This part of the chapter only applies to bankruptcy cases where the order was made on or after 01 April 2004. For orders made before this date, this Part of Chapter 13 does not apply.
Note: [s281A, sch 4A]
Bankruptcy restrictions orders (BROs) were introduced under the EA2002 as a means of protecting the public from dishonest, reckless or culpable bankrupts. A BRO effectively extends the imposition of bankruptcy on individuals for the period specified in the order of between 2 - 15 years. The conduct of a bankrupt prior to 1 April 2004 cannot be taken into consideration in any application to the court for a BRO.
The court will grant a BRO if it thinks it is appropriate to do so having regard to the conduct of the bankrupt (whether before or after the making of the BRO). Schedule 4A lists the kinds of behaviour on the part of the bankrupt that the court will take into account. This list is not exhaustive and the official receiver can consider the inclusion of any further conduct of the bankrupt that he/she considers should be taken into consideration by the court in deciding whether a BRO should be made.
Notes: [The Enterprise Act 2002 (Commencement (No 4) and Transitional Provisions and Savings) Order 2003
The bankrupt has a specific duty to give the official receiver an inventory of his estate and such other information , and to attend upon the official receiver at such times as the official receiver may reasonably require in connection with the making of a bankruptcy restrictions order.
Note: [EA2002 sch 4A paragraph 2(2)(m)]EA2002 Schedule 4A paragraph 2(2)(m) specifically states that the failure of a bankrupt to co-operate with the official receiver or trustee is a matter which the court will take into consideration when deciding whether a BRO is appropriate. This allegation should only be included in a BRO report by the official receiver where there has been deliberate non co-operation, and not where the official receiver has not been able to contact the bankrupt or the bankrupt has not been traced.
In deciding whether to include this area of misconduct in a BRO application it is not enough that the official receiver has been inconvenienced by the bankrupt's non co-operation but there must also have been some loss to creditors as a consequence of his/her failure to co-operate.
Official Receiver must use all powers to enforce co-operation
The official receiver must use all his/her powers as detailed in Parts 4, 6, 7 and 9 to enforce co-operation before a BRO report is submitted alleging non co-operation.
Note: [s279(3) and r6.125(2)]
Where a bankrupt fails to co-operate in the proceedings it is important that an application is made to the court for the bankrupt's discharge to be suspended to stop the period of bankruptcy running and to prevent the bankrupt from being automatically discharged after 12 months. If a bankrupt fails to surrender to the proceedings it is recommended that an application for the suspension of discharge is made after 42 days from the date of the bankruptcy order. See also Chapter 22 Part 1 - Discharge from bankruptcy.
An application for a BRO should not be made where a bankrupt's discharge is currently suspended as the courts are unlikely to make a BRO whilst a suspension of discharge is still in force. Where a bankrupt co-operates with the official receiver or trustee after an order to suspend his/her discharge has been made, the official receiver should be proactive and ensure that the suspension of discharge order has been lifted before making an application for a BRO.
As soon as the official receiver has formed the opinion that the bankrupt has complied with his/her obligations, the official receiver should report that opinion and the date he/she formed it to the court.
(Amended October 2010)
Any report by the official receiver recommending that a BRO is appropriate should be submitted to the Authorisations Team within ten months of the making of the bankruptcy order, although it is possible to submit a late report where prior authorisation has been sought (see Enforcement Investigation Guide, chapter 14, part 11).
Lawyers have advised that there is no conflict between prosecution and the BRO process. Therefore where a bankruptcy prosecution report had been submitted a BRO application should also be made.
[Back to Part 11 - Prosecution and disqualification]