Arrangement Procedures
Personal Insolvency Act 2012
PART 2
Insolvency Service
Establishment day.
7.— The Minister shall, by order, appoint a day to be the establishment day for the purposes of this Act.
Establishment of Insolvency Service.
8.— (1) On the establishment day there shall stand established a body to be known, in the English language, as the Insolvency Service of Ireland or, in the Irish language, as Seirbhís Dócmhainneachta na hÉireann to perform the functions conferred on it by or under this Act.
(2) The Insolvency Service shall be a body corporate with perpetual succession and, without prejudice to the generality of the foregoing, may sue and be sued in its corporate name.
(3) The Insolvency Service shall—
(a) subject to this Act, be independent in the exercise of its functions under this Act, and
(b) have all powers that are necessary or expedient for, or incidental to, the performance of those functions.
(4) The seal of the Insolvency Service may be authenticated by—
(a) the signature of the Director, and
(b) the signature of a member of the staff of the Insolvency Service authorised by the Director to act in that behalf.
(5) Judicial notice shall be taken of the seal of the Insolvency Service and, accordingly, every document—
(a) purporting to be a document made by the Insolvency Service, and
(b) purporting to be sealed with the seal of the Insolvency Service authenticated in accordance with subsection (4),
shall be received in evidence and be deemed to be such document without further proof unless the contrary is proved.
(6) Any contract or instrument which, if entered into or executed by an individual, would not require to be under seal may be entered into or executed on behalf of the Insolvency Service by the Director or any person generally or specially authorised by the Director in that behalf.
Functions of Insolvency Service.
9.— (1) Subject to this Act, the principal functions of the Insolvency Service shall be to—
(a) monitor the operation of the arrangements relating to personal insolvency provided for in this Act,
(b) consider applications for Debt Relief Notices in accordance with Chapter 1 of Part 3 ,
(c) process applications for protective certificates in accordance with Chapter 3 or 4 of Part 3 ,
(d) maintain the Registers established under section 133 ,
(e) provide information to the public on the working of this Act,
(f) advise the Minister on any matter relating to its functions,
(g) authorise persons to perform the functions of an approved intermediary under Chapter 1 of Part 3 ,
(h) in accordance with Part 5 —
(i) authorise individuals to carry on practice as personal insolvency practitioners,
(ii) supervise and regulate persons practising as personal insolvency practitioners,
(iii) perform such functions as are assigned to the Insolvency Service under that Part,
(i) prepare and issue guidelines as to what constitutes a reasonable standard of living and reasonable living expenses under section 23 ,
(j) arrange for the provision of such education and training, in relation to the performance by them of their functions under this Act, of approved intermediaries, personal insolvency practitioners and other persons, as it thinks fit,
(k) contribute to the development of policy in the area of personal insolvency, and
(l) carry out any other duties and exercise any other powers assigned to it by or under this Act.
(2) The Insolvency Service may disseminate, to such extent and in such manner as it considers appropriate, information relating to the services it provides under this Act.
(3) The Insolvency Service may, subject to this Act, do anything which it considers necessary or expedient to enable it to perform its functions.
(4) Any function of the Insolvency Service may, without prejudice to its general responsibilities under this Act, be performed through or by the Director or any member of its staff duly authorised in that behalf by the Director.
(5) The Director or a member of staff of the Insolvency Service who performs any of its functions is presumed in any proceedings to have been authorised by it to do so on its behalf, unless the contrary is shown.
Composition of Insolvency Service.
10.— The Insolvency Service shall consist of—
(a) the Director of the Insolvency Service appointed under section 11 , and
(b) such members of staff of the Insolvency Service appointed under this Part.
Director.
11.— (1) (a) There shall be a Director of the Insolvency Service who shall be known, and is referred to in this Act, as the “Director”.
(b) Subject to subsection (13), the Director shall hold office for such period, not exceeding 5 years from the date of his or her appointment under this section, as may be determined by the Minister.
(c) A person who has held office as Director shall be eligible for re-appointment but shall not hold office for periods the aggregate of which exceeds 10 years.
(2) Subject to subsections (12) and (13), the Director shall—
(a) be appointed by the Minister on the recommendation of the Director of the Public Appointments Service after a competition for that purpose under section 47 of the Public Service Management (Recruitment and Appointments) Act 2004 has been held on behalf of the Minister, and
(b) have the appropriate experience, qualifications, training and expertise for the appointment.
(3) The Director shall—
(a) manage and control generally the Insolvency Service’s staff, administration and business,
(b) be responsible to the Minister for the performance of his or her functions, and
(c) perform such other functions (if any) as may be required by the Minister or as may be authorised under this Act.
(4) The Director may be removed or suspended from office by the Minister for stated reasons.
(5) The Director shall provide the Minister with such information, including financial information, in respect of the performance of the Director’s functions as the Minister may require.
(6) The Director shall not hold any other office or position in respect of which remuneration is payable, or carry on any business, trade or profession, without the approval of the Minister.
(7) Such of the functions of the Director as the Director may specify may, with the consent of the Minister, be performed by such member or members of the staff of the Insolvency Service as the Director may authorise for that purpose, and that member or those members of staff shall be accountable to the Director for the performance of the functions so delegated.
(8) The Director shall be accountable to the Minister for the performance of functions delegated by him or her in accordance with subsection (7).
(9) The Director may, with the consent of the Minister in writing, revoke a delegation made in accordance with this section.
(10) The functions referred to in subsection (7) do not include a function delegated by the Minister to the Director subject to a condition that the function shall not be delegated by the Director to anyone else.
(11) If the Director—
(a) dies, resigns or is removed from office, or
(b) is for any reason temporarily unable to continue to perform his or her functions,
the Minister may designate such member or members of the staff of the Insolvency Service as he or she considers appropriate to perform the functions of the Director until—
(i) in the circumstances mentioned in paragraph (a), an appointment is made in accordance with subsection (2),
(ii) in the circumstances mentioned in paragraph (b), the Director is able to resume the performance of his or her functions, or
(iii) the Minister decides to revoke or alter a designation made under this subsection.
(12) The Minister may, before the establishment day, designate a person to be appointed Director.
(13) If, immediately before the establishment day, a person stands designated by the Minister under subsection (12)—
(a) the Minister shall appoint that person to be the first Director, and
(b) for the purposes of subsection (1)(b), the date of that person’s designation under subsection (12) shall be deemed to be the date of his or her appointment under this section.
Staff of Insolvency Service.
12.— (1) The Minister may, after consultation with the Insolvency Service, appoint such number of persons to be members of the staff of the Insolvency Service as may be approved by the Minister for Public Expenditure and Reform.
(2) The Minister shall, after consultation with the Insolvency Service and with the consent of the Minister for Public Expenditure and Reform, determine the grades of the staff of the Insolvency Service and the numbers of staff in each grade.
(3) Each appointment under this section shall be—
(a) on such terms and conditions relating to remuneration as the Minister may, with the consent of the Minister for Public Expenditure and Reform, determine, or
(b) on such other terms and conditions as may be determined by the Insolvency Service and approved by the Minister with the consent of the Minister for Public Expenditure and Reform.
Superannuation.
13.— (1) The Insolvency Service shall, as soon as may be after the establishment day, with the approval of the Minister and the consent of the Minister for Public Expenditure and Reform, make a scheme or schemes for the granting of superannuation benefits to or in respect of the Director and such of its staff as it thinks fit.
(2) A scheme under this section shall fix the time and conditions of retirement of all persons to or in respect of whom superannuation benefits are payable under the scheme or schemes and different times and conditions may be fixed in respect of different classes of persons.
(3) The Insolvency Service may, with the approval of the Minister and the consent of the Minister for Public Expenditure and Reform, make a scheme amending a scheme under this section including a scheme under this subsection.
(4) A scheme under this section shall, if approved by the Minister with the consent of the Minister for Public Expenditure and Reform, be carried out by the Insolvency Service in accordance with its terms.
(5) A scheme under this section shall include a provision for appeals from a decision relating to a superannuation benefit under the scheme.
(6) If any dispute arises as to the claim of any person to, or the amount of, any superannuation benefit payable pursuant to a scheme or schemes under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Public Expenditure and Reform, whose decision shall be final.
(7) No superannuation benefits shall be granted by the Insolvency Service to or in respect of a person on ceasing to be the Director or a member of the staff of the Insolvency Service otherwise than—
(a) in accordance with a scheme or schemes under this section, or
(b) with the approval of the Minister and the consent of the Minister for Public Expenditure and Reform.
(8) A scheme under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the scheme is passed by either such House within the next 21 days on which that House has sat after the scheme is laid before it, the scheme shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
(9) Subsection (8) shall, with all necessary modifications, apply to an amendment to a scheme under this section as it applies to a scheme under this section.
(10) In this section—
“amending”, in relation to a scheme under this section, includes revoking the scheme;
“superannuation benefit” means any pension, gratuity or other allowance payable to or in respect of a person ceasing to be the Director or a member of the staff of the Insolvency Service.
Strategic plans.
14.— (1) The Insolvency Service shall, as soon as practicable after the establishment day and, in any case, within 6 months after that day, and thereafter within 6 months before each third anniversary of the establishment day, prepare and submit to the Minister, for approval by the Minister with or without amendment, a strategic plan for the Insolvency Service for the ensuing 3 year period.
(2) A strategic plan shall—
(a) comply with any directions issued from time to time by the Minister in respect of the form and manner of the plan’s preparation,
(b) set out the key objectives, outputs and related strategies of the Insolvency Service, including the use of resources, and
(c) have regard to the need to ensure the most beneficial, effective and efficient use of the Insolvency Service’s resources.
(3) The Minister shall, as soon as practicable after the strategic plan has been so approved, cause a copy of the strategic plan to be laid before each House of the Oireachtas.
Business plan.
15.— (1) Subject to this section, the Insolvency Service shall, in each year—
(a) prepare and adopt a business plan in respect of that year or of such other period as may be determined by the Minister, and
(b) submit the plan to the Minister.
(2) A business plan shall—
(a) indicate the activities of the Insolvency Service for the period to which the business plan relates,
(b) contain estimates of the number of employees of the Insolvency Service for the period and the business to which the plan relates, and
(c) accord with policies and objectives of the Minister and the Government as they relate to the functions of the Insolvency Service.
(3) In preparing the business plan, the Insolvency Service shall have regard to the strategic plan in operation at that time approved under section 14 .
(4) The Insolvency Service shall submit to the Minister with a business plan a statement of its estimate of the income and expenditure relating to the plan that is consistent with the moneys estimated to be available to the Insolvency Service for the period to which the business plan relates.
Reports by the Insolvency Service.
16.— (1) Not later than 4 months after the end of each financial year, the Insolvency Service shall make a written report (in this section referred to as the “annual report”) to the Minister on the performance of the functions of the Insolvency Service during that year.
(2) The annual report submitted under subsection (1) shall be in such form and shall include information in respect of such matters as the Insolvency Service thinks appropriate or as the Minister may direct.
(3) The Insolvency Service—
(a) may make any other reports that it considers appropriate for drawing to the Minister’s attention matters relating to the functions of the Insolvency Service that have come to its notice and that, in its opinion, should, because of their gravity or other exceptional circumstances, be the subject of a special report to the Minister, and
(b) shall make a report on any matter if so requested by the Minister.
(4) The Insolvency Service shall give to the Minister such other information as the Minister may require in respect of—
(a) the performance by the Insolvency Service of its functions and its policies in respect of such performance,
(b) any specific document or account prepared by it, or
(c) the annual report or any report referred to in subsection (3).
(5) For the purposes of subsection (1), the period between the establishment day and the following 31 December shall be deemed to be a financial year.
(6) Not later than 2 months after receiving an annual report submitted under subsection (1), the Minister shall cause a copy of the report to be laid before each House of the Oireachtas.
(7) The Insolvency Service shall publish its annual report in such form and manner as it considers appropriate as soon as practicable after subsection (6) has been complied with in respect of the report.
(8) The Minister may, if he or she considers it appropriate to do so, cause a copy of a report submitted under subsection (3)—
(a) to be laid before each House of the Oireachtas, and
(b) where paragraph (a) has been complied with, published in such form and manner as he or she considers appropriate.
Accounts and audit.
17.— (1) The Insolvency Service shall—
(a) submit estimates of income and expenditure to the Minister in such form, in respect of such periods and at such times as may be specified by the Minister, and
(b) provide to the Minister any information which the Minister may require regarding those estimates and also regarding the proposals and plans of the Insolvency Service in respect of a period specified by the Minister.
(2) The Insolvency Service shall keep in such form and in respect of such accounting periods as may be approved of by the Minister, with the consent of the Minister for Public Expenditure and Reform, all proper and usual accounts of moneys received and spent by the Insolvency Service, including an income and expenditure account and a balance sheet.
(3) (a) The accounts of the Insolvency Service shall be approved by it as soon as practicable (but not later than 3 months after the end of the accounting period to which they relate) and submitted by it to the Comptroller and Auditor General for audit.
(b) A copy of the accounts and the report of the Comptroller and Auditor General on them shall be presented to the Minister as soon as practicable, and the Minister shall cause a copy of the accounts and report to be laid before each House of the Oireachtas.
(4) (a) The Insolvency Service, the Director and any relevant member of the staff shall, whenever so required by the Minister, permit any person appointed by the Minister to examine the accounts of the Insolvency Service in respect of any financial year or other period and shall facilitate any such examination, and the Insolvency Service shall pay to the Minister such fee for the examination as may be fixed by the Minister.
(b) In this subsection, “relevant member of the staff” means a member of the staff of the Insolvency Service to whom duties relating to those accounts have been duly assigned.
Appearance before Committee of Dáil Éireann
18.— (1) The Director shall, whenever required in writing by a Committee of Dáil Éireann established under the Standing Orders of Dáil Éireann to examine and report to Dáil Éireann on the appropriation accounts and reports of the Comptroller and Auditor General, give evidence to that Committee on—
(a) the regularity and propriety of the transactions recorded, or required to be recorded in any book or other record of account subject to audit by the Comptroller and Auditor General that the Insolvency Service is required by this Act to prepare,
(b) the economy and efficiency of the Insolvency Service in the use of resources,
(c) the systems, procedures and practices employed by the Insolvency Service for the purpose of evaluating the effectiveness of its operations, and
(d) any matter affecting the Insolvency Service referred to in a special report of the Comptroller and Auditor General under section 11 (2) of the Comptroller and Auditor General (Amendment) Act 1993 , or any other report of the Comptroller and Auditor General (in so far as the report relates to a matter specified in paragraph (a), (b) or (c)) that is laid before Dáil Éireann.
(2) In giving evidence to the Committee under this section, the Director shall not question or express an opinion on the merits of any policy of the Government or a Minister of the Government or on the merits of the objectives of such policy.
Appearance before other committees of Houses of Oireachtas.
19.— (1) The Director shall, at the request in writing of a Committee, attend before it to give account for the general administration of the Insolvency Service as is required by the Committee and, for that purpose, shall provide the Committee with such information (including documents) as it specifies and as is in the possession of, or is available to, the Director.
(2) The Director is not required to give an account before a Committee of any matter that is or has been or may at a future time be the subject of—
(a) a decision or determination by the Insolvency Service in respect of a particular person, or
(b) proceedings before a court or tribunal in the State.
(3) The Director shall, if of the opinion that subsection (2) applies to a matter about which he or she is requested to give an account before a Committee, inform the Committee of that opinion and the reasons for the opinion.
(4) The information required under subsection (3) to be given to the Committee shall be given in writing unless it is given when the Director is before the Committee.
(5) If, on being informed of the Director’s opinion about a matter, the Committee decides not to withdraw its request, the High Court may, on application under subsection (6), determine whether subsection (2) applies to the matter.
(6) An application for a determination under subsection (5) may be made in a summary manner to the High Court by—
(a) the Director not later than 21 days after being informed by the Committee of its decision not to withdraw its request, or
(b) the chairperson of the Committee acting on its behalf.
(7) Pending the determination of an application under subsection (6), the Director shall not attend before the Committee to give an account of the matter to which the application relates.
(8) If the High Court determines that subsection (2) applies to the matter, the Committee shall withdraw its request relating to the matter, but if the High Court determines that subsection (2) does not apply, the Director shall attend before the Committee to give an account of the matter.
(9) In this section, “Committee” means a committee appointed by either House of the Oireachtas or jointly by both Houses of the Oireachtas (other than the Committee referred to in section 18 (1), the Committee on Members’ Interests of Dáil Éireann or the Committee on Members’ Interests of Seanad Éireann), or a subcommittee of such a committee.
Power to charge and recover fees.
20.— (1) Subject to subsection (5), the Insolvency Service, with the consent of the Minister, may, and if directed by the Minister to do so and in accordance with the terms of the direction, shall, prescribe by regulations the fees to be paid to it and when they fall due in respect of—
(a) the performance of functions,
(b) the provision of services, and
(c) the carrying on of activities,
by it under this Act.
(2) Without prejudice to the generality of subsection (1), the Insolvency Service’s power under that subsection to prescribe fees includes the power to provide for exemptions from the payment of fees, or waiving, remitting or refunding fees (in whole or in part), in different circumstances or classes of circumstances or in different cases or classes of cases.
(3) Fees received under this Act shall be paid into or disposed of for the benefit of the Exchequer in such manner as the Minister for Public Expenditure and Reform directs.
(4) The Insolvency Service may recover as a simple contract debt in any court of competent jurisdiction, from a person by whom the fee is payable, any amount due and owing to the Insolvency Service in respect of a fee charged under this section.
(5) In making regulations pursuant to this section the Insolvency Service may have regard to—
(a) the expenses incurred by it, or
(b) the expenses which it is anticipated will be incurred by it,
in performing its functions under this Act, so that so much of those expenses as it considers appropriate are recovered from fees to be charged pursuant to such regulations.
Advances by Minister to Insolvency Service.
21.— The Minister shall advance to the Insolvency Service out of moneys provided by the Oireachtas such amount or amounts as the Minister may, with the consent of the Minister for Public Expenditure and Reform, determine for the purposes of expenditure by the Insolvency Service in the performance of its functions.
Restriction of Freedom of Information Acts 1997 and 2003.
22.— (1) The Freedom of Information Acts 1997 and 2003 do not apply to a record held by the Insolvency Service, unless the record relates to the general administration of the Insolvency Service.
(2) In this section, “record” has the same meaning as in the Freedom of Information Acts 1997 and 2003.
Guidelines on reasonable standard of living, reasonable living expenses for debtors.
23.— (1) The Insolvency Service shall, for the purposes of sections 26 , 65 (4) and 99 (4) and section 85D (as inserted by section 157 ) of the Bankruptcy Act 1988 , prepare and issue guidelines as to what constitutes a reasonable standard of living and reasonable living expenses.
(2) Before issuing guidelines under subsection (1), the Insolvency Service shall consult with the Minister, the Minister for Finance, the Minister for Social Protection and such other persons or bodies as the Insolvency Service considers appropriate or as the Minister may direct.
(3) In preparing guidelines to be issued under subsection (1), the Insolvency Service shall have regard to—
(a) such measures and indicators of poverty set out in Government policy publications on poverty and social inclusion as the Insolvency Service considers appropriate,
(b) such official statistics (within the meaning of the Statistics Act 1993 ) and surveys relating to household income and expenditure published by the Central Statistics Office as the Insolvency Service considers appropriate,
(c) the Consumer Price Index (All Items) published by the Central Statistics Office or any equivalent index published from time to time by that Office,
(d) such other information as the Insolvency Service considers appropriate for the performance of its functions under this section,
(e) differences in the size and composition of households, and the differing needs of persons, having regard to matters such as their age, health and whether they have a physical, sensory, mental health or intellectual disability, and
(f) the need to facilitate the social inclusion of debtors and their dependants, and their active participation in economic activity in the State.
(4) Guidelines issued under subsection (1) may provide examples of—
(a) expenses that may be allowed as reasonable living expenses, and
(b) expenses that may not be allowed as reasonable living expenses.
(5) The Insolvency Service shall make guidelines issued under subsection (1) available to members of the public on its website.
(6) Subject to subsection (7), the Insolvency Service shall issue guidelines under subsection (1) at intervals of such length, not being more than one year, as it considers appropriate.
(7) Failure by the Insolvency Service to comply with subsection (6) shall not render invalid for the purposes of this Act the guidelines most recently issued by it under this section.
Insolvency Service may communicate by electronic means.
24.— Nothing in this Act shall be construed as preventing the Insolvency Service, in the performance of its functions under this Act, from sending or receiving documents or other information, or otherwise communicating, by electronic means.
PART 5
Regulation of Personal Insolvency Practitioners
Chapter 1
General Provisions
Interpretation (Part 5).
159.— In this Part—
“accounting records”, in relation to a personal insolvency practitioner, mean the books of account and all other documents required to be kept by the personal insolvency practitioner in accordance with regulations made under section 173 ;
“complainant”, in relation to a complaint, means the person who made the complaint;
“complaint” means a complaint under section 178 ;
“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 regulations made under section 161 or 173 ;
“inspector” means a person appointed under section 176 to be an inspector;
“investigation” means an investigation under section 180 ;
“investigation report”, in relation to an investigation, means a report in writing prepared, following the completion of the investigation, by the inspector appointed under section 180 (1)(b) to carry out the investigation—
(a) stating that the inspector—
(i) is satisfied that improper conduct by the personal insolvency practitioner to whom the investigation relates has occurred or is occurring, or
(ii) is not so satisfied,
as appropriate,
(b) if paragraph (a)(i) is applicable, stating the grounds on which the inspector is so satisfied, and
(c) if paragraph (a)(ii) is applicable, stating—
(i) the basis on which the inspector is not so satisfied, and
(ii) the inspector’s opinion, in view of such basis, on whether or not a further investigation of the personal insolvency practitioner is warranted and, if warranted, the inspector’s opinion on the principal matters to which the further investigation should relate;
“maintain”, in relation to a record, includes create and keep;
“major sanction”, in relation to a personal insolvency practitioner, means—
(a) the revocation of his or her authorisation to carry on practice as a personal insolvency practitioner and a prohibition (which may be a permanent prohibition, a prohibition for a specified period or a prohibition subject to specified conditions) against the former personal insolvency practitioner applying for a new authorisation,
(b) the suspension for a specified period of his or her authorisation to carry on practice as a personal insolvency practitioner or, in any case where the period of such suspension (in this paragraph referred to as “the relevant period”) sought to be imposed is longer than the period of validity of the authorisation left to run, the suspension of the authorisation during that period and a prohibition for a specified period against the former personal insolvency practitioner applying for a new authorisation, which periods, added together, are equivalent to the relevant period,
(c) a direction to the personal insolvency practitioner that the personal insolvency practitioner pay a sum, as specified in the direction but not exceeding €30,000, to the Insolvency Service, being the whole or part of the cost to the Insolvency Service of an investigation of the personal insolvency practitioner, or
(d) any combination of any of the sanctions specified in paragraphs (a) to (c);
“minor sanction”, in relation to a personal insolvency practitioner, means—
(a) the issue, to the personal insolvency practitioner, of—
(i) advice,
(ii) a caution,
(iii) a warning, or
(iv) a reprimand,
or
(b) any combination of any of the sanctions specified in paragraph (a);
“moneys received from debtors” means moneys received from a debtor or from third parties in respect of the debtor under a Debt Settlement Arrangement or a Personal Insolvency Arrangement;
“professional indemnity insurance” means a policy of indemnity insurance against losses arising from claims in respect of any description of civil liability incurred by a person arising from his or her carrying on practice as a personal insolvency practitioner;
“Register” means the Register of Personal Insolvency Practitioners established under section 162 ;
“satisfied” means satisfied on reasonable grounds;
“specified”—
(a) in relation to a period, means a period which is reasonable in the circumstances concerned,
(b) in relation to a time, date or place, means a time, date or place, as the case may be, which is reasonable in the circumstances concerned;
“terms” includes conditions.
Unauthorised person acting as personal insolvency practitioner.
160.— (1) A person shall not—
(a) act as a personal insolvency practitioner,
(b) hold himself or herself out as available to act as a personal insolvency practitioner, or
(c) represent himself or herself by advertisement as available to act as a personal insolvency practitioner,
unless that person is authorised to so act by virtue of this Act.
(2) A person who acts in contravention of subsection (1) is guilty of an offence.
Regulations regarding personal insolvency practitioners.
161.— The Insolvency Service, with the consent of the Minister, may and, if directed by the Minister to do so and in accordance with the terms of the direction, shall, following consultation with the Minister for Finance and with any other person or body as the Insolvency Service deems appropriate or as the Minister directs, by regulations provide for any of the following, for the purposes of the control and supervision of personal insolvency practitioners and the protection of debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements:
(a) the procedures governing—
(i) the authorisation of persons to carry on practice as personal insolvency practitioners; and
(ii) the termination, at a person’s request, of his or her authorisation to carry on practice as a personal insolvency practitioner;
(b) the standards to be observed in the performance of their functions by personal insolvency practitioners with particular reference to—
(i) the public interest;
(ii) the duties owed to debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements;
(iii) the professional and ethical conduct of personal insolvency practitioners;
(iv) the confidentiality of the information of debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements; and
(v) conflicts of interest;
(c) the qualifications (including levels of training, education and experience) or any other requirements (including required standards of competence, fitness and probity and required minimum levels of professional indemnity insurance) for the authorisation of persons to carry on practice as personal insolvency practitioners;
(d) the terms on which indemnity against losses is to be available to personal insolvency practitioners under any policy of indemnity insurance and the circumstances in which the right to such indemnity is to be excluded or modified;
(e) the records to be maintained and the information and returns to be provided to the Insolvency Service by personal insolvency practitioners; and
(f) the circumstances and purposes for which a personal insolvency practitioner may charge fees or costs or seek to recover outlays.
Register of Personal Insolvency Practitioners.
162.— (1) The Insolvency Service shall establish and maintain a register to be known as the Register of Personal Insolvency Practitioners.
(2) The Register shall be in such form as the Insolvency Service deems appropriate and shall—
(a) contain the names of personal insolvency practitioners and such other identifying particulars as the Insolvency Service considers appropriate, and
(b) contain such other entries in respect of personal insolvency practitioners (including personal insolvency practitioners whose authorisation is suspended) as the Insolvency Service considers appropriate.
(3) The Insolvency Service shall make the Register available for inspection by members of the public on its website.
(4) A copy of an entry in the Register shall, on request, be issued by the Insolvency Service on payment of such fee (if any) as may be prescribed.
(5) In any legal proceedings, a certificate signed by the Director, or a member of the staff of the Insolvency Service authorised by the Director to give a certificate under this subsection, stating that a person—
(a) is registered in the Register,
(b) is not registered in the Register,
(c) was at a specified date or during a specified period registered in the Register,
(d) was not, at a specified date or during a specified period, registered in the Register or was suspended from the Register at that time, or
(e) has never been registered in the Register,
shall, without proof of the signature of the person purporting to sign the certificate or that the person was the Director or a member of the staff of the Insolvency Service so authorised, as the case may be, be evidence, unless the contrary is proved, of the matters stated in the certificate.
(6) The Insolvency Service shall ensure that the Register is accurate and, for that purpose, the Insolvency Service shall make any alteration requiring to be made in the information contained in an entry.
(7) The Insolvency Service shall, as soon as is practicable after doing anything under subsection (6), give notice in writing of that fact to the personal insolvency practitioner to whom the alteration relates.
(8) A personal insolvency practitioner to whom an entry in the Register relates shall give notice in writing to the Insolvency Service of—
(a) any error that the person knows of in the entry, and
(b) any change in circumstances that is likely to have a bearing on the accuracy of the entry,
as soon as may be after the person becomes aware of that error or change in circumstances, as the case may be.
Application for authorisation to carry on practice as personal insolvency practitioner.
163.— (1) An individual may make an application in the prescribed form to the Insolvency Service for authorisation to carry on practice as a personal insolvency practitioner unless the individual is prohibited from making such an application by virtue of the imposition on the individual of a major sanction which falls within paragraph (a) or (b) of the definition of “major sanction” in section 159 or where an order under section 179 (2) is in force suspending that individual from carrying on practice as a personal insolvency practitioner.
(2) An application under subsection (1) shall be accompanied by—
(a) evidence of the applicant’s competence (including any levels of education, training and experience specified by the Insolvency Service), and in particular that the applicant has a satisfactory knowledge of—
(i) the provisions of this Act, and
(ii) the law generally as it applies in the State relating to the insolvency of individuals and in particular statutory provisions relating to such persons,
(b) a report in the prescribed form by a duly qualified accountant that appropriate financial systems and controls are or will be in place for the protection of moneys received from debtors if the applicant is authorised to carry on practice as a personal insolvency practitioner,
(c) evidence in writing of the availability to the applicant of the required level of professional indemnity insurance if the applicant is authorised to carry on practice as a personal insolvency practitioner,
(d) such other documents as may be prescribed by the Insolvency Service in relation to applications for authorisation to carry on practice as a personal insolvency practitioner, and
(e) the prescribed fee.
(3) Without prejudice to section 168 , the Insolvency Service may—
(a) require an applicant to provide in the prescribed form, or by statutory declaration, such additional information in respect of the applicant’s character, competence and financial position, and it may make such inquiries and conduct such examinations in that regard, as it considers necessary,
(b) require the applicant to provide a certificate in the prescribed form by a member of the Garda Síochána not below the rank of superintendent containing such particulars in respect of the applicant as are requisite for the due performance of the Insolvency Service’s functions in relation to the applicant.
Authorisation to carry on practice as personal insolvency practitioner or refusal to authorise.
164.— (1) Subject to subsections (3) and (5), the Insolvency Service may authorise an individual to carry on practice as a personal insolvency practitioner and shall furnish to that individual the registration number assigned to such person for the purposes of the Register.
(2) When deciding whether to authorise an individual to carry on practice as a personal insolvency practitioner, the Insolvency Service shall take into account any information supplied to it under sections 163 and 168 .
(3) Subject to section 165 , the Insolvency Service shall refuse to authorise an individual to carry on practice as a personal insolvency practitioner if—
(a) section 163 has not been complied with as respects the individual,
(b) the individual has not furnished sufficient evidence to show that there is available to him or her the required level of professional indemnity insurance,
(c) the individual—
(i) is under 18 years of age, or
(ii) is an undischarged bankrupt,
(d) the Insolvency Service is satisfied that the individual—
(i) is not a fit and proper person to carry on practice as a personal insolvency practitioner,
(ii) is not competent to carry on practice as a personal insolvency practitioner or does not meet the levels of education, training and experience specified by the Insolvency Service, or
(iii) does not comply with any requirement (not being a requirement referred to in any of paragraphs (a) to (c) of this subsection) of this Act or of regulations made under this Act applicable to the person.
(4) An authorisation to carry on practice as a personal insolvency practitioner, unless sooner surrendered or revoked or otherwise ceasing to be in force, shall remain in force for a period of one year from the date on which it is issued.
(5) An authorisation to carry on practice as a personal insolvency practitioner is personal to the personal insolvency practitioner concerned.
(6) An authorisation to carry on practice as a personal insolvency practitioner shall not authorise the person concerned to carry on any other form of financial advisory services subject to regulation by the Central Bank of Ireland.
Notification to applicant of refusal to authorise, etc.
165.— (1) Where the Insolvency Service proposes to refuse to authorise a person to carry on practice as a personal insolvency practitioner, it shall give notice in writing to the person—
(a) of the proposal and the reasons for the proposal, and
(b) stating that the person may make representations in writing to the Insolvency Service on the proposal—
(i) subject to subparagraph (ii), within 21 days from the date of the issue of that notice to the person,
(ii) within such longer period as the Insolvency Service deems appropriate in the circumstances of the case.
(2) Where the Insolvency Service has given a notice under subsection (1) to a person, it shall, as soon as is practicable after the expiration of the period referred to in subsection (1)(b)(i) or (ii), as the case requires, and the consideration of any representations referred to in subsection (1)(b) made to it—
(a) issue to the person the authorisation that is the subject of the notice, or
(b) refuse to issue the authorisation that is the subject of the notice and give the person—
(i) notice in writing of the refusal and the reasons for the refusal, and
(ii) a copy of section 169 if the ground, or one of the grounds, for the refusal falls within section 164 (3)(d).
Renewal of authorisation to carry on practice as a personal insolvency practitioner.
166.— (1) An authorisation to carry on practice as a personal insolvency practitioner, unless it has been revoked, may, subject to subsection (4), be renewed by the Insolvency Service.
(2) An application for the renewal of an authorisation to carry on practice as a personal insolvency practitioner shall be—
(a) in the prescribed form,
(b) made at least 6 weeks before the expiration of the authorisation, and
(c) accompanied by—
(i) such documents as may be prescribed, and
(ii) the prescribed fee.
(3) Subject to subsection (4), where an application under subsection (2) for the renewal of an authorisation is not determined by the Insolvency Service before the authorisation expires, and the application was made in accordance with paragraph (b) of that subsection, the authorisation shall continue in force until the application has been so determined.
(4) Subject to section 167 , the Insolvency Service shall refuse to renew an authorisation to carry on practice as a personal insolvency practitioner if—
(a) subsection (2) has not been complied with in respect of the person,
(b) the application is not accompanied by a report in the prescribed form by a duly qualified accountant that appropriate financial systems and controls are still in place for the protection of moneys received from debtors by the applicant,
(c) the applicant does not satisfy the Insolvency Service that there is available to the person the required level of professional indemnity insurance in respect of the authorisation to carry on practice as a personal insolvency practitioner,
(d) in the case of an individual, the person is an undischarged bankrupt.
(5) Where an authorisation to carry on practice as a personal insolvency practitioner is renewed under this Act, the period of validity of the authorisation as so renewed shall be deemed to start to run on the day that the authorisation would have expired if no application under subsection (2) for its renewal had been made, and irrespective of whether the authorisation is renewed before, on or after that day.
Notification to applicant of refusal to renew authorisation, etc.
167.— (1) Where the Insolvency Service proposes to refuse to renew an authorisation to carry on practice as a personal insolvency practitioner, it shall give a notice in writing to the person concerned—
(a) of the proposal and the reasons for the proposal, and
(b) stating that the person may make representations in writing to the Insolvency Service on the proposal—
(i) subject to subparagraph (ii), within 21 days from the date of the issue of that notice to the person, or
(ii) within such longer period as the Insolvency Service deems appropriate in the circumstances of the case.
(2) Where the Insolvency Service has given a notice under subsection (1) to a person, it shall, as soon as is practicable after the expiration of the period referred to in subsection (1)(b)(i) or (ii), as the case requires, and the consideration of any representations referred to in subsection (1)(b) made to it—
(a) issue to the person the renewal of the authorisation that is the subject of the notice, or
(b) refuse to renew the authorisation that is the subject of the notice and give the person notice in writing of the refusal and the reasons for the refusal.
Provision of information by Garda Síochána and Central Bank.
168.— (1) The Insolvency Service may request the Commissioner of the Garda Síochána or the Central Bank of Ireland to provide any information requisite for the due performance of its functions in relation to any applicant for authorisation to carry on practice as a personal insolvency practitioner or any personal insolvency practitioner.
(2) The Commissioner of the Garda Síochána and the Central Bank of Ireland shall comply with a request under subsection (1) notwithstanding anything contained in any statutory provision or rule of law.
Appeal to Circuit Court against decision of Insolvency Service.
169.— (1) A person aggrieved by a decision of the Insolvency Service—
(a) refusing under section 164 (3)(d) to issue an authorisation to carry on practice as a personal insolvency practitioner, or
(b) declining under section 178 (2) to cause to be carried out an investigation of the matter the subject of a complaint,
may, within 21 days from the date of receipt of notice of the decision, appeal to the Circuit Court against the decision.
(2) The jurisdiction conferred on the Circuit Court by this section shall be exercised by the judge for the time being assigned to the circuit where the appellant ordinarily resides or carries on any profession, business or occupation.
(3) The appeal shall be determined by the Circuit Court—
(a) by confirming the decision of the Insolvency Service to which the appeal relates, or
(b) by substituting its determination for that decision.
(4) A decision of the Circuit Court under this section shall be final, save that, by leave of that Court, an appeal shall lie to the High Court on a point of law.
Chapter 2
General Obligations of Personal Insolvency Practitioners
Retention of records.
170.— Where a personal insolvency practitioner is appointed by a debtor under Chapter 2 of Part 3 , the personal insolvency practitioner shall retain such records as may be prescribed and in such form and manner as may be prescribed of his or her activities in relation to the debtor for a period of not less than 6 years after the completion of the activity to which the record relates.
Professional indemnity insurance.
171.— (1) A personal insolvency practitioner shall not carry on practice as a personal insolvency practitioner unless there is in force, at the time he or she so acts, a policy of professional indemnity insurance which meets such requirements as may be prescribed from time to time pursuant to subsection (2).
(2) The Insolvency Service may prescribe such matters as it considers necessary in relation to policies of professional indemnity insurance including the minimum amount of cover which shall apply in relation to each and every claim made against a personal insolvency practitioner.
Fees and charges by personal insolvency practitioners.
172.— A personal insolvency practitioner shall not charge fees or costs or seek to recover outlays which are not incurred—
(a) in accordance with regulations made under section 161 (f), and
(b) in a case where a Debt Settlement Arrangement or a Personal Insolvency Arrangement comes into effect, in accordance with the terms of such an arrangement.
Chapter 3
Accounts and Related Matters
Keeping and preservation by personal insolvency practitioner of accounts and records.
173.— (1) Subject to subsection (2), the Insolvency Service may make regulations providing for any of the following matters:
(a) the kind or kinds of accounts at banks authorised to carry on business in the State which may be opened and kept by a personal insolvency practitioner for the keeping of moneys received from debtors;
(b) the opening and keeping of such accounts by a personal insolvency practitioner and in particular the keeping of moneys received from or for the credit of or on behalf of debtors in a client account maintained specifically for that purpose;
(c) the rights, duties and responsibilities of a personal insolvency practitioner in respect of moneys received from debtors, including the transmission of such moneys to creditors and the deduction of fees, charges and outlays due to the personal insolvency practitioner;
(d) the receipts or statements to be issued by a personal insolvency practitioner in respect of moneys received from debtors;
(e) the accounting records to be maintained by a personal insolvency practitioner, including the minimum period or periods for which accounting records shall be retained by a personal insolvency practitioner during the period of, and following the conclusion of, Debt Settlement Arrangements or Personal Insolvency Arrangements and the manner in which the lodgement into bank accounts of any moneys received from debtors shall be recorded in the accounting records;
(f) the accounting records to be maintained by a personal insolvency practitioner containing particulars of and information as to moneys received, held, controlled or paid by the personal insolvency practitioner in connection with Debt Settlement Arrangements or Personal Insolvency Arrangements;
(g) the circumstances and manner in which a personal insolvency practitioner (or a duly qualified accountant on behalf of the personal insolvency practitioner) verifies compliance with the regulations, including the frequency of doing so;
(h) the examination by an auditor or an accountant who is a member of a body prescribed for the purposes of this section, at intervals prescribed by the regulations, of accounting records maintained by a personal insolvency practitioner under regulations made under paragraphs (e) and (f) and for the making of reports to the Insolvency Service of such matters relating to the keeping of accounts and holding of moneys received from debtors as may be prescribed and such reports shall be in such form as may be prescribed;
(i) the enforcement by the Insolvency Service of compliance with the regulations;
(j) the imposition of fees on a personal insolvency practitioner in cases of non-compliance where the Insolvency Service, by reason of such non-compliance has determined that further enquiries should be carried out (such fees not exceeding the cost of conducting such enquiries);
(k) the examination, by or on behalf of the Insolvency Service, of the financial circumstances of a personal insolvency practitioner in so far as such circumstances could affect his or her capacity to carry out the functions of a personal insolvency practitioner.
(2) The Insolvency Service shall, in making regulations under this section, have regard to the need to protect debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements.
Control of banking accounts or assets of personal insolvency practitioners.
174.— (1) Where, as respects a person who is a personal insolvency practitioner, the Insolvency Service determines that it is necessary to do so for the protection of debtors and creditors who are parties to Debt Settlement Arrangements or Personal Insolvency Arrangements in relation to which the personal insolvency practitioner concerned is performing or has performed functions performable by a personal insolvency practitioner under this Act, the Insolvency Service may apply to the High Court in a summary manner for an order directing one or more of the following:
(a) that no bank shall, without leave of the High Court, make any payment out of an account in the name of the personal insolvency practitioner concerned in his or her capacity as a personal insolvency practitioner;
(b) that a specified bank shall not, without leave of the High Court, make any payment out of an account kept at such bank by the personal insolvency practitioner or former personal insolvency practitioner in such capacity or former capacity, as the case may be;
(c) that the personal insolvency practitioner or former personal insolvency practitioner shall not, without leave of the High Court, dispose of or direct or facilitate the disposal of any assets within his or her possession or control or within his or her procurement;
(d) that the personal insolvency practitioner or former personal insolvency practitioner shall not, without leave of the High Court, reduce his or her assets below a specified amount or value.
(2) The High Court may hear an application for an order under subsection (1) otherwise than in public.
(3) Where the High Court makes an order under subsection (1) in relation to a personal insolvency practitioner, the Court may make one or more of the following further orders:
(a) directing a specified bank to furnish any information in its possession that the Insolvency Service requires relating to any aspect of the financial affairs of the personal insolvency practitioner in his or her capacity as a personal insolvency practitioner;
(b) directing the personal insolvency practitioner to swear an affidavit disclosing all information relating to or contained in any account with any bank held in his or her own name, or in the name of his or her business or former business as a personal insolvency practitioner, or jointly with third parties, within a specified duration of time to be fixed by the Court;
(c) directing the personal insolvency practitioner to swear an affidavit disclosing all information relating to his or her assets, either then in his or her possession or control or within his or her procurement or which had been but are no longer in his or her possession or control or within his or her procurement, within a specified duration of time to be fixed by the Court, and, if no longer in his or her possession or control or within his or her procurement, his or her belief as to the present whereabouts of those assets;
(d) directing the personal insolvency practitioner to make himself or herself available before the Court on a specified date and at a specified time for oral examination under oath in relation to the contents of any affidavit of assets sworn by him or her pursuant to paragraph (c).
(4) Where the High Court makes an order under subsection (1) in relation to a personal insolvency practitioner, the personal insolvency practitioner shall forthwith lodge (or cause to be lodged) any moneys subsequently received by him or her to the appropriate account or accounts, unless otherwise ordered by the Court.
(5) Where the High Court is satisfied, on an application being made to it by the Insolvency Service, that there is reason to believe that any person holds or has held assets on behalf of a personal insolvency practitioner or on behalf of his or her practice or former practice as a personal insolvency practitioner to whom subsection (1) applies, the Court may order that person to disclose to the Insolvency Service all information as to such assets, either then in his or her possession or control or within his or her procurement or which had been but are no longer in his or her possession or control or within his or her procurement, and, if no longer within his or her possession or control or within his or her procurement, his or her belief as to the present whereabouts of those assets.
(6) A reference in this section to a personal insolvency practitioner includes a reference to a person who is no longer a personal insolvency practitioner.
Power of Insolvency Service to deal with documents.
175.— (1) Where—
(a) either—
(i) the Insolvency Service refuses to renew an authorisation to carry on practice as a personal insolvency practitioner, or
(ii) an authorisation to carry on practice as a personal insolvency practitioner is revoked or suspended under this Act,
and
(b) the Insolvency Service is of the opinion that adequate arrangements have not been made for handing over to another personal insolvency practitioner of any documents within the possession or in the control, or within the procurement, of the personal insolvency practitioner or former personal insolvency practitioner, as the case may be,
the Insolvency Service may, by notice in writing given to the personal insolvency practitioner or former personal insolvency practitioner, as the case may be, require the personal insolvency practitioner or former personal insolvency practitioner, as the case may be, or any other person in possession or control of such documents, to produce the documents, to a person appointed by the Insolvency Service for the purpose, at a time and place specified by the Insolvency Service in the notice.
(2) Where a person the subject of a requirement under subsection (1) does not comply or fully comply with that requirement, the Insolvency Service may apply in a summary manner to the Circuit Court, on notice to that person, for an order requiring the person to comply or comply fully, as the case may be, with the requirement within a period to be specified by the Court and the Court may make the order applied for or such other order as it deems appropriate.
(3) Where the Insolvency Service takes possession of documents produced under this section—
(a) it shall serve on the person by whom the documents were produced, a notice giving particulars of the documents and the date of taking possession thereof, and
(b) it may make such enquiries as may be reasonably necessary to ascertain the person or persons entitled to the possession or custody of such documents, or any of them, and may thereafter deal with such documents, or any of them, in accordance with the directions of such person or persons so entitled.
(4) Within 14 days from the service of a notice under subsection (3) on a person, the person may apply in a summary manner to the Circuit Court for an order directing the Insolvency Service to return the documents taken by the Insolvency Service to him or her or to such other person or persons as the applicant may require and the Court may make the order applied for or such other order as it deems appropriate.
(5) An application under subsection (2) to the Circuit Court shall be made to a judge of that Court for the circuit in which the personal insolvency practitioner the subject of the application resides or ordinarily carried on within the previous 3 years practice as a personal insolvency practitioner.
Chapter 4
Complaints, Investigations and Sanctions
Inspectors.
176.— (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 inspectors 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 inspectors 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 inspector 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.
Panel of persons to act as members of Complaints Committee.
177.— (1) The Minister shall establish a panel of persons to act on a committee to be known as the Personal Insolvency Practitioners Complaints Committee (in this Part referred to as “the Complaints Committee”).
(2) Schedule 3 shall apply in relation to the panel and the Complaints Committee.
(3) Where the Insolvency Service appoints an inspector under section 180 (1)(b) to carry out an investigation, it shall thereafter request the Minister to appoint a Complaints Committee from the panel of persons appointed in accordance with subsection (1) and Schedule 3 , to perform the functions of the Complaints Committee under this Part as respects the inspector’s investigation of the personal insolvency practitioner concerned.
Complaints against personal insolvency practitioners.
178.— (1) A person may make a complaint in writing to the Insolvency Service alleging that improper conduct by a personal insolvency practitioner has occurred or is occurring.
(2) Where the Insolvency Service receives a complaint it shall—
(a) notify the personal insolvency practitioner concerned in writing of the receipt of the complaint,
(b) provide the personal insolvency practitioner with a copy of the complaint and a copy of any documents furnished to the Insolvency Service by the complainant,
(c) refer the personal insolvency practitioner to any regulations made under sections 161 and 173 and to any guidelines or codes of practice issued under section 137 , and
(d) request the personal insolvency practitioner to provide a response in relation to the complaint within a time specified in the notification.
(3) Where the Insolvency Service receives a response to the request referred to in subsection (2)(d) it shall consider the response and having considered the response it may, where—
(a) it is satisfied that the complaint is not made in good faith,
(b) it is satisfied that the complaint is frivolous or vexatious or without substance or foundation, or
(c) subject to subsection (6), it is satisfied that the complaint is likely to be resolved by mediation or other informal means between the parties concerned,
determine the complaint accordingly and in that case it shall give notice in writing to the complainant and the personal insolvency practitioner to whom the complaint relates of the decision and the reasons for the decision.
(4) Where the Insolvency Service does not receive a response to the request referred to in subsection (2)(d), or having received a response it considers that none of paragraphs (a) to (c) of subsection (3) apply, it shall cause an investigation of the matter the subject of the complaint to be carried out.
(5) Where a complaint is withdrawn by a complainant before the investigation report which relates to the complaint has been furnished by the inspector concerned pursuant to section 182 (2), the Insolvency Service may proceed as if the complaint had not been withdrawn if it is satisfied that there is good and sufficient reason for so doing.
(6) Where, pursuant to subsection (5), the Insolvency Service proceeds as if a complaint had not been withdrawn, the investigation concerned shall thereupon be treated as an investigation initiated by the Insolvency Service, and the other provisions of this Act shall be construed accordingly.
(7) Where a complaint is not resolved by mediation or other informal means referred to in subsection (3)(c), the complainant may, at his or her discretion, make a fresh complaint in respect of the matter the subject of the first-mentioned complaint.
Circumstances in which application may be made to High Court for immediate suspension of authorisation, etc.
179.— (1) Without prejudice to subsection (4), where the Insolvency Service considers that the immediate suspension of an authorisation to carry on practice as a personal insolvency practitioner (whether or not the personal insolvency practitioner concerned is the subject of a complaint) is necessary to protect debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements, until steps or further steps are taken under this Part, the Insolvency Service may, on notice to the personal insolvency practitioner, make an application in a summary manner to the High Court for an order to suspend the personal insolvency practitioner’s authorisation to carry on practice as a personal insolvency practitioner.
(2) The High Court may determine an application under subsection (1) by—
(a) making any order that it considers appropriate, including an order suspending the authorisation of the personal insolvency practitioner the subject of the application for such period, or until the occurrence of such event, as is specified in the order, and
(b) giving to the Insolvency Service any other direction that the court considers appropriate.
(3) The Insolvency Service shall, on complying with a direction of the High Court under subsection (2)(b), give notice in writing to the personal insolvency practitioner concerned of the Insolvency Service’s compliance with the direction.
(4) (a) Where the Insolvency Service considers that the immediate suspension of an authorisation to carry on practice as a personal insolvency practitioner (and whether or not the personal insolvency practitioner concerned is the subject of a complaint) is necessary because of the immediate risk of financial harm to debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements, the Insolvency Service may make an application in a summary manner ex parte to the High Court for an interim order to suspend the authorisation.
(b) The application for such an order shall be grounded on an affidavit sworn on behalf of the Insolvency Service.
(5) (a) The High Court may make an interim order to suspend an authorisation to carry on practice as a personal insolvency practitioner on an application under subsection (4) where, having regard to the circumstances of the case, the Court considers it necessary to do so for the protection of debtors and creditors who are or may become parties to Debt Settlement Arrangements or Personal Insolvency Arrangements.
(b) If an interim order is made, a copy of the order and the affidavit referred to in subsection (4)(b) shall be served on the personal insolvency practitioner as soon as is practicable.
(c) The interim order shall have effect for a period, not exceeding 14 days, to be specified in the order, and shall cease to have effect on the determination by the High Court of an application under subsection (1) for an order to suspend the authorisation to carry on practice as a personal insolvency practitioner.
(6) An application under subsection (4) shall be heard otherwise than in public unless the High Court considers it appropriate to hear the application in public.
Investigations.
180.— (1) Subject to section 178 (2) and (4), the Insolvency Service—
(a) shall, following the receipt of a complaint, or may of its own volition, cause such investigation as it deems appropriate to be carried out to identify any improper conduct, and
(b) for the purposes of the investigation, shall appoint an inspector subject to such terms as it deems appropriate—
(i) to carry out the investigation, and
(ii) to prepare an investigation report following the completion of the investigation and to furnish it to the persons referred to in subsection (4).
(2) The Insolvency Service may appoint more than one inspector to carry out an investigation but, in any such case, the investigation report concerned shall be prepared jointly by the inspectors so appointed.
(3) The terms of appointment of an inspector may define the scope of the investigation to be carried out by the inspector, whether as respects the matters or the period to which it is to extend or otherwise, and in particular may limit the investigation to matters connected with particular circumstances.
(4) Where the Insolvency Service has appointed an inspector to carry out an investigation, the inspector shall, as soon as is practicable after being so appointed—
(a) if the investigation arises in consequence of the receipt of a complaint by the Insolvency Service—
(i) give notice in writing to the personal insolvency practitioner to whom the complaint relates of the receipt of the complaint and setting out particulars of the complaint, and
(ii) give the personal insolvency practitioner—
(I) copies of any documents relevant to the investigation, and
(II) a copy of this Part,
(b) if the investigation arises on the volition of the Insolvency Service—
(i) give notice in writing to the personal insolvency practitioner concerned of the matters to which the investigation relates, and
(ii) give the personal insolvency practitioner—
(I) copies of any documents relevant to the investigation, and
(II) a copy of this Part,
and
(iii) without prejudice to the generality of section 181 , afford the personal insolvency practitioner an opportunity to respond within 21 days from the day on which notice was given to the personal insolvency practitioner pursuant to subparagraph (i), or such further period not exceeding 30 days as the inspector allows, to the matter to which the investigation relates.
(5) Where an investigation arises in consequence of the receipt of a complaint by the Insolvency Service, the inspector appointed to carry out the investigation—
(a) shall, as soon as is practicable, give the complainant a copy of the notice referred to in subsection (4)(a)(i) given to the personal insolvency practitioner to whom the complaint relates, and
(b) shall make reasonable efforts to ensure that the complainant is kept informed of progress on the investigation.
Measures to assist inspector in carrying out investigation.
181.— (1) For the purposes of an investigation in relation to a personal insolvency practitioner, an inspector may—
(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 inspector to see for the purposes of the investigation, and the inspector 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 inspector,
(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 inspector to exercise any of the powers conferred on the inspector 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 inspector 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 inspector 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 inspector deems necessary to fulfil that purpose, and
(g) be accompanied by a member of the Garda Síochána if there is reasonable cause to apprehend any serious obstruction in the performance of any of the inspector’s functions under this subsection.
(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 an investigation, an inspector—
(a) may require a person who, in the inspector’s opinion—
(i) possesses information that is relevant to the investigation, 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 investigation,
to provide that information or those records, books, accounts or other documents, as the case may be, to the inspector, and
(b) where the inspector deems appropriate, may require that person to attend before the inspector for the purpose of so providing that information or those records, books, accounts or other documents, as the case may be,
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 inspector 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 inspector under subsection (3)—
(a) is also required to answer fully and truthfully any question put to the person by the inspector, and
(b) if so required by the inspector, shall answer any such question under oath.
(6) Where it appears to an inspector that a person has failed to comply or fully comply with a requirement under subsection (1), (3) or (5), the inspector 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 inspector 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 (17), and this shall be explained to the person in ordinary language by the inspector 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 inspector 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 inspector 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 inspector under this section are, held on any premises or any part of any premises, and
(ii) an inspector, 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 inspector enter a private dwelling and exercise therein any of his or her powers under this section,
may issue a warrant authorising the inspector, 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) For the purposes of an investigation, an inspector may, if he or she thinks it proper to do so, of his or her own volition or at the request of the personal insolvency practitioner to whom the investigation relates, conduct an oral hearing.
(16) Part 1 of Schedule 2 shall have effect for the purposes of an oral hearing referred to in subsection (15).
(17) 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 an investigation,
(b) fails or refuses to comply with any requirement of an inspector under this section, or
(c) otherwise obstructs or hinders an inspector in the performance of functions imposed under this Act,
is guilty of an offence.
(18) Subject to subsection (19), where a personal insolvency practitioner is convicted of an offence under subsection (17), 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.
(19) An order under subsection (18) 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.
(20) In this section, “records, books or accounts” includes copies of records, books or accounts.
(21) 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.
Preparation of report by inspector and consideration of matter by the Complaints Committee.
182.— (1) Subject to subsection (3), where an inspector has completed an investigation, the inspector shall, as soon as is practicable after having considered, in so far as they are relevant to the investigation, any information or records, books or accounts (whether kept in manual form or otherwise) or other documents provided to the inspector pursuant to any requirement under section 181 , any statement or admission made by any person pursuant to any requirement under that section, any submissions made and any evidence presented (whether at an oral hearing referred to in section 181 (15) or otherwise)—
(a) prepare a draft of the investigation report, and
(b) give a copy of the investigation report together with a copy of this section to—
(i) the personal insolvency practitioner to whom the investigation relates,
(ii) if the investigation arose in consequence of the receipt of a complaint, the complainant, and
(iii) the Insolvency Service,
and shall in writing invite those persons to each make submissions in writing to the inspector on the draft of the investigation report not later than 30 days from the date on which the notice was sent to them, or such further period not exceeding 30 days as the inspector allows.
(2) An inspector who has complied with subsection (1) following the completion of an investigation shall, as soon as is practicable after the expiration of the period referred to in subsection (1)(b), and, having—
(a) considered the submissions (if any) referred to in subsection (1)(b) made before the expiration of that period on the draft of the investigation report concerned, and
(b) made any revisions to the draft of the investigation report which, in the opinion of the inspector, are warranted following such consideration,
prepare the final form of the investigation report and submit it, together with any such submissions annexed to the report, to each of the parties referred to in subsection (1) and the Complaints Committee.
(3) In a case where the investigation report states that the inspector is satisfied that improper conduct by the personal insolvency practitioner to whom the investigation relates has occurred or is occurring, the inspector shall not make any recommendation, or express any opinion, in the report as to the form of sanction (whether a minor sanction or a major sanction) that he or she thinks ought to be imposed on the personal insolvency practitioner in respect of such improper conduct.
(4) Where the Complaints Committee receives an inspector’s report it shall invite—
(a) the personal insolvency practitioner concerned,
(b) the Insolvency Service, and
(c) where the investigation by the inspector arose in consequence of the receipt of a complaint, the complainant,
to make submissions to it in writing regarding the matters the subject of the inspector’s report and the submissions furnished to those parties pursuant to subsection (2) within 30 days of the issue of the invitation or such further period as the Complaints Committee may allow.
(5) Subject to subsection (6), the Complaints Committee may consider the matter on the basis of the inspector’s report and any submissions made to the inspector pursuant to subsection (1), and to the Complaints Committee pursuant to subsection (4), and may also have regard to any documents furnished to the inspector in the course of the inspection.
(6) Where the Complaints Committee is of the opinion that for the purposes of observing fair procedures it is appropriate to do so, it may conduct an oral hearing.
(7) Part 2 of Schedule 2 shall apply for the purposes of an oral hearing referred to in subsection (6).
(8) Having completed its consideration of the matter the Complaints Committee shall make a determination as to whether the conduct of the personal insolvency practitioner the subject of the investigation constitutes improper conduct.
(9) Where the Complaints Committee determines that the conduct of the personal insolvency practitioner does not constitute improper conduct it shall dismiss the complaint.
(10) Where the Complaints Committee determines that the conduct of the personal insolvency practitioner the subject of the investigation does constitute improper conduct it shall determine whether the appropriate sanction is a minor sanction or a major sanction in the circumstances of the case.
(11) Where the Complaints Committee determines that the appropriate sanction is a minor sanction it shall determine which of the sanctions specified in the definition of minor sanction is the appropriate sanction in the circumstances of the case and shall impose that sanction.
(12) Where the Complaints Committee determines that the appropriate sanction is a major sanction it shall determine which of the sanctions specified in the definition of major sanction is the appropriate sanction in the circumstances of the case and in such a case it shall refer the matter to the High Court and make a recommendation as to the appropriate sanction.
(13) In every case where a determination is made under subsections (8) to (12) the Complaints Committee shall furnish a copy of that determination to—
(a) the personal insolvency practitioner concerned,
(b) the Insolvency Service, and
(c) where the investigation by the inspector arose in consequence of the receipt of a complaint, the complainant.
(14) Where a matter is referred to the High Court it shall determine, having given all the parties an opportunity to make submissions, whether the appropriate sanction is a minor sanction or a major sanction in the circumstances of the case, and
(a) where the Court determines that the appropriate sanction is a minor sanction it shall determine which of the sanctions specified in the definition of minor sanction in section 159 is the appropriate sanction in the circumstances of the case and shall impose that sanction, and
(b) where the Court determines that the appropriate sanction is a major sanction it shall determine which of the sanctions specified in the definition of major sanction in section 159 is the appropriate sanction in the circumstances of the case and shall impose that sanction.
Appeal to High Court against determination of Complaints Committee.
183.— (1) A personal insolvency practitioner the subject of a determination under section 182 (other than subsection (12) of that section) by the Complaints Committee—
(a) that the personal insolvency practitioner concerned has committed improper conduct, and
(b) that a minor sanction be imposed in respect of improper conduct,
may, not later than 30 days from the date the notice under section 182 (13) was issued to the personal insolvency practitioner, appeal to the High Court against the decision.
(2) The High Court may, on the hearing of an appeal under subsection (1) by a personal insolvency practitioner, consider any evidence adduced or argument made, whether or not adduced or made to an inspector or the Complaints Committee.
(3) Subject to subsection (4), the High Court may, on the hearing of an appeal under subsection (1) by a personal insolvency practitioner—
(a) (i) confirm the decision the subject of the appeal,
(ii) determine that the conduct concerned does not constitute improper conduct, or
(iii) confirm the determination that the conduct concerned does constitute improper conduct and impose a different sanction on the personal insolvency practitioner,
and
(b) make such order as to costs as it deems appropriate in respect of the appeal.
(4) The High Court shall, in considering an appropriate sanction, take into consideration the matters referred to in section 184 .
Matters to be considered in determining sanctions to be imposed.
184.— The Complaints Committee and the High Court, as the case may be, in considering whether a sanction ought to be imposed or the appropriate sanction to be imposed shall take into account the circumstances of the improper conduct concerned (including the factors occasioning it) and, without prejudice to the generality of the foregoing, may have regard to—
(a) the need to ensure that any sanction imposed—
(i) is appropriate and proportionate to the improper conduct, and
(ii) if applicable, will act as a sufficient deterrent to discourage improper conduct of that or a similar nature in the future,
(b) the seriousness of the improper conduct,
(c) the extent of any failure by the personal insolvency practitioner to co-operate with the investigation concerned of the personal insolvency practitioner,
(d) any excuse or explanation by the personal insolvency practitioner for the improper conduct or failure to co-operate with the investigation concerned,
(e) any gain (financial or otherwise) made by the personal insolvency practitioner or by any person in which the personal insolvency practitioner has a financial interest as a consequence of the improper conduct,
(f) the amount of any loss suffered or costs incurred as a result of the improper conduct,
(g) the duration of the improper conduct,
(h) the repeated occurrence of improper conduct by the personal insolvency practitioner,
(i) if applicable, the continuation of the improper conduct after the personal insolvency practitioner was notified of the investigation concerned,
(j) if applicable, the absence, ineffectiveness or repeated failure of internal mechanisms or procedures of the personal insolvency practitioner intended to prevent improper conduct from occurring,
(k) if applicable, the extent and timeliness of any steps taken to end the improper conduct and any steps taken for remedying the consequences of the improper conduct,
(l) whether a sanction in respect of similar improper conduct has already been imposed on the personal insolvency practitioner by a court or the Complaints Committee, and
(m) any precedents set by a court or the Complaints Committee in respect of previous improper conduct.
Publication of sanctions, etc.
185.— (1) The Insolvency Service shall publish particulars, in such form and manner and for such period as it deems appropriate, of—
(a) the conviction of a person for an offence under section 160 ,
(b) a decision of the Insolvency Service refusing to renew an authorisation to carry on practice as a personal insolvency practitioner,
(c) the suspension under section 179 (2) of an authorisation to carry on practice as a personal insolvency practitioner, and
(d) the imposition of a major sanction on a personal insolvency practitioner under this Part.
(2) The Insolvency Service may publish particulars, in such form and manner and for such period as it deems appropriate, of the imposition of a minor sanction on a personal insolvency practitioner under this Part.
Restriction of Data Protection Act 1988.
186.— Section 4 (as amended by section 5 of the Data Protection (Amendment) Act 2003 ) of the Data Protection Act 1988 shall not apply to data processed by—
(a) the Insolvency Service,
(b) an inspector appointed under section 176 , or
(c) the Complaints Committee,
in the performance of functions assigned to those persons under this Act in so far as those functions relate to carrying out an investigation under this Part.
PART 6
Specialist Judges of Circuit Court
Amendment of Courts (Establishment and Constitution) Act 1961.
187.— The Courts (Establishment and Constitution) Act 1961 is amended—
(a) in section 4(2)—
(i) in paragraph (a), by deleting “and”,
(ii) in paragraph (b), by deleting “Oireachtas.” and substituting “Oireachtas, and”, and
(iii) by inserting the following paragraph after paragraph (b):
“(c) such number of specialist judges (each of whom shall be styled “Sainbhreitheamh den Chúirt Chuarda” (“Specialist Judge of the Circuit Court”)) as may from time to time be fixed by Act of the Oireachtas.”,
(b) in section 6(1)(a), by deleting “President of the Circuit Court or ordinary judge of the Circuit Court” and substituting “President of the Circuit Court, ordinary judge of the Circuit Court or specialist judge of the Circuit Court”, and
(c) in section 6A (inserted by section 12 of the Courts and Court Officers Act 2002 ), by substituting the following for subsection (1):
“(1) Where a judicial office within the meaning of section 6 of this Act is vacated by a person in accordance with subsection (3) of that section, the person shall complete the hearing of any case or cases that have been partly heard by the person in the Court in which the judicial office is vacated if, at the request of the President of that Court—
(a) in case the person is appointed to the office of Chief Justice, President of the High Court or President of the Circuit Court, he or she considers it appropriate to do so, or
(b) in case the person is appointed to the office of—
(i) ordinary judge of the Supreme Court, the Chief Justice requests the person to do so,
(ii) ordinary judge of the High Court, the President of the High Court requests the person to do so, or
(iii) ordinary judge of the Circuit Court or specialist judge of the Circuit Court, the President of the Circuit Court requests the person to do so.”.
Amendment of section 17 of Courts (Supplemental Provisions) Act 1961.
188.— Section 17 of the Courts (Supplemental Provisions) Act 1961 is amended—
(a) in subsection (2) (as amended by section 5 of the Courts and Court Officers Act 2002 ), by deleting “A person” and substituting “Subject to subsection (4), a person”,
(b) in subsection (2A) (inserted by section 5 of the Courts and Court Officers Act 2002 ), by deleting “A judge” and substituting “Subject to subsection (4), a judge”,
(c) in subsection (2B) (inserted by section 5 of the Courts and Court Officers Act 2002 ), by deleting “A county registrar” and substituting “Subject to subsection (4), a county registrar”,
(d) by inserting the following after subsection (2B) (inserted by section 5 of the Courts and Court Officers Act 2002 ):
“(2C) A specialist judge of the Circuit Court shall be qualified for appointment as an ordinary judge of the Circuit Court.”,
and
(e) by inserting the following after subsection (3):
“(4) Any of the following persons shall be qualified for appointment as a specialist judge of the Circuit Court:
(a) a person who is for the time being a county registrar, having held such office for not less than 2 years continuously, and
(b) subject to subsection (5)—
(i) a person who is for the time being a practising barrister or a practising solicitor of not less than 10 years standing, and
(ii) a judge of the District Court.
(5) Subsection (4)(b) shall come into operation on such day, being not later than 1 January 2014, as the Minister may by order appoint.”.
Amendment of Courts (Supplemental Provisions) Act 1961.
189.— The Courts (Supplemental Provisions) Act 1961 is amended by inserting the following after section 26:
“
Functions, powers and jurisdiction of specialist judges of the Circuit Court.
26A.— (1) Notwithstanding any other enactment conferring functions, powers and jurisdiction on a judge of the Circuit Court, a specialist judge of that court may only perform the functions and exercise the powers and jurisdiction that are conferred upon him or her by this section.
(2) The functions, powers and jurisdiction conferred on the Circuit Court by the Personal Insolvency Act 2012 may, subject to this section, be performed and exercised by a specialist judge.
(3) A specialist judge may make any order that may be made by a County Registrar under section 34(1) of, and the Second Schedule to, the Courts and Court Officers Act 1995 , subject to the following modifications and any other necessary modifications—
(a) a reference in the Schedule to a County Registrar shall be construed as a reference to a specialist judge,
(b) section 34(2) of the Act shall not apply to such an order, and
(c) the deletion of paragraph 8 of the Schedule.
(4) In performing the functions and exercising the jurisdiction conferred upon him or her by this section, a specialist judge shall have all powers ancillary to those functions or that jurisdiction.
(5) A specialist judge may perform functions and exercise powers and jurisdiction in respect of proceedings to which subsections (2) and (3) apply that are before the Circuit Court only in a relevant circuit.
(6) A specialist judge may, in any place in the State outside a relevant circuit, hear and determine any application which he or she has power to hear and determine within that circuit and which, in his or her opinion, should be dealt with as a matter of urgency.
(7) A specialist judge may adjourn proceedings or any part of proceedings before him or her to any other judge of the Circuit Court within a relevant circuit.
(8) A specialist judge may make out of court any orders which he or she may deem to be urgent.
(9) In this section—
“enactment” means—
(a) an Act of the Oireachtas,
(b) a statute that was in force in Saorstát Éireann immediately before the date of the coming into operation of the Constitution and that continues in force by virtue of Article 50 of the Constitution, or
(c) an instrument made under—
(i) an Act of the Oireachtas, or
(ii) a statute referred to in paragraph (b);
“relevant circuit” means, in relation to a specialist judge, a circuit to which he or she is assigned under section 10(3) of the Courts of Justice Act 1947 or section 2A (inserted by section 193 of the Personal Insolvency Act 2012) of the Courts Act 1977 .”.
Amendment of section 46 of Courts (Supplemental Provisions) Act 1961.
190.— Subsection (9A) (inserted by section 10 of the Financial Emergency Measures in the Public Interest (Amendment) Act 2011 ) of section 46 of the Courts (Supplemental Provisions) Act 1961 is amended—
(a) in paragraph (g), by deleting “and”, and
(b) by inserting the following after paragraph (g):
“(gg) to each specialist judge of the Circuit Court, the sum of €140,623, and”.
Number of specialist judges.
191.— The Courts and Court Officers Act 1995 is amended by inserting the following after section 10:
“Number of specialist judges of Circuit Court.
10A.— The number of specialist judges of the Circuit Court shall not be more than 8.”.
Amendment of Courts and Court Officers Act 1995.
192.— The Courts and Court Officers Act 1995 is amended—
(a) in section 12, in the definition of “judicial office”, by inserting “, specialist judge of the Circuit Court” after “Circuit Court”,
(b) in section 16(7) (as amended by section 8 of the Courts and Court Officers Act 2002 ), by substituting the following paragraph for paragraph (a):
“(a) When submitting the name of a person to the Minister under this section, the Board shall indicate whether the person satisfies the requirements of—
(i) subsection (2) of section 5 (as amended by section 4 of the Courts and Court Officers Act 2002 ) of the Act of 1961 (in the case of an appointment to the office of ordinary judge of the Supreme Court or of ordinary judge of the High Court),
(ii) subsection (2) or (2B) of section 17 (as amended by section 188 of the Personal Insolvency Act 2012) of the Act of 1961 (in the case of an appointment to the office of judge of the Circuit Court),
(iii) subsection (4) (inserted by section 188 of the Personal Insolvency Act 2012) of section 17 of the Act of 1961 (in the case of an appointment to the office of specialist judge of the Circuit Court), or
(iv) subsection (2) or (3) of section 29 of the Act of 1961 (in the case of an appointment to the office of judge of the District Court),
in respect of appointment to the judicial office for which the person wishes to be considered and the Board shall not recommend a person to the Minister under this section unless the person satisfies those requirements.”,
(c) by inserting the following after section 19:
“Training and education of specialist judges of Circuit Court.
19A.— A specialist judge of the Circuit Court shall take such course or courses of training or education, or both, as may be required by the Chief Justice or the President of the Circuit Court, at such time or times as the Chief Justice or, as the case may be, the President of the Circuit Court may specify.”.
Amendment of Courts Act 1977.
193.— The Courts Act 1977 is amended by inserting the following after section 2:
“Assignment of specialist judges of Circuit Court to circuits.
2A.— (1) Section 2 shall not apply to the assignment to a circuit of a specialist judge of the Circuit Court.
(2) Where a specialist judge of the Circuit Court is appointed, the Government shall permanently assign him or her to one or more than one circuit.
(3) Any specialist judge of the Circuit Court who is permanently assigned to a particular circuit may at any time, if he or she so consents but not otherwise, be transferred by the Government to another circuit and shall upon such transfer become and be permanently assigned to that other circuit in lieu of the first-mentioned circuit.
(4) Where a specialist judge of the Circuit Court is permanently assigned to a circuit, the Government, at his or her request, may, if they think fit, terminate his or her permanent assignment to that circuit and the judge may at any time thereafter be permanently assigned by the Government to any other circuit.
(5) Where—
(a) a specialist judge of the Circuit Court is permanently assigned to two or more circuits, and
(b) his or her permanent assignment to one of those circuits ceases under subsection (3) or (4),
nothing in those subsections shall terminate or affect his or her permanent assignment to the circuit or circuits not referred to in paragraph (b) or deprive or relieve him or her of any of the privileges, powers and duties vested in or imposed on him or her by virtue of such permanent assignment.
(6) More than one specialist judge of the Circuit Court may be assigned to the same circuit, whether by operation of this section or section 10(3) of the Courts of Justice Act 1947 , or both.”.
Amendment of section 10 of Courts of Justice Act 1947.
194.— Section 10 of the Courts of Justice Act 1947 is amended—
(a) in subsection (1), by deleting “by subsections (2), (3), (4), (5) and (6) of this section” and substituting “by this section”,
(b) in subsection (2), by deleting paragraph (e), and
(c) by adding the following after subsection (6):
“(8) Subsections (2), (4) and (5) shall not apply to the distribution of the work, or the despatch of the business, of the Circuit Court that is required to be done by or transacted before a specialist judge of the Circuit Court.
(9) The President of the Circuit Court may, from time to time, by order fix, in respect of any circuit the—
(a) places therein at which sittings before specialist judges are to be held,
(b) times during the year and the hours between which (which may include times and hours other than the times and hours of the sittings of the Circuit Court fixed under subsection (2)) such sittings are to be held,
and, whenever such an order is in force, such sittings within that circuit shall be held—
(i) at the place fixed by the order and not elsewhere, and
(ii) at the times during the year and between the hours fixed by the order.
(10) The President of the Circuit Court may, before exercising his or her powers under subsection (9)(a) in respect of a circuit, consult the specialist judge permanently assigned to that circuit.
(11) Where 2 or more specialist judges are for the time being assigned (whether permanently or temporarily) to a particular circuit, the President of the Circuit Court, after consultation with those specialist judges, may, from time to time, allocate the business of the Circuit Court in that circuit that is required to be transacted before a specialist judge amongst those specialist judges.
(12) Where a specialist judge is for the time being assigned (whether permanently or temporarily) to a particular circuit, the President of the Circuit Court may, after consultation with that specialist judge, in respect of any business of the Circuit Court which may be transacted both before a county registrar for a county, county borough or other area within a circuit and a specialty judge assigned to that circuit, by order—
(a) direct that such business is to be transacted before a county registrar and not before a specialist judge, or
(b) allocate such business amongst the specialty judges and the county registrars concerned.
(13) Every order made under subsection (2), (9) or (12) shall, as soon as may be after it is made, be published in such manner as the President of the Circuit Court may direct.”.
Amendment of section 38 of Courts of Justice Act 1924.
195.— The Courts of Justice Act 1924 is amended by substituting the following section for section 38:
“38.— (1) The following judges shall be addressed in such manner as may be determined by the rules to be made under this Part:
(a) all the circuit judges, other than the specialist judges, and
(b) all the specialist judges.
(2) All the circuit judges, other than the specialist judges, shall rank amongst themselves according to priority of appointment.”.
Amendment of section 66 of Courts of Justice Act 1924.
196.— The Courts of Justice Act 1924 is amended in section 66—
(a) by designating the section as subsection (1), and
(b) by inserting the following after subsection (1):
“(2) Notwithstanding subsection (1), the times at which specialist judges of the Circuit Court may take vacations shall be such times as may be approved of by the Minister.”.
Amendment of Courts Act 1973.
197.— Section 2(2) of the Courts Act 1973 is amended by substituting the following paragraphs for paragraph (a):
“(a) under subsection (2) or (2B) of section 17 of the Courts (Supplemental Provisions) Act 1961 , as a judge of the Circuit Court,
(aa) under section (4)(b) (inserted by section 188 of the Personal Insolvency Act 2012) of section 17 of the Courts (Supplemental Provisions) Act 1961 , as a specialist judge of the Circuit Court, or”.
Amendment of Law Reform Commission Act 1975.
198.— Section 14 (2) of the Law Reform Commission Act 1975 is amended by substituting the following paragraphs for paragraph (d):
“(d) under subsection (2) or (2B) of section 17 of the Courts (Supplemental Provisions) Act 1961 , as a judge of the Circuit Court,
(dd) under section (4)(b) (inserted by section 188 of the Personal Insolvency Act 2012) of section 17 of the Courts (Supplemental Provisions) Act 1961 , as a specialist judge of the Circuit Court,”.
Continuity of administration of justice not to be affected.
199.— (1) The continuity of the administration of justice shall not be interrupted by—
(a) the coming into operation of any provision of this Part, or
(b) the assignment of a specialist judge of the Circuit Court to a circuit, whether permanently or temporarily, under section 10 (3) of the Courts of Justice Act 1947 or section 2A (inserted by section 193 of the Personal Insolvency Act 2012) of the Courts Act 1977 .
(2) A specialist judge of the Circuit Court may perform the functions and exercise the powers and jurisdiction conferred on him or her by section 189 in proceedings before the Circuit Court, notwithstanding that those proceedings may have been pending at the date of coming into operation of that section.
Personal Insolvency Act 2012 (Accounts and Related Matters) Regulations 2013.
S.I. No. 247/2013
“Iris Oifigiúil” of 12th July, 2013.
The Insolvency Service of Ireland, in exercise of the powers conferred on it by Section 3 of the Personal Insolvency Act 2012 [No. 44 of 2012] (“the Act”) hereby makes the following regulations:
Citation and Purpose
1. (1) These Regulations may be cited as the Personal Insolvency Act 2012 (Accounts and Related Matters) Regulations 2013.
(2) These Regulations are made for the purposes of Section 173 of the Act.
Scope
2. These Regulations apply to personal insolvency practitioners authorised under Section 164 of the Act.
Safeguarding of Funds
3. (1) A personal insolvency practitioner shall put in place and maintain on a constant basis robust controls and arrangements to safeguard funds received from or on behalf of debtors or held to the credit of debtors and to prevent the use of these funds for the own account of the personal insolvency practitioner or any person other than the creditor or debtor entitled thereto.
(2) A personal insolvency practitioner shall lodge promptly and hold all funds received from or on behalf of or to the credit (in the circumstances referred to in Regulation 3(6)) of each debtor in an account (referable to that debtor only), with a bank authorised to carry on business in the State, solely for the purpose of receiving payments from that debtor and transmitting such payments to creditors after the deduction of any fees, costs and outlays payable to the personal insolvency practitioner under the Act and Regulations made pursuant to the Act and in accordance with the Debt Settlement Arrangement or, as applicable, the Personal Insolvency Arrangement.
(3) A personal insolvency practitioner shall disburse funds to creditors according to their respective entitlements under the Debt Settlement Arrangement or, as applicable, the Personal Insolvency Arrangement after their receipt from or on behalf of the debtor.
(4) All such accounts referred to in Regulation 3(2) above shall be designated as either a “DSA account” or a “PIA account”, as appropriate, depending on whether the account is to be used to make and receive payments pertaining to a Debt Settlement Arrangement (in these Regulations a “DSA account”) or to a Personal Insolvency Arrangement (in these Regulations a “PIA account”). A DSA account and a PIA account shall also contain a unique identifier that identifies the debtor that is party to the Debt Settlement Arrangement or, as applicable, the Personal Insolvency Arrangement.
(5) A personal insolvency practitioner shall ensure that funds received from or on behalf of each debtor and funds received by the personal insolvency practitioner to which creditors are entitled under the relevant Debt Settlement Arrangement or, as applicable, the Personal Insolvency Arrangement are not co-mingled with those of the personal insolvency practitioner or with those of any other person.
(6) The following shall be the only debits and credits that may be made through a designated DSA account or PIA account:
Credits (inward payments)
(a) funds received from or on behalf of the relevant debtor in respect of payments due under the Debt Settlement Arrangement or, as applicable, the Personal Insolvency Arrangement;
(b) refunds received from a creditor, the personal insolvency practitioner or, as applicable, the bank for the credit of the relevant debtor, in order to correct any error in making the payments referred to at (d), (e) or (f) below and in reversing the payments referred to at (g) below;
(c) bank interest, where appropriate;
Debits (outward payments)
(d) disbursements on behalf of the debtor to a creditor according to his or her entitlement under the Debt Settlement Arrangement or, as applicable, the Personal Insolvency Arrangement;
(e) fees, charges and other outlays due to the personal insolvency practitioner under the Act and Regulations made pursuant to the Act and in accordance with the Debt Settlement Arrangement or, as applicable, the Personal Insolvency Arrangement and for which the personal insolvency practitioner has adequate documentary proof that the fees are properly due at the time of withdrawal;
(f) bank charges, where appropriate;
(g) moneys that have been transferred into the DSA account or, as applicable, the PIA account in error for which the personal insolvency practitioner has adequate documentary proof demonstrating such error.
4. A DSA account or a PIA account may never be overdrawn.
5. A personal insolvency practitioner shall ensure that funds held in a DSA account or PIA account are insulated against and not subject to claims of creditors of the personal insolvency practitioner.
6. A personal insolvency practitioner shall, with respect to his or her practice as a personal insolvency practitioner:
(a) keep such accounting records as are adequate to enable him or her at any time and without delay to distinguish funds held for one debtor or creditor from funds held for any other debtor or creditor and from the funds of the personal insolvency practitioner or any other person; and
(b) maintain accounting records in such a way that ensures their accuracy and completeness and their independence from those of other practices or businesses in which the personal insolvency practitioner is engaged in another capacity and the practices or businesses of any person, with whom that personal insolvency practitioner is connected with in any practice or business;
(c) conduct, on a regular basis, reconciliations between his or her internal accounting records and those of the bank with whom the account(s) is held;
(d) notify the Insolvency Service of Ireland within one business day, in writing, of differences identified during a reconciliation referred to at (c) above that are material or recurrent in nature;
(e) ensure that the relevant bank is notified in writing on the establishment of each DSA account or PIA account that funds credited to the account do not form assets of the personal insolvency practitioner and for so long as the DSA account or PIA account remains open, ensure that the designation on all such accounts in the personal insolvency practitioner’s accounting records sufficiently distinguishes the funds held in those accounts from funds belonging to the personal insolvency practitioner or other persons other than the relevant debtor.
7. (1) A personal insolvency practitioner shall carry out a reconciliation of his or her internal records of amounts held in each DSA account and PIA account with the most recent statement issued or information provided by the relevant bank relating to the balances on such account at a frequency that ensures that the personal insolvency practitioner is fully aware of any discrepancies between the records of the bank and those of the personal insolvency practitioner. Where differences other than timing differences are identified they shall be corrected as soon as possible.
(2) A personal insolvency practitioner shall keep an accurate record of each reconciliation carried out for the purposes of Regulation 6(c) and Regulation 7(1).
(3) A personal insolvency practitioner shall, for the purposes of Regulation 6(c) and Regulation 7(1), notify the Insolvency Service of Ireland immediately, in writing, where he or she has been unable or has failed to perform a reconciliation with the necessary frequency and shall provide an explanation of the inability or failure to conduct the reconciliation.
Receipts and Statements
8. (1) A personal insolvency practitioner shall issue a receipt to each debtor for all moneys received from or on behalf of the debtor. The receipt shall include at least the following:
(a) the name of the debtor;
(b) the name of the personal insolvency practitioner;
(c) the amount of the payment and the date it was received; and
(d) the type of the insolvency arrangement (being a Debt Settlement Arrangement or Personal Insolvency Arrangement) to which the payment applies.
(2) At least once every year a personal insolvency practitioner shall issue a written statement to a debtor detailing since the beginning of the relevant insolvency arrangement or, if later, the most recent statement for the purposes of this Regulation sent to the debtor:
(a) all moneys received from the debtor and the date on which they were received;
(b) the names of and the amounts paid to each creditor;
(c) the amount of fees, charges and other outlays deducted by the personal insolvency practitioner;
(d) confirmation that the payments received and made by the personal insolvency practitioner are in accordance with the terms of the Debt Settlement Arrangement or, as applicable, the Personal Insolvency Agreement and where this is not the case the amount of and reason for any shortfall or overpayment; and
(e) the name of the personal insolvency practitioner.
Accounting Records
9. (1) A personal insolvency practitioner shall, on a constant basis, maintain proper records and books of account pertaining to his or her role as a personal insolvency practitioner and for each Debt Settlement Arrangement or, as applicable, Personal Insolvency Arrangement under which he or she acts as a personal insolvency practitioner.
(2) The accounting records maintained by a personal insolvency practitioner shall be such as to permit the Insolvency Service of Ireland or any accountant or other person qualified to read or prepare accounts or financial records to readily understand:
(a) the receipts, payments and transactions with respect to each Debt Settlement Arrangement or, as applicable, Personal Insolvency Arrangement for which he or she acts as a personal insolvency practitioner, including, without limitation to the generality of the foregoing, the following information:
(i) details of all transactions representing all payments received into or disbursed from each DSA account and PIA account;
(ii) copies of all payment instructions to the bank where the DSA account(s) or PIA account(s) is or are held;
(iii) a record of all income and expenditure of the personal insolvency practitioner in respect of each Debt Settlement Arrangement or, as applicable, each Personal Insolvency Arrangement with an explanation of its nature; and
(b) all assets, liabilities, income and expenditure of the business of the personal insolvency practitioner.
(3) A personal insolvency practitioner must maintain the accounting records in such a way that ensures their accuracy, integrity and ready access for his or her accountant, the Insolvency Service of Ireland or any person nominated by the Insolvency Service of Ireland.
(4) The accounting records shall be maintained for a minimum period of six years (in the case of those relating to a Debt Settlement Arrangement or a Personal Insolvency Arrangement commencing after the completion or termination of the relevant insolvency arrangement) in a secure location and made available to the Insolvency Service of Ireland or any person nominated in writing by the Insolvency Service of Ireland in exercise of its functions.
(5) At least once each year, a personal insolvency practitioner shall verify, in writing, to the Insolvency Service of Ireland that he or she holds and maintains accounting records in accordance with the requirements of these Regulations.
Financial Statements and Reports
10. (1) A personal insolvency practitioner shall, on an annual basis and within six months of the financial year end, prepare financial statements or management accounts (if applicable) in respect of his or her practice as a personal insolvency practitioner. The financial statements shall include an income and expenditure statement and a balance sheet or capital account statement.
(2) If requested by the Insolvency Service of Ireland a personal insolvency practitioner shall engage an independent accountant or auditor to prepare a report confirming:
(a) the accuracy of the financial statements prepared by the personal insolvency practitioner under Regulation 10(1) above; and
(b) the compliance by the personal insolvency practitioner with the provisions of Regulations 3, 4, 5, 6 and 7 above.
(3) The financial statements and the report of the appointed auditor shall be submitted to the Insolvency Service of Ireland on request from or within a timeframe specified by the Insolvency Service of Ireland.
Enforcement
11. (1) The Insolvency Service of Ireland will monitor compliance by personal insolvency practitioners with these Regulations by means of:
(a) analysis and assessment of returns and information supplied by a personal insolvency practitioner to the Insolvency Service of Ireland;
(b) review of the controls and arrangements in place by a personal insolvency practitioner to safeguard funds received from or on behalf of debtors or held to the credit of debtors, records held in relation to receipts and statements issued to debtors by a personal insolvency practitioner and accounting records maintained by a personal insolvency practitioner pertaining to his or her role as a personal insolvency practitioner;
(c) assessment of publicly available information about a personal insolvency practitioner; or
(d) a combination of the above.
(2) In cases where evidence of non-compliance with these Regulations comes to the attention of the Insolvency Service of Ireland, the Insolvency Service of Ireland may carry out an enquiry or appoint an inspector under the Act to investigate the personal insolvency practitioner or take such other action as the Insolvency Service of Ireland considers necessary as provided for or permitted by the Act.
(3) The Insolvency Service of Ireland may charge a fee to the personal insolvency practitioner in respect of any enquiry or investigation referred to in Regulation 11(2) that does not exceed the cost of conducting that enquiry or, as applicable, investigation.
(4) Where the Insolvency Service of Ireland has reason to believe or suspects that the financial circumstances of a personal insolvency practitioner are such that could affect his or her capacity to carry out the functions of a personal insolvency practitioner the Insolvency Service of Ireland may conduct an examination of the financial circumstances of the personal insolvency practitioner in accordance with the Act.
http://www.irishstatutebook.ie/images/ls
GIVEN under the seal of the Insolvency Service of Ireland,
8 July 2013.
LORCAN O’CONNOR,
Director of the Insolvency Service of Ireland.
http://www.irishstatutebook.ie/images/ls
CATHY CLARKE,
A Member of the Staff of the Insolvency Service of Ireland Authorised by the Director of the Insolvency Service of Ireland to Authenticate the Seal of the Insolvency Service of Ireland.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
These regulations set out the requirements applying to a personal insolvency practitioner in the keeping and preservation of accounts and records and other related matters.