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

• (1) A request for a physical meeting under section 246ZE(3) may be made before or after the notice of the decision procedure or deemed consent procedure has been delivered, but must be made not later than 5 business days after the date on which the convener delivered the notice of the decision procedure or deemed consent procedure unless these Rules provide to the contrary.

• (2) It is the convener’s responsibility to check whether any requests for a physical meeting are submitted before the deadline and if so whether in aggregate they meet or surpass one of the thresholds requiring a physical meeting under section 246ZE(7).

• (3) Where the prescribed proportion of creditors requires a physical meeting the convener must summon the meeting by giving notice which complies with rule 8.8 so far as applicable and which must also contain a statement that the meeting may be suspended or adjourned by the chair of the meeting (and must be adjourned if it is so resolved at the meeting).

• (4) In addition, the notice under paragraph (3) must inform the creditors that as a result of the requirement to hold a physical meeting the original decision procedure or the deemed consent procedure is superseded.

• (5) The convener must send the notice under paragraph (3) not later than 3 business days after one of the thresholds requiring a physical meeting has been met or surpassed.

• (6) The convener—

• (a) may permit a creditor to attend a physical meeting remotely if the convener receives a request to do so in advance of the meeting; and

• (b) must include in the notice of the meeting a statement explaining the convener’s discretion to permit remote attendance.

• (7) In this rule, attending a physical meeting “remotely” means attending and being able to participate in the meeting without being in the place where the meeting is being held.

• (8) For the purpose of determining whether the thresholds under section 246ZE(7) are met, the convener must calculate the value of the creditor’s debt by reference to rule 8.31.

Deemed consent

[Note: the deemed consent procedure cannot be used to make a decision on remuneration of any person, or where the Act, these Rules or any other legislation or court order requires a decision to be made by a decision procedure.]

8.7 1 This rule makes further provision about the deemed consent procedure to that set out in section 246ZF⁸⁹. 2 A notice seeking deemed consent must, in addition to the requirements of section 246ZF comply with the requirements of rule 8.8 so far as applicable and must also contain— a a statement that in order to object to the proposed decision a creditor must have delivered a notice, stating that the creditor so objects, to the convener not later than the decision date together with a statement of claim and documentary evidence of debt in accordance with these Rules failing which the objection will be disregarded; b a statement that it is the convener’s responsibility to aggregate any objections to see if the threshold is met for the decision to be taken as not having been made; and c a statement that if the threshold is met the deemed consent procedure will terminate without a decision being made and if a decision is sought again on the same matter it will be sought by a decision procedure. 3 In this rule, the threshold is met where the appropriate number of relevant creditors (as defined in section 246ZF(7)) have objected to the proposed decision. 4 For the purpose of aggregating objections, the convener may presume the value of relevant creditors’ claims to be the value of claims by those creditors who, in the convener’s view, would have been entitled to vote had the decision been sought by a decision procedure in accordance with this Part, even where those creditors had not already met the criteria for such entitlement to vote. 5 Rules 8.31(2) (calculation of voting rights), 8.32 (calculation of voting rights: authorised deposit-taker) and 8.33 (procedure for admitting creditors’ claims for voting) apply to the admission or rejection of a claim for the purpose of the convener deciding whether or not an objection should count towards the total aggregated objections. 6 A decision of the convener on the aggregation of objections under this rule is subject to appeal under rule 8.35 as if it were a decision under Chapter 8 of this Part.

CHAPTER 3 — Notices, voting and venues for decisions

[Note: a document required by the Act or these Rules must also contain the standard contents required as set out in Part 1.]

Notices to creditors of decision procedure

8.8

• (1) This rule sets out the requirements for notices to creditors where a decision is sought by a decision procedure.

• (2) The convener must deliver a notice to every creditor who is entitled to notice of the procedure.

• (3) The notice must contain the following—

• (a) identification details for the insolvency proceedings;

• (b) details of the decision to be made or of any resolution on which a decision is sought;

• (c) a description of the decision procedure which the convener is using, and arrangements, including the venue, for the decision procedure;

• (d) a statement of the decision date;

• (e) a statement as to when the creditor must have delivered a statement of claim and documentary evidence of debt in accordance with these Rules failing which a vote by the creditor will be disregarded;

• (f) a statement that a creditor whose debt is treated as a small debt in accordance with rule 7.35 must still deliver a statement of claim and documentary evidence of debt if that creditor wishes to vote;

• (g) a statement that a creditor who has opted out from receiving notices may nevertheless vote if the creditor provides a statement of claim and documentary evidence of debt in accordance with paragraph (e);

• (h) in the case of a decision to remove a liquidator in a creditors’ voluntary winding up or a winding up by the court, a statement drawing the attention of creditors to section 173(2) or 174(4) (which relate to the release of the liquidator), as appropriate⁹⁰;

• (i) except in the case of a physical meeting, a statement that creditors who meet the thresholds in section 246ZE(7) may, within 5 business days from the date of delivery of the notice, require a physical meeting to be held to consider the matter;

• (j) in the case of a meeting, a statement that any proxy must be delivered to the convener or chair before it may be used at the meeting;

• (k) in the case of a meeting, a statement that, where applicable, a complaint may be made in accordance with rule 8.38 and the period within which such a complaint may be made; and

• (l) a statement that a creditor may appeal a decision in accordance with rule 8.35, and the relevant period under rule 8.35 within which such an appeal may be made.

• (4) The notice must be authenticated and dated by the convener.

• (5) Where the decision procedure is a meeting the notice must be accompanied by a blank proxy complying with rule 9.3.

• (6) This rule does not apply if the court orders under rule 8.12 that notice of a decision procedure be given by advertisement only.

Voting in a decision procedure

8.9

• (1) In order to be counted in a decision procedure other than where votes are cast at a meeting, votes must—

• (a) be received by the convener on or before the decision date; and

• (b) in the case of a vote cast by a creditor, be accompanied by a statement of claim and documentary evidence of debt (where the requirement to provide the latter is not dispensed with under rule 8.28(2)) unless already given to the convener.

• (2) In a receivership, a creditors’ voluntary winding up or a winding up by the court a vote must be disregarded if—

• (a) a statement of claim and, where required, documentary evidence of debt are not received by the convener on or before the decision date or, in the case of a meeting, at or before the meeting (unless under rule 8.26 the chair is content to accept them before resumption of the adjourned meeting); or

• (b) the convener decides, in the application of Chapter 8 of this Part, that the creditor is not entitled to cast the vote.

• (3) The convener must have received at least one valid vote on or before the decision date in order for the decision to be made.

Venue for the decision procedure

8.10

The convener must have regard to the convenience of those invited to participate when fixing the venue for a decision procedure (including the resumption of an adjourned meeting).

Notice of decision procedures or of seeking deemed consent: when and to whom delivered

[Note: when an office-holder is obliged to give notice to “the creditors”, this is subject to rule 1.33, which limits the obligation to giving notice to those creditors of whose address the office-holder is aware.]

8.11 1 Notices of decision procedures, and notices seeking deemed consent, must be delivered in accordance with the following table. ProceedingsDecisionsPersons to whom notice must be deliveredMinimum notice required receivershipdecisions of creditorsthe creditors14 dayscreditors’ voluntary winding updecisions of creditors for appointment of liquidator (including any decision made at the same time on the establishment of a liquidation committee)the creditors14 days on conversion from members’ voluntary liquidation, 7 days on conversion from member’s voluntary liquidation where deemed consent has been objected to and in other cases, 3 business dayscreditors’ voluntary winding up or a winding up by the courtdecisions of creditors to consider whether a replacement should be appointed after a liquidator’s resignationthe creditors28 dayswinding up by the courtdecisions of creditors to consider whether to remove or replace the liquidator (other than after a liquidator’s resignation)the creditors14 dayscreditors’ voluntary winding up or a winding up by the courtother decisions of creditorsthe creditors14 dayscreditors’ voluntary winding up or a winding up by the courtdecisions of contributoriesevery person appearing (by the company’s records or otherwise) to be a contributory14 daysmain proceedings in another Member Stateapproval under Article 36(5) of the EU Regulation of proposed undertaking offered by a member State liquidatorall the local creditors in the United Kingdom14 days 2 This rule does not apply where the court orders under rule 8.12 that notice of a decision procedure be given by advertisement only.

Notice of decision procedure by advertisement only

8.12

• (1) The court may order that notice of a decision procedure is to be given by advertisement only and not by individual notice to the persons concerned.

• (2) In considering whether to make such an order, the court must have regard to the relative cost of advertisement as against the giving of individual notices, the amount of assets available and the extent of the interest of creditors, members or contributories or any particular class of them.

• (3) The advertisement must meet the requirements for a notice under rule 8.8(3), and must also state—

• (a) that the court ordered that notice of the decision procedure be given by advertisement only; and

• (b) the date of the court’s order.

Gazetting and advertisement

8.13

• (1) In a creditors’ voluntary winding up or a winding up by the court where a decision is being sought in a meeting the convener must gazette a notice stating—

• (a) that a meeting of creditors or contributories is to take place;

• (b) the venue for the meeting;

• (c) the purpose of the meeting; and

• (d) the time and date by which, and place at which, those attending must deliver proxies and statements of claim and documentary evidence of debt (if not already delivered) in order to be entitled to vote.

• (2) The notice must also state—

• (a) who is the convener in respect of the meeting; and

• (b) if the meeting results from a request of one or more creditors under section 246ZE, the fact that it was so summoned.

• (3) The notice must be gazetted before or as soon as reasonably practicable after notice of the meeting is delivered in accordance with these Rules.

• (4) Information to be gazetted under this rule may also be advertised in such other manner as the convener thinks fit.

• (5) The convener may gazette other decision procedures or the deemed consent procedure in which case the equivalent information to that required by this rule must be stated in the notice.

Notice to company officers in respect of meetings

8.14

• (1) In a creditors’ voluntary winding up or a winding up by the court notice to participate in a creditors’ meeting must be delivered to every present or former officer of the company whose presence the convener thinks is required and that person is required to attend the meeting.

• (2) A notice under this rule must be delivered in compliance with the minimum notice requirements set out in rule 8.2(2) or in compliance with an order of the court under rule 8.12.

Non-receipt of notice of decision

8.15

Where a decision is sought by a notice in accordance with the Act or these Rules, the decision procedure or deemed consent procedure is presumed to have been duly initiated and conducted, even if not everyone to whom the notice is to be delivered has received it.

Decisions on remuneration and conduct

8.16

• (1) This rule applies in relation to a decision or resolution which is proposed in a creditors’ voluntary winding up or a winding up by the court and which affects a person in relation to that person’s remuneration or conduct as liquidator (actual, proposed or former).

• (2) The following may not vote on such a decision or resolution whether as a creditor, contributory, proxy-holder or corporate representative, except so far as permitted by rule 9.7 (proxy-holder with financial interest)—

• (a) that person;

• (b) the partners and employees of that person;

• (c) the officers and employees of the company of which that person is a director, officer or employee; and

• (d) the representative of any person mentioned in sub-paragraphs (a) to (c).

CHAPTER 4 — Decision making in particular proceedings

[Note: a document required by the Act or these Rules must also contain the standard contents required as set out in Part 1.]

Decisions in winding up of authorised deposit-takers

8.17

• (1) This rule applies in a creditors’ voluntary winding up or a winding up by the court of an authorised deposit-taker.

• (2) The directors of a company must deliver a notice of a meeting of the company at which it is intended to propose a resolution for its winding up to the Financial Conduct Authority and to the scheme manager established under section 212(1) of the Financial Services and Markets Act 2000⁹¹.

• (3) These notices must be the same as those delivered to members of the company.

• (4) Where any decision is sought for the purpose of considering whether a replacement should be appointed after the liquidator’s resignation, removing the liquidator or appointing a new liquidator, the convener must also deliver a copy of the notice by which such a decision is sought to the Financial Conduct Authority and the scheme manager.

• (5) A scheme manager who is required by this rule to be given notice of a meeting is entitled to be represented at the meeting.

CHAPTER 5 — Requisitioned decisions

[Note: a document required by the Act or these Rules must also contain the standard contents required as set out in Part 1.]

Requisitions of decision

[Note: this rule is concerned with requests by creditors or contributories for a decision, rather than requests for decisions to be made by way of a physical meeting under section 246ZE(3)⁹².]

8.18 1 In this Chapter, “requisitioned decision” means— a a decision requested to be sought under section 142(4)⁹³, 171(2)(b), 171(3A)⁹⁴ or 172(3)⁹⁵; b any other decision sought by a liquidator in a winding up by the court following a request to seek a decision on any matter from— i one-tenth in value of a company’s creditors; or ii one-tenth in value of a company’s contributories. 2 The request for a requisitioned decision must include a statement of the purpose of the proposed decision and either— a a copy of the requesting creditor’s statement of claim or a statement of the requesting contributory’s value, together with— i a list of the creditors or contributories concurring with the request and of the amounts of their respective claims or values; and ii confirmation of concurrence from each creditor or contributory concurring; or b a copy of the requesting creditor’s statement of claim or a statement of the requesting contributory’s value and a statement that that alone is sufficient without the concurrence of other creditors or contributories. 3 A decision procedure must be instigated under section 171(2)(b) for the removal of the liquidator, other than a liquidator appointed by the court under section 108, if 25% in value of the company’s creditors, excluding those who are connected with the company⁹⁶, request it. 4 Where a decision procedure under 171(2)(b), 171(3) or 171(3A) is to be instigated, or is proposed to be instigated, the court may, on the application of any creditor, give directions as to the decision procedure to be used and any other matter which appears to the court to require regulation or control.

Expenses and timing of requisitioned decision

8.19

• (1) The convener must, not later than 14 days from receipt of a request for a requisitioned decision, provide the requesting creditor with itemised details of the sum to be deposited as caution for payment of the expenses of such procedure.

• (2) The convener is not obliged to initiate the decision procedure or deemed consent procedure (where applicable) until either—

• (a) the convener has received the required sum; or

• (b) the period of 14 days has expired without the convener having informed the requesting creditor or contributory of the sum required to be deposited as caution.

• (3) A requisitioned decision must be made within 28 days of the date on which the earlier of the events specified in paragraph (2) of this rule occurs.

• (4) The expenses of a requisitioned decision must be paid out of the deposit (if any) unless—

• (a) the creditors decide that they are to be payable as an expense of the liquidation; and

• (b) in the case of a decision of contributories, the creditors are first paid in full, with interest.

• (5) The notice of a requisitioned decision of creditors must contain a statement that the creditors may make a decision as in paragraph (4)(a) of this rule.

• (6) Where the creditors do not so decide, the expenses must be paid by the requesting creditor or contributory to the extent that the deposit (if any) is not sufficient.

• (7) To the extent that the deposit (if any) is not required for payment of the expenses, it must be repaid to the requesting creditor or contributory.

CHAPTER 6 — Constitution of meetings

Quorum at meetings

8.20

• (1) A meeting is not competent to act unless a quorum is in attendance.

• (2) A quorum is—

• (a) in the case of a meeting of creditors, at least one creditor entitled to vote; and

• (b) in the case of a meeting of contributories, at least 2 contributories entitled to vote, or all the contributories, if their number does not exceed 2.

• (3) Where the provisions of this rule as to quorum are satisfied by the attendance of the chair alone or the chair and one additional person, but the chair is aware, either by virtue of statements of claim and documentary evidence of debt and proxies received or otherwise, that one or more additional persons would, if attending, be entitled to vote, the chair must delay the start of the meeting by at least 15 minutes after the appointed time.

• (4) In this rule, the reference to the number of creditors or contributories necessary to constitute a quorum includes those represented by proxy by any person (including the chair).

Chair at meetings

8.21

• (1) The chair of a meeting must be—

• (a) the convener; or

• (b) an appointed person.

• (2) However—

• (a) where a decision on the appointment of a liquidator under rule 4.14(2)(b), 4.14(4) or 4.14(6) (information to creditors and appointment of liquidator in creditors voluntary winding up) is made by a meeting the chair of the meeting must be the convener;

• (b) where a decision on the appointment of a liquidator under rule 5.22(6) (appointment of liquidator in place of the interim liquidator under section 138(3) in court winding up) is made by a meeting and a resolution is proposed to appoint the interim liquidator to be liquidator another person may be appointed to act as chair for the purpose of choosing the liquidator.

The chair – attendance, interventions and questions

8.22

The chair of a meeting may—

• (a) allow any person who has given reasonable notice of wishing to attend to participate in a virtual meeting or to be admitted to a physical meeting;

• (b) decide what intervention, if any, may be made at—

• (i) a meeting of creditors by any person attending who is not a creditor; or

• (ii) a meeting of contributories by any person attending who is not a contributory; and

• (c) decide what questions may be put to any present or former officer of the company.

CHAPTER 7 — Adjournment and suspension of meetings

Adjournment by chair

8.23

• (1) The chair may (and must if it is so resolved) adjourn a meeting for not more than 14 days, subject to any direction of the court and to rule 8.24.

• (2) Any further adjournment under this rule must not be to a day later than 14 days after the date on which the meeting was originally held, subject to any direction of the court.

Adjournment of meetings to remove a liquidator

8.24

If the chair of a meeting to remove the liquidator in a creditors’ voluntary winding up or a winding up by the court is the liquidator or the liquidator’s nominee and a resolution has been proposed for the liquidator’s removal, the chair must not adjourn the meeting without the consent of at least ½ (in value) of the creditors attending and entitled to vote.

Adjournment in absence of chair

8.25

• (1) In a receivership, a creditors’ voluntary winding up or a winding up by the court, if no one attends to act as chair within 30 minutes of the time fixed for a meeting to start, then the meeting is adjourned to the same time and place the following week or, if that is not a business day, to the business day immediately following.

• (2) If no one attends to act as chair within 30 minutes of the time fixed for the meeting after a second adjournment under this rule, then the meeting comes to an end.

Statements of claim and documentary evidence of debt in adjournment

8.26

Where a meeting in a receivership, a creditors’ voluntary winding-up or a winding up by the court is adjourned, the chair may allow a statement of claim and documentary evidence of debt (where required) to be used if delivered at or before resumption of the adjourned meeting.

Suspension

8.27

The chair of a meeting may, without an adjournment, declare the meeting suspended for one or more periods not exceeding one hour in total (or, in exceptional circumstances, such longer total period during the same day as the chair may determine).

CHAPTER 8 — Creditors' voting rights and majorities

[Note: a document required by the Act or these Rules must also contain the standard contents required as set out in Part 1.]

Creditors' voting rights

8.28

• (1) In a receivership, a creditors’ voluntary winding up or a winding up by the court, a creditor is entitled to vote in a decision procedure or to object to a decision proposed using the deemed consent procedure only if—

• (a) the creditor has delivered to the convener a statement of claim and documentary evidence of debt, including any calculation for the purposes of rule 8.31 or 8.32;

• (b) the statement of claim and documentary evidence of debt was received by the convener not later than the decision date, or in the case of a meeting, at or before the meeting; and

• (c) the statement of claim and documentary evidence of debt has been admitted for the purposes of entitlement to vote.

• (2) The convener or chair may dispense with the requirement to produce documentary evidence of debt in paragraph (1)(a) and (b) in respect of any debt or any class or debt.

• (3) In the case of a meeting, a proxy-holder is not entitled to vote on behalf of a creditor unless the convener or chair has received the proxy intended to be used on behalf of that creditor.

Scheme manager's voting rights

8.29

• (1) For the purpose of voting in a creditors’ voluntary winding up or a winding up by the court of an authorised deposit-taker at which the scheme manager established under section 212(1) of the Financial Services and Markets Act 2000⁹⁷ is entitled to be represented under rule 8.17 (but not for any other purpose), the manager may deliver, instead of a statement of claim and documentary evidence of debt, a statement containing—

• (a) the names of the creditors of the company in relation to whom an obligation of the scheme manager has arisen or may reasonably be expected to arise;

• (b) the amount of each such obligation; and

• (c) the total amount of all such obligations.

• (2) The manager may from time to time deliver a further statement; and each such statement supersedes any previous statement.

Claim made in proceedings in other member States

8.30

• (1) Where in a creditors’ voluntary winding up or a winding up by the court—

• (a) a creditor is entitled to vote under rule 8.28(1) (as determined, where that be the case, in accordance with rule 8.35);

• (b) that creditor has made the claim in other proceedings;

• (c) that creditor votes on a resolution in a decision procedure; and

• (d) a member State liquidator casts a vote in respect of the same claim,

only the creditor’s vote is to be counted.

• (2) Where in a creditors’ voluntary winding up or a winding up by the court—

• (a) a creditor has made a claim in more than one set of other proceedings; and

• (b) more than one member State liquidator seeks to vote in respect of that claim,

the entitlement to vote in respect of that claim is exercisable by the member State liquidator in the main proceedings, whether or not the creditor has made the claim in the main proceedings.

• (3) In this rule, “other proceedings” means main, secondary or territorial proceedings in another member State.

Calculation of voting rights

8.31

• (1) Votes are calculated according to the amount of each creditor’s claim—

• (a) in a receivership, as at the date of the appointment of the receiver, less any payments that have been made to the creditor after that date in respect of the claim;

• (b) in a creditors’ voluntary winding up or a winding up by the court, as set out in the creditor’s statement of claim and documentary evidence of debt to the extent that it has been admitted.

• (2) A creditor may vote in respect of a debt of an unliquidated or unascertained amount if the convener or chair decides to put upon it an estimated minimum value for the purpose of entitlement to vote and admits the claim for that purpose.

• (3) Where a debt is wholly secured its value for voting purposes is nil.

• (4) Where a debt is partly secured its value for voting purposes is the value of the unsecured part.

• (5) No vote may be cast in respect of a claim more than once on any resolution put to the meeting; and for this purpose (where relevant), the claim of a creditor and of any member State liquidator in relation to the same debt are a single claim.

• (6) A vote cast in a decision procedure which is not a meeting may not be changed.

• (7) Paragraph (5) does notprevent a creditor or member State liquidator from—

• (a) voting in respect of less than the full value of an entitlement to vote; or

• (b) casting a vote one way in respect of part of the value of an entitlement and another way in respect of some or all of the balance of that value.

Calculation of voting rights: winding up of authorised deposit-taker

8.32

Any voting rights which a creditor might otherwise exercise in respect of a claim in a creditors’ voluntary winding up or a winding up by the court of an authorised deposit-taker are reduced by a sum equal to the amount of that claim in relation to which the scheme manager, by virtue of its having delivered a statement under rule 8.29, is entitled to exercise voting rights.

Procedure for admitting creditors' claims for voting

8.33

• (1) The convener or chair in respect of a decision procedure must ascertain entitlement to vote and admit or reject claims accordingly.

• (2) The convener or chair may admit or reject a claim in whole or in part.

• (3) If the convener or chair is in any doubt whether a claim should be admitted or rejected, the convener or chair must mark it as objected to and allow votes to be cast in respect of it, subject to such votes being subsequently declared invalid if the objection to the claim is sustained.

Requisite majorities

8.34

A decision is made by creditors when a majority (in value) of those voting have voted in favour of the proposed decision.

Appeals against decisions under this Chapter

8.35

• (1) A decision of the convener or chair under this Chapter is subject to appeal to the court by a creditor or by a contributory (as applicable).

• (2) If the decision is reversed or varied, or votes are declared invalid, the court may order another decision procedure to be initiated or make such order as it thinks just.

• (3) An appeal under this rule may not be made later than 21 days after the decision date.

• (4) The person who made the decision is not personally liable for expenses incurred by any person in relation to an appeal under this rule unless the court makes an order to that effect.

CHAPTER 9 — Exclusions from meetings

[Note: a document required by the Act or these Rules must also contain the standard contents required as set out in Part 1.]

Action where person excluded

8.36

• (1) In this rule and rules 8.37 and 8.38, an “excluded person” means a person who has taken all steps necessary to attend a virtual meeting or has been permitted by the convener to attend a physical meeting remotely under the arrangements which—

• (a) have been put in place by the convener of the meeting; but

• (b) do not enable that person to attend the whole or part of that meeting.

• (2) Where the chair becomes aware during the course of the meeting that there is an excluded person, the chair may—

• (a) continue the meeting;

• (b) declare the meeting void and convene the meeting again; or

• (c) declare the meeting valid up to the point where the person was excluded and adjourn the meeting.

• (3) Where the chair continues the meeting, the meeting is valid unless—

• (a) the chair decides in consequence of a complaint under rule 8.38 to declare the meeting void and hold the meeting again; or

• (b) the court directs otherwise.

• (4) Without prejudice to paragraph (2), where the chair becomes aware during the course of the meeting that there is an excluded person, the chair may, at the chair’s discretion and without an adjournment, declare the meeting suspended for any period up to 1 hour.

Indication to excluded person

8.37

• (1) A creditor who claims to be an excluded person may request an indication of what occurred during the period of that person’s claimed exclusion.

• (2) A request under paragraph (1) must be made in accordance with paragraph (3) as soon as reasonably practicable, and in any event, not later than 4pm on the business day following the day on which the exclusion is claimed to have occurred.

• (3) A request under paragraph (1) must be made to—

• (a) the chair, where it is made during the course of the meeting; or

• (b) the convener where it is made after the meeting.

• (4) Where satisfied that the person making the request is an excluded person, the person to whom the request is made under paragraph (3) must deliver the requested indication to the excluded person as soon as reasonably practicable, and in any event, not later than 4pm on the business day following the day on which the request was made under paragraph (1).

Complaint

8.38

• (1) A person may make a complaint who—

• (a) is, or claims to be, an excluded person; or

• (b) attends the meeting and claims to have been adversely affected by the actual, apparent or claimed exclusion of another person.

• (2) A complaint under paragraph (1) must be made to the appropriate person who is—

• (a) the chair, where it is made during the course of the meeting; or

• (b) the convener, where it is made after the meeting.

• (3) The complaint must be made as soon as reasonably practicable and, in any event, not later than 4pm on the business day following—

• (a) the day on which the person was, appeared or claimed, to be excluded; or

• (b) where an indication is sought under rule 8.37, the day on which the complainant received the indication.

• (4) The appropriate person must, as soon as reasonably practicable following receipt of the complaint,—

• (a) consider whether there is an excluded person;

• (b) where satisfied that there is an excluded person, consider the complaint; and

• (c) where satisfied that there has been prejudice, take such action as the appropriate person considers fit to remedy the prejudice.

• (5) Paragraph (6) applies where the appropriate person is satisfied that the complainant is an excluded person and—

• (a) a resolution was voted on at the meeting during the period of the person’s exclusion; and

• (b) the excluded person asserts how the excluded person intended to vote on the resolution.

• (6) Where the appropriate person is satisfied that if the excluded person had voted as that person intended it would have changed the result of the resolution, then the appropriate person must, as soon as reasonably practicable,—

• (a) count the intended vote as having been cast in that way;

• (b) amend the record of the result of the resolution;

• (c) where notice of the result of the resolution has been delivered to those entitled to attend the meeting, deliver notice to them of the change and the reason for it; and

• (d) where notice of the result of the resolution has yet to be delivered to those entitled to attend the meeting, the notice must include details of the change and the reason for it.

• (7) Where satisfied that more than one complainant is an excluded person, the appropriate person must have regard to the combined effect of the intended votes.

• (8) The appropriate person must deliver notice to the complainant of any decision as soon as reasonably practicable.

• (9) A complainant who is not satisfied by the action of the appropriate person may apply to the court for directions and any application must be made no more than 2 business days from the date of receiving the decision of the appropriate person.

CHAPTER 10 — Contributories' voting rights and majorities

Contributories' voting rights and requisite majorities

8.39

In a decision procedure for contributories—

• (a) voting rights are as at a general meeting of the company, subject to any provision of the articles affecting entitlement to vote, either generally or at a time when the company is in liquidation; and

• (b) a decision is made if more than ½ of the votes cast by contributories are in favour.

CHAPTER 11 — Records

Record of a decision

8.40

• (1) Where a decision is sought using a decision procedure, the convener or chair must make a record of the decision procedure.

• (2) In the case of a meeting, the record must be in the form of a minute of the meeting.

• (3) The record must be authenticated by the convener or chair and must include—

• (a) identification details for the insolvency proceedings;

• (b) in the case of a decision procedure of creditors, a list of the names of the creditors who participated and their claims;

• (c) in the case of a decision procedure of contributories, a list of the names of the contributories who participated;

• (d) where a decision is taken on the election of members of a creditors’ committee or liquidation committee, the names and addresses of those elected;

• (e) a record of any change to the result of the resolution made under rule 8.38(6) and the reason for any such change; and

• (f) in any case, a record of every decision made and how creditors voted.

• (4) Where a decision is sought using the deemed consent procedure, the convener must make a record of the procedure.

• (5) The record under paragraph (4) must be authenticated by the convener and must—

• (a) identify the proceedings;

• (b) state whether or not the decision was taken; and

• (c) contain a list of the creditors or contributories who objected to the decision, and in the case of creditors, their claims.

• (6) A record under this rule must also identify any decision procedure (or the deemed consent procedure) by which the decision had previously been sought.

CHAPTER 12 — Company meetings

Company meetings

8.41

• (1) Unless the Act or these Rules provide otherwise, a company meeting must be called and conducted, and records of the meeting must be kept—

• (a) in accordance with the law of Scotland, including any applicable provision in or made under the Companies Act, in the case of a company incorporated—

• (i) in Scotland, or

• (ii) outside the United Kingdom other than in an EEA state;

• (b) in accordance with the law of that state applicable to meetings of the company in the case of a company incorporated in an EEA state other than the United Kingdom.

• (2) Reference to a company meeting called and conducted to resolve, decide or determine a particular matter includes a reference to that matter being resolved, decided or determined by written resolution.

Remote attendance: notification requirements

8.42

When a meeting is to be summoned and held in accordance with section 246A(3)⁹⁸, the convener must notify all those to whom notice of the meeting is being given of—

• (a) the ability of a person claiming to be an excluded person to request an indication in accordance with rule 8.45;

• (b) the ability of a person within rule 8.46(1) to make a complaint in accordance with that rule; and

• (c) in either case, the period within which a request or complaint must be made.

Location of company meetings

8.43

• (1) This rule applies to a request to the convener of a meeting under section 246A(9)⁹⁹ to specify a place for the meeting.

• (2) The request must be accompanied by—

• (a) a list of the members making or concurring with the request and their voting rights, and

• (b) from each person concurring, confirmation of that person’s concurrence.

• (3) The request must be delivered to the convener within 7 business days of the date on which the convener delivered the notice of the meeting in question.

• (4) Where the convener considers that the request has been properly made in accordance with the Act and this rule, the convener must—

• (a) deliver notice to all those previously given notice of the meeting—

• (i) that it is to be held at a specified place, and

• (ii) as to whether the date and time are to remain the same or not;

• (b) set a venue (including specification of a place) for the meeting, the date of which must be not later than 28 days after the original date for the meeting; and

• (c) deliver at least 14 days’ notice of that venue to all those previously given notice of the meeting,

and the notices required by sub-paragraphs (a) and (c) may be delivered at the same or different times.

• (5) Where the convener has specified a place for the meeting in response to a request to which this rule applies, the chair of the meeting must attend the meeting by being present in person at that place.

Action where person excluded

8.44

• (1) In this rule and rules 8.45 and 8.46, an “excluded person” means a person who has taken all steps necessary to attend a company meeting under the arrangements which—

• (a) have been put in place by the convener of the meeting under section 246A(6); but

• (b) do not enable that person to attend the whole or part of that meeting.

• (2) Where the chair becomes aware during the course of the meeting that there is an excluded person, the chair may—

• (a) continue the meeting;

• (b) declare the meeting void and convene the meeting again; or

• (c) declare the meeting valid up to the point where the person was excluded and adjourn the meeting.

• (3) Where the chair continues the meeting, the meeting is valid unless—

• (a) the chair decides in consequence of a complaint under rule 8.46 to declare the meeting void and hold the meeting again; or

• (b) the court directs otherwise.

• (4) Without prejudice to paragraph (2), where the chair becomes aware during the course of the meeting that there is an excluded person, the chair may, in the chair’s discretion and without an adjournment, declare the meeting suspended for any period up to 1 hour.

Indication to excluded person

8.45

• (1) A person who claims to be an excluded person may request an indication of what occurred during the period of that person’s claimed exclusion.

• (2) A request under paragraph (1) must be made in accordance with paragraph (3) as soon as reasonably practicable, and in any event, not later than 4pm on the business day following the day on which the exclusion is claimed to have occurred.

• (3) A request under paragraph (1) must be made to—

• (a) the chair where it is made during the course of the meeting; or

• (b) the convener where it is made after the meeting.

• (4) Where satisfied that the person making the request is an excluded person, the person to whom the request is made under paragraph (3) must deliver the requested indication to the excluded person as soon as reasonably practicable, and in any event, not later than 4pm on the business day following the day on which the request was made under paragraph (1).

Complaint

8.46

• (1) A person may make a complaint who—

• (a) is, or claims to be, an excluded person; or

• (b) attends the meeting and claims to have been adversely affected by the actual, apparent or claimed exclusion of another person.

• (2) The complaint under paragraph (1) must be made to the appropriate person who is—

• (a) the chair, where the complaint is made during the course of the meeting; or

• (b) the convener, where it is made after the meeting.

• (3) The complaint must be made as soon as reasonably practicable and, in any event, no later than 4pm on the business day following—

• (a) the day on which the person was, appeared or claimed to be excluded; or

• (b) where an indication is sought under rule 8.45, the day on which the complainant received the indication.

• (4) The appropriate person must, as soon as reasonably practicable following receipt of the complaint,—

• (a) consider whether there is an excluded person;

• (b) where satisfied that there is an excluded person, consider the complaint; and

• (c) where satisfied that there has been prejudice, take such action as the appropriate person considers fit to remedy the prejudice.

• (5) Paragraph (6) applies where the appropriate person is satisfied that the complainant is an excluded person and—

• (a) a resolution was voted on at the meeting during the period of the person’s exclusion; and

• (b) the excluded person asserts how the excluded person intended to vote on the resolution.

• (6) Where the appropriate person is satisfied that if the excluded person had voted as that person intended it would have changed the result of the resolution, then the appropriate person must, as soon as reasonably practicable—

• (a) count the intended vote as having been cast in that way;

• (b) amend the record of the result of the resolution;

• (c) where notice of the result of the resolution has been delivered to those entitled to attend the meeting, deliver notice to them of the change and the reason for it; and

• (d) where notice of the result of the resolution has yet to be delivered to those entitled to attend the meeting, the notice must include details of the change and the reason for it.

• (7) Where satisfied that more than one complainant is an excluded person, the appropriate person must have regard to the combined effect of the intended votes.

• (8) The appropriate person must deliver notice to the complainant of any decision as soon as reasonably practicable.

• (9) A complainant who is not satisfied by the action of the appropriate person may apply to the court for directions and any application must be made no more than 2 business days from the date of receiving the decision of the appropriate person.

PART 9 — PROXIES AND CORPORATE REPRESENTATION

[Note: a document required by the Act or these Rules must also contain the standard contents required as set out in Part 1.]

Application and interpretation

9.1

• (1) This Part applies in any case where a proxy is given in relation to a meeting or insolvency proceedings under the Act or these Rules, or where a corporation authorises a person to represent it.

• (2) References in this Part to “the chair” are to the chair of the meeting for which a specific proxy is given or at which a continuing proxy is exercised.

Specific and continuing proxies

9.2

• (1) A proxy is a document made by a creditor, member or contributory which directs or authorises another person (a “proxy-holder”) to act as the representative of the creditor, member or contributory at a meeting, or meetings, by speaking, voting, abstaining, or proposing resolutions.

• (2) A proxy may be either—

• (a) a specific proxy which relates to a specific meeting; or

• (b) a continuing proxy for the insolvency proceedings.

• (3) A specific proxy must—

• (a) direct the proxy-holder how to act at the meeting by giving specific instructions; or

• (b) authorise the proxy-holder to act at the meeting without specific instructions; or

• (c) contain both direction and authorisation.

• (4) A proxy is to be treated as a specific proxy for the meeting which is identified in the proxy unless it states that it is a continuing proxy for the insolvency proceedings.

• (5) A continuing proxy must authorise the proxy-holder to attend, speak, vote or abstain, or to propose resolutions without giving the proxy-holder any specific instructions.

• (6) A continuing proxy may be superseded by a proxy for a specific meeting or withdrawn by a written notice to the office-holder.

• (7) A creditor, member or contributory may appoint more than one person to be proxy-holder but if so—

• (a) their appointment is as alternates; and

• (b) only one of them may act as proxy-holder at a meeting.

• (8) The proxy-holder must be an individual.

Blank proxy

9.3

• (1) A blank proxy is a document which—

• (a) complies with the requirements in this rule; and

• (b) when completed with the details specified in paragraph (3) will be a proxy as described in rule 9.2.

• (2) A blank proxy must state that the creditor, member or contributory named in the document (when completed) appoints a person who is named or identified as the proxy-holder of the creditor, member or contributory.

• (3) The specified details are—

• (a) the name and address of the creditor, member or contributory;

• (b) either the name of the proxy-holder or the identification of the proxy-holder (e.g. the chair of the meeting);

• (c) a statement that the proxy is either—

• (i) for a specific meeting, which is identified in the proxy; or

• (ii) a continuing proxy for the insolvency proceedings; and

• (d) if the proxy is for a specific meeting, instructions as to the extent to which the proxy-holder is directed to vote in a particular way, to abstain or to propose any resolution.

• (4) When it is delivered, a blank proxy must not have inserted in it—

• (a) the name or description of any person as proxy-holder or as a nominee for the office holder; or

• (b) instructions as to how a person appointed as proxy-holder is to act.

• (5) A blank proxy must have a note to the effect that the proxy may be completed with the name of the person or the chair of the meeting who is to be proxy-holder.

Use of proxies

9.4

• (1) A proxy for a specific meeting must be delivered to the chair at or before the meeting.

• (2) A continuing proxy must be delivered to the office-holder and may be exercised at any meeting which begins after the proxy is delivered.

• (3) A proxy may be used at the resumption of the meeting after an adjournment, but if a different proxy is given for use at a resumed meeting, that proxy must be delivered to the chair at or before the resumed meeting.

• (4) Where a specific proxy directs a proxy-holder to vote for or against a resolution for the nomination or appointment of a person as office-holder, the proxy-holder may, unless the proxy states otherwise, vote for or against (as the proxy-holder thinks fit) a resolution for the nomination or appointment of that person jointly with another or others.

• (5) A proxy-holder may propose a resolution which is one on which the proxy-holder could vote if someone else proposed it.

• (6) Where a proxy gives specific directions as to voting, this does not, unless the proxy states otherwise, prohibit the proxy-holder from exercising discretion as to how to vote on a resolution which is not dealt with by the proxy.

• (7) The chair may require a proxy used at a meeting to be the same as or substantially similar to the blank proxy delivered for that meeting or to a blank proxy previously delivered which has been completed as a continuing proxy.

Use of proxies by the chair

9.5

• (1) Where a proxy appoints the chair (however described in the proxy) as proxy-holder the chair may not refuse to be the proxy-holder.

• (2) Where the office-holder is appointed as proxy-holder but another person acts as chair of the meeting, that other person may use the proxies as if that person were the proxy-holder.

• (3) Where, in a meeting of creditors in a creditors’ voluntary winding up or a winding up by the court, the chair holds a proxy which requires the proxy-holder to vote for a particular resolution and no other person proposes that resolution the chair must propose it unless the chair considers that there is good reason for not doing so.

• (4) If the chair does not propose such a resolution, the chair must as soon as reasonably practicable after the meeting deliver a notice of the reason why that was not done to the creditor, member or contributory.

Right of inspection and delivery of proxies

9.6

• (1) A person attending a meeting is entitled, immediately before or in the course of the meeting, to inspect proxies or any statement of claim and documentary evidence of debt delivered to the chair or to any other person in accordance with the notice convening the meeting.

• (2) Where the chair is not the office-holder, the chair must deliver all proxies used for voting at a meeting to the office-holder, as soon as reasonably practicable after the meeting.

Proxy-holder with financial interest

9.7

• (1) A proxy-holder must not vote for a resolution which would—

• (a) directly or indirectly place the proxy-holder or any associate of the proxy-holder in a position to receive any remuneration, fees or expenses from the company’s assets; or

• (b) fix or change the amount of or the basis of any remuneration, fees or expenses receivable by the proxy-holder or any associate of the proxy-holder out of the company’s assets.

• (2) However, a proxy-holder may vote for a resolution described in paragraph (1) if the proxy specifically directs the proxy-holder to vote in that way.

• (3) Where an office-holder is appointed as proxy-holder and that proxy is used under rule 9.5(2) by another person acting as chair, the office-holder is deemed to be an associate of the person acting as chair.

Resolution conferring authorisation to represent corporation

[Note: section 434B¹⁰⁰ makes provision for corporate representation in company insolvency proceedings.]

9.8 1 A person authorised to represent a corporation (other than as a proxy-holder) at a meeting of creditors or contributories must produce to the chair— a the resolution conferring the authority; or b a copy of that resolution certified as a true copy by— i 2 directors; ii a director and the secretary; or iii a director in the presence of a witness who attests the director’s signature. 2 The resolution conferring the authority must have been signed or subscribed (or in the case of an electronic document, authenticated) by or on behalf of the company in accordance with the Requirements of Writing (Scotland) Act 1995¹⁰¹. 3 In paragraph (2) “authenticated” has the meaning given in the Requirements of Writing (Scotland) Act 1995.

PART 10 — CREDITORS' AND LIQUIDATION COMMITTEES

CHAPTER 1 — Introductory

Scope and interpretation

10.1

• (1) This Part applies to the establishment and operation of—

• (a) a creditors’ committee in a receivership;

• (b) a liquidation committee in a creditors’ voluntary winding up; and

• (c) a liquidation committee in a winding up by the court.

• (2) In this Part—

• “contributory member” means a member of a liquidation committee appointed by the contributories; and

• “creditor member” means a member of a liquidation committee appointed by the creditors.

CHAPTER 2 — Functions of a committee

Functions of a committee

10.2

In addition to any functions conferred on a liquidation committee by any provision of the Act or any other provision of these Rules—

• (a) a committee is to—

• (i) assist the office-holder in discharging the office-holder’s functions; and

• (ii) act in relation to the office-holder in such manner as may from time to time be agreed; and

• (b) a committee in a receivership is to represent to the receiver the views of the unsecured creditors.

CHAPTER 3 — Membership and formalities of formation of a committee

[Note: (1) a document required by the Act or these Rules must also contain the standard contents required as set out in Part 1.

Note: (2) see sections 215, 363, 365 and 371 of the Financial Services and Markets Act 2000 for the rights of persons appointed by a scheme manager, the Financial Conduct Authority and the Prudential Regulation Authority to attend committees and make representations.]

Number of members of a committee

[Note: section 101(1) provides that a liquidation committee in a creditors’ voluntary winding up may not have more than 5 members.]

10.3 1 A committee in a receivership must have at least 3 members but not more than 5 members. 2 A liquidation committee in a creditors’ voluntary winding up appointed pursuant to section 101¹⁰² must have at least 3 members. 3 A liquidation committee in a winding up by the court established under section 142¹⁰³ must have— a at least 3 and not more than 5 members elected by the creditors; and b where the grounds on which the company was wound up do not include inability to pay its debts, and where the contributories so decide, up to 3 contributory members elected by the contributories.

Eligibility for membership of creditors’ or liquidation committee

10.4

• (1) A creditor is eligible to be a member of a committee if—

• (a) the person has submitted a statement of claim and, where not dispensed with under rules 7.16(2) or 8.28(2), documentary evidence of debt;

• (b) the debt is not fully secured and the creditor has not agreed to surrender the creditor’s security to the liquidator; and

• (c) neither of the following apply—

• (i) the claim has been wholly rejected for voting purposes, or

• (ii) the claim has been wholly rejected for the purpose of distribution or dividend.

• (2) No person can be a member as both a creditor and a contributory.

• (3) A body corporate or a partnership may be a member of a committee, but it cannot act otherwise than by a representative appointed under rule 10.17.

Establishment of committees

10.5

• (1) Where the creditors, or where applicable, contributories, decide that a creditors’ or liquidation committee should be established, the convener or chair of the decision procedure or the convener of the deemed consent process (if not the office-holder) must—

• (a) as soon as reasonably practicable deliver a notice of the decision to the office-holder (or to the person appointed as office-holder); and

• (b) where a decision has also been made as to membership of the committee, inform the office-holder of the names and addresses of the persons elected to be members of the committee.

• (2) Before a person may act as a member of the committee that person must agree to do so.

• (3) A person’s proxy-holder attending a meeting establishing the committee or, in the case of a body corporate or partnership, its duly appointed representative, may give such agreement (unless the proxy or instrument conferring authority contains a statement to the contrary).

• (4) Where a decision has been made to establish a committee but not as to its membership, the office-holder must seek a decision from the creditors (about creditor members of the committee) and, where appropriate in a winding up by the court, a decision from contributories (about contributory members of the committee).

• (5) The committee is not established (and accordingly cannot act) until the office-holder has delivered a notice of its membership in accordance with paragraph (9).

• (6) The notice must contain the following—

• (a) a statement that the committee has been duly constituted;

• (b) identification details for any company that is a member of the committee;

• (c) the full name and address of each member that is not a company.

• (7) The notice must be authenticated and dated by the office-holder.

• (8) The notice must be delivered as soon as reasonably practicable after the minimum number of persons required by rule 10.3 have agreed to act as members and been elected.

• (9) The office-holder must, as soon as reasonably practicable, deliver the notice to AiB.

Liquidation committee established by contributories

10.6

• (1) This rule applies where, under section 142, the creditors do not decide that a liquidation committee should be established, or decide that a committee should not be established.

• (2) The contributories may decide to appoint one of their number to make application to the court for an order requiring the liquidator to seek a further decision from the creditors on whether to establish a liquidation committee; and—

• (a) the court may, if it thinks that there are special circumstances to justify it, make such an order; and

• (b) the creditors’ decision sought by the liquidator in compliance with the order is deemed to have been a decision under section 142.

• (3) If the creditors decide under paragraph (2)(b) not to establish a liquidation committee, the contributories may establish a committee.

• (4) The committee must then consist of at least 3, and not more than 5, contributories elected by the contributories; and rule 10.5 applies, substituting for the reference to rule 10.3 in rule 10.5(8) a reference to this paragraph.

Notice of change of membership of a committee

10.7

• (1) If there is a change in membership of the committee, the office-holder must deliver a notice to AiB, as soon as reasonably practicable.

• (2) The notice must contain—

• (a) the date of the original notice in respect of the constitution of the committee and the date of the last notice of membership given under this rule (if any);

• (b) a statement that this notice of membership replaces the previous notice;

• (c) identification details for any company that is a member of the committee;

• (d) the full name and address of any member that is not a company;

• (e) a statement whether any member has become a member since the issue of the previous notice;

• (f) the identification details for a company or otherwise the full name of any member named in the previous notice who is no longer a member and the date the membership ended.

• (3) The notice must be authenticated and dated by the office-holder.

Vacancies: creditor members of creditors’ or liquidation committee

10.8

• (1) This rule applies if there is a vacancy among the creditor members of a creditors’ or liquidation committee or where the number of creditor members of the committee is fewer than the maximum allowed.

• (2) A vacancy need not be filled if—

• (a) the office-holder and a majority of the remaining creditor members agree; and

• (b) the total number of creditor members does not fall below 3.

• (3) The office-holder may appoint a creditor, who is qualified under rule 10.4 to be a member of the committee, to fill a vacancy or as an additional member of the committee, if—

• (a) the remaining creditor members of the committee (provided there are at least 2) agree in accordance with paragraph (4) to the appointment; and

• (b) the creditor agrees to act.

• (4) Where there are only 2 remaining members of the committee, both must agree to the appointment, otherwise a majority must agree.

• (5) Alternatively, the office-holder may seek a decision from creditors to appoint a creditor (with that creditor’s consent) to fill the vacancy.

• (6) Where the vacancy is filled by an appointment made by a decision of creditors which is not chaired or convened by the office-holder, the chair or convenor must report the appointment to the office-holder.

Vacancies: contributory members of liquidation committee

10.9

• (1) This rule applies if there is a vacancy among the contributory members of a liquidation committee or where the number of contributory members of the committee is fewer than the maximum allowed under rule 10.3(3)(b) or 10.6(4) as the case may be.

• (2) A vacancy need not be filled if—

• (a) the liquidator and a majority of the remaining contributory members agree; and

• (b) in the case of a committee of contributories only, the number of members does not fall below 3.

• (3) The liquidator may appoint a contributory to be a member of the committee, to fill a vacancy or as an additional member of the committee, if—

• (a) a majority of the remaining contributory members of the committee (provided there are at least 2) agree to the appointment; and

• (b) the contributory agrees to act.

• (4) Alternatively, the office-holder may seek a decision from contributories to appoint a contributory (with that contributory’s consent) to fill the vacancy.

• (5) Where the vacancy is filled by an appointment made by a decision of contributories which is not convened or chaired by the office-holder, the convener or chair must report the appointment to the office-holder.

Resignation

10.10

A member of a committee may resign by informing the office-holder in writing.

Termination of membership

10.11

A person’s membership of a committee is automatically terminated if that person—

• (a) becomes bankrupt or that person’s estate is sequestrated, as the case may be, in which case the trustee in bankruptcy or the trustee in the sequestration replaces the person bankrupt or sequestrated as a member of the committee;

• (b) grants a trust deed for the benefit of creditors;

• (c) makes a composition with creditors;

• (d) is a person to whom a moratorium under a debt relief order applies;

• (e) neither attends nor is represented at 3 consecutive meetings (unless it is resolved at the third of those meetings that this rule is not to apply in that person’s case);

• (f) has ceased to satisfy the criteria set out in rule 10.4 for eligibility to be a member of the committee;

• (g) ceases to be a creditor or is found never to have been a creditor;

• (h) ceases to be a contributory or is found never to have been a contributory.

Removal

10.12

A creditor member of a committee may be removed by a decision of the creditors through a decision procedure and in the case of a liquidation committee a contributory member of the committee may be removed by a decision of contributories through a decision procedure.

Cessation of liquidation committee in a winding up when creditors are paid in full

10.13

• (1) Where the creditors have been paid in full together with interest in accordance with section 189, the liquidator must deliver to AiB a notice to that effect.

• (2) On the delivery of the notice the liquidation committee ceases to exist.

• (3) The notice must—

• (a) identify the liquidator;

• (b) contain a statement by the liquidator certifying that the creditors of the company have been paid in full with interest in accordance with section 189; and

• (c) be authenticated and dated by the liquidator.

CHAPTER 4 — Meetings of Committee

[Note: a document required by the Act or these Rules must also contain the standard contents required as set out in Part 1.]

Meetings of committee

10.14

• (1) Meetings of the committee must be held when and where determined by the office-holder.

• (2) The office-holder must call a first meeting of the committee to take place within 6 weeks of the committee’s establishment.

• (3) After the calling of the first meeting, the office-holder must call a meeting—

• (a) if so requested by a member of the committee or a member’s representative (the meeting then to be held within 21 days of the request being received by the office-holder); and

• (b) for a specified date, if the committee has previously resolved that a meeting be held on that date.

• (4) The office-holder must give 5 business days’ notice of the venue of a meeting to each member of the committee (or a member’s representative, if designated for that purpose), except where the requirement for notice has been waived by or on behalf of a member.

• (5) Waiver may be signified either at or before the meeting.

The chair at meetings

10.15

The chair at a meeting of a committee must be the office-holder or an appointed person.

Quorum

10.16

A meeting of a committee is duly constituted if due notice of it has been delivered to all the members, and at least 2 of the members are in attendance or represented.

Committee members' representatives

10.17

• (1) A member of the committee may, in relation to the business of the committee, be represented by another person duly authorised by the member for that purpose.

• (2) A person acting as a committee member’s representative must hold a letter of authority entitling that person to act (either generally or specifically) and authenticated by or on behalf of the committee member.

• (3) A proxy or an instrument conferring authority (in respect of a person authorised to represent a body corporate or a partnership) is to be treated as a letter of authority to act generally (unless the proxy or instrument conferring authority contains a statement to the contrary).

• (4) The chair at a meeting of the committee may call on a person claiming to act as a committee member’s representative to produce a letter of authority, and may exclude that person if no letter of authority is produced at or by the time of the meeting or if it appears to the chair that the authority is deficient.

• (5) A committee member may not be represented by—

• (a) another member of the committee;

• (b) a person who is at the same time representing another committee-member;

• (c) a body corporate;

• (d) a partnership;

• (e) an undischarged bankrupt;

• (f) a person whose estate has been sequestrated and who has not been discharged;

• (g) a person who has granted a trust deed for the benefit of creditors;

• (h) a person who has made a composition with creditors;

• (i) a person to whom a moratorium period under a debt relief order applies;

• (j) a person who is subject to a company directors disqualification order or a company directors disqualification undertaking; or

• (k) a person who is subject to a bankruptcy restrictions order (including an interim order), a bankruptcy restrictions undertaking, a debt relief restrictions order (including an interim order) or a debt relief restrictions undertaking.

• (6) Where a representative authenticates any document on behalf of a committee member the fact that the representative authenticates as a representative must be stated below the authentication.

Voting rights and resolutions

10.18

• (1) At a meeting of the committee, each member (whether the member is in attendance or is represented by a representative) has one vote.

• (2) A resolution is passed when a majority of the members attending or represented have voted in favour of it.

• (3) Every resolution passed must be recorded in writing and authenticated by the chair, either separately or as part of the minutes of the meeting.

Resolutions by correspondence

10.19

• (1) The office-holder may seek to obtain the agreement of the committee to a resolution by delivering to every member (or the member’s representative designated for the purpose) details of the proposed resolution.

• (2) The details must be set out in such a way that the recipient may indicate agreement or dissent and where there is more than one resolution may indicate agreement to or dissent from each one separately.

• (3) A member of the committee may, within 5 business days from the delivery of details of the proposed resolution, require the office-holder to summon a meeting of the committee to consider the matters raised by the proposed resolution.

• (4) In the absence of such a request, the resolution is passed by the committee if a majority of the members (excluding a member or member’s representative who is to participate directly or indirectly in a transaction (see rule 10.25(4)) deliver notice to the office-holder that they agree with the resolution.

Remote attendance at meetings of committee

10.20

• (1) Where the office-holder considers it appropriate, a meeting may be conducted and held in such a way that persons who are not present together at the same place may attend it.

• (2) A person attends such a meeting who is able to exercise that person’s right to speak and vote at the meeting.