Financial Services and Markets Bill - continued        House of Lords
PART XXIV, INSOLVENCY - continued

back to previous text
 
 
Bankruptcy
Petitions.     366. - (1) The Authority may present a petition to the court-
 
 
    (a) under section 264 of the 1986 Act (or Article 238 of the 1989 Order) for a bankruptcy order to be made against an individual; or
 
    (b) under section 5 of the 1985 Act for the sequestration of the estate of an individual.
      (2) But such a petition may be presented only on the ground that-
 
 
    (a) the individual appears to be unable to pay a regulated activity debt; or
 
    (b) the individual appears to have no reasonable prospect of being able to pay a regulated activity debt.
      (3) An individual appears to be unable to pay a regulated activity debt if he is in default on an obligation to pay a sum due and payable under an agreement.
 
      (4) An individual appears to have no reasonable prospect of being able to pay a regulated activity debt if-
 
 
    (a) the Authority has served on him a demand requiring him to establish to the satisfaction of the Authority that there is a reasonable prospect that he will be able to pay a sum payable under an agreement when it falls due;
 
    (b) at least three weeks have elapsed since the demand was served; and
 
    (c) the demand has been neither complied with nor set aside in accordance with rules.
      (5) A demand made under subsection (4)(a) is to be treated for the purposes of the 1986 Act (or the 1989 Order) as if it were a statutory demand under section 268 of that Act (or Article 242 of that Order).
 
      (6) For the purposes of a petition presented in accordance with subsection (1)(b)-
 
 
    (a) the Authority is to be treated as a qualified creditor; and
 
    (b) a ground mentioned in subsection (2) constitutes apparent insolvency.
      (7) "Individual" means an individual-
 
 
    (a) who is, or has been, an authorised person; or
 
    (b) who is carrying on, or has carried on, a regulated activity in contravention of the general prohibition.
      (8) "Agreement" means an agreement the making or performance of which constitutes or is part of a regulated activity carried on by the individual concerned.
 
      (9) "Rules" means-
 
 
    (a) in England and Wales, rules made under section 412 of the 1986 Act;
 
    (b) in Scotland, rules made by order by the Treasury, after consultation with the Scottish Ministers, for the purposes of this section; and
 
    (c) in Northern Ireland, rules made under Article 359 of the 1989 Order.
Insolvency practitioner's duty to report to Authority.     367. - (1) If-
 
 
    (a) a bankruptcy order or sequestration award is in force in relation to an individual by virtue of a petition presented by a person other than the Authority, and
 
    (b) it appears to the insolvency practitioner that the individual is carrying on, or has carried on, a regulated activity in contravention of the general prohibition,

the insolvency practitioner must report the matter to the Authority without delay.

      (2) "Bankruptcy order" means a bankruptcy order under Part IX of the 1986 Act (or Part IX of the 1989 Order).
 
      (3) "Sequestration award" means an award of sequestration under section 12 of the 1985 Act.
 
      (4) "Individual" includes an entity mentioned in section 368(1)(c).
 
Authority's powers to participate in proceedings.     368. - (1) This section applies if a person other than the Authority presents a petition to the court-
 
 
    (a) under section 264 of the 1986 Act (or Article 238 of the 1989 Order) for a bankruptcy order to be made against an individual;
 
    (b) under section 5 of the 1985 Act for the sequestration of the estate of an individual; or
 
    (c) under section 6 of the 1985 Act for the sequestration of the estate belonging to or held for or jointly by the members of an entity mentioned in subsection (1) of that section.
      (2) The Authority is entitled to be heard-
 
 
    (a) at the hearing of the petition; and
 
    (b) at any other hearing in relation to the individual or entity under-
 
      (i) Part IX of the 1986 Act;
 
      (ii) Part IX of the 1989 Order; or
 
      (iii) the 1985 Act.
      (3) A copy of the report prepared under section 274 of the 1986 Act (or Article 248 of the 1989 Order) must also be sent to the Authority.
 
      (4) A person appointed for the purpose by the Authority is entitled-
 
 
    (a) to attend any meeting of creditors of the individual or entity;
 
    (b) to attend any meeting of a committee established under section 301 of the 1986 Act (or Article 274 of the 1989 Order);
 
    (c) to attend any meeting of commissioners held under paragraph 17 or 18 of Schedule 6 to the 1985 Act; and
 
    (d) to make representations as to any matter for decision at such a meeting.
      (5) "Individual" means an individual who-
 
 
    (a) is, or has been, an authorised person; or
 
    (b) is carrying on, or has carried on, a regulated activity in contravention of the general prohibition.
      (6) "Entity" means an entity which-
 
 
    (a) is, or has been, an authorised person; or
 
    (b) is carrying on, or has carried on, a regulated activity in contravention of the general prohibition.
 
Provisions against debt avoidance
Authority's right to apply for an order.     369. - (1) The Authority may apply for an order under section 423 of the 1986 Act (or Article 367 of the 1989 Order) in relation to a debtor if-
 
 
    (a) at the time the transaction at an undervalue was entered into, the debtor was carrying on a regulated activity (whether or not in contravention of the general prohibition); and
 
    (b) a victim of the transaction is or was party to an agreement entered into with the debtor, the making or performance of which constituted or was part of a regulated activity carried on by the debtor.
      (2) An application made under this section is to be treated as made on behalf of every victim of the transaction to whom subsection (1)(b) applies.
 
      (3) Expressions which are given a meaning in Part XVI of the 1986 Act (or Article 367, 368 or 369 of the 1989 Order) have the same meaning when used in this section.
 
 
previous section contents continue
 
House of Lords home page Houses of Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2000
Prepared 31 March 2000