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Bankruptcy (Amendment No. 2) Rules 1977

1977 No. 1394

BANKRUPTCY, ENGLAND

The Bankruptcy (Amendment No. 2) Rules 1977

The Lord Chancellor, in exercise of the powers conferred on him by section 132 of the Bankruptcy Act 1914(a), with the concurrence of the Secretary of State for Trade, and after consulting the committee appointed under section 10 of the Insolvency Act 1976(b), hereby makes the following Rules:-

1. – (1) These Rules may be cited as the Bankruptcy (Amendment No. 2) Rules 1977 and shall come into operation on 1st October 1977.

(2) The Interpretation Act 1889(c) shall apply to the interpretation of these Rules as it applies to the interpretation of an Act of Parliament.

(3) The amendments set out in these Rules shall be made to the Bankruptcy Rules 1952(d), as amended (e).

2. At the end of rule 8(1) there shall be added the following sub-paragraph:-

"(k) Applications under section 6 of the Insolvency Act 1976 for an order dispensing with the public examination of the debtor."

3. At the end of rule 188(1) there shall be added the words:-

"and the Official Receiver shall not delay the application by reason only that the case is one to which rule 196A may apply."

4. After rule 196 there shall be inserted the following rule:-

"Order dispensing with public examination under the Insolvency Act 1976, section 6 [Form 75A]

196A.-(1) When a receiving order has been made against a debtor it shall be the duty of the Official Receiver to consider whether, having regard to the matters specified in section 6(1) of the Insolvency Act 1976, reasonable grounds exist to warrant an application by him under the said section for an order to dispense with the holding of a public examination.

(2) Not later than 21 days before the day appointed for the hearing of the application, the Official Receiver shall give notice of the time and place thereof to the debtor and the creditors and such notice shall inform the creditors that any objections to the making of an order under the said section must be received by the Official Receiver not later than 14 days before the day so appointed.

(3) Any such application by the Official Receiver shall be made ex parte and shall be supported by evidence in the form of a report by the Official Receiver to the court to be filed not less than seven days before the day appointed for the hearing of the application and the report shall include a statement as to whether the Official Receiver has received from any creditor any objection to the making of an order under the said section 6 and the substance of such objection.

(4) The application may, if the court thinks fit, be heard in the absence of the debtor and if the hearing takes place on a day other than that appointed for the public examination the Official Receiver shall give notice of the outcome of the application to the debtor and to the creditors.

(5) When the court rescinds an order made under the said section 6 the Official Receiver shall apply to the court for the appointment of a time and place for the public examination of the debtor and upon the application the court shall make an order appointing a time and place for the examination and order the debtor to attend thereat."

5. After rule 237 there shall be inserted the following rules:-

"AUTOMATlC DISCHARGE

Consideration by the court

237A. -(1) When the court makes an order which concludes or, under section 6 of the Insolvency Act 1976, dispenses with the public examination of a debtor, the court shall proceed to consider whether or not to make an order under section 7(1) of that Act directing that sub-section (2) of that section shall have effect if the debtor has been or is subsequently adjudged bankrupt in the proceedings.

(2) When the court dispenses with the public examination of a debtor under section 15(10) of the Act it shall proceed to consider whether to make an order under section 7(1) of the Insolvency Act 1976 but may, if it thinks fit, adjourn such consideration for the purpose of receiving from the Official Receiver a report as to the conduct and affairs of the debtor, including his conduct during the proceedings, and such report shall be prima facie evidence of the matters contained therein.

Service of order by Official Receiver [Form 114A]

237B. If the court thinks fit to make an order under the said section 7(1) not less than two sealed copies of the order shall forthwith be sent by the Registrar to the Official Receiver who shall cause one of the copies to be served on the debtor.

Gazetting of discharge [Form 200(9A)]

237C. Where an order made under the said section 7(1) has not been rescinded and the circumstances set out in sub-section (2) of that section apply, the Registrar shall on the fifth anniversary of the date of the adjudication forthwith give notice to the Secretary of State to be gazetted that the debtor has been discharged under the provisions of sub-section (2) of that section.

Application by trustee to rescind order

237D. Unless the court otherwise directs, no application by a trustee to

rescind an order made under the said section 7(1) shall be heard unless notice of the intended application and a copy of the affidavits in support of it have been served upon the Official Receiver and the debtor not less than eight days before the hearing of the application.

Application by Official Receiver to rescind order

237E. The Official Receiver shall apply to rescind an order made under the said section 7(1) if-

(a) he becomes aware of any misconduct on the part of the debtor which occurred before the making of the order and which was not known to the Official Receiver when the order was made but which, if it had been disclosed to the court, would, in the opinion of the Official Receiver, have been likely to result in the order not being made; or

(b) the debtor is guilty of any misconduct which, if it had occurred before the making of the order and had then been known to the court would, in the opinion of the Official Receiver, have been likely to result in the order not being made; or

(c) the court so directs when an application by the debtor for his discharge has been refused; or

(d) an application by the debtor for his discharge has been granted subject to a suspension or condition such that the debtor may still be an undischarged bankrupt on the fifth anniversary of the date of the adjudication; or

(e) the debtor has failed to co-operate with the Official Receiver or trustee; or

(f) the debtor has again been adjudged bankrupt; or

(g) the debtor has been convicted of any offence under the Act or any other offence connected with his bankruptcy;

and any application by the Official Receiver under paragraph (c) or (d) above may be made without notice or formality immediately following the making of the order to which the said paragraph (c) or (d) relates.

DISCHARGE ON APPLICATION OF OFFICIAL RECEIVER

Notice of hearing [Form 200(8A)]

237F. Not less than 14 days before the day appointed for the hearing of an application by the Official Receiver under section 8 of the Insolvency Act 1976 in respect of the adjudication of the bankrupt, notice of the time and place appointed for the hearing shall be given by the Official Receiver to the trustee and the bankrupt and to the Secretary of State to be gazetted.

Consequential provisions

237G. Rules 228, 229 and 231 to 237 shall apply to proceedings under the said section 8 as they apply to proceedings under section 26 of the Act except that it shall not be necessary to give notice to creditors of an application the bankrupt under sub-section (8) of the said section 8."

6. In rule 251 the words "affidavit of" shall be deleted.

7. In rule 321 at the end of paragraph (e) the word "or" shall be deleted and after paragraph (f) there shall be inserted the following paragraphs:-

"(g) to rescind an order made under section 6 of the Insolvency Act 1976 dispensing with the public examination of a debtor, or

(h) to rescind an order made under section 7(1) of the Insolvency Act 1976 in relation to automatic discharge."

8. In rule 322 after paragraph (f) there shall be inserted the following paragraph:-

"(g) to dispense with the public examination of a debtor under section 6 of the Insolvency Act 1976."

9. In Appendix I there shall be inserted at the appropriate places in numerical order the forms set out in the Schedule to these Rules.

Dated 27th July 1977.

Elwyn-Jones, C.

I concur,

Dated 5th August 1977.

Edmund Dell,
Secretary of State
for Trade.

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(a) 1914 c. 59.

(b) 1976 c. 60.

(c) 1889 c. 63.

(d) S.I. 1952/2113 (1952 I, p. 213).

(e) The relevant amending instrument is S.I. 1962/295 (1962 I, p. 283).