April 2004 

Part 1 has been amended to include the bankruptcy provisions of the Enterprise Act 2002 which came into force on 1 April 2004. The guidance should be applied in all cases where the bankruptcy order was made on or after 1 April 2004.

In cases where the bankruptcy order was made before 1 April 2004 refer to Annex 1

This chapter has been divided into 5 parts as follows:

Part 1 -  General (including automatic discharge) (paragraphs 22.1 - 22.9)

Part 2 - Early discharge process (paragraphs 22.10 to 22.22)

Part 3 -  Fees (paragraphs 22.23 - 22.25)

Part 4 - Suspension of discharge (paragraphs 22.26 - 22.41)

Part 5 - Post - Discharge (paragraphs 22.42 - 22.50)

This chapter has 2 annexes as follows:

Annex 1 - Transitional provisions on discharge from bankruptcy (under the Enterprise Act 2002) which applies to all cases where the bankruptcy order was made before 1 April  2004.

Annex 2 - Application for discharge
 
The following abbreviations are used in this chapter:

EA2002  - Enterprise Act 2002

IA86 - Insolvency Act 1986

CPR - Civil Procedure Rules

IPO – Income Payments Order

IPA – Income Payments Agreement

Part 1

General (Including Automatic Discharge)
 
22.1EA Duration of bankruptcy

A bankrupt will be automatically discharged from bankruptcy one year from the date of the bankruptcy order except where;  

1. the early discharge process is applied. (See part 2);
2. a criminal bankruptcy order has been made ( the bankrupt will need to apply to the court for his/her discharge from the proceedings)  (For further guidance see chapter 35);
3. the official receiver or the trustee applies to the court to suspend the discharge and the court orders  that discharge shall be suspended.  (Guidance is given in part 4 of this chapter)

A bankrupt subject to the automatic discharge provisions cannot apply to the court for discharge. (see paragraph 22.6 below)

Note: [s279(1)] [s279(2)] [s279 (3),(4) and (5)] [s279(6)]


22.2EA Second time bankrupts 

Where a bankruptcy order is made against an individual on or after 1 April 2004, he/she is discharged, and a subsequent bankruptcy order is made against him/her, he/she will be automatically discharged from the second/subsequent bankruptcy one year from the date of the bankruptcy order (or earlier if the official receiver follows the early discharge process).  If the first bankruptcy order was made before 1 April 2004 the guidance in Annex 1 of this chapter should be followed.    
   

22.3EA Bankruptcy restrictions orders before second time bankrupt is discharged  

If the official receiver makes application for a bankruptcy restrictions order (BRO) or accepts a bankruptcy restrictions undertaking (BRU) then the second time bankrupt;   

1. will still be discharged one year after the bankruptcy order (or earlier if the official receiver follows the early discharge process ) but ,
2. will be subject to the restrictions imposed  under the terms of the BRO/BRU.

In determining whether an application for a BRO is appropriate, the court will consider whether the bankrupt was an undischarged bankrupt at some time during the period of 6 years prior to the current bankruptcy order. Similarly, in determining whether to accept a BRU the official receiver should have regard to whether the individual was an undischarged bankrupt in the previous 6 years.

A previous failure is not listed in the grounds for a BRO  application but is a matter for consideration when making an application. The official receiver cannot therefore make application for a BRO solely as a result of the bankrupt having a previous failure. There needs to have been unfit conduct in respect of the current bankruptcy before an application is made. If, however, it can be shown that a bankrupt has failed to learn from previous mistakes, the court may take this into account when making a BRO and make it for a higher period.

For further information on second or subsequent bankruptcies see Chapter 21. For further information on BROs see the Enforcement Investigation Guide
 
Note: [IA86 Sch 4A para 2(3)]

22.4EA Investigation not compulsory 

The official receiver is not under a duty to investigate the conduct and affairs of a bankrupt in a case where he/she considers it unnecessary. 

Note: [s289(2)]
   

22.5EA BROs/BRUs and discharge 

If the official receiver makes application for a bankruptcy restrictions order (BRO) or accepts a bankruptcy restrictions undertaking (BRU) then the bankrupt will still be discharged one year from the date of the bankruptcy order (or earlier if the official receiver follows the early discharge process) but will be subject to the restrictions imposed  under the terms of the BRO/BRU.   
   

22.6 No application for discharge where bankrupt subject to automatic discharge provisions 

A bankrupt subject to the automatic discharge provisions cannot apply to the court for discharge. If he/she wishes to have an earlier release from the disabilities of bankruptcy, his/her only course of action is to apply to have the bankruptcy order annulled, either following;  

1. a successful proposal for an individual voluntary arrangement (IVA),
2. a successful proposal for a fast track voluntary arrangement (FTVA) 
3. the payment of creditors in full, or
4. on grounds that the bankruptcy order ought not to have been made.

Note: [s261 or 282(1)(a) and (b)] [s263D(3)]

 
22.7EA Request by former bankrupt for a certificate of discharge

(Amended March 2010) 

Where a bankrupt is discharged following the early discharge process they will receive confirmation of the date of their discharge on Form EDNOT (see paragraph 22.11EA in part 2)

Where a bankrupt obtains an automatic discharge by expiration of time, no order of discharge is made by the court. If evidence of discharge is requested by a former bankrupt this should be provided in the form of a simple letter confirming the date of discharge according to the official receivers records.  Where there is a trustee other than the official receiver in office the letter should also address the unlikely event of the trustee making application to the court for the suspension of the bankrupt’s discharge without the knowledge of the official receiver.  Two versions of a letter have been produced to cover the eventualities outlined above and are available through Document Production under the reference DENQ.  The correct version of the letter will be produced automatically provided the trustee information has been entered correctly on LOIS.

If the standard letter is insufficient for the former bankrupt’s requirements they may apply to the court for the issue of a certificate of discharge, which will indicate the date from which the discharge is effective.

Note: [R6.220(1)] [Form 6.77 - Certificate of discharge]

22.8EA Liaison with court (Amended April 2008)

In cases where the bankruptcy order was made on or after 1 April 2004 the official receiver will not usually be required to provide confirmation of the date of discharge to the court. The court file will usually contain sufficient information to enable the court to issue certificates of discharge where appropriate without recourse to the official receiver.
Where the bankrupt is subject to a bankruptcy restrictions order/undertaking and the official receiver receives a request from the court, for confirmation of the date of discharge in relation to the issue of a certificate of discharge, the OR should write to the bankrupt using form DISBR. This form reminds the bankrupt that discharge from bankruptcy does not release him/her from the conduct restrictions imposed by the bankruptcy restrictions order/undertaking, for the period specified within the order/undertaking. The official receiver should also inform the court that such a reminder has been given.
 

22.9 Individual Insolvency Register  

LOIS transfers information across to the Individual Insolvency Register which may be accessed on the internet. 

An individual will remain on the Individual Insolvency Register for 3 months after the date of discharge. The entry will then be removed.

Note: [R6A.5(b)]

[Back to Introduction] [On to Part 2 - Early discharge process]