Bankruptcy Act 1988

FIRST SCHEDULE

Proof of Debts

General

(New)

1. Every creditor shall prove his debt and a creditor who does not do so is not entitled to share in any distribution that may be made.

2. ( a) A creditor may prove his debt by delivering or sending by post to the Official Assignee particulars of his debt (in this Schedule referred to as a “ proof of debt”).

( b) Subparagraph (a) is without prejudice to the entitlement of a creditor to prove his debt at a sitting of the Court.

3. The Official Assignee may fix a time within which proofs of debt shall be sent to him. A proof submitted thereafter shall not be allowed except by order of the Court.

4. Proof of debt may be furnished by way of a detailed statement of account, an affidavit of debt or other prescribed means.

5. The creditor shall specify the vouchers or any other evidence by which the debt can be substantiated. He shall also give particulars of any counterclaim that, to his knowledge, the bankrupt or arranging debtor may have, and he shall indicate whether or not he is a secured creditor.

6. Proof of debt in respect of money lent by a moneylender shall have annexed thereto the particulars required by section 16 (2) of the Moneylenders Act, 1933.

7. An affidavit shall be required in any case where the debt is disputed or the Court or the Official Assignee thinks fit.

(1857, s. 246)

8. Proof of debt may be given by the oath or affidavit of the creditor himself or by the oath or affidavit of some person authorised by or on behalf of the creditor and, if made by a person so authorised, shall state his authority and means of knowledge.

9. Subject to paragraph 24 (5), a creditor may, with the consent of the Official Assignee, amend his proof of debt.

10. Every creditor who has lodged a proof of debt is entitled to see and examine the proofs of other creditors.

F105 [ 11. A person may prove a debt against his or her spouse as if they were not married. ]

(New)

12. A sole trustee (including a personal representative) who is a bankrupt or an arranging debtor shall be entitled, without leave of the Court, to prove in his own bankruptcy or arrangement in respect of a debt due from him to the trust estate. Any dividend in respect of such a debt shall be paid to the Accountant of the High Court for credit of the trust estate.

(1872, s. 48)

13. If any bankrupt or arranging debtor, at the date of the adjudication or order for protection, is liable in respect of distinct contracts, as a member of two or more distinct firms, or as a sole contractor, and also as member of a firm, the circumstance that such firms are, in whole or in part, composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof in respect of such contracts against the properties respectively liable upon such contracts.

( cf. 1857, s. 260)

14. On any debt or sum certain, payable at a certain time or otherwise, whereon interest is not reserved or agreed for, and which is overdue at the date of the adjudication, the creditor may prove for interest at the rate currently payable on judgment debts to that date from the time when the debt or sum was payable, if the debt or sum is payable by virtue of a written instrument at a certain time, and if payable otherwise, then from the time when a demand in writing has been made, giving notice that interest will be claimed from the date of the demand until the time of payment.

( cf. 1857, s. 252)

15. In respect of debts due after the adjudication or order for protection, the liability for which existed at the date of such adjudication or order for protection, a creditor may prove for the value of the debt at that date.

16. Where a person who is liable to make any periodical payment (including rent) is adjudicated bankrupt or is granted an order for protection on a day other than the day on which such payment becomes due, the person entitled to the payment may prove for a proportionate part of the payment for the period from the date when the last payment became due to the date of the adjudication or order for protection as if the payment accrued due from day to day.

(1857, s. 251)

17. (1) Where there are mutual credits or debts as between a bankrupt and any person claiming as a creditor, one debt or demand may be set off against the other and only the balance found owing shall be recoverable on one side or the other.

(2) Section 36 of the Civil Liability Act, 1961 (which provides for the set-off of claims), as amended by section 5 of the Civil Liability (Amendment) Act, 1964, shall apply with the substitution in section 36 (3) of a reference to subparagraph (1) for the reference to section 251 of the Irish Bankrupt and Insolvent Act, 1857.

18. This Schedule is without prejudice to section 61 of the Civil Liability Act, 1961 (which provides for proof of claims for damages or contribution in respect of a wrong) and section 62 of the said Act (which provides for the application of moneys payable under certain policies of insurance where the insured becomes a bankrupt).

19. A creditor shall, unless the Court otherwise orders, bear his own costs of proving a debt.

(1857, s. 246)

20. Any person seeking to prove a debt or from whom additional proof is required, or any other person, may be examined by the Court in relation thereto.

21. Where a creditor or other person with intent to defraud makes any false claim or any proof, declaration or statement of account before the Court or in his affidavit which is untrue in any material particular in connection with the proof of debts, the Court may, in addition to any other penalty provided in this Act, disallow the claim in whole or in part.

22. Before deciding on a claim, the Official Assignee may require a creditor to furnish additional information or proof or to attend before him.

23. The Official Assignee shall deal in the following manner with claims:

( a) He shall prepare a list certified by him of the claims.

( b) This list shall record—

(i) the claims allowed by him, which shall be deemed to be admitted, and

(ii) the claims either disallowed by him or which he considers should not be admitted without reference to the Court.

( c) He shall refer disputed debts to the Court for adjudication.

( d) The decision of the Official Assignee in regard to a claim shall be confirmed in writing to the creditor.

( e) Any person aggrieved by the decision of the Official Assignee may appeal to the Court.

( f) The Official Assignee shall place a copy of the list on the Court file.

( g) The list shall be open to public inspection on payment of a prescribed fee but no fee shall be charged to creditors inspecting the list.

Secured Creditors

(1872, s. 21)

24. (1) If a secured creditor realises his security, he may prove for the balance due to him after deducting the net amount realised and receive dividends thereon but not so as to disturb any dividend then already declared. If he surrenders his security for the general benefit of the creditors, he may prove for his whole debt.

(2) If a secured creditor does not either realise or surrender his security, he shall, before ranking for dividend, state in his proof the particulars of his security, the date on which it was given and the value at which he assesses it, and he shall be entitled to receive a dividend only in respect of the balance due to him after deducting the value so assessed.

(3) A secured creditor shall not be entitled to surrender his security after the time fixed by the Official Assignee for receipt of proofs of debt, except by order of the Court.

(4) ( a) Where a security is valued by the creditor, the Official Assignee may at any time redeem it on payment to the creditor of the assessed value. If the Official Assignee is dissatisfied with the assessed value he may require that the property comprised in any security so valued be offered for sale at such time and on such terms and conditions as may be agreed upon between him and the creditor or, in default of agreement, as the Court may direct. If the sale be by public auction the creditor, or the Official Assignee on behalf of the estate, may bid or purchase.

( b) The creditor may, however, at any time by notice in writing require the Official Assignee to elect whether he will or will not exercise his power of redeeming the security or requiring it to be offered for sale, and if the Official Assignee does not, within three months after receiving the notice, signify in writing to the creditor his election to exercise the power, he shall not be entitled to exercise it; and the equity of redemption, or any other interest in the property comprised in the security which is vested in the Official Assignee, shall vest in the creditor and the amount of his debt shall be reduced by the amount at which the security has been valued.

(5) Where a creditor has valued his security he may at any time amend the valuation and proof on showing to the satisfaction of the Official Assignee, or the Court, that the valuation and proof were made bona fide on a mistaken estimate, but every such amendment shall be made at the cost of the creditor, and upon such terms as the Court shall order, unless the Official Assignee allows the amendment without application to the Court.

(6) Where a valuation has been amended in accordance with subparagraph (5), the creditor shall forthwith repay any surplus dividend which he may have received in excess of that to which he would have been entitled on the amended valuation or, as the case may be, shall be entitled to be paid, out of any money for the time being available for dividend, any dividend or share of dividend which he has not received by reason of the inaccuracy of the original valuation before that money is made applicable to the payment of any future dividend but he shall not be entitled to disturb the distribution of any dividend declared before the date of the amendment.

(7) If a creditor having valued his security subsequently realises it, or if it is realised under the provisions of subparagraph (4), the net amount realised shall be substituted for the amount of any valuation previously made by the creditor, and shall be treated in all respects as an amended valuation made by the creditor.

(8) If it is found at any time that the affidavit made by or on behalf of a secured creditor has omitted to state that he is a secured creditor, such creditor shall surrender his security to the Official Assignee for the general benefit of the creditors unless the Court on application otherwise orders, and the Court may allow the affidavit to be amended upon such terms as to repayment of any dividend or otherwise as the Court may consider just.

(9) If a secured creditor does not comply with subparagraph (8), he shall be excluded from all share in any dividend.

(10) Subject to the provisions of subparagraph (4), the creditor shall in no case receive more than F106 [ one euro in the euro ] and interest, where the creditor is entitled to prove for interest.

(11) Where a mortgagee holds as security a policy of assurance on the life of a bankrupt or an arranging debtor which in the event of the non-payment of premiums provides for their automatic discharge out of moneys payable under the policy, the value of the policy for the purpose of proving in the bankruptcy or arrangement shall be taken to be not less than the value as at the date of adjudication or order for protection; provided that, if the bankrupt or arranging debtor dies before the policy is surrendered, the mortgagee may apply to the Court for the purpose of revaluing his security.

Annotations:

Amendments:

F105

Substituted (16.11.2015) by Marriage Act 2015 (35/2015), s. 18, S.I. No. 504 of 2015.

F106

Substituted (1.01.2002) by Euro Changeover (Amounts) Act 2001 (16/2001), s. 7(3), commenced as per s. 7(1).

Modifications (not altering text):

C44

Application of schedule extended with modifications (31.07.2013) by Personal Insolvency Act 2012 (44/2012), ss. 64(2)(a), (3) and 98(2)(a), (3), S.I. No. 285 of 2013.

Actions to be taken by personal insolvency practitioner following issue of protective certificate.

64.—...

(2)(a) A personal insolvency practitioner may in any case request a creditor to file a proof of debt and the debt shall be proved in the same manner as a debt of a bankrupt is proved under the Bankruptcy Act 1988 and, subject to subsection (3), paragraphs 1 to 22 of the First Schedule of that Act shall apply with all necessary modifications to the proof of such debts.

...

(3) In applying the First Schedule of the Bankruptcy Act 1988 to proof of debts under this section—

(a) a reference in that Schedule to the Court and the Official Assignee shall be read as a reference to the personal insolvency practitioner, and

(b) a reference to a bankrupt shall be read as the reference to the debtor to whom the proposal for a Debt Settlement Arrangement relates.

...

Actions to be taken by personal insolvency practitioner following issue of protective certificate.

98.—...

(2)(a) A personal insolvency practitioner may in any case request a creditor to file a proof of debt and the debt shall be proved in the same manner as a debt of a bankrupt is proved under the Bankruptcy Act 1988 and subject to subsection (3) paragraphs 1 to 22 of the First Schedule of that Act shall apply with all necessary modifications to the proof of such debts.

...

(3) In applying the First Schedule of the Bankruptcy Act 1988 to proof of debts under this section—

(a) a reference in that Schedule to the Court and the Official Assignee shall be read as a reference to the personal insolvency practitioner, and

(b) a reference to a bankrupt shall be read as a reference to the debtor to whom the proposal for a Personal Insolvency Arrangement relates.