Personal Insolvency (Amendment) Act 2015
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Number 32 of 2015 | ||
Personal Insolvency (Amendment) Act 2015 | ||
CONTENTS | ||
Section | ||
7. Approval of proposed Debt Settlement Arrangement where only one creditor | ||
17. Approval of proposed Personal Insolvency Arrangement where only one creditor | ||
21. Court review of proposed Personal Insolvency Arrangement | ||
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Acts Referred to | ||
Bankruptcy Act 1988 (No. 27) | ||
Courts and Civil Law (Miscellaneous Provisions) Act 2013 (No. 32) | ||
Finance Act 2013 (No. 8) | ||
Personal Insolvency Act 2012 (No. 44) | ||
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Number 32 of 2015 | ||
PERSONAL INSOLVENCY (AMENDMENT) ACT 2015 | ||
An Act to amend the Personal Insolvency Act 2012 in relation to the procedures for the approval of Debt Settlement Arrangements and Personal Insolvency Arrangements under that Act; to provide for court review of proposed Personal Insolvency Arrangements in certain circumstances; to amend the eligibility criteria for Debt Relief Notices; to further provide for the regulation and supervision of personal insolvency practitioners; and to provide for related matters. | ||
[28 th July, 2015] | ||
Be it enacted by the Oireachtas as follows: | ||
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Definition | ||
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1. In this Act “Principal Act” means the Personal Insolvency Act 2012 . | ||
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Amendment of section 9 of Principal Act | ||
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2. Section 9(1) of the Principal Act is amended by— | ||
(a) the substitution of the following for paragraph (e): | ||
“(e) promote public awareness and understanding of matters relating to personal insolvency, and provide information on the working of this Act and of the Bankruptcy Act 1988 , and on related matters including those specified in paragraphs (jb), (jc) and (jd),”, | ||
and | ||
(b) the insertion of the following after paragraph (ja) (inserted by section 38 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 ): | ||
“(jb) compile, collect, analyse and disseminate information and statistics on the operation of this Act and of the Bankruptcy Act 1988, | ||
(jc) monitor and analyse developments, as respects the situation of insolvent debtors and trends in, and patterns of, debtor and creditor behaviour, | ||
(jd) develop strategies for communicating with the public aimed at promoting the use of insolvency arrangements and enhancing their effective application,”. | ||
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Amendment of section 26 of Principal Act | ||
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3. Section 26 of the Principal Act is amended in subsection (2)(a) by the substitution of “€35,000” for “€20,000”. | ||
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Amendment of section 71 of Principal Act | ||
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4. Section 71 of the Principal Act is amended— | ||
(a) in subsection (1), by the insertion of “and section 74A(2)(b) (inserted by section 7 of the Personal Insolvency (Amendment) Act 2015)” after “section 70(2)(b) ”, and | ||
(b) by the substitution of the following for subsection (2): | ||
“(2) Where a debtor’s financial position has materially changed in the period between the completion by him or her of a Prescribed Financial Statement under section 50 and the giving of a notice under section 70(2) or, as the case may be, section 74A(2) (inserted by section 7 of the Personal Insolvency (Amendment) Act 2015)— | ||
(a) the debtor shall inform the personal insolvency practitioner of that fact and of the nature of such change, and | ||
(b) the personal insolvency practitioner shall, if he or she considers that the change necessitates the completion of a new Prescribed Financial Statement, assist the debtor in completing such a new statement, and where those circumstances arise a reference in this section to the Prescribed Financial Statement shall be construed as a reference to the new Prescribed Financial Statement. | ||
(3) Where a new Prescribed Financial Statement is completed pursuant to subsection (2), the personal insolvency practitioner shall furnish a copy of that Statement to the Insolvency Service.”. | ||
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Amendment of section 72 of Principal Act | ||
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5. Section 72 of the Principal Act is amended— | ||
(a) in subsection (7), by the insertion of “or deemed to have been approved” after “approved”, and | ||
(b) by the deletion of subsection (8). | ||
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Amendment of section 73 of Principal Act | ||
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6. Section 73 of the Principal Act is amended— | ||
(a) by the substitution of the following for subsection (6): | ||
“(6) A proposal for a Debt Settlement Arrangement shall be considered as having been approved by a creditors’ meeting held under this Chapter where creditors representing not less than 65 per cent of the total amount of the debtor’s debts due to the creditors participating in the meeting and voting have voted in favour of the proposal.”, | ||
and | ||
(b) in subsection (7), by the substitution of “Where a vote is held under section 72(5) and no creditor votes,” for “Where no creditor votes,”. | ||
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Approval of proposed Debt Settlement Arrangement where only one creditor | ||
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7. The Principal Act is amended by the insertion of the following after section 74: | ||
“74A. (1) Where— | ||
(a) a personal insolvency practitioner has prepared a proposal for a Debt Settlement Arrangement and the debtor has consented to that proposal, and | ||
(b) only one creditor would be entitled to vote at a creditors’ meeting held under this Chapter (whether in respect of one or more debts), | ||
the procedures specified in this section, and not those specified in sections 70, 72 and 73, shall apply in relation to the approval by that creditor of the proposal for a Debt Settlement Arrangement. | ||
(2) A personal insolvency practitioner referred to in subsection (1) shall— | ||
(a) give written notice to the creditor that the proposal for a Debt Settlement Arrangement has been prepared and that the creditor may, within the period specified in subsection (6) (a), notify the personal insolvency practitioner in writing of his or her approval or otherwise of that proposal, | ||
(b) ensure that the notice referred to in paragraph (a) is accompanied by a copy of each of the documents referred to in section 71, and | ||
(c) lodge a copy of the notice referred to in paragraph (a) and the documents referred to in paragraph (b) with the Insolvency Service. | ||
(3) A personal insolvency practitioner who has complied with subsection (2) may, where he or she believes it is in the interests of obtaining approval of a proposed Debt Settlement Arrangement by the creditor and with the consent in writing of the debtor, prepare an amended proposal for a Debt Settlement Arrangement. | ||
(4) Where the personal insolvency practitioner prepares an amended proposal for a Debt Settlement Arrangement pursuant to subsection (3) he or she shall— | ||
(a) give written notice to the creditor that he or she may, within the period specified in subsection (6)(b), notify the personal insolvency practitioner in writing of his or her approval or otherwise of the amended proposal, which notice shall be accompanied by a copy of the amended proposal, | ||
(b) give the debtor a copy of the documents referred to in paragraph (a), and | ||
(c) lodge a copy of the documents referred to in paragraph (a) with the Insolvency Service. | ||
(5) A proposal for a Debt Settlement Arrangement may, before the creditor has notified the personal insolvency practitioner of his or her approval or otherwise of the proposal, be subject to a proposal for a modification where the modification addresses an ambiguity or rectifies an error in the proposed Debt Settlement Arrangement and where— | ||
(a) the modification has been proposed by the creditor or the personal insolvency practitioner, and | ||
(b) the debtor gives his or her written consent to the modification. | ||
(6) A creditor to whom this section applies shall notify the personal insolvency practitioner in writing of his or her approval or otherwise of a proposal for a Debt Settlement Arrangement within— | ||
(a) 14 days of the giving to him or her of the notice under subsection (2), or | ||
(b) if later, 7 days of the date on which a notice under subsection (4) (a) is first given to him or her. | ||
(7) A proposal for a Debt Settlement Arrangement to which this section applies— | ||
(a) shall be considered as having been approved by the creditor concerned where that creditor notifies the personal insolvency practitioner in accordance with subsection (6) of the creditor’s approval of that proposal, and | ||
(b) where that creditor fails to comply with subsection (6), shall be deemed to have been approved by the creditor concerned. | ||
(8) Where a creditor to whom this section applies notifies the personal insolvency practitioner in accordance with subsection (6) that he or she does not approve of the proposal, the Debt Settlement Arrangement procedure shall be deemed to have come to an end and the protective certificate issued under section 61 shall cease to have effect. | ||
(9) Where a personal insolvency practitioner fails to give the creditor a notice under subsection (2) before the expiry of the protective certificate, the Debt Settlement Arrangement procedure shall be deemed to have come to an end. | ||
(10) Where this section applies, a reference in section 61(13) to section 73 shall be construed as a reference to this section.”. | ||
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Amendment of section 75 of Principal Act | ||
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8. Section 75 of the Principal Act is amended— | ||
(a) by the substitution of the following for subsection (1) (as amended by section 71 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 ): | ||
“(1) Where a Debt Settlement Arrangement is approved or, as the case may be, deemed to have been approved at a creditors’ meeting in accordance with section 73, the personal insolvency practitioner shall as soon as practicable after the meeting has concluded notify the Insolvency Service and each creditor concerned of that approval or, as the case may be, deemed approval, which notification shall be accompanied by— | ||
(a) (i) subject to subparagraph (ii), a certificate with the result of the vote taken at the creditors’ meeting, identifying the number of votes, in value of the creditors present and voting, in favour of and against the proposed Debt Settlement Arrangement, and stating that the requisite proportion of creditors referred to in section 73(6) has approved the proposal for a Debt Settlement Arrangement, or | ||
(ii) where section 73(7) applies to the proposal, a certificate to that effect, | ||
(b) a copy of the approved Debt Settlement Arrangement, and | ||
(c) a statement by the personal insolvency practitioner to the effect that he or she is of the opinion that— | ||
(i) the debtor satisfies the eligibility criteria for the proposal of a Debt Settlement Arrangement specified in section 57, | ||
(ii) the approved Debt Settlement Arrangement complies with the mandatory requirements referred to in section 65(2), and | ||
(iii) the approved Debt Settlement Arrangement does not contain any terms that would release the debtor from an excluded debt, an excludable debt (other than a permitted debt) or a secured debt or otherwise affect such a debt.”, | ||
(b) by the insertion of the following after subsection (1): | ||
“(1A) Where a Debt Settlement Arrangement is approved or, as the case may be, deemed to have been approved in accordance with section 74A(7)(inserted by section 7 of the Personal Insolvency (Amendment) Act 2015), the personal insolvency practitioner shall as soon as practicable thereafter notify the Insolvency Service and each creditor concerned of that approval or, as the case may be, deemed approval, which notification shall be accompanied by— | ||
(a) a certificate stating that section 74A applies to the proposed Debt Settlement Arrangement and that the proposal concerned has been approved or, as the case may be, deemed to have been approved in accordance with section 74A(7) by the only creditor entitled to vote on the proposal, | ||
(b) a copy of the approved Debt Settlement Arrangement, and | ||
(c) a statement by the personal insolvency practitioner to the effect that he or she is of the opinion that— | ||
(i) the debtor satisfies the eligibility criteria for the proposal of a Debt Settlement Arrangement specified in section 57, | ||
(ii) the approved Debt Settlement Arrangement complies with the mandatory requirements referred to in section 65(2), and | ||
(iii) the approved Debt Settlement Arrangement does not contain any terms that would release the debtor from an excluded debt, an excludable debt (other than a permitted debt) or a secured debt or otherwise affect such a debt.”, | ||
and | ||
(c) in subsection (2), by the insertion of “or, as the case may be, subsection (1A) (inserted by section 8 (b) of the Personal Insolvency (Amendment) Act 2015),” after “the documents referred to in subsection (1) ”. | ||
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Amendment of section 76 of Principal Act | ||
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9. Section 76 of the Principal Act is amended in subsection (1) by the insertion of “or, as the case may be, section 75(1A) (inserted by section 8(b) of the Personal Insolvency (Amendment) Act 2015)” after “pursuant to section 75(1) (as amended by section 71 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 )”. | ||
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Amendment of section 78 of Principal Act | ||
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10. Section 78 of the Principal Act is amended— | ||
(a) in subsection (2), by the substitution of the following for paragraph (a) (iv): | ||
“(iv) proposal for a Debt Settlement Arrangement, as the case may be— | ||
(I) has been approved by the requisite proportion of creditors referred to in section 73(6), | ||
(II) is one to which section 73(7) applies, or | ||
(III) has been approved or, as the case may be, deemed to have been approved in accordance with section 74A(7) (inserted by section 7 of the Personal Insolvency (Amendment) Act 2015),”, | ||
and | ||
(b) by the substitution of the following for subsection (5) (as amended by section 73 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 ): | ||
“(5) For the purposes of subsection (2), the appropriate court may accept— | ||
(a) the certificate of the personal insolvency practitioner referred to in section 75(1)(a)(i) (as amended by section 8 (a) of the Personal Insolvency (Amendment) Act 2015) as evidence that the proposal for a Debt Settlement Arrangement has been approved by the requisite proportion of creditors referred to in section 73(6), | ||
(b) the certificate of the personal insolvency practitioner referred to in section 75(1)(a)(ii) (as amended by section 8 (a) of the Personal Insolvency (Amendment) Act 2015) as evidence that the proposal for a Debt Settlement Arrangement is one to which section 73(7) applies, | ||
(c) the certificate of the personal insolvency practitioner referred to in section 75(1A) (inserted by section 8 (b) of the Personal Insolvency (Amendment) Act 2015) as evidence that the Debt Settlement Arrangement has been approved or, as the case may be, deemed to have been approved in accordance with section 74A(7) (inserted by section 7 of the Personal Insolvency (Amendment) Act 2015), and | ||
(d) the statement of the personal insolvency practitioner referred to in section 75(1)(c) (as amended by section 71 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 ) or, as the case may be, section 75(1A)(c) (inserted by section 8 (b) of the Personal Insolvency (Amendment) Act 2015) as evidence of any matter referred to in subsection (2) which is the subject of that statement.”. | ||
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Amendment of section 82 of Principal Act | ||
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11. The Principal Act is amended by the substitution of the following for section 82 (as amended by section 75 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 ): | ||
“82. (1) Subject to this section, a Debt Settlement Arrangement may be varied in accordance with its terms. | ||
(2) A personal insolvency practitioner, whether on his or her own initiative or on a request made in accordance with subsection (3), shall propose a variation of a Debt Settlement Arrangement (in this section referred to as a ‘variation’) where— | ||
(a) it appears to the personal insolvency practitioner that there has been a material change in the debtor’s circumstances, and | ||
(b) the personal insolvency practitioner is satisfied that there is a reasonable prospect that a variation that addresses such circumstances would be approved in accordance with this section. | ||
(3) A debtor or creditor who is bound by a Debt Settlement Arrangement may request the personal insolvency practitioner to propose a variation of the Arrangement, which request shall be— | ||
(a) in writing, | ||
(b) accompanied by information or evidence to support the assertion that there has been a material change in the debtor’s circumstances, and | ||
(c) accompanied by the written consent of the person making the request to the— | ||
(i) making by the personal insolvency practitioner of an enquiry under subsection (4), and | ||
(ii) disclosure by the personal insolvency practitioner of personal data of the person, to the extent necessary for such an enquiry. | ||
(4) A personal insolvency practitioner shall, within 21 days of receipt of a request under subsection (3), decide whether paragraphs (a) and (b) of subsection (2) apply in relation to the Debt Settlement Arrangement concerned and, for that purpose— | ||
(a) may request any further information he or she requires from the person who made the request, and | ||
(b) may make such enquiries as he or she considers necessary in order to arrive at his or her decision. | ||
(5) For the purpose of deciding, whether under subsection (4) or otherwise, whether paragraphs (a) and (b) of subsection (2) apply in relation to the Debt Settlement Arrangement concerned, the personal insolvency practitioner may require the debtor concerned, where necessary with the assistance of the personal insolvency practitioner, to complete a new Prescribed Financial Statement. | ||
(6) Where the personal insolvency practitioner is satisfied that paragraphs (a) and (b) of subsection (2) apply in relation to the Debt Settlement Arrangement concerned, he or she shall without delay— | ||
(a) require the debtor concerned, where necessary with the assistance of the personal insolvency practitioner, to complete a new Prescribed Financial Statement, unless the debtor has completed a Prescribed Financial Statement under subsection (5) and the information contained in it remains complete and accurate, | ||
(b) formulate a proposal for a variation, | ||
(c) seek the written consent of the debtor to the proposal and, subject to subsection (8), to the calling of a meeting of the creditors of the debtor for the purpose of considering the proposal, and | ||
(d) subject to subsection (8), where the consent of the debtor referred to in paragraph (c) has been given, arrange for the holding of the meeting referred to in that paragraph. | ||
(7) When calling a creditors’ meeting to be held under this section, the personal insolvency practitioner shall— | ||
(a) give each creditor at least 14 days’ written notice of the meeting and the date on which, and the time and place at which, the meeting will be held, | ||
(b) ensure that the notice referred to in paragraph (a) is accompanied by— | ||
(i) a written proposal for the variation of the Debt Settlement Arrangement, | ||
(ii) a report of the personal insolvency practitioner— | ||
(I) describing the outcome for the creditors and for the debtor under the terms of the proposal, and | ||
(II) indicating whether or not he or she is of the opinion that the debtor is reasonably likely to be able to comply with the terms of the Debt Settlement Arrangement as varied in accordance with the proposal, | ||
(iii) the Prescribed Financial Statement completed by the debtor under subsection (5) or (6), as the case may be, and | ||
(iv) such other information obtained by the personal insolvency practitioner under this section as he or she considers relevant, | ||
and | ||
(c) lodge a copy of the notice referred to in paragraph (a) and the documents referred to in paragraph (b) with the Insolvency Service. | ||
(8) Where only one creditor would be entitled to vote at a creditors’ meeting under this section (whether in respect of one or more debts), the personal insolvency practitioner shall, in place of holding such a meeting, give notice to the creditor of the proposal for a variation, and paragraphs (b) and (c) of subsection (7) shall apply in respect of that notice. | ||
(9) The provisions of sections 65 to 69 and sections 72 to 78 (other than subsections (2) and (3) of section 67, sections 72(4), 72(7), 73(2), 74A(7) (inserted by section 7 of the Personal Insolvency (Amendment) Act 2015), 75(1)(c)(i) (as amended by section 8 (a) of the Personal Insolvency (Amendment) Act 2015), 75(1A)(c)(i) (inserted by section 8 (b) of the Personal Insolvency (Amendment) Act 2015), 76(2), 77(3) and 78(2)(a)(i)) and section 87 shall apply in relation to a variation of a Debt Settlement Arrangement under this section, subject to the following modifications and any other necessary modifications— | ||
(a) a reference to a Debt Settlement Arrangement shall be construed as a reference to a Debt Settlement Arrangement as varied in accordance with this Chapter, | ||
(b) a reference to a proposal for a Debt Settlement Arrangement shall be construed as a reference to a proposal for the variation of a Debt Settlement Arrangement, and a reference to a proposed Debt Settlement Arrangement shall be construed as a reference to a proposed variation of a Debt Settlement Arrangement, | ||
(c) a reference to a Prescribed Financial Statement shall be construed as a reference to the Prescribed Financial Statement completed by the debtor under subsection (5) or (6), as the case may be, | ||
(d) the variation of a Debt Settlement Arrangement shall not have the effect of extending the duration of that Debt Settlement Arrangement beyond the maximum duration permitted under section 65(2)(a), | ||
(e) a Debt Settlement Arrangement as varied under this section shall, in addition to containing the information referred to in section 65(2) (e), make provision for the costs and outlays of the personal insolvency practitioner which relate to this section, | ||
(f) a reference to a creditors’ meeting shall be construed as a reference to a creditors’ meeting called under this section, | ||
(g) an adjournment pursuant to section 72(2) may occur once only in the course of a creditors’ meeting, and | ||
(h) a reference in section 78(5) (c) (as amended by section 10 (b) of the Personal Insolvency (Amendment) Act 2015) to section 74A(7) shall be construed as a reference to subsection (11). | ||
(10) The voting rights exercisable by a creditor at a creditors’ meeting under this section shall be proportionate to the amount of the debt due by the debtor to the creditor on the day on which the vote is held. | ||
(11) (a) Where subsection (8) applies, the creditor concerned shall notify the personal insolvency practitioner in writing of his or her approval or otherwise of a proposal for the variation of a Debt Settlement Arrangement within— | ||
(i) 14 days of the giving to him or her of the notice under that subsection, or | ||
(ii) if later, 7 days of the date on which a notice under section 74A(4)(a) is first given to him or her. | ||
(b) A proposal referred to in paragraph (a) — | ||
(i) shall be considered as having been approved by the creditor concerned where that creditor notifies the personal insolvency practitioner in accordance with that paragraph of the creditor’s approval of the proposal, and | ||
(ii) where that creditor fails to comply with that paragraph, shall be deemed to have been approved by the creditor concerned. | ||
(12) Where— | ||
(a) on the taking of a vote at a creditors’ meeting under this section, the proposal is not approved in accordance with section 73, | ||
(b) subsection (8) applies and the proposal is not approved in accordance with subsection (11), or | ||
(c) the appropriate court upholds the objection of a creditor to the variation of a Debt Settlement Arrangement coming into effect, | ||
the Debt Settlement Arrangement concerned shall, without prejudice to the other provisions of this Act, continue in effect without being subject to such variation. | ||
(13) Subsection (12) shall be without prejudice to the entitlement of the personal insolvency practitioner to propose another variation of the Debt Settlement Arrangement in accordance with this section. | ||
(14) Subject to subsection (15), an unreasonable refusal by the debtor to give his or her consent— | ||
(a) under subsection (6) to a proposal for a variation or the calling of a creditors’ meeting, or | ||
(b) under subsection (2) or (6) of section 72 or, as the case may be, subsection (3) or (5) of section 74A (inserted by section 7 of the Personal Insolvency (Amendment) Act 2015), | ||
shall be grounds for an application under section 83(1) (g). | ||
(15) A debtor who refuses to give his or her consent under a provision referred to in subsection (14) shall be considered to be acting reasonably where the proposal in relation to which the consent is sought would require the debtor— | ||
(a) where there has been an increase in the debtor’s income, to make additional payments in excess of 50 per cent of the increase in his or her income available to him or her after the following deductions (where applicable) are made: | ||
(i) income tax; | ||
(ii) social insurance contributions; | ||
(iii) payments made by him or her in respect of excluded debts; | ||
(iv) payments made by him or her in respect of excludable debts that are not permitted debts; | ||
(v) such other levies and charges on income as may be prescribed, | ||
or | ||
(b) to make a payment amounting to more than 50 per cent of the value of any property acquired by the debtor after the coming into effect of the Debt Settlement Arrangement that is proposed to be varied, unless receipt of that property had been anticipated by the terms of that Arrangement. | ||
(16) A reference in this Chapter to a Debt Settlement Arrangement shall be construed as including such an arrangement as proposed to be varied or, as varied in accordance with this section, unless the context otherwise requires. | ||
(17) In this section, ‘material change in the debtor’s circumstances’ means a change in the debtor’s circumstances that would materially affect his or her ability to make payments, or otherwise perform his or her obligations, under the Debt Settlement Arrangement, and includes an increase or decrease in the extent of the debtor’s assets, liabilities or income.”. | ||
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Amendment of section 91 of Principal Act | ||
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12. Section 91 of the Principal Act is amended— | ||
(a) in subsection (1), by the substitution of the following for paragraph (g): | ||
“(g) that the debtor has made a declaration in writing declaring that he or she has co-operated for a period of at least 6 months with his or her creditors who are secured creditors as respects the debtor’s principal private residence in accordance with any process relating to mortgage arrears operated by the secured creditors concerned which has been approved or required by the Central Bank of Ireland and which process relates to the secured debt concerned and that— | ||
(i) notwithstanding such co-operation the debtor has not been able to agree an alternative repayment arrangement with the secured creditor concerned, or that the secured creditor has confirmed to the debtor in writing the unwillingness of that secured creditor to enter into an alternative repayment arrangement, or | ||
(ii) the debtor— | ||
(I) has entered into an alternative repayment arrangement and has, in good faith, endeavoured to comply with that arrangement, and | ||
(II) the personal insolvency practitioner has provided the debtor with a confirmation under subsection (2A);”, | ||
and | ||
(b) by the insertion of the following after subsection (2): | ||
“(2A) A confirmation under this subsection is a confirmation in writing by the personal insolvency practitioner that, having regard to the financial circumstances of the debtor as disclosed in the Prescribed Financial Statement completed by the debtor, and the terms of the alternative payment arrangement referred to in subsection (1) (g) (ii), it is the belief of that practitioner that the debtor, if he or she were not to enter into a Personal Insolvency Arrangement, would be unlikely to become solvent within the period of 5 years commencing on the date of the personal insolvency practitioner giving that confirmation.”. | ||
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Amendment of section 95 of Principal Act | ||
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13. Section 95 of the Principal Act is amended in subsection (5) by the deletion of “section 113(2) ” and the substitution of “sections 113(2) and 115A(5),”. | ||
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Amendment of section 107 of Principal Act | ||
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14. Section 107 of the Principal Act is amended— | ||
(a) in subsection (1), by the insertion of “and section 111A(2)(b) (inserted by section 17 of the Personal Insolvency (Amendment) Act 2015)” after “section 106(2)(b) ”, and | ||
(b) by the substitution of the following for subsection (2): | ||
“(2) Where a debtor’s financial position has materially changed in the period between the completion by him or her of a Prescribed Financial Statement under section 50 and the giving of a notice under section 106(2) or, as the case may be, section 111A(2) (inserted by section 17 of the Personal Insolvency (Amendment) Act 2015)— | ||
(a) the debtor shall inform the personal insolvency practitioner of that fact and of the nature of such change, and | ||
(b) the personal insolvency practitioner shall, if he or she considers that the change necessitates the completion of a new Prescribed Financial Statement, assist the debtor in completing such a new statement, and where those circumstances arise a reference in this section to the Prescribed Financial Statement shall be construed as a reference to the new Prescribed Financial Statement.”. | ||
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Amendment of section 108 of Principal Act | ||
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15. Section 108 of the Principal Act is amended by— | ||
(a) the deletion of subsection (6), and | ||
(b) the substitution of the following for subsections (8) and (9): | ||
“(8) (a) Where, at the taking of a vote at a creditors’ meeting in accordance with subsection (1), no creditor votes, the proposed Personal Insolvency Arrangement shall be deemed to have been approved under this section. | ||
(b) Where, at the taking of a vote at a creditors’ meeting in accordance with subsection (1), the proposal is not approved in accordance with that subsection or deemed under paragraph (a) to have been approved, subject to section 115A, the Personal Insolvency Arrangement procedure shall terminate and the protective certificate issued under section 95 shall cease to have effect.”. | ||
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Amendment of section 110 of Principal Act | ||
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16. Section 110 of the Principal Act is amended in subsection (1)(a) by deleting “a majority of”. | ||
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Approval of proposed Personal Insolvency Arrangement where only one creditor | ||
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17. The Principal Act is amended by the insertion of the following after section 111: | ||
“111A. (1) Where— | ||
(a) a personal insolvency practitioner has prepared a proposal for a Personal Insolvency Arrangement and the debtor has consented to that proposal, and | ||
(b) only one creditor would be entitled to vote at a creditors’ meeting held under this Chapter (whether in respect of one or more debts), | ||
the procedures specified in this section, and not those specified in sections 106 and 108 to 111, shall apply in relation to the approval by that creditor of the proposal for a Personal Insolvency Arrangement. | ||
(2) A personal insolvency practitioner referred to in subsection (1) shall— | ||
(a) give written notice to the creditor that the proposal for a Personal Insolvency Arrangement has been prepared and that the creditor may, within the period specified in subsection (6)(a), notify the personal insolvency practitioner in writing of his or her approval or otherwise of that proposal, | ||
(b) ensure that the notice referred to in paragraph (a) is accompanied by a copy of each of the documents referred to in section 107, and | ||
(c) lodge a copy of the notice referred to in paragraph (a) and the documents referred to in paragraph (b) with the Insolvency Service. | ||
(3) A personal insolvency practitioner who has complied with subsection (2) may, where he or she believes it is in the interests of obtaining approval of a proposed Personal Insolvency Arrangement by the creditor and with the consent in writing of the debtor, prepare an amended proposal for a Personal Insolvency Arrangement. | ||
(4) Where the personal insolvency practitioner prepares an amended proposal for a Personal Insolvency Arrangement pursuant to subsection (3) he or she shall— | ||
(a) give written notice to the creditor that he or she may, within the period specified in subsection (6)(b), notify the personal insolvency practitioner in writing of his or her approval or otherwise of the amended proposal, which notice shall be accompanied by the amended proposal, | ||
(b) give the debtor a copy of the documents referred to in paragraph (a), and | ||
(c) lodge a copy of the documents referred to in paragraph (a) with the Insolvency Service. | ||
(5) A proposal for a Personal Insolvency Arrangement may, before the creditor has notified the personal insolvency practitioner of his or her approval or otherwise of the proposal, be subject to a proposal for a modification where the modification addresses an ambiguity or rectifies an error in the proposed Personal Insolvency Arrangement and where— | ||
(a) the modification has been proposed by the creditor or the personal insolvency practitioner, and | ||
(b) the debtor gives his or her written consent to the modification. | ||
(6) A creditor to whom this section applies shall notify the personal insolvency practitioner in writing of his or her approval or otherwise of a proposal for a Personal Insolvency Arrangement within— | ||
(a) 14 days of the giving to him or her of the notice under subsection (2), or | ||
(b) if later, 7 days of the date on which a notice under subsection (4)(a) is first given to him or her. | ||
(7) A proposal for a Personal Insolvency Arrangement to which this section applies— | ||
(a) shall be considered as having been approved by the creditor concerned where that creditor notifies the personal insolvency practitioner in accordance with subsection (6) of the creditor’s approval of that proposal, and | ||
(b) where that creditor fails to comply with subsection (6), shall be deemed to have been approved by the creditor concerned. | ||
(8) Where a creditor to whom this section applies notifies the personal insolvency practitioner in accordance with subsection (6) that he or she does not approve of the proposal, subject to section 115A, the Personal Insolvency Arrangement procedure shall be deemed to have come to an end and the protective certificate issued under section 95 shall cease to have effect. | ||
(9) Where a personal insolvency practitioner fails to give the creditor a notice under subsection (2) before the expiry of the protective certificate, the Personal Insolvency Arrangement procedure shall be deemed to have come to an end. | ||
(10) Where this section applies, a reference in section 95(13) to section 110 shall be construed as a reference to this section.”. | ||
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Amendment of section 112 of Principal Act | ||
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18. Section 112 of the Principal Act is amended— | ||
(a) by the substitution of the following for subsection (1) (as amended by section 85 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 ): | ||
“(1) Where a Personal Insolvency Arrangement is approved at a creditors’ meeting in accordance with section 110 or, as the case may be, deemed under section 108 to have been approved, the personal insolvency practitioner shall as soon as practicable after the meeting has concluded notify the Insolvency Service and each creditor concerned of that approval or, as the case may be, deemed approval, which notification shall be accompanied by— | ||
(a) (i) subject to subparagraph (ii), a certificate with the result of the vote taken at the creditors’ meeting, identifying the proportions of the respective categories of votes cast by those voting at the creditors’ meeting and stating that the requisite proportions of creditors referred to in section 110(1) have approved the proposal for a Personal Insolvency Arrangement, or | ||
(ii) where the proposal is deemed under section 108(8)(a) (as amended by section 15 (b) of the Personal Insolvency (Amendment) Act 2015) to have been approved, a certificate to that effect, | ||
(b) a copy of the approved Personal Insolvency Arrangement, and | ||
(c) a statement by the personal insolvency practitioner to the effect that he or she is of the opinion that— | ||
(i) the debtor satisfies the eligibility criteria for the proposal of a Personal Insolvency Arrangement specified in section 91, | ||
(ii) the approved Personal Insolvency Arrangement complies with the mandatory requirements referred to in section 99(2), and | ||
(iii) the approved Personal Insolvency Arrangement does not contain any terms that would release the debtor from an excluded debt or an excludable debt (other than a permitted debt) or otherwise affect such a debt.”, | ||
(b) by the insertion of the following after subsection (1): | ||
“(1A) Where a Personal Insolvency Arrangement is approved or, as the case may be, deemed to have been approved in accordance with section 111A(7) (inserted by section 17 of the Personal Insolvency (Amendment) Act 2015), the personal insolvency practitioner shall as soon as practicable thereafter notify the Insolvency Service and each creditor concerned of that approval or, as the case may be, deemed approval, which notification shall be accompanied by— | ||
(a) a certificate stating that section 111A applies to the proposed Personal Insolvency Arrangement and that the proposal concerned has been approved or, as the case may be, deemed to have been approved in accordance with section 111A(7) by the only creditor entitled to vote on the proposal, | ||
(b) a copy of the approved Personal Insolvency Arrangement, and | ||
(c) a statement by the personal insolvency practitioner to the effect that he or she is of the opinion that— | ||
(i) the debtor satisfies the eligibility criteria for the proposal of a Personal Insolvency Arrangement specified in section 91, | ||
(ii) the approved Personal Insolvency Arrangement complies with the mandatory requirements referred to in section 99(2), and | ||
(iii) the approved Personal Insolvency Arrangement does not contain any terms that would release the debtor from an excluded debt or an excludable debt (other than a permitted debt) or otherwise affect such a debt.”, | ||
and | ||
(c) in subsection (2), by the insertion of “or, as the case may be, subsection (1A) (inserted by section 18 (b) of the Personal Insolvency (Amendment) Act 2015),” after “the documents referred to in subsection (1) ”. | ||
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Amendment of section 113 of Principal Act | ||
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19. Section 113 of the Principal Act is amended in subsection (1) by the insertion of “or, as the case may be, section 112(1A) (inserted by section 18 (b) of the Personal Insolvency (Amendment) Act 2015)” after “pursuant to section 112(1) (as amended by section 85 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 )”. | ||
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Amendment of section 115 of Principal Act | ||
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20. Section 115 of the Principal Act is amended— | ||
(a) in subsection (2), by the substitution of the following for paragraph (a) (iv): | ||
“(iv) proposal for a Personal Insolvency Arrangement, as the case may be— | ||
(I) has been approved by the requisite proportions of creditors referred to in section 110(1), | ||
(II) is one to which section 108(8)(a) (as amended by section 15 (b) of the Personal Insolvency (Amendment) Act 2015) applies, or | ||
(III) has been approved or, as the case may be, deemed to have been approved in accordance with section 111A(7) (inserted by section 17 of the Personal Insolvency (Amendment) Act 2015),”, | ||
and | ||
(b) by the substitution of the following for subsection (5) (as amended by section 87 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 ): | ||
“(5) For the purposes of subsection (2), the appropriate court may accept— | ||
(a) the certificate of the personal insolvency practitioner referred to in section 112(1)(a)(i) (as amended by section 18 (a) of the Personal Insolvency (Amendment) Act 2015) as evidence that the proposal for a Personal Insolvency Arrangement has been approved by the requisite proportions of creditors referred to in section 110(1), | ||
(b) the certificate of the personal insolvency practitioner referred to in section 112(1)(a)(ii) (as amended by section 18 (a) of the Personal Insolvency (Amendment) Act 2015) as evidence that the proposal for a Personal Insolvency Arrangement is one to which section 108(8)(a) (as amended by section 15 (b) of the Personal Insolvency (Amendment) Act 2015) applies, | ||
(c) the certificate of the personal insolvency practitioner referred to in section 112(1A) (inserted by section 18 (b) of the Personal Insolvency (Amendment) Act 2015) as evidence that the Personal Insolvency Arrangement has been approved or, as the case may be, deemed to have been approved in accordance with section 111A(7)(inserted by section 17 of the Personal Insolvency (Amendment) Act 2015), and | ||
(d) the statement of the personal insolvency practitioner referred to in section 112(1)(c) (inserted by section 85 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 ) or, as the case may be, section 112(1A)(c) (inserted by section 18 (b) of the Personal Insolvency (Amendment) Act 2015) as evidence of any matter referred to in subsection (2) which is the subject of that statement.”. | ||
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Court review of proposed Personal Insolvency Arrangement | ||
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21. The Principal Act is amended by the insertion of the following after section 115: | ||
“115A. (1) Where— | ||
(a) a proposal for a Personal Insolvency Arrangement is not approved in accordance with this Chapter, and | ||
(b) the debts that would be covered by the proposed Personal Insolvency Arrangement include a relevant debt, | ||
the personal insolvency practitioner may, where he or she considers that there are reasonable grounds for the making of such an application and if the debtor so instructs him or her in writing, make an application on behalf of the debtor to the appropriate court for an order under subsection (9). | ||
(2) An application under this section shall be made not later than 14 days after the creditors’ meeting referred to in subsection (16)(a) or, as the case may be, receipt by the personal insolvency practitioner of the notice of the creditor concerned under section 111A(6) (inserted by section 17 of the Personal Insolvency (Amendment) Act 2015), shall be on notice to the Insolvency Service, each creditor concerned and the debtor, and shall be accompanied by— | ||
(a) a statement of the grounds of the application, which shall include— | ||
(i) a statement that the proposal for a Personal Insolvency Arrangement has not been approved in accordance with this Chapter, | ||
(ii) other than where the proposed Personal Insolvency Arrangement is one to which section 111A applies, a statement identifying, by reference to the information referred to in paragraph (d)(i)(II) contained in the certificate furnished under paragraph (d), the creditor or creditors who, having voted in favour of the proposal, should, in the opinion of the personal insolvency practitioner, be considered by the court to be a class of creditors for the purpose of this section, and giving the reasons for this opinion, | ||
(b) a copy of the proposal for a Personal Insolvency Arrangement, | ||
(c) a copy of the report of the personal insolvency practitioner referred to in section 107(1)(d), | ||
(d) a certificate— | ||
(i) with the result of the vote taken at the creditors’ meeting and identifying— | ||
(I) the proportions of the respective categories of votes cast by those voting at the creditors’ meeting, and | ||
(II) the creditors who voted in favour of and against the proposal, and the nature and value of the debt owed to each such creditor, | ||
or | ||
(ii) where applicable, stating that section 111A applies to the proposal and that the creditor concerned has notified the personal insolvency practitioner under section 111A(6) that the creditor does not approve of the proposal, | ||
and | ||
(e) a statement by the personal insolvency practitioner to the effect that he or she is of the opinion that— | ||
(i) the debtor satisfies the eligibility criteria for the proposal of a Personal Insolvency Arrangement specified in section 91, | ||
(ii) the proposed Personal Insolvency Arrangement complies with the mandatory requirements referred to in section 99(2), and | ||
(iii) the proposed Personal Insolvency Arrangement does not contain any terms that would release the debtor from an excluded debt or an excludable debt (other than a permitted debt) or otherwise affect such a debt. | ||
(3) A notice to a creditor under subsection (2) shall be accompanied by a notice indicating that he or she may, within 14 days of the date of the sending of the notice, lodge a notice with the appropriate court, setting out whether or not the creditor objects to the application, and the creditor’s reasons for this. | ||
(4) A creditor who lodges a notice under subsection (3) shall at the same time send a copy of the notice to the Insolvency Service, the personal insolvency practitioner and each creditor concerned. | ||
(5) Where an application is made under this section before the expiry of the period of the protective certificate, such protective certificate shall continue in force until— | ||
(a) the Personal Insolvency Arrangement comes into effect under subsection (13), or | ||
(b) one of the following occurs— | ||
(i) the time for bringing an appeal against a refusal of the appropriate court to make an order under subsection (9) has expired without any such appeal having been brought, | ||
(ii) such appeal has been withdrawn, or | ||
(iii) the appeal has been determined. | ||
(6) The appropriate court, for the purpose of an application under this section, shall hold a hearing, which hearing shall be on notice to the Insolvency Service, the personal insolvency practitioner and each creditor concerned. | ||
(7) A hearing under this section shall be held with all due expedition. | ||
(8) The court shall consider whether to make an order under subsection (9) only where— | ||
(a) it is satisfied that— | ||
(i) the eligibility criteria specified in section 91 have been satisfied, | ||
(ii) the mandatory requirements referred to in section 99 have been complied with, and | ||
(iii) the proposed Arrangement does not contain any terms that would release the debtor from an excluded debt or an excludable debt (other than a permitted debt) or otherwise affect such a debt, | ||
and | ||
(b) it considers that, having regard to the information before it, including information contained in a notice under subsection (3), no ground specified in section 120 applies in relation to the debtor or the proposed Arrangement. | ||
(9) The court, following a hearing under this section, may make an order confirming the coming into effect of the proposed Personal Insolvency Arrangement only where it is satisfied that— | ||
(a) the terms of the proposed Arrangement have been formulated in compliance with section 104, | ||
(b) having regard to all relevant matters, including the terms on which the proposed Arrangement is formulated, there is a reasonable prospect that confirmation of the proposed Arrangement will— | ||
(i) enable the debtor to resolve his or her indebtedness without recourse to bankruptcy, | ||
(ii) enable the creditors to recover the debts due to them to the extent that the means of the debtor reasonably permit, and | ||
(iii) enable the debtor— | ||
(I) not to dispose of an interest in, or | ||
(II) not to cease to occupy, | ||
all or a part of his or her principal private residence, | ||
(c) having regard to all relevant matters, including the financial circumstances of the debtor and the matters referred to in subsection (10)(a), the debtor is reasonably likely to be able to comply with the terms of the proposed Arrangement, | ||
(d) where applicable, having regard to the matters referred to in section 104(2), the costs of enabling the debtor to continue to reside in the debtor’s principal private residence are not disproportionately large, | ||
(e) the proposed Arrangement is fair and equitable in relation to each class of creditors that has not approved the proposal and whose interests or claims would be impaired by its coming into effect, | ||
(f) the proposed Arrangement is not unfairly prejudicial to the interests of any interested party, and | ||
(g) other than where the proposal is one to which section 111A applies, at least one class of creditors has accepted the proposed Arrangement, by a majority of over 50 per cent of the value of the debts owed to the class. | ||
(10) In considering whether to make an order under subsection (9), the court shall have regard to: | ||
(a) the conduct, within the 2 years prior to the issue of the protective certificate under section 95, of— | ||
(i) the debtor in seeking to pay the debts concerned, and | ||
(ii) a creditor in seeking to recover the debts due to the creditor; | ||
(b) the following, where details of them are contained in a notice lodged under subsection (3) by a creditor— | ||
(i) a submission made by the creditor under section 98(1) or an indication given by the creditor under section 102(1) and the date on which such submission was made or indication was furnished, and | ||
(ii) any alternative option available to the creditor for the recovery of the debt concerned. | ||
(11) The registrar of the appropriate court shall notify the Insolvency Service and the personal insolvency practitioner concerned where the court makes or refuses to make an order under subsection (9). | ||
(12) On receipt of a notification under subsection (11) of the making of an order under subsection (9), the Insolvency Service shall register the Personal Insolvency Arrangement concerned in the Register of Personal Insolvency Arrangements. | ||
(13) The Personal Insolvency Arrangement shall come into effect upon being registered in the Register of Personal Insolvency Arrangements. | ||
(14) The court, in an application under this section, shall make such other order as it deems appropriate, including an order as to the costs of the application. | ||
(15) For the purposes of its consideration of an application under this section, the appropriate court may accept— | ||
(a) the certificate of the personal insolvency practitioner referred to in subsection (2)(d)(i) as evidence of the proportions of the respective categories of votes cast by those voting at the creditors’ meeting and of the creditors who have voted in favour of and against the proposed Personal Insolvency Arrangement and of the nature and value of the debt owed to each such creditor, | ||
(b) the certificate of the personal insolvency practitioner referred to in subsection (2)(d)(ii) as evidence that the proposed Arrangement has not been approved in accordance with section 111A, and | ||
(c) the statement of the personal insolvency practitioner referred to in subsection (2)(e) as evidence of any matter referred to in subsection (8) which is the subject of that statement. | ||
(16) For the purposes of this section, a proposal for a Personal Insolvency Arrangement is not approved in accordance with this Chapter where— | ||
(a) at a creditors’ meeting held under this Chapter, it is not approved in accordance with section 110 or, as the case may be, deemed to have been approved under section 108(8) (a) (as amended by section 15 (b) of the Personal Insolvency (Amendment) Act 2015), or | ||
(b) in the case of a proposal for a Personal Insolvency Arrangement to which section 111A applies, the creditor concerned has notified the personal insolvency practitioner in accordance with section 111A(6) that the creditor does not approve of the proposal. | ||
(17) (a) For the purposes of this section, and subject to paragraph (b), the court may consider— | ||
(i) one creditor, or | ||
(ii) more than one creditor, where the court considers the creditors to have, in relation to the debtor, interests or claims of a similar nature, | ||
to be a class of creditor. | ||
(b) In deciding under paragraph (a) whether to consider a creditor or creditors to be a class of creditor, the court shall have regard to the circumstances of the case, including, having regard to the statement of the grounds of the application referred to in subsection (2)(a) and the certificate referred to in subsection (2)(d)(i) — | ||
(i) the overall number and composition of the creditors who voted at the creditors’ meeting, and | ||
(ii) the proportion of the debtor’s debts due to the creditors participating and voting at the creditors’ meeting that is represented by the creditor or creditors concerned. | ||
(18) In this section— | ||
‘relevant debt’ means a debt— | ||
(a) the payment for which is secured by security in or over the debtor’s principal private residence, and | ||
(b) in respect of which— | ||
(i) the debtor, on 1 January 2015, was in arrears with his or her payments, or | ||
(ii) the debtor, having been, before 1 January 2015, in arrears with his or her payments, has entered into an alternative repayment arrangement with the secured creditor concerned.”. | ||
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Amendment of section 119 of Principal Act | ||
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22. The Principal Act is amended by the substitution of the following for section 119 (as amended by section 89 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 ): | ||
“119. (1) Subject to this section and section 119A, a Personal Insolvency Arrangement may be varied in accordance with its terms. | ||
(2) A personal insolvency practitioner, whether on his or her own initiative or on a request made in accordance with subsection (3), shall propose a variation of a Personal Insolvency Arrangement (in this section referred to as a ‘variation’) where— | ||
(a) it appears to the personal insolvency practitioner that there has been a material change in the debtor’s circumstances, and | ||
(b) the personal insolvency practitioner is satisfied that there is a reasonable prospect that a variation that addresses such circumstances would be approved in accordance with this section. | ||
(3) A debtor or creditor who is bound by a Personal Insolvency Arrangement may request the personal insolvency practitioner to propose a variation of the Arrangement, which request shall be— | ||
(a) in writing, | ||
(b) accompanied by information or evidence to support the assertion that there has been a material change in the debtor’s circumstances, and | ||
(c) accompanied by the written consent of the person making the request to the— | ||
(i) making by the personal insolvency practitioner of an enquiry under subsection (4), and | ||
(ii) disclosure by the personal insolvency practitioner of personal data of the person, to the extent necessary for such an enquiry. | ||
(4) A personal insolvency practitioner shall, within 21 days of receipt of a request under subsection (3), decide whether paragraphs (a) and (b) of subsection (2) apply in relation to the Personal Insolvency Arrangement concerned, and, for that purpose— | ||
(a) may request any further information he or she requires from the person who made the request, and | ||
(b) may make such enquiries as he or she considers necessary in order to arrive at his or her decision. | ||
(5) For the purpose of deciding, whether under subsection (4) or otherwise, whether paragraphs (a) and (b) of subsection (2) apply in relation to the Personal Insolvency Arrangement concerned, the personal insolvency practitioner may require the debtor concerned, where necessary with the assistance of the personal insolvency practitioner, to complete a new Prescribed Financial Statement. | ||
(6) Where the personal insolvency practitioner is satisfied that paragraphs (a) and (b) of subsection (2) apply in relation to the Personal Insolvency Arrangement concerned, he or she shall without delay— | ||
(a) require the debtor concerned, where necessary with the assistance of the personal insolvency practitioner, to complete a new Prescribed Financial Statement, unless the debtor has completed a Prescribed Financial Statement under subsection (5) and the information contained in it remains complete and accurate, | ||
(b) formulate a proposal for a variation, | ||
(c) seek the written consent of the debtor to the proposal and, subject to subsection (8), to the calling of a meeting of the creditors of the debtor for the purpose of considering the proposal, and | ||
(d) subject to subsection (8), where the consent of the debtor referred to in paragraph (c) has been given, arrange for the holding of the meeting referred to in that paragraph. | ||
(7) When calling a creditors’ meeting to be held under this section, the personal insolvency practitioner shall— | ||
(a) give each creditor at least 14 days’ written notice of the meeting and the date on which, and the time and place at which, the meeting will be held, | ||
(b) ensure that the notice referred to in paragraph (a) is accompanied by— | ||
(i) a written proposal for the variation of the Personal Insolvency Arrangement, | ||
(ii) a report of the personal insolvency practitioner— | ||
(I) describing the outcome for the creditors and for the debtor under the terms of the proposal, and | ||
(II) indicating whether or not he or she is of the opinion that the debtor is reasonably likely to be able to comply with the terms of the Personal Insolvency Arrangement as varied in accordance with the proposal, | ||
(iii) the Prescribed Financial Statement completed by the debtor under subsection (5) or (6), as the case may be, and | ||
(iv) such other information obtained by the personal insolvency practitioner under this section as he or she considers relevant, | ||
and | ||
(c) lodge a copy of the notice referred to in paragraph (a) and the documents referred to in paragraph (b) with the Insolvency Service. | ||
(8) Where only one creditor would be entitled to vote at a creditors’ meeting under this section (whether in respect of one or more debts), the personal insolvency practitioner shall, in place of holding such a meeting, give notice to the creditor of the proposal for a variation, and paragraphs (b) and (c) of subsection (7) shall apply in respect of that notice. | ||
(9) The provisions of sections 99 to 105 and sections 108 to 115 (other than subsections (2) and (3) of section 101, sections 108(9), 109(6), 111A(7) (inserted by section 17 of the Personal Insolvency (Amendment) Act 2015), 112(1) (c)(i) (as amended by section 18 (a) of the Personal Insolvency (Amendment) Act 2015), 112(1A)(c)(i) (inserted by section 18 (b) of the Personal Insolvency (Amendment) Act 2015), 113(2), 114(3), and 115(2)(a)(i)) and section 120 shall apply in relation to a variation of a Personal Insolvency Arrangement under this section, subject to the following modifications and any other necessary modifications— | ||
(a) a reference to a Personal Insolvency Arrangement shall be construed as a reference to a Personal Insolvency Arrangement as varied in accordance with this Chapter, | ||
(b) a reference to a proposal for a Personal Insolvency Arrangement shall be construed as a reference to a proposal for the variation of a Personal Insolvency Arrangement, and a reference to a proposed Personal Insolvency Arrangement shall be construed as a reference to a proposed variation of a Personal Insolvency Arrangement, | ||
(c) a reference to a Prescribed Financial Statement shall be construed as a reference to the Prescribed Financial Statement completed by the debtor under subsection (5) or (6), as the case may be, | ||
(d) the variation of a Personal Insolvency Arrangement shall not have the effect of extending the duration of that Personal Insolvency Arrangement beyond the maximum duration permitted under section 99(2)(b), | ||
(e) a Personal Insolvency Arrangement as varied under this section shall, in addition to containing the information referred to in section 99(2)(f), make provision for the costs and outlays of the personal insolvency practitioner which relate to this section, | ||
(f) a reference to a notification that a protective certificate has been issued shall be construed as a reference to a notice under subsection (7) of the calling of a creditors’ meeting, | ||
(g) a reference to the day or date on which a protective certificate is issued, other than in section 102(7), shall be construed as a reference to the date on which a vote at the creditors’ meeting under this section is held, | ||
(h) where section 103(3) applied to a Personal Insolvency Arrangement, the variation of that Arrangement shall not operate to alter the period referred to in section 103(11)(a), | ||
(i) a reference to the market value attributed to security, or the market value of security determined, in accordance with section 105 shall be construed as the value attributed or determined in accordance with section 105 for the purpose of a variation under this section, | ||
(j) a reference to a creditors’ meeting shall be construed as a reference to a creditors’ meeting under this section, | ||
(k) where section 108(4) applied to a creditor, that subsection shall continue to apply to that creditor for the purpose of his or her voting rights at a creditors’ meeting under this section, | ||
(l) a debt that is an unsecured debt on the date on which the vote at a creditors’ meeting under this section is held shall be treated as an unsecured debt, notwithstanding that the debt concerned was a secured debt when the vote on the proposal for the Personal Insolvency Arrangement concerned was held, | ||
(m) an adjournment pursuant to section 109(4) may occur once only in the course of a creditors’ meeting, and | ||
(n) a reference in section 115(5)(c) (as amended by section 20 (b) of the Personal Insolvency (Amendment) Act 2015) to section 111A(7) shall be construed as a reference to subsection (10). | ||
(10) (a) Where subsection (8) applies, the creditor concerned shall notify the personal insolvency practitioner in writing of his or her approval or otherwise of a proposal for the variation of a Personal Insolvency Arrangement within— | ||
(i) 14 days of the giving to him or her of the notice under that subsection, or | ||
(ii) if later, 7 days of the date on which a notice under section 111A(4)(a) is first given to him or her. | ||
(b) A proposal referred to in paragraph (a) — | ||
(i) shall be considered as having been approved by the creditor concerned where that creditor notifies the personal insolvency practitioner in accordance with that paragraph of the creditor’s approval of the proposal, and | ||
(ii) where that creditor fails to comply with that paragraph, shall be deemed to have been approved by the creditor concerned. | ||
(11) Where— | ||
(a) on the taking of a vote at a creditors’ meeting under this section, the proposal is not approved in accordance with section 110, | ||
(b) subsection (8) applies and the proposal is not approved in accordance with subsection (10), or | ||
(c) the appropriate court upholds the objection of a creditor to the variation of a Personal Insolvency Arrangement coming into effect, | ||
the Personal Insolvency Arrangement concerned shall, without prejudice to the other provisions of this Act, continue in effect without being subject to such variation. | ||
(12) Subsection (11) shall be without prejudice to the entitlement of the personal insolvency practitioner to propose another variation of the Personal Insolvency Arrangement in accordance with this section. | ||
(13) Subject to subsection (14), an unreasonable refusal by the debtor to give his or her consent— | ||
(a) under subsection (6) to a proposal for a variation or the calling of a creditors’ meeting, | ||
(b) under section 119A(3) to a proposal for a variation or the giving to creditors of a notice under section 119A(4), or | ||
(c) under subsection (3) or (4) of section 109 or, as the case may be, subsection (3) or (5) of section 111A (inserted by section 17 of the Personal Insolvency (Amendment) Act 2015), | ||
shall be grounds for an application under section 122(1)(g). | ||
(14) A debtor who refuses to give his or her consent under a provision referred to in subsection (13) shall be considered to be acting reasonably where the proposal in relation to which the consent is sought would require the debtor— | ||
(a) where there has been an increase in the debtor’s income, to make additional payments in excess of 50 per cent of the increase in his or her income available to him or her after the following deductions (where applicable) are made: | ||
(i) income tax; | ||
(ii) social insurance contributions; | ||
(iii) payments made by him or her in respect of excluded debts; | ||
(iv) payments made by him or her in respect of excludable debts that are not permitted debts; | ||
(v) such other levies and charges on income as may be prescribed, | ||
or | ||
(b) to make a payment amounting to more than 50 per cent of the value of any property acquired by the debtor after the coming into effect of the Personal Insolvency Arrangement that is proposed to be varied, unless receipt of that property had been anticipated by the terms of that Arrangement. | ||
(15) A reference in this Chapter to a Personal Insolvency Arrangement shall be construed as including such an arrangement as proposed to be varied or as varied in accordance with this section or section 119A, unless the context otherwise requires. | ||
(16) In this section, ‘material change in the debtor’s circumstances’ means a change in the debtor’s circumstances that would materially affect his or her ability to make payments, or otherwise perform his or her obligations, under the Personal Insolvency Arrangement, and includes an increase or decrease in the extent of the debtor’s assets, liabilities or income. | ||
Variation of Personal Insolvency Arrangement confirmed by order under section 115A | ||
119A. (1) Where the coming into effect of a Personal Insolvency Arrangement has been confirmed by an order of the court under section 115A(9), the Arrangement may be varied in accordance with its terms and subject to this section. | ||
(2) Subsections (2) to (5), and paragraphs (a) and (b) of subsection (6), of section 119 shall apply to the variation of a Personal Insolvency Arrangement under this section. | ||
(3) Where the personal insolvency practitioner has, in accordance with section 119(6)(b), formulated a proposal for the variation of the Personal Insolvency Arrangement concerned, he or she shall without delay— | ||
(a) seek the written consent of the debtor to the proposal and to the giving of a notice under subsection (4) to the creditors concerned, and | ||
(b) give each creditor concerned a notice under subsection (4). | ||
(4) A notice under this subsection shall— | ||
(a) inform the creditor of the proposal for a variation of the Personal Insolvency Arrangement, | ||
(b) be accompanied by— | ||
(i) a written proposal for the variation of the Personal Insolvency Arrangement, | ||
(ii) a report of the personal insolvency practitioner— | ||
(I) describing the outcome for the creditors and for the debtor under the terms of the proposal, and | ||
(II) indicating whether or not he or she is of the opinion that the debtor is reasonably likely to be able to comply with the terms of the Personal Insolvency Arrangement as varied in accordance with the proposal, | ||
(iii) the Prescribed Financial Statement completed by the debtor under section 119(5) or (6), as the case may be, | ||
(iv) a statement informing the creditor of the effect of subsections (7), (8), (9) and (12), and | ||
(v) such other information obtained by the personal insolvency practitioner under this section as he or she considers relevant. | ||
(5) The personal insolvency practitioner shall lodge a copy of a notice under subsection (4) and the documents referred to in paragraph (b) of that subsection with the Insolvency Service. | ||
(6) The provisions of sections 99 to 105 (other than subsections (2) and (3) of section 101) and section 120 shall apply in relation to a variation of a Personal Insolvency Arrangement under this section, subject to the following modifications and any other necessary modifications— | ||
(a) a reference to a Personal Insolvency Arrangement shall be construed as a reference to a Personal Insolvency Arrangement as varied in accordance with this Chapter, | ||
(b) a reference to a proposal for a Personal Insolvency Arrangement shall be construed as a reference to a proposal for the variation of a Personal Insolvency Arrangement, and a reference to a proposed Personal Insolvency Arrangement shall be construed as a reference to a proposed variation of a Personal Insolvency Arrangement, | ||
(c) a reference to a Prescribed Financial Statement shall be construed as a reference to the Prescribed Financial Statement completed by the debtor under section 119(5) or (6), as the case may be, | ||
(d) the variation of a Personal Insolvency Arrangement shall not have the effect of extending the duration of that Personal Insolvency Arrangement beyond the maximum duration permitted under section 99(2)(b), | ||
(e) a Personal Insolvency Arrangement as varied under this section shall, in addition to containing the information referred to in section 99(2)(f), make provision for the costs and outlays of the personal insolvency practitioner which relate to this section, | ||
(f) a reference to a notification that a protective certificate has been issued shall be construed as a reference to a notice under subsection (4), | ||
(g) a reference to the day or date on which a protective certificate is issued, other than in section 102(7), shall be construed as a reference to the date of the giving to the creditor of a notice under subsection (4), | ||
(h) where section 103(3) applied to a Personal Insolvency Arrangement, the variation of that Arrangement shall not operate to alter the period referred to in section 103(11)(a), and | ||
(i) a reference to the market value attributed to security, or the market value of security determined in accordance with section 105, shall be construed as the value attributed or determined in accordance with section 105 for the purpose of a variation under this section. | ||
(7) A creditor shall, within 14 days of the giving to the creditor of a notice under subsection (4), notify the personal insolvency practitioner in writing of his or her approval or otherwise of the proposal for the variation of the Personal Insolvency Arrangement. | ||
(8) Where a creditor fails to comply with subsection (7), the creditor shall be deemed to have approved the proposal concerned. | ||
(9) Where a creditor notifies the personal insolvency practitioner in accordance with subsection (7) that the creditor does not approve of the proposal, the personal insolvency practitioner may, if the debtor so instructs him or her in writing, make an application on behalf of the debtor to the appropriate court for an order confirming the coming into effect of the Personal Insolvency Arrangement as varied in accordance with the proposal (in this section referred to as ‘an order under this section’). | ||
(10) Where subsection (9) applies and the personal insolvency practitioner does not make an application in accordance with this section, the Personal Insolvency Arrangement concerned shall, without prejudice to the other provisions of this Act, continue in effect without being subject to such variation. | ||
(11) Subsection (10) shall be without prejudice to the entitlement of the personal insolvency practitioner to propose another variation of the Personal Insolvency Arrangement in accordance with this section. | ||
(12) Where no creditor notifies the personal insolvency practitioner in accordance with subsection (7) that the creditor does not approve of the proposal, the personal insolvency practitioner shall notify the Insolvency Service in writing of that fact. | ||
(13) An application for an order under this section shall be made not less than 14 days after receipt by the personal insolvency practitioner of the notice of the creditor referred to in subsection (9) and shall be— | ||
(a) on notice to the Insolvency Service, each creditor concerned and the debtor, and | ||
(b) accompanied by— | ||
(i) a copy of the documents referred to in subsection (4) (b), | ||
(ii) a copy of the notification by the creditor referred to in subsection (9), and | ||
(iii) a statement of the grounds of the application which shall include (other than where the Personal Insolvency Arrangement that is proposed to be varied is an Arrangement to which section 111A applied) a statement identifying the creditor or creditors who, having approved or being deemed to have approved, in accordance with this section, the proposal, should, in the opinion of the personal insolvency practitioner, be considered by the court to be a class of creditors for the purpose of this section, and giving the reasons for this opinion. | ||
(14) Section 115A(6) to (9) shall apply in relation to an application under this section, subject to the following modifications and any other necessary modifications— | ||
(a) a reference to a proposed Personal Insolvency Arrangement shall be construed as a reference to a proposal for the variation of a Personal Insolvency Arrangement, | ||
(b) a reference to an order under section 115A(9) shall be construed as a reference to an order under this section, and | ||
(c) a reference in section 115A(9) (g) to a class of creditors having accepted a proposed Arrangement shall be construed as a reference to a class of creditors having approved, or being deemed to have approved, in accordance with this section, a proposal for the variation of a Personal Insolvency Arrangement. | ||
(15) The registrar of the appropriate court shall notify the Insolvency Service and the personal insolvency practitioner concerned where the court makes or refuses to make an order under this section. | ||
(16) The Insolvency Service shall register in the Register of Personal Insolvency Arrangements the variation of a Personal Insolvency Arrangement on receipt by it of a notification under— | ||
(a) subsection (12), or | ||
(b) subsection (15) of the making of an order under this section. | ||
(17) The variation of a Personal Insolvency Arrangement under this section shall come into effect upon being registered in the Register of Personal Insolvency Arrangements. | ||
(18) The court, in an application under this section, shall make such other order as it deems appropriate, including an order as to the costs of the application.”. | ||
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Amendment of section 159 of Principal Act | ||
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23. Section 159 of the Principal Act is amended— | ||
(a) by the insertion of the following definition: | ||
“ ‘authorised officer’ means a person appointed under section 176B to be an authorised officer;”, | ||
and | ||
(b) by the substitution of the following for the definition of “improper conduct”: | ||
“ ‘improper conduct’, in relation to a personal insolvency practitioner, means— | ||
(a) the commission by the personal insolvency practitioner of an act which renders the personal insolvency practitioner no longer a fit and proper person to carry on practice as a personal insolvency practitioner, | ||
(b) the commission by the personal insolvency practitioner of a material contravention of a provision of this Act or any regulations made thereunder, or | ||
(c) failure by the personal insolvency practitioner to perform his or her functions under this Act in accordance with this Act and any regulations made thereunder.”. | ||
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Insertion in Principal Act of sections 176A to 176D | ||
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24. The Principal Act is amended by the insertion of the following after section 176: | ||
“Supervision | ||
176A. The Insolvency Service may, for the purpose of ensuring compliance by personal insolvency practitioners with their obligations under this Act, supervise personal insolvency practitioners in the performance of their functions under this Act. | ||
Authorised Officers | ||
176B. (1) For the purposes of this Act— | ||
(a) the Director of the Insolvency Service may appoint such members of the staff of the Insolvency Service as he or she deems appropriate to be authorised officers for such period and subject to such terms as the Director may determine, | ||
(b) the Director of the Insolvency Service may appoint such other persons as he or she deems appropriate to be authorised officers for such period and subject to such terms (including terms as to remuneration and allowances for expenses) as the Director, with the approval of the Minister and the consent of the Minister for Public Expenditure and Reform, may determine. | ||
(2) Each authorised officer shall be given a warrant of appointment and, when performing any function imposed under this Act, shall, on request by any person affected, produce the warrant or a copy thereof, together with a form of personal identification. | ||
(3) An appointment under this section shall cease— | ||
(a) if the Insolvency Service revokes the appointment, | ||
(b) if the person appointed ceases to be a member of staff of the Insolvency Service, or | ||
(c) if the appointment is for a fixed period, on the expiry of that period. | ||
(4) A revocation under this section shall be in writing. | ||
Powers of Authorised Officers | ||
176C. (1) For the purposes of the performance of the functions of the Insolvency Service under section 176A, an authorised officer may, in relation to a personal insolvency practitioner— | ||
(a) subject to subsections (13) and (14), at all reasonable times enter, inspect, examine and search any premises at, or vehicles in or by means of, which any activity in connection with the practice of the personal insolvency practitioner is carried on, | ||
(b) subject to subsections (13) and (14), enter, inspect, examine and search any dwelling occupied by the personal insolvency practitioner, being a dwelling as respects which there are reasonable grounds to believe records relating to the practice of the personal insolvency practitioner are being kept in it, | ||
(c) without prejudice to any other power conferred by this subsection, require any person found in or on any premises, vehicle or dwelling referred to in any of the preceding paragraphs or any person in charge of or in control of such premises, vehicle or dwelling or directing any activity therein or thereto referred to in paragraph (a) to produce any records, books or accounts (whether kept in manual form or otherwise) or other documents which it is necessary for the authorised officer to see for the purposes of section 176A, and the authorised officer may inspect, examine, copy and take away any such records, books or accounts or other documents so produced or require a foregoing person to provide a copy of them or of any entries in them to the authorised officer, | ||
(d) require any person referred to in paragraph (c) to afford such facilities and assistance within the person’s control or responsibilities as are reasonably necessary to enable the authorised officer to exercise any of the powers conferred on the authorised officer under paragraph (a), (b) or (c), | ||
(e) require any person by or on whose behalf data equipment is or has been used in connection with an activity referred to in paragraph (a), or any person having charge of, or otherwise concerned with the operation of, such data equipment or any associated apparatus or material, to afford the authorised officer all reasonable assistance in respect of its use, | ||
(f) require the personal insolvency practitioner, the personal insolvency practitioner’s employee or the personal insolvency practitioner’s agent to give such authority in writing addressed to such bank or banks as the authorised officer requires for the purpose of enabling the inspection of any account or accounts opened, or caused to be opened, by the personal insolvency practitioner at such bank or banks (or any documents relating thereto) and to obtain from such bank or banks copies of such documents relating to such account or accounts for such period or periods as the authorised officer deems necessary to fulfil that purpose, and | ||
(g) be accompanied by a member of the Garda Síochána and assisted in the exercise of the officer’s powers under this Chapter by such other authorised officers, members of the Garda Síochána or other persons as the authorised officer reasonably considers appropriate. | ||
(2) A requirement under subsection (1)(c), (d), (e) or (f) shall specify a period within which, or a date and time on which, the person the subject of the requirement is to comply with it. | ||
(3) For the purposes of his or her supervisory functions under section 176A, an authorised officer— | ||
(a) may require a person who, in the authorised officer’s opinion— | ||
(i) possesses information that is relevant, or | ||
(ii) has any records, books or accounts (whether kept in manual form or otherwise) or other documents within that person’s possession or control or within that person’s procurement that are relevant to the supervision, | ||
to provide that information or those records, books, accounts or other documents, as the case may be, to the authorised officer, | ||
(b) where the authorised officer deems appropriate, may require that person to attend before the authorised officer for the purpose of so providing that information or those records, books, accounts or other documents, as the case may be, and | ||
(c) may require a person to provide an explanation of a decision, course of action, system or practice or the nature or content of any records or, where the authorised officer deems appropriate, may require that person to attend before the authorised officer for the purpose of so explaining, | ||
and the person shall comply with the requirement. | ||
(4) A requirement under subsection (3) shall specify— | ||
(a) a period within which, or a date and time on which, the person the subject of the requirement is to comply with the requirement, and | ||
(b) as the authorised officer concerned deems appropriate— | ||
(i) the place at which the person shall attend to give the information concerned or to which the person shall deliver the records, books, accounts or other documents concerned, or | ||
(ii) the place to which the person shall send the information or the records, books, accounts or other documents concerned. | ||
(5) A person required to attend before an authorised officer under subsection (3) — | ||
(a) is also required to answer fully and truthfully any question put to the person by the authorised officer, and | ||
(b) if so required by the authorised officer, shall answer any such question under oath. | ||
(6) Where it appears to an authorised officer that a person has failed to comply or fully comply with a requirement under subsection (1), (3) or (5), the authorised officer may, on notice to that person and with the consent of the Insolvency Service, apply in a summary manner to the Circuit Court for an order under subsection (7). | ||
(7) Where satisfied after hearing the application about the person’s failure to comply or fully comply with the requirement in question, the Circuit Court may, subject to subsection (10), make an order requiring that person to comply or fully comply, as the case may be, with the requirement within a period specified by the Court. | ||
(8) An application under subsection (6) to the Circuit Court shall be made to a judge of that Court for the circuit in which the person the subject of the application resides or ordinarily carries on any profession, business or occupation. | ||
(9) The administration of an oath referred to in subsection (5)(b) by an authorised officer is hereby authorised. | ||
(10) A person the subject of a requirement under subsection (1), (3) or (5) shall be entitled to the same immunities and privileges in respect of compliance with such requirement as if the person were a witness before the High Court. | ||
(11) Any statement or admission made by a person pursuant to a requirement under subsection (1), (3) or (5) is not admissible against that person in criminal proceedings other than criminal proceedings for an offence under subsection (15), and this shall be explained to the person in ordinary language by the authorised officer concerned. | ||
(12) Nothing in this section shall be taken to compel the production by any person of any records, books or accounts (whether kept in manual form or otherwise) or other documents which he or she would be exempt from producing in proceedings in a court on the ground of legal professional privilege. | ||
(13) An authorised officer shall not, other than with the consent of the occupier, enter a private dwelling without a warrant issued under subsection (14) authorising the entry. | ||
(14) A judge of the District Court, if satisfied on the sworn information of an authorised officer that— | ||
(a) (i) there are reasonable grounds for suspecting that any information is, or records, books or accounts (whether kept in manual form or otherwise) or other documents required by an authorised officer under this section are, held on any premises or any part of any premises, and | ||
(ii) an authorised officer, in the performance of functions under subsection (1), has been prevented from entering the premises or any part thereof, | ||
or | ||
(b) it is necessary that the authorised officer enter a private dwelling and exercise therein any of his or her powers under this section, | ||
may issue a warrant authorising the authorised officer, accompanied if necessary by other persons, at any time or times within 30 days from the date of issue of the warrant and on production if so requested of the warrant, to enter, if need be by reasonable force, the premises or part of the premises concerned and perform all or any such functions. | ||
(15) Subject to subsection (12), a person who— | ||
(a) withholds, destroys, conceals or refuses to provide any information or records, books or accounts (whether kept in manual form or otherwise) or other documents required for the purposes of the supervision of a personal insolvency practitioner, | ||
(b) fails or refuses to comply with any requirement of an authorised officer under this section, or | ||
(c) otherwise obstructs or hinders an authorised officer in the performance of functions imposed under this Act, | ||
is guilty of an offence. | ||
(16) Subject to subsection (17), where a personal insolvency practitioner is convicted of an offence under subsection (15), the court may, after having regard to the nature of the offence and the circumstances in which it was committed, order that his or her authorisation to carry on practice as a personal insolvency practitioner be revoked and that he or she be prohibited (which may be a permanent prohibition, a prohibition for a specified period or a prohibition subject to specified conditions) from applying for any new authorisation to carry on practice as a personal insolvency practitioner. | ||
(17) An order under subsection (16) shall not take effect until— | ||
(a) the ordinary time for bringing an appeal against the conviction concerned or the order has expired without any such appeal having been brought, | ||
(b) such appeal has been withdrawn or abandoned, or | ||
(c) on any such appeal, the conviction or order, as the case may be, is upheld. | ||
(18) In this section, ‘records, books or accounts’ include copies of records, books or accounts. | ||
(19) In this section, where records, books or accounts are held or maintained in electronic form, the obligation to produce or provide records, books or accounts includes an obligation to produce or provide those records, books or accounts in a legible and comprehensible printed form. | ||
(20) Where records are not in legible form, an authorised officer, in the exercise of any of his or her powers under this section, may— | ||
(a) operate any data equipment, including any computer, or cause any such data equipment or computer to be operated by a person accompanying the authorised officer, and | ||
(b) require any person who appears to the authorised officer to be in a position to facilitate access to the records stored in any data equipment or computer or which can be accessed by the use of that data equipment or computer to give the authorised officer all reasonable assistance in relation to the operation of the data equipment or computer or access to the records stored in it, including: | ||
(i) providing the records to the authorised officer in a form in which they can be taken and in which they are, or can be made, legible and comprehensible; | ||
(ii) giving to the authorised officer any password necessary to make the records concerned legible and comprehensible; or | ||
(iii) otherwise enabling the authorised officer to examine the records in a form in which they are legible and comprehensible. | ||
(21) Where an authorised officer believes upon reasonable grounds, that a person has committed an offence under this Act, he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides. | ||
Notification by Authorised Officer | ||
176D. Where it appears to an authorised officer, in the performance of his or her functions under section 176C, that improper conduct by a personal insolvency practitioner has occurred or is occurring— | ||
(a) he or she shall notify the Insolvency Service in writing, as soon as practicable, setting out the reasons why he or she has formed that view, and | ||
(b) the Insolvency Service shall consider the notification and, if satisfied that there is sufficient reason for so doing, may, in accordance with section 180, cause an investigation to be carried out.”. | ||
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Amendment of section 181 of Principal Act | ||
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25. Section 181 of the Principal Act is amended— | ||
(a) in subsection (3) — | ||
(i) in paragraph (a), by the substitution of “to the inspector,” for “to the inspector, and”, | ||
(ii) in paragraph (b), by the substitution of “as the case may be, and” for “as the case may be”, and | ||
(iii) by the insertion of the following after paragraph (b): | ||
“(c) may require a person to provide an explanation of a decision, course of action, system or practice or the nature or any content of any records or, where the inspector deems appropriate, may require that person to attend before the inspector for the purpose of so explaining,”, | ||
and | ||
(b) by the insertion of the following after subsection (21): | ||
“(22) Where records are not in legible form, an inspector, in the exercise of any of his or her powers under this section, may— | ||
(a) operate any data equipment, including any computer, or cause any such data equipment or computer to be operated by a person accompanying the inspector, and | ||
(b) require any person who appears to the inspector to be in a position to facilitate access to the records stored in any data equipment or computer or which can be accessed by the use of that data equipment or computer to give the inspector all reasonable assistance in relation to the operation of the data equipment or computer or access to the records stored in it, including— | ||
(i) providing the records to the inspector in a form in which they can be taken and in which they are, or can be made, legible and comprehensible, | ||
(ii) giving to the inspector any password necessary to make the records concerned legible and comprehensible, or | ||
(iii) otherwise enabling the inspector to examine the records in a form in which they are legible and comprehensible. | ||
(23) Where an inspector believes upon reasonable grounds, that a person has committed an offence under this Act, he or she may require that person to provide him or her with his or her name and the address at which he or she ordinarily resides.”. | ||
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Amendment of section 186 of Principal Act | ||
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26. Section 186 of the Principal Act is amended— | ||
(a) in paragraph (b), by the deletion of “or”, | ||
(b) by the insertion of the following after paragraph (b): | ||
“(ba) an authorised officer appointed under section 176B, or”, | ||
and | ||
(c) by the substitution of “those functions relate to the supervision of personal insolvency practitioners in accordance with section 176A or to carrying out an investigation under this Part” for “those functions relate to carrying out an investigation under this Part”. | ||
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Short title and collective citation | ||
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27. (1) This Act may be cited as the Personal Insolvency (Amendment) Act 2015. | ||
(2) The Principal Act, sections 37 to 40, section 41(4), Part 8 and section 1 (insofar as it relates to those sections and that Part) of the Courts and Civil Law (Miscellaneous Provisions) Act 2013 , section 9 of the Companies (Miscellaneous Provisions) Act 2013 , section 100 (3) of the Finance Act 2013 and this Act may be cited together as the Personal Insolvency Acts 2012 to 2015. | ||
(3) This Act shall come into operation on such day or days as may be fixed by order or orders made by the Minister for Justice and Equality, either generally or by reference to any particular purpose or provision, and different days may be so fixed for different purposes and different provisions. |
