The Gazette 1973

Chapter 39: Partnerships— Major Recommendations The existing provisions applying to debtors' summon- ses in relation to partners should apply to bankruptcy summonses. The principles of Lord Loughborough's Order (now rules 88 to 90) should be made statutory. Solvent partners should lodge such accounts and infor- mation as the Official Assignee may desire. We suggest new provisions for the lodgment of information with the Official Assignee concerning the winding-up of partnership estates or estates in which a bankrupt has an interest. Where a bankrupt is a party to a contract with any other person, the latter should be capable of suing or being sued without joining the bankrupt. Any partners carrying on business under a partnership name may take proceedings or be proceeded against in the name of the firm and the Court may order the dis- closure of the partners' names. Limited partnerships should be subject to bankruptcy proceedings in the event of the general partners being adjudicated. Chapter 40: Estates or Deceased Persons Dying Insol- vent— Major Recommendations Estates of deceased insolvents should be wound up in bankruptcy. If no personal representative is consti- tuted, notice of an administration order should be served on such person as the Court thinks fit. The right of retainer should be restricted. Chapter 41: Surplus in a Bankruptcy— Major Recom- mendations A surplus in a bankruptcy matter should be paid to the bankrupt—no interest should be allowed to ordin- ary creditors. Chapter 42: Arrangements— Major Recommendations Protection should be granted to a debtor, notwith- standing an execution order in the hands of the Sheriff, which would be effective against all creditors except the execution creditor. If a debtor is granted the pro- tection of the Court, he should, if he is imprisoned under the Enforcement of Court Orders Act 1926, be released. Two copies of the statement submitted by the debtor at the preliminary meeting should be filed in the Official Assignee's office two days before the private sitting. A second private sitting should no longer be held. The Official Assignee may refuse to act as trustee in a vesting arrangement. Failure of an arranging debtor to carry out the duties imposed on him by the statute should in future lead to his adjudi- cation. A person carrying on business on his own and also in partnership may not obtain protection in re- spect of his personal liability unless all his partners join with him. The special sitting to consider any difficulty should be abolished, but, when his proposal has been accepted, a debtor should be able to apply to the Court to hold a special sitting. In a vesting arrange- ment the Official Assignee or any person interested may apply to the Court to appoint a sitting for enquiry. The audit of vesting arrangements should be abolished and a new system of distribution should be introduced. Toods delivered by a creditor on the eve of protection to a debtor may be returned or paid in full. Court control over trust deeds is undesirable. The Deeds of Arrangement Act 1890 should be repealed. Chapter 43: Proof and Admission of Debts— Major Recommendations The present system of finding and proving debts should be retained except that the sittings presently

held before the Assistant Examiner should in future be held before the Official Assignee. A modification of the present practice has been made and is set out in the First Schedule. Specific proof of debt sections are recommended for repeal and replacement by an omni- bus section embracing all the present provisions. Mut- ual debts and credits should be set off. The system of deducting a rebate for interest from the dividends on the debts payable in future should be abolished, and the creditors should be admitted for the amount due at the date of adjudication. Interest under a contract should be provable in bankruptcy. The payment of interest to creditors* out of a surplus in bankruptcy should be abolished. Proofs of debt should be capable of being amended with the consent of the Official Assignee. A creditor should bear the costs of making his proof of debt, unless the Court shall otherwise specially order. Proof of a debt which, after investi- gation, does not appear to be due, should be expunged. A penalty should be imposed on a creditor making a wilfully false statement or wilful misrepresentation. The costs of a judgment should be provable. Chapter 45: Jurisdiction in Bank r up t cy— M a j or Recommendations Bankruptcy jurisdiction should be confined to the High Court. The power of the Bankruptcy Court to review, rescind and vary its own orders should be continued. Every order of the Bankruptcy Court should be subject to appeal. Bankruptcy jurisdiction should be withdrawn from the Circuit Court. Chapter 46: Solicitors Acting in Bankruptcy Matters— Major Recommendations (1) That a solicitor may appear, act in and plead in any proceedings in the Court without being required to employ counsel. (2) For the appointment of a soli- citor to act for the assignees. Chapter 50: Bankruptcy Offences— Major Recommen- dations A trader who has been adjudicated a bankrupt or who has obtained the protection of the Court should be guilty of an offence if he has failed to keep books. Excessive gambling or rash speculations by a person subsequently adjudicated should be an offence. The maximum sentence for certain offences should be raised to five years penal servitude. Certain bankruptcy offen- ces should be scheduled under the Criminal Justice Act 1951 so that, in less serious cases, the matter may be dealt with by a District Justice. The Circuit Court is the appropriate Court for the trial of bankruptcy cases. Chapter 51: Officers of the Court— Major Recommen- dations Control by the Examiner over the Official Assignee should cease. The functions delegated to the Examiner as well as the duties assigned to him under the rules should be redistributed. Estate drafts should be signed by the Official Assignee alone. The Official Assignee should not be subject to supervision. He should seek the sanction of the Court only in case of doubt or difficulty. The Official Assignee in bankruptcy should be a corporation sole. Chapter 52: The Messenger of the Cpqrt— Major Recommendations The Court Messenger should be known as the Inspec- 222