Take 'special' care: Not all Insolvency Rules changed on 6 April 2017

Take 'special' care: Not all Insolvency Rules changed on 6 April 2017

The Insolvency (England and Wales) Rules 2016, SI 2016/1024 (IR 2016) came into force on 6 April 2017 (subject to transitional provisions) heralding the biggest single change to insolvency law in 30 years. But will the IR 2016 apply to all insolvency regimes? James Moore, senior associate, and Helen Kavanagh, professional support lawyer, of Squire Patton Boggs consider the position.

Will the IR 2016 apply to all insolvencies?

No. In the rush to ensure compliance with the new rules, it should not be overlooked that the new rules are not applicable (or only in a modified form) to all insolvency regimes.

The following existing special regimes will not be affected by the IR 2016. Other changes were also introduced on or around 6 April 2017, which are also highlighted.

Non-Treasury Special Insolvency Regimes

The Insolvency (England and Wales) Rules 2016 (Consequential Amendments and Savings) Rules 2017, SI 2017/369 state that the Insolvency Rules 1986, SI 1986/1925 (IR 1986) (pre-amendment) continue to have effect insofar as they apply to proceedings under the following instruments:

  • Railway Administration Order Rules 2001, SI 2001/3352
  • Limited Liability Partnerships Regulations 2001, SI 2001/1090
  • Energy Act 2004
  • Energy Administration Rules 2005, SI 2005/2483
  • PPP Administration Order Rules 2007, SI 2007/3141
  • Water Industry (Special Administration) Rules 2009, SI 2009/2477
  • Energy Act 2011
  • Charitable Incorporated Organisations (Insolvency and Dissolution) Regulations 2012, SI 2012/3013
  • Energy Supply Company Administration Rules 2013, SI 2013/1046
  • Postal Administration Rules 2013, SI 2013/3208

For regimes under the above, the IR 1986 (together with the prescribed forms) remain in place for the time being.

Treasury Special Insolvency Regimes

While it has not been set out in a Statutory Instrument, caution should be applied to all special insolvency regimes governed by HM Treasury, primarily those dealing with the insolvency of financial institutions. These regimes have generally evolved their own sets of rules and regulations, which have to date applied the IR 1986 with amendments. Most of these special regime rules have not yet been varied to incorporate references to the new rules.

The Deregulation Act 2015, Small Business, Enterprise and Employment Act 2015 and Insolvency (Amendment) Act (Northern Ireland) 2016 (Consequential Amendments and Transitional Provisions) Regulations 2017, SI 2017/400 (together the Regulations) come into force on 7 April 2017, the day after the IR 2016. Collectively the Regulations make amendments to ensure that the reforms to general corporate insolvency are reflected in HM Treasury’s modified special insolvency regimes, where general insolvency law is applied to financial institutions.

These Regulations amend the following primary legislation:

  • Building Societies Act 1986
  • Friendly Societies Act 1992
  • Financial Services and Markets Act 2

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About the author:

Stephen qualified as a solicitor in 2005 and joined the Restructuring and Insolvency team at Lexis®PSL in September 2014 from Shoosmiths LLP, where he was a senior associate in the restructuring and insolvency team.

Primarily focused on contentious and advisory corporate and personal insolvency work, Stephen’s experience includes acting for office-holders on a wide range of issues, including appointments, investigations and the recovery and realisation of assets (including antecedent transaction claims), and for creditors in respect of the impact on them of the insolvency of debtors and counterparties.