Insolvency (Transitional Provisions) Regulations, 2004

Summary

These Regulations set out transitional rules for how the Insolvency Act, 2003 applies to insolvency matters that were already underway before the Act came into force on 16 August 2004. They preserve the old (pre-Act) law for certain existing liquidations, receiverships and bankruptcy cases, while applying specific provisions of the new Act to office holders and transactions connected with them.

• Liquidations: Liquidations and windings up commenced before the commencement date continue to be governed by the former law, not the new Act, including rules on preferential creditors and termination of liquidation.
• Receivers: A receiver appointed before the commencement date (a pre-Act receiver) remains subject to the former law generally, but specified sections of the new Act (including provisions on office holders, interested persons and administrative receivers) apply to them for defined purposes.
• Pending winding up petitions: A winding up petition not yet determined at the commencement date is treated as an application for appointment of a liquidator under the new Act.
• Voidable transactions and fraudulent conduct: Courts may only unwind pre-commencement transactions (including floating charges and assignments of book debts) to the extent the former law would have allowed, and no offence arises under sections 289 or Part XIII for acts or conduct before the commencement date.
• Existing bankruptcy cases: Bankruptcy cases where a receiving order or adjudication was made before the commencement date remain governed by the former law.
• Insolvency practitioners: Section 474(2) licensing requirements do not apply to a person acting as an insolvency practitioner under an appointment made before the commencement date.
• Pre-Act offences: Offences committed under the former law before the commencement date may still be prosecuted and punished after that date as if the new Act had not come into force.

Overall, the Regulations are a bridging mechanism rather than a source of new ongoing compliance duties: they clarify which legal regime (old or new) governs specific insolvency-related situations that straddle the 16 August 2004 commencement date.

Key obligations

• Section 23 of the Act (concerning liquidator conduct) does not apply to a liquidator appointed before the commencement date unless that liquidator is a licensed insolvency practitioner
• Courts may only make voidable transaction orders under sections 249 or 405 in respect of pre-commencement transactions to the extent such an order could have been made under the former law

Applies to

liquidators, receivers (pre-Act receivers), insolvency practitioners, companies in liquidation or winding up, persons in existing bankruptcy cases, office holders

Deadlines

• 16th day of August, 2004: Commencement date from which the Regulations are deemed to have come into force, and the reference point for determining whether the former law or the new Insolvency Act applies to a given liquidation, receivership, bankruptcy case, transaction or offence