that date to become a member of the Competition Appeal Tribunal, on such terms and for such a period as the Secretary of State may determine.

10 Any member of the Competition Commission appeal panel who is, immediately before the commencement of section 12, a member of the panel of chairmen under paragraph 26 of Schedule 7 to the 1998 Act is on that date to become a chairman of the Competition Appeal Tribunal, on such terms and for such a period as the Lord Chancellor may determine.

11 Nothing in paragraph 7, 8, 9 or 10 applies to any person who, before the commencement of section 12, gives notice to the Secretary of State stating that he does not wish that paragraph to apply to him.

Tribunal rules

12 (1) Any rules made under section 48 of the 1998 Act which are in force immediately before the commencement of section 15 above shall be treated after that commencement as having been made under section 15.

(2) The Secretary of State may treat any consultation carried out with the President of the Competition Commission Appeal Tribunals (before the appointment of the President of the Competition Appeal Tribunal) as being as effective for the purposes of section 15(1) as if it had been carried out with the President of the Competition Appeal Tribunal.

Merger references

13 (1) Subject to paragraphs 15 to 18, the old law shall continue to apply where--

(a) two or more enterprises have ceased to be distinct enterprises (within the meaning of Part 5 of the 1973 Act); and

(b) the cessation has occurred before the appointed day.

(2) Subject to sub-paragraphs (3), (4) and (5) and paragraphs 15 to 18, the old law shall continue to apply in relation to any relevant arrangements which were in progress or in contemplation before the appointed day and are in progress or in contemplation on that day and (if events so require) the actual results of those arrangements where, before the appointed day--

(a) a merger notice was given, and not rejected under section 75B(7) of the 1973 Act or withdrawn, in relation to the arrangements;

(b) no merger notice was so given but, in relation to the arrangements--

(i) a reference was made under section 75 of the 1973 Act;

(ii) undertakings were accepted under section 75G of that Act; or

(iii) a decision was made by the Secretary of State neither to make a reference under section 75 of that Act nor to accept undertakings under section 75G of that Act; or

(c) a merger notice was so given, was rejected under section 75B(7) of the 1973 Act or withdrawn, paragraph (a) does not apply in relation to a different merger notice given in relation to the arrangements and, in relation to the arrangements, paragraph (b)(i), (ii) or (iii) applies.

(3) Subject to sub-paragraph (8), the new law shall, in a case of the kind mentioned in sub-paragraph (2)(a), apply in relation to any relevant arrangements and (if events so require) the actual results of those arrangements if, on or after the appointed day, a merger notice is rejected under section 75B(7) of the 1973 Act or withdrawn in relation to the arrangements.

(4) Subject to sub-paragraph (8), the new law shall, in a case of the kind mentioned in sub-paragraph (2)(a), apply in relation to any relevant arrangements and (if events so require) the actual results of those arrangements if--

(a) the making of a reference under section 64 or 75 of the 1973 Act in relation to those arrangements and (if events so require) the actual results of those arrangements was, immediately before the appointed day and by virtue of section 75C(1)(c), (e) or (g) of that Act, not prevented;

(b) the period for considering the merger notice has expired (whether before, on or after the appointed day); and

(c) no reference has been made under section 64 or 75 of the 1973 Act and no undertakings have been accepted under section 75G of that Act.

(5) Subject to sub-paragraph (8), the new law shall, in a case of the kind mentioned in sub-paragraph (2)(a), apply in relation to any relevant arrangements and (if events so require) the actual results of those arrangements if--

(a) the making of a reference under section 64 or 75 of the 1973 Act in relation to those arrangements and (if events so require) the actual results of those arrangements becomes, on or after the appointed day and by virtue of section 75C(1)(b), (c), (d), (e) or (g) of that Act, not prevented;

(b) the period for considering the merger notice has expired (whether before, on or after the appointed day); and

(c) no reference has been made under section 64 or 75 of the 1973 Act and no undertakings have been accepted under section 75G of that Act.

(6) Subject to sub-paragraph (8), the new law shall apply in relation to relevant arrangements and (if events so require) the actual results of those arrangements if--

(a) the arrangements were in progress or in contemplation before the appointed day and are in progress or in contemplation on that day;

(b) before the appointed day and in relation to the arrangements--

(i) no reference was made under section 75 of the 1973 Act;

(ii) no undertakings were accepted under section 75G of that Act; and

(iii) a decision neither to make a reference under section 75 of that Act nor to accept undertakings under section 75G of that Act was not made by the Secretary of State; and

(7) Subject to sub-paragraph (8), the new law shall, in a case of the kind mentioned in sub-paragraph (2)(c) (excluding the words from "and" to the end), apply in relation to any relevant arrangements and (if events so require) the actual results of those arrangements if, in relation to the arrangements, sub-paragraph (2)(b)(i), (ii) and (iii) do not apply.

(8) Subject to paragraphs 15 to 18, the old law shall continue to apply in relation to concentrations with a Community dimension (within the meaning of the European Merger Regulations) notified before the appointed day to the European Commission under article 4 of those Regulations.

(9) In this paragraph references to relevant arrangements which are in progress or in contemplation on the appointed day include references to the actual results of those arrangements if the arrangements were in progress or in contemplation immediately before the appointed day and have, at the beginning of the appointed day, resulted in two or more enterprises ceasing to be distinct enterprises (within the meaning of Part 5 of the 1973 Act).

(10) In this paragraph--

"the European Merger Regulations" has the meaning given by section 129(1);
"merger notice" means a notice under section 75A(1) of the 1973 Act;
"the new law" means Part 3 of this Act and any related provision of law (including, in particular, any modification made under section 276(2) to that Part or any such provision);
"the old law" means sections 64 to 75K of the 1973 Act and any related provision of law (including, in particular, any modification made under section 276(2) to those sections or any such provision); and
"relevant arrangements" means arrangements which might result in two or more enterprises ceasing to be distinct enterprises (within the meaning of Part 5 of the 1973 Act).

Monopoly references

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