Administration
Bankruptcy Act 1988 (as amended)
BANKRUPTCY ACT 1988
REVISED
Updated to 1 June 2016
AN ACT TO CONSOLIDATE WITH AMENDMENTS THE LAW RELATING TO BANKRUPTCY AND TO PROVIDE FOR RELATED MATTERS. [13th July, 1988]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
PART I
Preliminary and General
Short title.
1.—This Act may be cited as the Bankruptcy Act, 1988.
Commencement.
2.—This Act shall come into operation on such day not later than 1 January, 1989 as the Minister by order appoints.
Annotations:
Editorial Notes:
E8
Power pursuant to section exercised (1.01.1989) by Bankruptcy Act 1988 (Commencement) Order 1988 (S.I. No. 348 of 1988).
2. The 1st day of January, 1989, is hereby appointed as the day on which the Bankruptcy Act, 1988, shall come into operation.
Interpretation.
3.—In this Act, unless the context otherwise requires,—
“adjudication” means adjudication in bankruptcy;
“after-acquired property” has the meaning assigned to it by section 44 (5);
“arrangement” means an arrangement in pursuance of an order for protection under Part IV;
“arranging debtor” means a debtor who has been granted an order for protection under Part IV;
“assignees” means the Official Assignee and the creditors’ assignee, if any;
F1[‘Bankruptcy Inspector’ means a person standing appointed for the time being—
(i) to the position of Bankruptcy Inspector in the Office of the Official Assignee in Bankruptcy on the day before the coming into operation of section 29 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013, or
(ii) to the position of Bankruptcy Inspector pursuant to section 12 of the Personal Insolvency Act 2012;]
“bankruptcy summons” has the meaning assigned to it by section 8 (1);
“conveyance”, in relation to land, includes assignment and transfer;
“the Court” means the High Court;
“creditors’ assignee” means a person chosen and appointed as such under section 18 (1);
F2[‘Debt Settlement Arrangement’ has the same meaning as in the Personal Insolvency Act 2012;]
F3[‘Director’ means the Director of the Insolvency Service;]
F4[‘insolvency proceedings’ means insolvency proceedings opened in a member state under Article 3 of the Insolvency Regulation where the debtor or each debtor is an individual or deceased;
‘Insolvency Regulation’ means Council Regulation (EC) No. 1346/2000 of 29 May 20001 on insolvency proceedings;]
“land” includes any estate or interest in or charge over land;
F4[‘liquidator’ means a liquidator appointed in insolvency proceedings;]
F4[‘member state’ means a member state of the European Communities other than the State and Denmark;]
“the Minister” means the Minister for Justice;
F1[‘Official Assignee’ means a person standing appointed for the time being—
(i) to the position of Official Assignee in Bankruptcy in the Office of the Official Assignee in Bankruptcy on the day before the coming into operation of section 29 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013, or
(ii) to the position of Official Assignee pursuant to section 12 of the Personal Insolvency Act 2012;]
F2[‘Personal Insolvency Arrangement’ has the same meaning as it has in the Personal Insolvency Act 2012;]
“prescribed”, except in relation to court fees, means prescribed by rules of court;
F5[‘principal private residence’ has the same meaning as it has in section 2 of the Personal Insolvency Act 2012 subject to the modification that a reference to the debtor shall be taken to be a reference to the bankrupt;]
F6[‘property’—
(a) includes money, goods, things in action, land and every description of property, whether real or personal,
(b) includes obligations, easements and every description of estate, interest, and profit, present or future, vested or contingent, arising out of or incident to property,
(c) in relation to proceedings opened in the State under Article 3(1) of the Insolvency Regulation, includes property situated outside the State, and
(d) in relation to proceedings so opened under Article 3(2) of the Regulation, does not include property so situated;]
“registered”, in relation to land, means registered in the Registry of Deeds or the Land Registry, as may be appropriate;
“secured creditor” means any creditor holding any mortgage, charge or lien on the debtor’s estate or any part thereof as security for a debt due to him;
F2[‘statement of affairs’ means a statement of the debtor’s or bankrupt’s affairs in the form specified in rules of court;]
F2[‘trustee’ means a person appointed as trustee under Part V;]
“vesting arrangement” has the meaning assigned to it by section 93 (2).
F7[(2) Parts II, III, IV (in so far as it relates to vesting arrangements), V, VI and VIII and the First Schedule are subject to Chapters I (general provisions) and III (secondary insolvency proceedings) of the Insolvency Regulation.]
Annotations:
Amendments:
F1
Substituted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 27, S.I. No. 463 of 2013.
F2
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 142, S.I. No. 462 of 2013.
F3
Inserted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 27, S.I. No. 463 of 2013.
F4
Inserted (2.07.2002) by European Communities (Personal Insolvency) Regulations 2002 (S.I. No. 334 of 2002), reg. 3(a)(i).
F5
Inserted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 2, S.I. No. 34 of 2016.
F6
Substituted (2.07.2002) by European Communities (Personal Insolvency) Regulations 2002 (S.I. No. 334 of 2002), reg. 3(a)(ii).
F7
Inserted (2.07.2002) by European Communities (Personal Insolvency) Regulations 2002 (S.I. No. 334 of 2002), reg. 3(a)(iii).
1OJ L160 of 30.6.2000
F21[18.—(1) The creditors of a bankrupt may—
(a) choose and appoint a person (in this Act referred to as the ‘creditors’ assignee’) to represent them in the administration of the bankrupt’s estate, and
(b) not later than 90 days after the date of the making of the adjudication order in respect of that bankruptcy apply to Court for confirmation of that appointment.]
(2) All creditors shall be entitled to vote in such choice in person or by an agent authorised in writing in that behalf, and the choice and appointment shall be made by the major part in value of the creditors.
(3) The Court may reject any person so chosen who appears to the Court unfit to be a creditors’ assignee or may remove a creditors’ assignee and in the event of a vacancy, however arising, a new choice and appointment may be made in like manner.
(4) For the purposes of appointing a creditors’ assignee a creditor may prove his debt.
Annotations:
Amendments:
F21
Substituted (1.06.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 5, S.I. No. 253 of 2016.
F22[
Revenue Commissioners to furnish certain information to Official Assignee.
18A.— (1) Where a person has been adjudicated bankrupt the Revenue Commissioners shall, where requested to do so by the Official Assignee, furnish to the Official Assignee such information as has been requested held by them in relation to the carrying on of any trade or profession or relating to any matter in respect of which a return is required to be made to the Revenue Commissioners and to which the bankrupt is or was a party.
(2) The information to be provided under subsection (1) shall also be provided to a trustee in bankruptcy other than the Official Assignee appointed under Part V.]
Annotations:
Amendments:
F22
Inserted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 30(b), commenced on enactment.
Duties of bankrupt.
(1857, s. 132 in pt.)
19.—The bankrupt shall—
(a) unless the Court otherwise directs, forthwith deliver up to the Official Assignee F23[such books of account, other papers or records (including copies of such books of account, other papers or records held in electronic form)] relating to his estate in his possession or control as the Official Assignee may from time to time request and disclose to him such of them as are in the possession or control of any other person;
(b) deliver up possession of any part of his property which is divisible among his creditors under this Act, and which is for the time being in his possession or control, to the Official Assignee or any person authorised by the Court or otherwise under the provisions of this Act to take possession of it;
(c) unless the Court otherwise directs, within the prescribed time file in the Central Office a statement of affairs in the prescribed form and deliver a copy thereof to the Official Assignee;
(d) give every reasonable assistance to the Official Assignee in the administration of the estate;
(e) disclose to the Official Assignee any after-acquired property.
Annotations:
Amendments:
F23
Substituted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 6, S.I. No. 34 of 2016.
Change of name or address, etc.
(New)
20.—(1) A bankrupt shall forthwith notify the Official Assignee in writing of any change in his name or address which occurs during his bankruptcy.
(2) For the purposes of subsection (1) a change in the name of a bankrupt shall be deemed to occur if the bankrupt in fact assumes the use of a different name or an additional name.
(3) A bankrupt shall, whenever required by the Official Assignee to do so, forthwith notify the Official Assignee in writing of the nature of any profession, vocation, business or employment in which he is engaged.
(4) A bankrupt who fails to comply with any of the provisions of this section shall be guilty of an offence.
Examination of bankrupt and other persons.
(1857, ss. 305 in pt., 306, 307, 308, 310; cf. 33/1963, s. 245)
21.—(1) The Court may summon before it a bankrupt or any person who is known or suspected to have in his possession or control any property of the bankrupt or to have disposed of any property of the bankrupt or who is supposed to be indebted to the bankrupt, or any person whom the Court deems capable of giving information relating to the trade, dealings, affairs or property of the bankrupt.
(2) The Court may examine him on oath concerning the matters aforesaid, either orally or on written interrogatories, and may reduce his answers to writing and require him to sign them.
F24[(3) The Court may require him to produce any books of account, other papers or records (including copies of such books of account, other papers or records held in electronic form) in his possession or control relating to the matters aforesaid but, where he claims any lien on books, papers or records produced by him, the production shall be without prejudice to that lien and the Court may determine all questions in relation to the lien.]
(4) A bankrupt or other person who is examined under this section shall not be entitled to refuse to answer any question put to him on the ground that his answer might incriminate him but none of his answers shall be admissible in evidence against him in any other proceedings, civil or criminal, except in the case of any criminal proceedings for perjury in respect of any such answer.
Annotations:
Amendments:
F24
Substituted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 7, S.I. No. 34 of 2016.
Admission of debt due to bankrupt.
(cf. 1857, s. 311)
22.—If any person on examination appears to be indebted to the bankrupt or to have in his possession or control any property of the bankrupt, the Court, on the application of the Official Assignee, may order him to pay to the Official Assignee, at such time and in such manner as the Court thinks fit, the amount or any part thereof or to deliver to the Official Assignee such property or any part thereof at such time and in such manner and on such terms as the Court may direct.
Arrest of bankrupt, etc.
(cf. 1857, ss. 124, 125)
23.—(1) Where it appears to the Court, at any time after making an adjudication order, on proof of probable cause for believing that a bankrupt is about to leave the State or otherwise to abscond or has removed or concealed or is about to remove or conceal any of his property with a view to avoiding payment of his debts or avoiding examination in respect of his affairs, or is keeping out of the way and cannot be served with a summons, the Court may cause him to be arrested and brought before it for examination.
(cf. 1857, s. 305 in pt.)
(2) Where a bankrupt has been summoned before the Court pursuant to section 21 and he does not come at the time appointed, not having an excuse (made known to the Court at the time of its sitting and allowed by it) the Court may cause him to be arrested and brought before it for examination.
(cf. 1857, s. 308 in pt.)
(3) Where any person summoned before the Court pursuant to section 21 after being tendered a reasonable sum for his expenses, does not come at the time appointed, not having an excuse (made known to the Court at the time of its sitting and allowed by it), the Court may cause him to be arrested and brought before it for examination.
(4) The provisions of subsections (2) and (3) are without prejudice to the powers of the Court in relation to contempt or enforcement of the attendance of witnesses.
Committal to prison.
(1857, s. 385)
24.—Where the bankrupt or any person summoned or brought before the Court refuses to be sworn or refuses or fails to answer any lawful question put by the Court or does not fully answer any such question or refuses to sign and subscribe his examination when reduced to writing (not having any lawful excuse allowed by the Court) or to comply with any order of the Court under this Act, the Court may order that such person be committed to prison to await the further order of the Court.
Examination of persons in custody.
(1872, s. 73)
25.—Where the bankrupt or any person is in prison pursuant to an order of the Court under section 24, the Court may by warrant directed to the governor of the prison order that he be brought before the Court. Where such person satisfies the Court that he has complied with its lawful requirements the Court shall order his release from custody. In any other case he may be taken back to prison without any further order.
Release of bankrupt from prison.
(New)
26.—If a bankrupt is in prison by virtue of section 6 of the Enforcement of Court Orders Act, 1940, in respect of a debt incurred before adjudication, the Court may order his release.
Warrant of seizure.
(1857, s. 72 in pt.)
27.—(1) The Court may by warrant direct the Bankruptcy Inspector or any of his assistants to seize any property of the bankrupt.
(2) An official acting under the warrant may seize any part of the bankrupt’s property in the possession or control of the bankrupt and, for the purpose of seizing any such property, may enter and if necessary break open any house, building, room or other place belonging to the bankrupt where any part of his property is believed to be.
Search warrant.
(cf. 1857, s. 326)
28.—Where it appears to the Court that there is reason to believe that any property of the bankrupt is concealed in any house, building, room or other place not belonging to the bankrupt, the Court may grant a search warrant to the Bankruptcy Inspector or any of his assistants, or other person appointed by the Court, who may execute the warrant according to the tenor thereof.
Indemnity for persons acting under warrant.
(1857, s. 327)
Management Provisions
F42[
The Official Assignee
60.— (1) The Official Assignee shall have such functions as are assigned to him by or under this Act or any other enactment, and subject to this section, sections 60A to 60C and the Personal Insolvency Act 2012, such powers and functions as were heretofore exercisable by the Official Assignee in Bankruptcy continue to be exercisable by the Official Assignee.
(2) The Official Assignee shall be a member of the staff of the Insolvency Service.
(3) Subject to subsections (4) to (6), the Official Assignee shall be independent in the performance of his functions under this Act and any other enactment.
(4) The Official Assignee shall, in relation to matters of general administration, be subject to the general direction of the Director.
(5) The Official Assignee, when performing any function relating to the business of a court, or acting under or pursuant to an order of a court, shall observe and obey such directions as are given to him by the court.
(6) The Official Assignee shall be an officer of the court for the purposes of the performance of his functions under this Act or any other enactment.
(7) Subject to sections 60B and 60C, subsections (3) to (6) shall apply to a member of the staff of the Insolvency Service—
(a) to whom functions of the Official Assignee have been delegated under section 60B, as respects those functions, or
(b) who is designated under section 60C, as respects those functions,
for so long as the delegation or designation remains in force and is exercisable by the member of staff concerned.
(8) The Official Assignee shall not, without the approval of the Director, hold any other office or position in respect of which remuneration is payable, or carry on any business, trade or profession.
(9) In this section and sections 60A to 60C a reference to an enactment means—
(a) an Act of the Oireachtas,
(b) a statute that was in force in Saorstát Éireann immediately before the date of the coming into operation of the Constitution and that continues in force by virtue of Article 50 of the Constitution, or
(c) an instrument made under—
(i) an Act of the Oireachtas, or
(ii) a statute referred to in paragraph (b).]
Annotations:
Amendments:
F42
Substituted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 29, S.I. No. 462 of 2013.
F43[
Office of Official Assignee — Transfer of staff
60A.— (1) This section applies to—
(a) the person who immediately before the coming into operation of this section held the office of Official Assignee in Bankruptcy (otherwise referred to as the Official Assignee), and
(b) every person who immediately before the coming into operation of this section was a member of the staff of the Courts Service assigned to the Office of the Official Assignee in Bankruptcy.
(2) On the coming into operation of this section every member of the staff of the Courts Service to whom this section applies shall be seconded to the Insolvency Service for a period of 2 years.
(3) On the expiry of the period of secondment referred to in subsection (2) each person seconded under that subsection shall—
(a) transfer definitively to the staff of the Insolvency Service, or
(b) subject to subsection (4), exercise a right to return to a suitable vacancy on the staff of the Courts Service.
(4) If a person seconded under subsection (2) exercises a right under subsection (3)(b) to return to the staff of the Courts Service but no suitable vacancy on the staff of the Courts Service exists, the person concerned shall be transferred to a suitable vacancy in a public service body.
(5) A person who—
(a) is seconded under subsection (2),
(b) is transferred under subsection (3)(a) or subsection (4), or
(c) returns to the Courts Service under subsection (3)(b),
shall not, except in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, receive a lesser scale of pay or less favourable superannuation benefits than the scale of pay and superannuation benefits to which he was entitled immediately before the secondment, transfer or return concerned.
(6) A person seconded under subsection (2) shall be deemed to be a member of the staff of the Insolvency Service during the period of the secondment.
(7) Subject to subsection (3)(a)—
(a) the person who immediately before the coming into operation of this section held the office of Official Assignee in Bankruptcy shall continue in office as Official Assignee, and
(b) the person who immediately before the coming into operation of this section held the position of Bankruptcy Inspector shall continue to hold the position of Bankruptcy Inspector.
(8) In this section—
(a) ‘public service body’ has the meaning assigned to it by section 5 of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012;
(b) ‘recognised trade union or staff association’ means a trade union or staff association recognised by the Minister for the purposes of negotiations which are concerned with the remuneration or conditions of employment, or the working conditions of employees.]
Annotations:
Amendments:
F43
Inserted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 29, S.I. No. 463 of 2013.
F44[
Delegation of functions of Official Assignee
60B.— (1) The Official Assignee may in writing delegate to a specified member of the staff of the Insolvency Service—
(a) any of his functions under this Act in relation to a specific bankruptcy or arrangement matter, or
(b) any of his functions under any other enactment.
(2) A delegation under subsection (1) shall be subject to such conditions or limitations as to the performance of any of the functions delegated, or as to time or circumstance, as may be specified in the delegation.
(3) The Official Assignee may in writing revoke or vary a delegation made under subsection (1).
(4) More than one delegation may be made and have effect under subsection (1) at any one time.
(5) Subject to subsection (2), a person to whom functions of the Official Assignee have been delegated under subsection (1), shall, while the delegation remains in force, have all the powers of the Official Assignee in respect of the functions delegated to him as fully as if he held that office, and such powers shall, where the delegation so specifies, include the power to sell, transfer or otherwise dispose of property or assets in the name of and on behalf of the Official Assignee.
(6) Nothing in this section shall affect the vesting of property in the Official Assignee in accordance with section 44.
(7) In any legal proceedings, a certificate that—
(a) is signed by the Official Assignee,
(b) states that any function of the Official Assignee in relation to a bankruptcy matter was on a specified date delegated to a specified member of staff of the Insolvency Service, and
(c) states that the delegation of the function remained in force on a specified date,
is, in the absence of evidence to the contrary, proof of the matters stated in the certificate.
(8) A certificate referred to in subsection (7) that appears to be signed by the Official Assignee is admissible in any proceedings as evidence of the matters stated in the certificate without proof of his signature.]
Annotations:
Amendments:
F44
Inserted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 29, S.I. No. 463 of 2013.
F45[
Deputy for Official Assignee
60C.— (1) The Director may in writing designate a member of the staff of the Insolvency Service to be the deputy for the Official Assignee, and the member of staff so designated shall, during every temporary absence and every temporary incapacity through illness of the Official Assignee and every occasion on which the office of the Official Assignee is vacant occurring while such designation remains in force, perform the functions assigned to the Official Assignee under this Act or under any other enactment.
(2) A designation under subsection (1) shall be subject to such conditions or limitations as to time or circumstance as may be specified in the designation.
(3) The Director may in writing at any time revoke or vary a designation made under subsection (1).
(4) Subject to subsection (2), a person designated under subsection (1) shall, while he performs the functions of the Official Assignee, have all the powers of the Official Assignee as fully as if he held that office, and such powers shall include the power to sell, transfer or otherwise dispose of property or assets in the name of and on behalf of the Official Assignee.
(5) In any legal proceedings, a certificate that—
(a) is signed by the Director,
(b) states that a specified member of staff of the Insolvency Service was designated on a specified date, in accordance with subsection (1), to be the deputy for the Official Assignee, and
(c) states that the designation remained in force on a specified date,
is, in the absence of evidence to the contrary, proof of the matters stated in the certificate.
(6) A certificate referred to in subsection (5) that appears to be signed by the Director is admissible in any proceedings as evidence of the matters stated in the certificate without proof of his signature.]
Annotations:
Amendments:
F45
Inserted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 29, S.I. No. 463 of 2013.
F46[
Transfer of records to Insolvency Service
60D.— All documents and records in the custody and control of the Courts Service relating to the Office of the Official Assignee in Bankruptcy immediately before the coming into operation of section 29 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 shall on the coming into operation of that section be transferred to the Insolvency Service.]
Annotations:
Amendments:
F46
Inserted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 29, S.I. No. 463 of 2013.
Functions of Official Assignee in bankruptcy and vesting arrangements.
(New)
61.—(1) This section applies to every bankruptcy matter and vesting arrangement.
(2) The functions of the Official Assignee are to get in and realise the property, to ascertain the debts and liabilities and to distribute the assets in accordance with the provisions of this Act.
(3) In the performance of his functions the Official Assignee shall, in particular, have power—
(a) to sell the property by public auction or private contract, with power to transfer the whole thereof to any person or to sell the same in lots and for the purpose of selling land to carry out such sale by F47[…] lease, sub-lease or otherwise and to sell F47[…] any reversion expectant upon the determination of any such lease,
(b) to make any compromise or arrangement with creditors or persons claiming to be creditors or having or alleging themselves to have any claim present or future, certain or contingent, ascertained or sounding only in damages whereby the bankrupt or arranging debtor may be rendered liable,
(c) to compromise all debts and liabilities capable of resulting in debts and all claims, present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the bankrupt or arranging debtor and any debtor and all questions in any way relating to or affecting the assets or the proceedings on such terms as may be agreed and take any security for the discharge of any debt, liability or claim, and give a complete discharge in respect thereof,
(d) to institute, continue or defend any proceedings relating to the property,
(e) to refer any dispute concerning the property to arbitration under the terms of section 11 of the Arbitration Act, 1954,
(f) to mortgage or pledge any property to raise any money requisite,
(g) to take out in his official name without being required to give security, letters of administration to any estate on the administration of which the bankrupt or arranging debtor would benefit,
(h) to agree a sum for costs where the Court so directs or where he considers that the amount which would be allowed on taxation would not exceed F48[€12,000],
(i) to agree the charges of accountants, auctioneers, brokers and other persons,
(j) to ascertain and certify to the Court the amount due in respect of a mortgage debt and the due priority thereof with power to the Court to vary such certificate,
(k) to draw out of the account referred to in section 84 (1) any sum not exceeding F49[€130] by way of indemnity in respect of costs incurred by him.
F50[(3A) In the case of an adjudication in bankruptcy under Article 3(1) of the Insolvency Regulation, the Official Assignee shall have the powers conferred on a liquidator in relation to taking action in member states under the Regulation.]
F51[(4) Notwithstanding any provision to the contrary contained in subsection (3), no disposition of property of a bankrupt, arranging debtor or person dying insolvent, which comprises—
(a) a family home (within the meaning of the Family Home Protection Act 1976 ) of the bankrupt or the bankrupt’s spouse, or
(b) a shared home (within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010) of the bankrupt or the bankrupt’s civil partner (within the meaning of that Act),
shall be made without the prior sanction of the Court and any disposition made without such sanction shall be void.
(5) On an application by the Official Assignee under subsection (4) for an order for the disposition of a family home or shared home, the Court, notwithstanding anything contained in this or any other enactment, shall have power to order postponement of the disposition of the family home or shared home, as the case may be, having regard to the interests of the creditors, spouse or civil partner (within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010), and any dependants, of the bankrupt, arranging debtor or person dying insolvent, as the case may be, as well as to all the circumstances of the case.]
(6) The Official Assignee may in case of doubt or difficulty seek the directions of the Court in connection with the affairs of any bankrupt or arranging debtor.
(7) The exercise by the Official Assignee of the powers conferred by this section shall be subject to the control of the Court, and any creditor or other person who in the opinion of the Court has an interest may apply to the Court in relation to the exercise or proposed exercise of those powers.
(8) The powers and functions conferred on the Official Assignee by this section may be exercised and performed—
(a) in the case of an adjudication founded on a petition of a debtor, on adjudication,
(b) in the case of an adjudication founded on a petition by a creditor, on the expiration of the time for showing cause,
(c) in the case of a vesting arrangement, on approval of the proposal by the Court.
Annotations:
Amendments:
F47
Deleted (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(1) and sch. 1, S.I. No. 356 of 2009.
F48
Substituted (2.08.2011) by Civil Law (Miscellaneous Provisions) Act 2011 (23/2011), s. 30(e), commenced on enactment.
F49
Substituted (1.01.2002) by Bankruptcy Act 1988 (Alteration of Monetary Limits) Order 2001 (S.I. No. 595 of 2001), art. 2 and sch., in effect as per art. 2.
F50
Inserted (2.07.2002) by European Communities (Personal Insolvency) Regulations 2002 (S.I. No. 334 of 2002), reg. 3(b).
F51
Substituted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 9, S.I. No. 34 of 2016.
Editorial Notes:
E16
Previous affecting provision: subs. (5) amended (1.12.2009) by Land and Conveyancing Law Reform Act 2009 (27/2009), s. 8(1) and sch. 1, S.I. No. 356 of 2009 and (1.01.2011) by Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (24/2010), s. 168 and sch. part 3 item 14(b), S.I. No. 648 of 2010; substituted as per F-note above.
E17
Previous affecting provision: subs. (3)(h) amended (10.04.2002) by Courts and Court Officers Act 2002 (15/2002), s. 34, commenced on enactment; further amended as per F-note above.
E18
Previous affecting provision: subs. (3)(h) amended (1.01.2002) by Bankruptcy Act 1988 (Alteration of Monetary Limits) Order 2001 (S.I. No. 595 of 2001), art. 2 and sch., in effect as per art. 2; further amended as per F-note above.
Bankruptcy Inspector and assistants.
(1857, s. 62)
62.—(1) The Bankruptcy Inspector and his assistants shall follow the instructions of the Official Assignee, subject to the directions and control of the Court.
(2) Subject to the provisions of this Act, it shall be the duty of the Bankruptcy Inspector or his assistants—
(a) to seize the property of the bankrupt pursuant to a warrant issued by the Court under section 27,
(b) to take an inventory of and report on the bankrupt’s property,
(c) to take possession of the property of an arranging debtor pursuant to section 100, and to take an inventory of and report on the property,
(d) to do such other things as may be directed by the Court or the Official Assignee.
Protection of Official Assignee.
(1857, s. 65)
63.—The Official Assignee shall not be liable—
(a) by reason of any of the matters on which an adjudication was grounded being insufficient to support the adjudication,
(b) in respect of his receipt of any property, provided he has not dealt with the property otherwise than as directed by the Court or as required by this Act or by F52[regulations made by the Minister under this Act].
Annotations:
Amendments:
F52
Substituted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 30, S.I. No. 463 of 2013.
Power of Official Assignee to appropriate part of bankrupt’s income.
(New: cf. 1857, s. 319; 1872, s. 51)
65.—(1) Notwithstanding any provision to the contrary in any other enactment, whenever a bankrupt, whether self-employed or not, is in receipt of or is entitled to receive any salary, income, emolument or pension, the Court may, from time to time, on the application of the Official Assignee, make such order directed to the bankrupt and any person from whom the bankrupt is entitled to receive any such salary, income, emolument or pension for the payment to the Official Assignee of all or part of such salary, income, emolument or pension, subject to such conditions as to payment as the Court may specify in the order having regard to the family responsibilities and personal situation of the bankrupt.
(2) The Court may at any time, on the application of any interested person, vary an order under subsection (1), having regard to any changes in the family responsibilities or personal situation of the bankrupt.
F54[Cesser of section 65.
65A.— An application for an order under section 65 shall not be made after the coming into operation of this section, but this section shall not operate to prevent an application under section 65(2) where an order under section 65(1) is in force on the coming into operation of this section. ]
Annotations:
Amendments:
F54
Inserted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 155, S.I. No. 463 of 2013.
Delivery of property to Official Assignee.
(cf. 1857, s. 324)
66.—Every person shall, on request, deliver up to the Official Assignee all money or securities for money in such person’s possession or control which he is not by law entitled to retain as against the bankrupt or the Official Assignee.
Right of Official Assignee to transfer stocks or shares.
(cf. 1857, s. 320)
67.—Where any part of the property of a bankrupt, or of an arranging debtor under a vesting arrangement, consists of stocks or shares, the Official Assignee may exercise the right to transfer them to the same extent as the bankrupt or arranging debtor could have exercised it but for the adjudication or vesting arrangement.
Right of Official Assignee to inspect goods pawned or pledged.
(New)
68.—Where any goods of a bankrupt are held by any person by way of pledge, pawn or other security, the Official Assignee may give notice in writing to the holder of his intention to inspect the goods and, where such notice has been given, the holder shall not be entitled to realise his security until he has given the Official Assignee a reasonable opportunity of inspecting the goods and of exercising his right of redemption if he thinks fit to do so.
Receipt of property of bankrupt.
(cf. 1857, ss. 60, 61)
69.—(1) The Official Assignee shall be assignee of each bankrupt’s estate and act with the creditors’ assignee, if any.
(2) Except where otherwise directed by the Court, the property of every bankrupt, and the income and proceeds thereof, shall be possessed and received by the Official Assignee.
F55[(3) All money and securities received by the Official Assignee, being part of a bankrupt’s estate, shall be forthwith lodged by him in an account in the Central Bank of Ireland or a bank authorised to carry on business in the State and shall be kept there to the credit of the Official Assignee subject to the provisions of this Act, any regulations made under subsection (6) and the directions of the Court.]
(4) Subject to section 84, all money and securities which, immediately before the commencement of this Act, stood to the credit of bank accounts in bankruptcy or arrangement matters shall be dealt with pursuant to rules of court.
(5) The Official Assignee, with the leave of the Court, may from time to time invest the whole or any part of any money referred to in this section, and any interest thereon shall be paid into the appropriate bank accounts.
F56[(6) The Minister may, following consultation with the Insolvency Service, by regulations make provision for the manner in which the Official Assignee shall maintain accounts referred to in subsection (3) and for matters relating to the keeping of such accounts.]
Annotations:
Amendments:
F55
Substituted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 31(a), S.I. No. 463 of 2013.
F56
Inserted (3.12.2013) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 31(b), S.I. No. 463 of 2013.
Editorial Notes:
E19
Power pursuant to subs. (6) exercised (3.12.2013) by Bankruptcy Act 1988 (Official Assignee Accounts and Related Matters) Regulations 2013 (S.I. No. 464 of 2013).
Claim to property in possession of bankrupt.
(New)
70.—(1) Where a person claims any property which is in the possession of the bankrupt at the date of adjudication he shall file with the Official Assignee a claim verified by affidavit.
(2) The Official Assignee may give notice in writing to any person to prove his claim to property which is in the possession of the bankrupt at the date of adjudication and, unless within one month after the service of the notice that person files with the Official Assignee a claim verified by affidavit, the Official Assignee may, with the sanction of the Court, sell or dispose of the property free of any right or interest therein of that person.
Allowances to bankrupt.
(cf. 1857, s. 301)
71.—The Court may make to the bankrupt out of his estate such allowances as the Court thinks proper in the special circumstances of the case.
Redirection of letters, etc., addressed to bankrupt.
(1857, s. 312)
72.—Where a debtor is adjudicated bankrupt the Court, on the application of the Official Assignee, may from time to time order that for such time, not exceeding three months, as the Court thinks fit letters, telegrams and postal packets addressed to the bankrupt at any place mentioned in the order shall, on such terms and subject to such conditions as the Court thinks fit, be redirected, sent or delivered to the Official Assignee as the Court directs.
Appointment of receivers and managers.
(1872, s. 68)
73.—The Court may, at any time after adjudication or after the granting of an order for protection, appoint a receiver or manager of the whole or part of the property of the bankrupt or arranging debtor and may direct that the receiver or manager take immediate possession of such property or any part thereof.
PART V
Winding up by Trustee
Order for winding up.
(1872, ss. 87-122)
F79[110.— Where at least three-fifths in number and value of the creditors voting at a meeting of the creditors, either in person or by a person authorised in writing in that behalf, by resolution declare that the estate of the bankrupt be wound up by a trustee and a committee of inspection, and appoint for that purpose a trustee and a committee of inspection of not more than 5 creditors qualified to vote at the meeting, the Court may on application being made to it in that behalf not later than 90 days after the date of the making of the adjudication order in respect of that bankruptcy, order that the property of the bankrupt be so wound up.]
Annotations:
Amendments:
F79
Substituted (1.06.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 13, S.I. No. 253 of 2016.
Vesting in trustee.
111.—On the making of an order under section 110 the Official Assignee shall be divested of the property of the bankrupt vesting in him under this Act and such property shall vest in the trustee.
Powers of trustee, etc.
112.—(1) F80[ In the winding up the trustee shall be subject to the control of the Court and shall have regard to any directions given to him by the committee of inspection or by resolution of the creditors.]
(2) Subject to subsection (1), the trustee shall have all the powers and may perform all the functions conferred by this Act on the Official Assignee in relation to property vested in him and the provisions of this Act (other than those of Parts IV and VI) shall apply, with any necessary modifications, in relation to the winding up of the property of a bankrupt by a trustee and a committee of inspection as they apply in relation to the administration of such property by the Official Assignee and the trustee shall be substituted for the Official Assignee in such provisions where appropriate.
(3) F81[Where on an application to it under section 110 the Court makes an order referred to in that section it shall at the same time make provision for]:
(a) the remuneration of the trustee,
(b) the making of regular reports by the trustee at subsequent sittings in relation to the winding up,
(c) the procedure to be followed by the trustee in the lodgment of monies received by him,
(d) the audit of the trustee’s accounts, and
(e) such other matters as may be prescribed.
Annotations:
Amendments:
F80
Substituted (1.06.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 14(a), S.I. No. 253 of 2016.
F81
Substituted (1.06.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 14(b), S.I. No. 253 of 2016.
Order of discharge.
113.—When the bankrupt’s property has been fully realised and a final dividend has been paid to the creditors, the trustee shall report to the Court, and the Court, if satisfied that the estate has been fully wound up, shall declare the bankruptcy discharged and order that the trustee be released.
Powers of Court.
114.—Where an order is made under this Part for the winding up of the bankrupt’s property by a trustee and a committee of inspection, the Court shall, subject to the provisions of this Part, have power to make such orders and give such directions in relation to the bankrupt, his creditors, debtors and property and in relation to the examination of persons (including the bankrupt) and other matters as it would have had if a trustee and a committee of inspection had not been appointed under this Part.
PART VII
Offences
Punishment of fraudulent debtors.
(1872, c. 57, s. 11; 33/1963, s. 293)
123.—(1) Subject to subsection (2), if a bankrupt or arranging debtor—
(a) fails to disclose to the Court, or to the Official Assignee or to such person or persons as the Court from time to time directs, all his property and how and to whom and for what consideration and when he disposed of any part thereof, except such part as has been disposed of in the ordinary way of his trade (if any) or laid out in the ordinary expense of his family, or
(b) fails to deliver up to the Official Assignee, or as he or the Court directs, all such part of his property as is in his possession or under his control, and which he is required by law to deliver up, or
F82[(c) fails to deliver up to the Official Assignee, or as he or the Court directs, all books, papers and records (including copies of such books, papers and records held in electronic form) in his possession or under his control relating to his estate and which he is required by law to deliver up, or]
(d) conceals any part of his property to the value of F83[€650] or upwards, or conceals any debt due to or from him, or
(e) fraudulently removes any part of his property to the value of F83[€650] or upwards, or
(f) fails to file or deliver a statement of affairs as required by section 19(c) or makes any material omission in any statement relating to his affairs, or
(g) knowing or believing that a false debt has been proved by any person under the bankruptcy or arrangement, fails for the period of a month to inform the Official Assignee thereof, or
F82[(h) prevents the production of any book, paper or record (including copies of any book, paper or record held in electronic form) affecting or relating to his estate, or]
F82[(i) conceals, destroys, mutilates or falsifies or is privy to the concealment, destruction, mutilation or falsification of any book, paper or record (including any such book, paper or record held in electronic form) affecting or relating to his estate, or]
F82[(j) makes or is privy to the making of any false entry in any book, paper or record (including any such book, paper or record held in electronic form) affecting or relating to the estate, or]
(k) fraudulently parts with, alters or makes any omission in, or is privy to the fraudulent parting with, altering or making any omission in, any document affecting or relating to his estate, or
(l) attempts to account for any part of his property by fictitious losses or expenses, or
(m) obtains, by any fraud or false representation, any property on credit, or
(n) obtains, under the false pretence of carrying on business and, if a trader, of dealing in the ordinary way of his trade, any property on credit, or
(o) pawns, pledges or disposes of any property which he has obtained on credit, unless, in the case of a trader, such pawning, pledging or disposing is in the ordinary way of his trade, or
(p) is guilty of any fraud or false representation for the purpose of obtaining the consent of his creditors or any of them to an agreement with reference to his affairs or the bankruptcy or arrangement;
he shall be guilty of an offence.
(2) It shall be a good defence to a charge under any of paragraphs (a), (b), (c), (d), (f), (n) and (o) of subsection (1) if the accused proves that he had no intent to defraud and to a charge under any of paragraphs (h), (i) and (j) of that subsection if he proves that he had no intent to conceal the state of his affairs or to defeat the law.
(3)(a) A person (other than a bankrupt or arranging debtor) who, with intent to defraud his creditors, does any of the acts mentioned in paragraphs (e), (i), (j), (k), (l), (m), (n) or (o) of subsection (1), shall be guilty of an offence and for this purpose references in paragraphs (e) or (k) to an act which is fraudulent or is committed fraudulently shall be construed as references to an act done with intent to defraud creditors.
(b) Where a person referred to in paragraph (a) of this subsection does an act therein specified within F84[3 years] next before he is adjudicated or granted an order for protection, it shall be presumed until the contrary is proved that the act was done with intent to defraud his creditors.
(4) Where any person pawns, pledges or disposes of any property in circumstances which amount to an offence under paragraph (o) of subsection (1) or under subsection (3), every person who takes in pawn or pledge or otherwise receives the property knowing it to be pawned, pledged or disposed of in such circumstances as aforesaid shall also be guilty of an offence and shall be liable to be punished in the same way as if he had been guilty of an offence under the said paragraph (o) or subsection (3).
Annotations:
Amendments:
F82
Substituted (29.01.2016) by Bankruptcy (Amendment) Act 2015 (60/2015), s. 15(a)-(d), S.I. No. 34 of 2016.
F83
Substituted (1.01.2002) by Euro Changeover (Amounts) Act 2001 (16/2001), s. 1(3) and schs. 3, 4, commenced as per s. 1(3).
F84
Substituted (3.12.2013) by Personal Insolvency Act 2012 (44/2012), s. 158, S.I. No. 462 of 2013.
Absconding debtor.
(1872, c. 57, s. 12)
124.—If any person with intent to defraud his creditors leaves the State and takes with him, or attempts or makes preparation to leave the State and take with him, any part of his property to the amount of F85[€650] or upwards, he shall be guilty of an offence.
Annotations:
Amendments:
F85
Substituted (1.01.2002) by Euro Changeover (Amounts) Act 2001 (16/2001), s. 1(3) and schs. 3, 4, commenced as per s. 1(3).
Corrupt agreement with creditors.
(cf. 1857, s. 150 in pt.; 1872, s. 76)
125.—If any creditor of a bankrupt or an arranging debtor obtains or accepts any property from the bankrupt or arranging debtor or any other person as an inducement for forbearing to oppose or for accepting any offer of composition or proposal or any modification thereof made by or on behalf of the bankrupt or arranging debtor, the claim of the creditor shall be void and irrecoverable and the creditor and such other person (if any) shall each be guilty of an offence.
False claim.
(1872, c. 57, s. 14)
126.—If any creditor, or any person claiming to be a creditor, in any bankruptcy or arrangement with intent to defraud makes any false claim or any proof, declaration or statement of account which is untrue in any material particular, he shall be guilty of an offence.
Non-disclosure of after-acquired property.
(New)
127.—A bankrupt who fails to disclose to the Official Assignee any after-acquired property shall be guilty of an offence.
Obstructing officers.
(cf. 1857, s. 389)
128.—Any person who knowingly and wilfully resists, hinders or obstructs the Bankruptcy Inspector or any of his assistants or any other person in the execution of his duties under this Act shall be guilty of an offence.
Obtaining credit or trading under other name.
(New)
129.—A bankrupt or an arranging debtor who—
(a) either alone or jointly with any other person obtains credit to the extent of F86[€650] or upwards from any person without informing that person that he is a bankrupt or an arranging debtor, or
(b) engages in any trade or business under a name other than that under which he was adjudicated bankrupt or granted protection without disclosing to all persons with whom he enters into any business transactions the name under which he was so adjudicated or granted protection,
shall be guilty of an offence.
Annotations:
Amendments:
F86
Substituted (1.01.2002) by Euro Changeover (Amounts) Act 2001 (16/2001), s. 1(3) and schs. 3, 4, commenced as per s. 1(3).
F87[
Arranging publication of notice without authority
130. A person who—
(a) arranges for or causes the publication of a notice under this Act—
(i) in the Iris Oifigiúil,
(ii) in a newspaper, or
(iii) on the website of the Insolvency Service of Ireland,
without authority under this Act, or
(b) arranges or causes the publication of such a notice, knowing that the contents of such notice are false in a material respect,
shall be guilty of an offence.]
Annotations:
Amendments:
F87
Substituted (24.12.2013) by Companies (Miscellaneous Provisions) Act 2013 (46/2013), s. 10(c), commenced as per s. 11(4).
Criminal liability after annulment.
(New)
131.—Where a bankrupt or arranging debtor has been guilty of any offence, he shall not be exempt from being proceeded against for the offence by reason that his bankruptcy has been discharged or annulled or that his proposal has been carried into effect.
Punishment of offences.
(New)
132.—(1) Every person guilty of an offence under this Act shall be liable—
(a) on summary conviction, to a fine not exceeding £500 or, at the discretion of the Court, to imprisonment for a term not exceeding twelve months or to both the fine and the imprisonment, or
(b) on conviction on indictment, to a fine not exceeding £1,000 or, at the discretion of the Court, to imprisonment for a term not exceeding five years or to both the fine and the imprisonment.
(2) Section 13 of the Criminal Procedure Act, 1967, shall apply in relation to an offence under this Act as if, in lieu of the penalties provided for in subsection (3) of the said section, there were specified therein the penalties provided for in subsection (1) (a) of this section, and the reference in subsection (2) (a) of the said section 13 to the penalties provided for in the said subsection (3) shall be construed and have effect accordingly.
Annotations:
Modifications (not altering text):
C42
Application of section affected (4.01.2011) by Fines Act 2010 (8/2010), ss. 3, 6(2), (3) and 9, S.I. No. 662 of 2010. The Euro equivalent of £500 is €634.87 and of £1,000 is €1,269.74.
Definitions
3.— In this Part—…
“class C fine” means a fine not exceeding €2,500;
…
Class C Fines
6.— …
(2) Subject to subsection (3), where an enactment enacted during a period specified in column (2) of the Table opposite a particular reference number specified in column (1) of the Table provides that a person who commits an offence under the enactment shall be liable, upon summary conviction, to a fine not exceeding an amount that falls within the range of amounts specified in column (3) of the Table opposite the same reference number, a person who commits that offence after the commencement date shall, upon summary conviction, not be liable to that fine, but shall instead be liable to a class C fine.
(3) Where an enactment enacted before the commencement date provides that a person who commits an offence under the enactment shall be liable, upon summary conviction, to a fine not exceeding an amount that—
(a) was provided for by virtue of a subsequent enactment enacted during a period specified in column (2) of the Table opposite a particular reference number specified in column (1) of the Table, and
(b) falls within the range of amounts specified in column (3) of the Table opposite the same reference number,
a person who commits that offence after the commencement date shall, upon summary conviction, not be liable to that fine but shall instead be liable to a class C fine.
TABLE
Reference Number
(1)
Period
(2)
Range of amounts
(3)
…
…
…
3.
1 January 1980 to 31 December 1989
Not greater than €1,455 but greater than €582
…
…
…
…
Increase in amount of certain fines upon conviction on indictment.
9.— (1) Subject to subsection (2), where the maximum fine upon conviction on indictment of an offence is specified in an enactment that was enacted during a period specified in column (2) of the Table opposite a particular reference number specified in column (1) of the Table, a person who commits that offence after the commencement date shall not be liable to that fine, but shall, instead, be liable, upon conviction on indictment, to a fine not exceeding an amount calculated by multiplying the said maximum fine by the multiplier specified in column (3) of the Table opposite the same reference number.
(2) Where the maximum fine upon conviction on indictment of an offence specified in an enactment was provided for by virtue of a subsequent enactment that was enacted during a period specified in column (2) of the Table opposite a particular reference number specified in column (1) of the Table, a person who commits that offence after the commencement date shall not be liable to that fine, but shall, instead, be liable, upon conviction on indictment, to a fine not exceeding an amount calculated by multiplying the said maximum fine by the multiplier specified in column (3) of the Table opposite the same reference number.
TABLE
Reference Number
(1)
Period
(2)
Multiplier
(3)
…
…
…
2.
1 January 1980 to 31 December 1989
2
…
…
Bankruptcy Rules of the Superior Court
Back to Index
X. Sale of property
59. (1) In a sale in a bankruptcy or in a vesting arrangement by auction or by tender it shall be at the discretion of the Official Assignee as to whether or not a reserve price shall be fixed.
(2) The Official Assignee shall be at liberty to retain an auctioneer or valuer, independently of the auctioneer having carriage of the sale, to advise him as to value in a case where he proposes to fix a reserve price.
(3) The amount of a reserve price fixed by the Official Assignee shall not be disclosed until after the completion of bidding for the property save with the prior consent of the Official Assignee or by direction of the Court.
(4) In the case of a sale by auction, the auctioneer shall as soon as possible after the auction certify to the Official Assignee the result of the auction. Where the Official Assignee has not retained an auctioneer or valuer in pursuance of sub-rule (2) of this rule, the auctioneer shall give his opinion as to the value of the property.
60. When an Order has been made by the Court for the sale of any land or any policies of assurance, or where the Official Assignee otherwise requires, the solicitor having carriage of sale shall prepare and lodge with the Official Assignee a statement of title and conditions of sale. The Official Assignee shall settle the statement of title and conditions of sale and may direct such advertisements and give notice to such persons (if any) as he thinks necessary. He may also direct such searches and require the production of such evidence as he thinks necessary. The Official Assignee shall be at liberty in any case to direct that the statement of title and conditions of sale shall be settled by Counsel.
61. (1) An application for sale by a person claiming to be a mortgagee of, or to have any charge or lien upon, any property of a bankrupt or arranging debtor who vests his property may be made by notice of motion grounded on an affidavit or affidavits.
(2) The notice shall set forth particulars of the amount claimed for principal and interest and pray that the property be sold under the direction of the Court.
(3) The applicant shall state on affidavit whether he holds any other security for that amount whether from the debtor or any other person, and the particulars of the security.
(4) On every application under this rule the applicant shall satisfy the Court by evidence whether the property is or is not subject to any other incumbrances and shall show that searches have been made for incumbrances and that every other incumbrancer has had notice of the application and consents to the sale.
(5) Upon the hearing of the motion the Court shall proceed to enquire whether such person is such mortgagee, or has such charge or lien and for what consideration and under what circumstances, and if no sufficient objection shall appear to the title of such person to the sum claimed by him, the Court may declare the claim of such person to be proved and established subject to the taking of such accounts and making of such enquiries, if any, by the Official Assignee, as the Court may direct.
(6) The Court may order the property to be sold in such manner and subject to such conditions (if any) as it may deem fit.
(7) In cases in which no application is made by a mortgagee under this rule, the Court may order that any part of the bankrupt’s or arranging debtor’s estate and effects which is subject to any mortgage, charge or lien shall be sold subject to such mortgage, charge or lien, and the same shall be sold accordingly. No Order shall be made under this rule without notice to the person entitled to such mortgage, charge or lien.
(8) Every application under this rule shall be made on notice to the Official Assignee and the Court may adjourn the application to enable notice to be given to such other person or persons as it may direct.
Back to Index
XI. Discovery
62. Any party to any proceeding under this Order may with the leave of the Court deliver interrogatories to or obtain discovery of documents from any other party to such proceeding, and the provisions of Order 31 shall apply as far as practicable.
XII. Persons under Disability
63. The Court shall have power to appoint a next friend and also a guardian ad litem to any minor or other person under disability who is a party to any proceedings under this Order, and the provisions of Order 15 Part II shall apply as far as practicable.
XIII. Sittings, Advertisements and Proof of Debts
64. (1) Notice of the statutory sitting shall be advertised by the petitioner not less than ten days previously in Iris Oifigiúil and in the newspaper or newspapers directed by the Court in pursuance of section 17(2) of the Act. The notice shall be in the Form No. 19.
(2) Notice of the filing of the documents referred to in section 82(1) of the Act and of the sitting for distribution shall be advertised by the Official Assignee in Iris Oifigiúil and in such newspaper or newspapers (if any) as he considers appropriate. The notice shall be in the Form No. 20.
(3) Every insertion of an advertisement of notice of a sitting of the Court shall be vouched with the proper officer by the person having the duty of inserting the advertisement at least two clear days before the sitting at the latest.
65. (1) The Official Assignee or a trustee may give notice, by advertisement in Iris Oifigiúil and otherwise as he shall think fit, of the fixing of a time within which proofs of debt shall be sent to him. Such advertisement shall be in the Form No. 21.
(2) In addition to advertisement, such notice shall be given by the Official Assignee or trustee to all the creditors entered in the bankrupt’s statement of affairs or any other creditor of whom the Official Assignee or trustee is aware, who shall not already have lodged proofs or claims with him.
(3) In the case of any creditor mentioned in sub-rule (2) who has his habitual residence, domicile or registered office in a Member State other than the State, such notice, entitled as required by Article 42(1) of the Insolvency Regulation, shall be in the Form No. 21A and shall in particular include (i) the date by which proofs of debt are to be submitted, (ii) a statement that a proof submitted after that date shall not be allowed except by order of the Court, (iii) a statement that creditors whose claims are preferential or secured in rem need to lodge their claims, (iv) a statement of the name and address of the Official Assignee for the purpose of lodging claims and a summary or copy of the provisions of the First Schedule to the Act.
(4) The notice referred to in sub-rules (2) and (3) shall be given by prepaid ordinary post to the creditors at the address set forth in the statement or at such address as may be known to the Official Assignee or trustee (or in the case of the liquidator in main proceedings opened in a Member State other than the State, by the means specified in rule 1(3)) not later than ten days before the expiration of the time so fixed.
66. (1) Written confirmation of the decision of the Official Assignee or trustee in regard to a claim in accordance with paragraph 23(d) of the First Schedule to the Act shall be delivered by the means specified in rule 65(4) to the creditor at the address furnished in his proof of debt.
(2) The creditor may if aggrieved by the decision of the Official Assignee or trustee, within fourteen days from the date of posting, appeal to the Court by notice of motion to vary or reverse the same.
67. (1) If at the statutory sitting, an application is made for the appointment of a creditors’ assignee, the Court may adjourn the sitting for such time as may enable the Official Assignee to ascertain the debts and liabilities of the bankrupt.
(2) When a sitting has been fixed for the choice and appointment of a creditors’ assignee in place of a creditors’ assignee who has died or been removed, notice of the sitting shall be given to all the creditors entered in the bankrupt’s statement of affairs and any other creditors who have proved debts by transmitting a notice of the sitting by the means specified in rule 65(4) ten days prior to the sitting to the address of the creditor stated in the statement or in his proof.
68. An affidavit of debt, when required, shall be in the Form No. 12.
Back to Index
XIV. Authority to Vote
69. (1) The instrument appointing a proxy shall be in writing under the hand of the creditor, or if such creditor is a corporation or company under the hand of the secretary or other person duly authorised by the corporation or company and shall be in the Form No. 22 and (unless it is otherwise expressly stated therein) shall be deemed and allowed as an authority to the appointee of the creditor to act and vote for him and on his behalf at all sittings and meetings of creditors or adjournments thereof.
(2) The instrument shall be filed in the proper office at least two clear days before the sitting or meeting at which the proxy is to attend.
XV. Evidence
70. Any affidavit to be used in any matter of bankruptcy or arrangement or proceedings under Part VI of the Act may be sworn before the Official Assignee or the proper officer.
71. A subpoena for the attendance of a witness at any sitting or trial shall be issued by the proper officer at the instance of the assignees, a creditor, a debtor, or any party, with or without a clause requiring the production of books, deeds, papers and writings in his possession or control, and in such subpoena the name of only one witness shall be inserted. A subpoena may be issued in blank as to the name of the witness only.
72. A sealed copy of the subpoena shall be served personally on the witness within a reasonable time before the time of the return thereof, and service of the subpoena shall where required be proved by affidavit.
73. Wherever a witness has made an affidavit or deposition in support of any application or proceeding in the Court, any party to such application or proceeding may by notice require the attendance of such witness for cross-examination.
74. An order to read evidence taken in another proceeding in the High Court shall not be necessary, but such evidence, saving all just exceptions, may be used on ex parte applications by leave of the Judge to be obtained at the time of making any such application, and in any other case upon the party desiring to use such evidence giving two days previous notice to the other parties of his intention to read such evidence.
75. The Court may in any matter limit the number of witnesses to be allowed on taxation of costs. The Court may allow the expenses of witnesses even though such witnesses have not been examined.
76. (1) Any person wishing to require the attendance of the Official Assignee or any other officer serving in the office of the Official Assignee at any court or place to give evidence in their official capacity or to produce any records in their custody, shall first apply to the Judge for liberty to do so. Where the Judge permits the attendance of any such officer to give evidence or to produce records, that officer shall be entitled to require that the person desiring his attendance shall deposit with him a sufficient sum of money to answer his just fees, charges and expenses, in respect of such attendance, and undertake to pay any further just fees, charges and expenses which may not be fully answered by such deposit.
(2) A summons to a bankrupt or any other person under section 21 of the Act to attend before the Court shall be in the Form No. 39.
(3) A warrant for the arrest of an absconding bankrupt under section 23 of the Act and for his production before the Court shall be in the Form No. 40.
(4) A warrant for the arrest of a bankrupt or any other person under section 23(2) or (3) of the Act shall be in the Form No. 41.
(5) A warrant of committal under section 24 of the Act shall be in the Form No. 42, Form No. 43 or Form No. 44 as the case may be.
(6) A warrant to direct the production of a bankrupt or any other person before the Court under section 25 of the Act shall be in the Form No. 45.
(7) A warrant of seizure issued under section 27 of the Act shall be in the Form No. 46.
(8) A search warrant issued under section 28 of the Act shall be in the Form No. 47.
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XVI. Execution
77. Order 42 shall so far as practicable apply in bankruptcy and arrangement proceedings and in proceedings under Part VI of the Act save that—
(a) execution orders and orders in aid of execution orders shall be issued and sealed by the proper officer,
(b) praecipes shall be filed in the proper office,
(c) orders when executed and returns and other documents relating to the same which are required to be filed shall be filed in the proper office.
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XVII. Absconding Debtor
78. Where a debtor is arrested in pursuance of a warrant issued under section 9 of the Act he shall be brought before the next sitting of the Court and shall be safely kept until such sitting by being lodged in the prison specified in the warrant of arrest in the Form No. 38.
XVIII. Bankrupt’s Remuneration and Superannuation
79. Where the Official Assignee intends to apply to the Court for an Order for the payment to the Official Assignee of all or part of the salary, income, emolument or pension of a bankrupt, notice shall be given to the bankrupt of such intention, and of the time and place fixed for the hearing of the application, and the bankrupt shall be at liberty to attend and show cause against an Order being made on the application.
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XIX. The Bankrupt’s Statement of Affairs
80. Unless the Court otherwise directs, the bankrupt shall, not later than two clear days before the day fixed for the statutory sitting, lodge with the Official Assignee his statement of affairs in the Form No. 23 verified on oath, complete, regularly paged, and signed by him on each page, with all the columns and blanks accurately filled up, and the Official Assignee shall examine same so as to ascertain whether it be so complete, and shall refuse to stamp same, and the bankrupt shall not file same, until presented to the Official Assignee complete, unless the Court shall otherwise direct.
81. The bankrupt shall, in addition to filing the statement of affairs in the Central Office, thereupon file in the proper office a duplicate of his said statement of affairs duly stamped by the Official Assignee. The proper officer shall thereupon transmit a true copy of the same to the Official Assignee. When the bankrupt shall be entitled to any lands or tenements in the occupation of tenants the statement of affairs (unless a receiver has been appointed over such lands and a rental lodged by him) shall contain a rental setting forth the denominations, head rent (if any), tenants’ names and addresses, tenure, gale days, annual or other rents and the amount of rent due to the gale day next preceding the bankruptcy, or such rental in duplicate duly verified shall be filed at the same time as the statement of affairs. If a receiver has been appointed over the lands and a rental lodged by him the statement of affairs shall contain a reference to such rental and the proceedings wherein the same has been lodged.
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XX. Creditors’ Assignee
82. No creditors’ assignee shall retain in his possession or custody any money whatsoever belonging to the estate of the bankrupt and if any such moneys should be paid to or be received by the creditors’ assignee he shall, subject to the Insolvency Regulation, forthwith pay or transmit the same to the Official Assignee in the matter, or lodge same in Court to the credit of the Official Assignee and the particular estate, and should he neglect to do so, he shall be charged by the Court with interest thereon at the rate of twenty per cent, per annum for such time as he shall have so retained the same.
XXVII. Official Assignee
144. The Official Assignee shall not, directly or indirectly, carry on any trade or business, or hold or be engaged in any office or employment other than his office and employment as Official Assignee.
145. The Official Assignee shall on an adjudication deliver personally or transmit by post to the bankrupt a notice requiring him to furnish lists of his debtors and creditors and to make a full disclosure of his estate and effects. On being furnished with the list of the bankrupt’s creditors, the Official Assignee shall examine the same with the aid of the bankrupt’s books so as to be prepared to oppose improper proofs.
146. The Official Assignee, immediately on receiving the statement of affairs of the bankrupt, shall examine the same, and may communicate fully with the creditors’ assignee (if any), with the petitioning creditor, with the solicitor for the assignees, and with the bankrupt, upon any part of the statement as he shall consider necessary.
147. In every adjudication against two or more partners, the Official Assignee shall keep in his books distinct accounts of the joint estate and of each separate estate.
148. All moneys ordered by the Court to be invested shall be invested in the name of the Official Assignee. No investment shall be sold or transferred, except pursuant to the Order of the Court.
149. The Official Assignee shall, in every matter of bankruptcy or arrangement or in proceedings under Part VI of the Act in which he receives money or other funds, cause an account to be opened in the books of the Bank to be headed:—
Record No.
The Estate of ………………….
Bankrupt
Arranging Debtor (as the case may be)
Insolvent deceased
The Official Assignee shall forthwith lodge in the Bank to such account all moneys and other funds received by him in that matter.
150. No payment or transfer, shall be made by the Bank out of any such estate account, except upon a draft or authority in the prescribed form signed by the Official Assignee, or in his absence by the Deputy Official Assignee, and countersigned by such officer in the office of the Official Assignee as shall be appointed for that purpose by the Official Assignee.
151. In addition to the account to be opened for each such matter a general cash account to be called the “Bankruptcy General Account” shall be kept by the Bank in which the Official Assignee shall be credited with the lodgments to credit of the respective estate accounts under his charge, and shall be debited with the payments made by him out of the said respective estate accounts.
152. For the purpose of providing temporarily for payments for which no funds are immediately available in the particular estate against which they are chargeable, a standing imprest or advance of €6,500 shall be issued to the Official Assignee out of the Official Assignee — Unclaimed Dividend Account and shall be lodged to the credit of the Official Assignee in a separate account in the Bank, for which sum the Official Assignee shall be accountable to the Court. The Official Assignee may make such advances out of the said imprest as he shall deem advisable. The Official Assignee shall, in every case in which he shall so make advances be recouped the amount properly advanced out of the first moneys lodged to credit of the estate for which the advance is made which are applicable to the recoupment; provided, however, that this rule shall not be construed as exonerating a petitioning creditor from indemnifying the Official Assignee in respect of costs, fees and expenses as provided by rule 30.
153. On or before the 31st January and the 31st July in every year the Official Assignee shall lodge with the proper officer a verified statement in the prescribed form, showing respectively to the 31st December and the 30th June then next preceding, the total amounts of his receipts and payments in respect of every matter of bankruptcy and arrangement on account of which money has been received or paid in the six months ending on the said last mentioned days, or upon which there remained any balance of money or any property undisposed of at the commencement of the said period of six months, and showing the balance (if any) in respect of each such matter at the close of the period to which the said statement relates. The proper officer shall transmit such statement to the Judge.
154. The accounts of the Official Assignee shall in all cases be vouched before the proper officer previous to the sitting for distribution.
155. (1) The proper officer may at such time or times as he deems fit and shall, when directed by the Court and in any event at least once within every period of two years, carry out an audit of the books of the Official Assignee. For the purposes of such audit, the proper officer shall be entitled to inspect the books, files and other records of the Official Assignee and to call upon the Official Assignee to produce such documents as may be required to vouch any transaction arising in the Official Assignee’s books or otherwise involving the receipt or payment of money or other funds or the receipt or disposal of property by the Official Assignee, in respect of which the proper officer requires an explanation.
(2) Should any material discrepancy or delay in realisation appear for which a satisfactory explanation is not forthcoming, the proper officer shall forthwith report the matter to the Court.
(3) If any unnecessary delay shall take place in any proceedings in bankruptcy or arrangement the bankrupt or the arranging debtor or any creditor, assignee or trustee shall be at liberty to bring the matter before the Court.
(4) If it shall appear that the Official Assignee has neglected to account forthwith, the proper officer shall report such neglect to the Court.
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XXVIII. Unclaimed Dividend Account.
156. The Official Assignee shall transfer all unclaimed dividends and all money unclaimed remaining in his hands to the Official Assignee — Unclaimed Dividend Account kept in books of the Bank in accordance with section 84 of the Act.
157. Any application for payment of an unclaimed dividend shall be made by lodging with the Official Assignee an affidavit setting forth full details of the applicant’s entitlement to payment and, if found correct, the Official Assignee shall make out a draft upon the Official Assignee — Unclaimed Dividend Account for the amount thereof.
158. No payment or transfer shall be made by the Bank out of the Official Assignee — Unclaimed Dividend Account except upon a draft or authority in the prescribed form signed by the Official Assignee or in his absence by the Deputy Official Assignee and countersigned by such officer in the Office of the Official Assignee as shall be appointed for that purpose by the Official Assignee.
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XXIX. Records.
159. The following books according to the forms heretofore in use in the Court or as may be sanctioned by the Judge shall be kept by the proper officer:—
(a) Indices of Bankruptcies, Arrangements and Insolvent Deceaseds,
(b) Bankruptcy Petition Book,
(c) Arrangement Petition Book,
(d) Insolvent Deceaseds Petition Book,
(e) Register of Bankruptcy Summonses,
(f) Day List of all Sittings appointed before the Court,
(g) Office Directions Book,
(h) Registrar’s Minute Book, and
(i) such other books and records as shall from time to time be prescribed by the Judge.
160. (1) The following books according to the forms heretofore in use or as may be sanctioned by the Judge shall be kept by the Official Assignee:—
(a) a debtors’ book, containing a record of debts due to each estate and amounts recovered,
(b) a creditors’ book, containing a record of the claims on each estate,
(c) a cash book, containing a record of all receipts and payments,
(d) a ledger, containing a debtor and creditor account of each estate,
(e) lists of all deeds, securities and valuables delivered to him, and
(f) lists of all books and papers delivered to him.
(2) The Official Assignee shall maintain the register required by section 140A(1) of the Act in the form from time to time prescribed by the Judge.
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XXX. Discharge and Annulment.
161. (1) A person whose bankruptcy has been discharged by virtue of section 85(1) of the Act and who is entitled to have property returned to him in accordance with section 85(2) of the Act shall be at liberty to apply to the Court for an Order directing the Official Assignee to return the property to him.
(2) An application in pursuance of sub-rule (1) shall be grounded upon an affidavit of the bankrupt showing satisfactory evidence of the identity of the applicant. Notice of the application and a copy of such affidavit shall be served upon the Official Assignee not less than ten days prior to the hearing thereof.
(3) The Court shall, upon receipt of a report from the Official Assignee confirming that provision has been made for the payment of the expenses, fees, costs and preferential payments due in the bankruptcy, direct the return to the applicant of the property remaining after such provision.
162. Where at a sitting for distribution it shall appear to the Court that the requirements of section 85(3)(a)(i) of the Act have been fulfilled, the Court may order that the bankruptcy be discharged.
163. (1) An application by a bankrupt for an order discharging his bankruptcy on the ground set forth in section 85(3)(a)(ii) of the Act shall be grounded upon an affidavit of the bankrupt exhibiting a consent to such discharge, in the Form No. 35, from each of his creditors. Notice of the application and a copy of such affidavit shall be served upon the Official Assignee not less than ten days prior to the hearing thereof.
(2) The Court shall, upon receipt of a report from the Official Assignee confirming that provision has been made for payment of the expenses, fees, costs and preferential payments due in the bankruptcy, order that the bankruptcy be discharged.
(3) No application shall be made under this rule until the Official Assignee has ascertained the debts and liabilities of the bankrupt.
164. (1) An application by a bankrupt for an order discharging his bankruptcy in pursuance of section 85(4) of the Act shall be grounded upon an affidavit of the bankrupt setting forth the grounds upon which he claims to be entitled to a discharge. Notice of the application and a copy of such affidavit shall be served upon the Official Assignee not less than ten days prior to the hearing thereof.
(2) The Court, upon receipt of a report from the Official Assignee confirming that provision has been made for payment of the expenses, fees, costs and preferential payments due in the bankruptcy, may grant the application.
(3) Where the application is made on the ground that the bankruptcy has subsisted for twelve years,
(a) the bankrupt shall in his affidavit disclose all his after-acquired property, and
(b) the Official Assignee shall in his report confirm whether in his opinion all after-acquired property has been disclosed by the bankrupt and whether in his opinion it is reasonable and proper that the application be granted.
165. (1) An application for a certificate of discharge may be made by way of motion of course.
(2) A certificate of discharge shall be in the Form No. 48.
166. A certificate of annulment shall be in the Form No. 49.
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XXXI. Costs
167. The costs of the petitioning creditor provided for by section 12 of the Act shall, when taxed and ascertained, be paid out of the first net proceeds of the estate of the bankrupt next in priority to the costs, fees and expenses of the Official Assignee, unless the Court otherwise orders.
XXXII. General
168. (1) Whenever an Order made on or before the 31st December 1988 directs the Examiner to take an account of the amount due in respect of a mortgage debt and such account has not been taken or completed by the Examiner, then all such orders shall be read as if the words “Official Assignee” were inserted for “Examiner”, and the Official Assignee shall take (or complete the taking of) such account accordingly.
(2) Whenever an Order made on or before the 31st December 1988 directs an inquiry to be conducted in respect of the due priority of a mortgage debt by the Examiner and such inquiry has not been conducted or completed by the Examiner, then all such orders shall be read as if the words “Official Assignee” were inserted for “Examiner”, and the Official Assignee shall conduct (or complete) such inquiry accordingly.
169. An application by the Official Assignee or a trustee, for the purposes of Article 19 of the Insolvency Regulation, for a certificate referred to in section 140C of the Act shall be made by the production by the Official Assignee or, as the case may be, the trustee, to the Master of a true copy of the order of the Court referred to in paragraph (a), (b)or (c) (as the case may be) of section 140C of the Act. The certificate shall be in the Form No. 50.