The Insolvency (Scotland) (Receivership and Winding up) Rules 2018

Made: 13th November 2018

Laid before the Scottish Parliament: 14th November 2018

Coming into force: 6th April 2019

The Scottish Ministers make the following Rules in exercise of the powers conferred by section 411(1)(b), (2) and (2A) of the Insolvency Act 1986 and all other powers enabling them to do so.

The Secretary of State has consented to these Rules in accordance with article 2(2) of the Scotland Act 1998 (Insolvency Functions) Order 2018 .

Citation and commencement

1

These Rules may be cited as the Insolvency (Scotland) (Receivership and Winding up) Rules 2018 and come into force on 6th April 2019.

Revocations

2

The enactments listed in the first column of the table in schedule 1 are revoked to the extent specified in the third column of that table.

Extent and application

3

• (1) These Rules extend to Scotland only.

• (2) These Rules as they relate to receivership under Part 3 of the Insolvency Act 1986 apply to receivers appointed under section 51 of that Act (Receivers (Scotland)).

• (3) These Rules as they relate to winding up under Parts 4 and 5 of the Act apply in relation to companies which the courts in Scotland have jurisdiction to wind up.

Transitional and savings provisions

4

The transitional and savings provisions set out in schedule 2 have effect.

Punishment of offences

5

Schedule 3 sets out the maximum penalties for offences under these Rules.

PART 1 — SCOPE, INTERPRETATION, TIME AND RULES ABOUT DOCUMENTS

CHAPTER 1 — Scope of these Rules

Scope

1.1

• (1) These Rules are made to give effect in Scotland in relation to receivership and winding up to—

• (a) Parts 3 to 7 of the Insolvency Act 1986; and

• (b) the EU Regulation.

• (2) Consequently references to insolvency proceedings and requirements relating to such proceedings are, unless the context requires otherwise, limited to insolvency proceedings in respect of Parts 3 to 5 of the Act and the EU Regulation (whether or not court proceedings).

CHAPTER 2 — Interpretation

[Note: the terms which are defined in rule 1.2 include some terms defined by the Act for limited purposes which are applied generally by these Rules. Such terms have the meaning given by the Act for those limited purposes.]

Defined terms

1.2

• (1) In these Rules unless the context otherwise requires—

• “the Act” means the Insolvency Act 1986, and— a reference to a numbered section without mention of another Act is to that section of the Act; and a reference to schedule B1 is to that schedule of the Act;

• “Companies Act” means the Companies Act 2006[^f00003];

• “Accountant in Bankruptcy” (or “AiB”) is to be construed in accordance with section 199 of the Bankruptcy (Scotland) Act 2016[^f00004];

• “appointed person” means a person who meets the requirements in paragraph (2) who is appointed by an office-holder;

• “Article 1.2 undertaking” means one of the following within the meaning of Article 1.2 of the EU Regulation— an insurance undertaking; a credit institution; an investment undertaking which provides services involving the holding of funds or securities for third parties; a collective investment undertaking;

• [Note “associate” is defined in section 435];

• “attendance” and “attend”— a person attends by being present, by attending remotely in accordance with section 246A[^f00005] or rule 8.6, or by participating in a virtual meeting; and a person may attend a meeting in person, by proxy or by corporate representative (in accordance with section 434B of the Act[^f00006] or section 323 of the Companies Act, as applicable);

• “authenticate” means to authenticate in accordance with rule 1.6;

• “authorised deposit-taker” means a person with permission under Part 4A of the Financial Services and Markets Act 2000[^f00007] to accept deposits; this definition must be read with— section 22 of that Act[^f00008] and any relevant order under that section; and schedule 2 of that Act;

• “blank proxy” is to be interpreted in accordance with rule 9.3;

• [Note: “business day” is defined in section 251];

• “centre of main interests” has the same meaning as in the EU Regulation;

• [Note: “connected” used of a person in relation to a company is defined in section 249 of the Act];

• “consumer” means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession;

• [Note: “contributory” is defined in section 79];

• “convener” means an office-holder or other person who seeks a decision in accordance with Part 8 (decision making) of these Rules;

• [Note: “the court” is defined in section 251];

• “CVA” means a voluntary arrangement in relation to a company under Part 1 of the Act;

• “CVA and Administration Rules” means the Insolvency (Scotland) (Company Voluntary Arrangement and Administration) Rules 2018[^f00009];

• “decision date” and “decision procedure” are to be interpreted in accordance with rule 8.2;

• [Note: “deemed consent procedure” is defined in section 246ZF[^f00010] (also see rule 8.7)];

• “deliver” and “delivery” are to be interpreted in accordance with Chapter 9 of Part 1 of these Rules;

• “deliver to the creditors” and similar expressions in these Rules and the Act are to be interpreted in accordance with rule 1.33;

• “document” includes a written notice or statement or anything else in writing capable of being delivered to a recipient;

• [Note: “EU Regulation” is defined in section 436 as “Regulation (EU) 2015/848 of the European Parliament and the Council of 20 May 2015 on insolvency proceedings[^f00011]”];

• [Note: “the Gazette” has the meaning given in section 251];

• “Gazette notice” means a notice which is, has been or is to be gazetted;

• “to gazette” means to advertise in the Gazette, whether electronically or otherwise;

• [Note: “hire-purchase agreement” is defined by section 436(1) as having the same meaning as in the Consumer Credit Act 1974[^f00012]];

• “identification details” and similar references to information identifying persons, proceedings, etc. are to be interpreted in accordance with rule 1.7;

• “insolvent estate” means the company’s assets;

• “IP number” means the number assigned to an office-holder as an insolvency practitioner by the Secretary of State;

• “local creditor”has the same meaning as in Article 2(11) of the EU Regulation;

• “main proceedings” means proceedings opened in accordance with Article 3(1) of the EU Regulation and falling within the definition of insolvency proceedings in Article 2(4) of the EU Regulation and which— in relation to Scotland, are set out in Annex A to that Regulation under the heading “United Kingdom”; and in relation to another member State, are set out in Annex A under the heading relating to that member State[^f00013];

• “meeting” in relation to a company’s creditors or contributories means either a “physical meeting” or a “virtual meeting”;

• “member State liquidator” means a person falling within the definition of “insolvency practitioner” in Article 2(5) of the EU Regulation appointed in proceedings to which the EU Regulation applies in a member State other than the United Kingdom;

• “nominated person” means a person who has been required under section 66 or 131 to make out and submit a statement as to the affairs of a company in receivership or being wound up by the court;

• “non-EU proceedings” means insolvency proceedings which are not main, secondary or territorial proceedings;

• “office-holder” means a person who under the Act or these Rules holds an office in relation to insolvency proceedings and includes a nominee;

• “the official rate”, in relation to interest, is defined in section 251[^f00014];

• “petitioner” includes a person who has been substituted as such;

• “physical meeting” has the meaning given by rule 8.2;

• “prescribed part” has the same meaning as in section 176A(2)(a)[^f00015] and the Insolvency Act 1986 (Prescribed Part) Order 2003[^f00016];

• “progress report” means a report which complies with Chapter 1 of Part 7 (reporting, accounts, remuneration, claims and distributions);

• [Note: “property” is defined in section 436(1)];

• “proxy” and “proxy-holder” are to be interpreted in accordance with rule 9.2;

• “qualified to act as an insolvency practitioner”, in relation to a company, is to be interpreted in accordance with Part 13 of the Act[^f00017];

• [Note: “records” is defined in section 436(1)];

• “secondary proceedings” means proceedings opened in accordance with Article 3(2) and (3) of the EU Regulation and falling within the definition of insolvency proceedings in Article 2(4) of the EU Regulation and which— in relation to Scotland, are set out in Annex A to that Regulation under the heading “United Kingdom”; and in relation to another member State, are set out in Annex A under the heading relating to that member State[^f00018];

• “serve” and “service” are to be interpreted in respect of a particular document by reference to the Rules of Court;

• “standard contents” means— for a Gazette notice, the standard contents set out in Chapter 5 of Part 1; for a notice to be advertised other than in the Gazette, the standard contents set out in Chapter 6 of Part 1; for a document to be delivered to— the registrar of companies; AiB; the standard contents set out in Chapter 7 of Part 1; for notices to be delivered to other persons, the standard contents set out in Chapter 8 of Part 1;

• “standard fee for copies” means 15 pence per A4 or A5 page or 30 pence per A3 page;

• “statement of claim” is to be interpreted in accordance with rule 7.16;

• “temporary administrator” means a temporary administrator referred to in Article 52 of the EU Regulation;

• “territorial proceedings” means proceedings opened in accordance with Article 3(2) and (4) of the EU Regulation which fall within the definition of insolvency proceedings in Article 2(4) of the EU Regulation and— in relation to Scotland, are set out in Annex A to that Regulation under the heading “United Kingdom”; and in relation to another member State, are set out in Annex A under the heading relating to that member State[^f00019];

• “venue” in relation to any proceedings, attendance before the court, decision procedure or meeting means the time, date and place or platform for the proceedings, attendance, decision procedure or meeting;

• “virtual meeting” has the meaning given by rule 8.2;

• “winding up by the court” means a winding up under section 122, 124A[^f00020] or 221;

• [Note: “writing” is to be construed in accordance with section 436B[^f00021]];

• “written resolution” in respect of a private company means a written resolution passed in accordance with Chapter 2 of Part 13 of the Companies Act.

• (2) An appointed person in relation to a company must be—

• (a) qualified to act as an insolvency practitioner in relation to that company; or

• (b) a person experienced in insolvency matters who is—

• (i) a member or employee of the office-holder’s firm, or

• (ii) an employee of the office-holder.

• (3) A fee or remuneration is chargeable when the work to which it relates is done.

CHAPTER 3 — Calculation of time periods

Periods of time expressed in days

1.3

• (1) This rule applies to the calculation of a period of time expressed in days.

• (2) A period of time expressed as a number of days is to be computed as clear days.

• (3) In this rule, “clear days” means that in computing the number of days—

• (a) the day on which the period begins; and

• (b) if the end of the period is defined by reference to an event, the day on which that event occurs,

are not included.

Periods of time expressed in months

1.4

• (1) This rule applies to the calculation of a period of time expressed in months.

• (2) The beginning and the end of a period expressed in months are to be determined as follows—

• (a) if the beginning of the period is specified—

• (i) the month in which the period ends is the specified number of months after the month in which it begins; and

• (ii) the date in the month on which the period ends is—

• (aa) the day before the date corresponding to the date in the month on which it begins, or

• (bb) if there is no such date in the month in which it ends, the last day of that month;

• (b) if the end of the period is specified—

• (i) the month in which the period begins is the specified number of months before the month in which it ends; and

• (ii) the date in the month on which the period begins is—

• (aa) the day after the date corresponding to the date in the month on which it ends, or

• (bb) if there is no such date in the month in which it begins, the last day of that month.

CHAPTER 4 — Form and content of documents

Requirement for writing and form of documents

1.5

• (1) A notice or statement must be in writing unless the Act or these Rules provide otherwise.

• (2) A document in electronic form must be capable of being—

• (a) read by the recipient in electronic form; and

• (b) reproduced by the recipient in hard-copy form.

Authentication

1.6

• (1) A document in electronic form is authenticated—

• (a) if the identity of the sender is confirmed in a manner specified by the recipient; or

• (b) where the recipient has not so specified, if the communication contains or is accompanied by a statement of the identity of the sender and the recipient has no reason to doubt the truth of that statement.

• (2) A document in hard copy form is authenticated if it is signed.

• (3) If a document is authenticated by the signature of an individual on behalf of—

• (a) a body of persons, the document must also state the position of that individual in relation to the body;

• (b) a body corporate of which the individual is the sole member, the document must also state that fact.

Information required to identify persons and insolvency proceedings etc.

1.7

• (1) Where the Act or these Rules require a document to identify, or to contain identification details in respect of, a person or insolvency proceedings, or to provide contact details for an office-holder, the information set out in the table must be given.

• (2) Where a requirement relates to a proposed office-holder, the information set out in the table in respect of an office-holder must be given with any necessary adaptations.

Company where it is the subject of the insolvency proceedings	In the case of a registered company—
Company where it is the subject of the insolvency proceedings	the registered name; for a company incorporated in Scotland under the Companies Act or a previous Companies Act, its registered number; for a company incorporated outside the United Kingdom—
Company where it is the subject of the insolvency proceedings	the country or territory in which it is incorporated, the number, if any, under which it is registered, and the number, if any, under which it is registered as an overseas company under Part 34 of the Companies Act.
Company where it is the subject of the insolvency proceedings	In the case of an unregistered company—
Company where it is the subject of the insolvency proceedings	its name; and the postal address of any principal place of business.
Company other than one which is the subject of the insolvency proceedings	In the case of a registered company—
Company other than one which is the subject of the insolvency proceedings	the registered name; for a company incorporated in any part of the United Kingdom under the Companies Act or a previous Companies Act, its registered number; for a company incorporated outside the United Kingdom—
Company other than one which is the subject of the insolvency proceedings	the country or territory in which it is incorporated, the number, if any, under which it is registered; and the number, if any, under which it is registered as an overseas company under Part 34 of the Companies Act;
Company other than one which is the subject of the insolvency proceedings	In the case of an unregistered company—
Company other than one which is the subject of the insolvency proceedings	its name, and the postal address of any principal place of business.
Office-holder	the name of the office-holder; and the nature of the appointment held by the office-holder.
Contact details for an office-holder	a postal address for the office-holder; and either an email address, or a telephone number, through which the office-holder may be contacted.
Insolvency proceedings	information identifying the company to which the insolvency proceedings relate; if the insolvency proceedings are, or are to be, conducted in a court— the full name of the court and, if applicable, any number assigned to those insolvency proceedings by the court.

Reasons for stating that insolvency proceedings are or will be main, secondary etc. under the EU Regulation