Regulation 13 Record-keeping procedures; supplementary provisions

(1)

For the purposes of regulation 12(3)(b) above, a person shall be taken to be insolvent if, but only if, in England and Wales—

(a)

he has been adjudged bankrupt or has made a composition or arrangement with his creditors;

(b)

an order has been made with respect to him under section 112, 112A or 112B of the County Courts Act 1984^f1 (administration orders, orders restricting enforcement and administration orders with composition provisions);

(c)

he has died and his estate falls to be administered in accordance with an order under section 421 of the Insolvency Act 1986^f2 (insolvent estates of deceased persons); or

(d)

where that person is a company, a winding up order or an administration order has been made or a resolution for voluntary winding up has been passed with respect to it, or a receiver or manager of its undertaking has been duly appointed, or possession has been taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge, or a voluntary arrangement proposed for the purpose of Part I of the Insolvency Act 1986 has been approved under that Part, or a compromise or arrangement in accordance with section 425 of the Companies Act 1985^f3 has taken effect.

(2)

For the purposes of regulation 12(3)(b) above, a person shall be taken to be insolvent if, but only if, in Scotland—

(a)

his estate has been sequestrated, he has granted a trust deed for the benefit of his creditors or he has made a composition or arrangement for the benefit of his creditors; or

(b)

where that person is a company, a winding up order or an administration order has been made or a resolution for voluntary winding up has been passed with respect to it, or a receiver has been appointed under a floating charge over any property of the company, or a voluntary arrangement proposed for the purpose of Part I of the Insolvency Act 1986 has been approved under that Part, or a compromise or arrangement in accordance with section 425 of the Companies Act 1985 has taken effect.

(3)

For the purposes of regulation 12(3)(b) above, a person shall be taken to be insolvent if, but only if, in Northern Ireland—

(a)

he has been adjudged bankrupt or has made a composition or arrangement with his creditors;

(b)

an administration order has been made with respect to him under Article 80 of the Judgements Enforcement (Northern Ireland) Order 1981^f4 (power to make administration order on application of debtor);

(c)

he has died and his estate falls to be administered in accordance with an order under Article 365 of the Inoslvency (Northern Ireland) Order 1989^f5 (insolvent estates of deceased persons); or

(d)

where that person is a company, a winding up order or an administration order has been made or a resolution for voluntary winding up has been passed with respect to it, or a receiver or manager of its undertaking has been duly appointed, or possession has been taken, by or on behalf of the holders of any debentures secured by a floating charge, of any property of the company comprised in or subject to the charge, or a voluntary arrangement proposed for the purpose of Part II of the Insolvency (Northern Ireland) Order 1988 has been approved under that Part, or a compromise or arrangement in accordance with Article 418 of the Companies (Northern Ireland) Order 1986^f6 has taken effect.

(4)

Where a person bound by regulation 5(1) above—

(a)

is an appointed representative; and

(b)

is not—

(i)

an authorised person within the meaning of the Financial Services Act 1986^f7,

(ii)

authorised under the Building Societies Act 1986^f8 or the Banking Act 1987^f9, or

(iii)

a European institution;

it shall be the responsibility of the appointed representative’s principal to ensure that record-keeping procedures in accordance with regulation 12 above are maintained in respect of any relevant financial business carried out by the appointed representative which is investment business carried on by him for which the principal has accepted responsibility in writing under section 44 of the Financial Services Act 1986.

(5)

Where record-keeping procedures in accordance with regulation 12 above are not maintained in respect of business relationships formed, and one-off transactions carried out, in the course of such relevant financial business as is referred to in paragraph (4) above, an appointed representative’s principal shall be regarded as having contravened regulation 5 in respect of those procedures and he, as well as the appointed representative, shall be guilty of an offence and shall be liable to be proceeded against and punished accordingly.

(6)

Section 44(2) of the Financial Services Act 1986 (construction of references to appointed representative, his principal and investment business carried out by an appointed representative) shall apply for the purposes of paragraphs (4) and (5) above as it applies for the purposes of that Act.

Annotations

Footnotes

f1: 1984 c. 28; section 112 was amended by section 220(2) of the Insolvency Act 1985 (c. 65); and section 112 was amended, and sections 112A and 112B were inserted, by section 13 of the Courts and Legal Services Act 1990 (c. 41).
f2: 1986 c. 45.
f3: 1985 c. 6; section 425 was amended by section 109(1) of, and paragraph 11 of Schedule 6 to, the Insolvency Act 1986 (c. 45).
f4: S.I. 1981/226 (N.I. 6).
f5: S.I. 1989/2405 (N.I. 19).
f6: S.I. 1986/1032 (N.I. 6).
f7: 1986 c. 60.
f8: 1986 c. 53.
f9: 1987 c. 22.