The Energy Administration Rules 2005

Made: 2nd September 2005

Laid before Parliament: 7th September 2005

Coming into force: 1st October 2005

The Lord Chancellor, in the exercise of the powers conferred on him by section 411 of the Insolvency Act 1986[^f00001] and section 159(3) of the Energy Act 2004[^f00002], with the concurrence of the Secretary of State, and after consulting the committee existing for that purpose under section 413 of the Insolvency Act 1986, hereby makes the following Rules:—

PART 1 — INTRODUCTORY PROVISIONS

Citation and commencement

1

These Rules may be cited as the Energy Administration Rules 2005 and shall come into force on 1st October 2005.

Construction and interpretation

2

• (1) In these Rules—

• “the 1986 Act” means the Insolvency Act 1986;

• “the 2004 Act” means the Energy Act 2004;

• “administrative receiver” has the same meaning as in section 156(4) of the 2004 Act;

• “the Companies Act” means the Companies Act 1985[^f00003];

• “CPR” means the Civil Procedure Rules 1998[^f00004] and “CPR” followed by a Part or rule number means the Part or rule with that number in those Rules;

• “enforcement officer” means an individual who is authorised to act as an enforcement officer under the Courts Act 2003[^f00005];

• “GEMA” means the Gas and Electricity Markets Authority;

• “insolvency proceedings” has the same meaning as in Rule 13.7 of the Insolvency Rules;

• “the Insolvency Rules” means the Insolvency Rules 1986[^f00006];

• “qualifying floating charge” has the same meaning as in paragraph 14(2) of Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act;

• “the Rules” means the Energy Administration Rules 2005.

• (2) References in the Rules to ex parte hearings shall be construed as references to hearings without notice being served on any other party; references to applications made ex parte as references to applications made without notice being served on any other party and other references which include the expression “ex parte” shall be similarly construed.

• (3) References to provisions of Schedule B1 to the 1986 Act are references to those provisions as modified and applied by Schedule 20 to the 2004 Act unless otherwise stated.

• (4) References to other provisions of the 1986 Act are, where those provisions have been modified by Schedule 20 to the 2004 Act, references to those provisions as so modified.

• (5) Where the protected energy company is a non-GB company within the meaning of section 171 of the 2004 Act, references in the Rules to the affairs, business and property of the company are references only to its affairs and business so far as carried on in Great Britain and to its property in Great Britain unless otherwise stated.

• (6) Where the protected energy company is an unregistered company, any requirement to send information to the registrar of companies applies only if the company is subject to a requirement imposed by virtue of section 691(1)[^f00007] or 718[^f00008] of the Companies Act.

• (7) Subject to paragraphs (1), (2), (3), (4), (5) and (6), Part 15 of the Rules has effect for their interpretation and application.

Extent

3

The Rules apply in relation to protected energy companies which the courts in England and Wales have jurisdiction to wind up.

PART 2 — APPOINTMENT OF ENERGY ADMINISTRATOR BY COURT

Affidavit in support of energy administration application

4

Where it is proposed to apply to the court for an energy administration order to be made in relation to a protected energy company, the energy administration application shall be in Form EA1 and an affidavit complying with Rule 6 must be prepared and sworn, with a view to its being filed with the court in support of the application.

Form of application

5

• (1) The application shall state by whom it is made and the applicant’s address for service.

• (2) Where it is made by GEMA, the application shall contain a statement that it is made with the consent of the Secretary of State.

• (3) There shall be attached to the application a written statement which shall be in Form EA2 by each of the persons proposed to be energy administrator stating—

• (a) that he consents to accept the appointment; and

• (b) details of any prior professional relationship(s) that he has had with the protected energy company to which he is to be appointed as energy administrator.

Contents of application and affidavit in support

6

• (1) The energy administration application shall state that the company is a protected energy company.

• (2) The application shall state one or both of the following—

• (a) the applicant’s belief that the protected energy company is, or is likely to be, unable to pay its debts;

• (b) the Secretary of State has certified that it would be appropriate for him to petition for the winding up of the protected energy company under section 124A of the 1986 Act[^f00009] (petition for winding up on grounds of public interest).

• (3) There shall be attached to the application an affidavit in support which shall contain—

• (a) a statement of the protected energy company’s financial position, specifying (to the best of the applicant’s knowledge and belief) the company’s assets and liabilities, including contingent and prospective liabilities;

• (b) details of any security known or believed to be held by the creditors of the protected energy company and whether in any case the security is such as to confer power on the holder to appoint an administrative receiver or to appoint an administrator under paragraph 14 of Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act. If an administrative receiver has been appointed, that fact shall be stated;

• (c) details of any insolvency proceedings in relation to the protected energy company including any petition that has been presented for the winding up of the protected energy company so far as within the immediate knowledge of the applicant;

• (d) details of any notice served in accordance with section 164 of the 2004 Act by any person intending to enforce any security over the protected energy company’s assets, so far as within the immediate knowledge of the applicant;

• (e) details of any step taken to enforce any such security, so far as within the immediate knowledge of the applicant;

• (f) details of any application for leave of the court to pass a resolution for the voluntary winding up of the protected energy company, so far as within the immediate knowledge of the applicant;

• (g) where it is intended to appoint a number of persons as energy administrators, details of the matters set out in section 158(5) of the 2004 Act regarding the exercise of the powers and duties of the energy administrator;

• (h) any other matters which, in the opinion of those intending to make the application for an energy administration order, will assist the court in deciding whether to make such an order, so far as lying within the knowledge or belief of the applicant.

Filing of application

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• (1) The application (and all supporting documents) shall be filed with the court, with a sufficient number of copies for service and use as provided by Rule 8.

• (2) Each of the copies filed shall have applied to it the seal of the court and be issued to the applicant; and on each copy there shall be endorsed the date and time of filing.

• (3) The court shall fix a venue for the hearing of the application and this also shall be endorsed on each copy of the application issued under paragraph (2).

• (4) After the application is filed, it is the duty of the applicant to notify the court in writing of the existence of any insolvency proceedings, in relation to the protected energy company, as soon as the applicant becomes aware of them.

Service of application

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• (1) In the following paragraphs of this Rule, references to the application are to a copy of the application issued by the court under Rule 7(2) together with the affidavit in support of it and the documents attached to the application.

• (2) Notification for the purposes of section 156(2) of the 2004 Act shall be by way of service in accordance with Rule 10, verified in accordance with Rule 11.

• (3) The application shall be served in addition to those persons referred to in section 156(2) of the 2004 Act—

• (a) if an administrative receiver has been appointed, on him;

• (b) if there is pending an administration application under Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act, on the applicant;

• (c) if there is pending a petition for the winding-up of the protected energy company, on the petitioner (and also on the provisional liquidator, if any);

• (d) on any creditor who has served notice in accordance with section 164 of the 2004 Act of his intention to enforce his security over property of the protected energy company;

• (e) on the person proposed as energy administrator;

• (f) on the protected energy company;

• (g) if the applicant is the Secretary of State, on GEMA;

• (h) if the applicant is GEMA, on the Secretary of State;

• (i) if a supervisor of a voluntary arrangement under Part I of the 1986 Act has been appointed, on him.

Notice to officers charged with execution of writs or other process, etc

9

The applicant shall as soon as reasonably practicable after filing the application give notice of its being made to—

• (a) any enforcement officer or other officer who to the applicant’s knowledge is charged with an execution or other legal process against the protected energy company or its property; and

• (b) any person who to the applicant’s knowledge has distrained against the protected energy company or its property.

Manner in which service to be effected

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• (1) Service of the application in accordance with Rule 8 shall be effected by the applicant, or the applicant’s solicitor, or by a person instructed by the applicant or the applicant’s solicitor, not less than 2 days before the date fixed for the hearing.

• (2) Service shall be effected as follows—

• (a) on the protected energy company (subject to paragraph (3) below), by delivering the documents to its registered office;

• (b) on any other person (subject to paragraph (4) below), by delivering the documents to his proper address;

• (c) in either case, in such other manner as the court may direct.

• (3) If delivery to a protected energy company’s registered office is not practicable or if the protected energy company is an unregistered company, service may be effected by delivery to its last known principal place of business in England and Wales.

• (4) Subject to paragraph (5), for the purposes of paragraph (2)(b) above, a person’s proper address is any which he has previously notified as his address for service; but if he has not notified any such address, service may be effected by delivery to his usual or last known address.

• (5) In the case of a person who—

• (a) is an authorised deposit-taker or a former authorised deposit-taker;

• (b)

• (i) has appointed, or is or may be entitled to appoint, an administrative receiver of the protected energy company, or

• (ii) is, or may be entitled to appoint an administrator of the protected energy company under paragraph 14 of Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act; and

• (c) has not notified an address for service,

the proper address is the address of an office of that person where, to the knowledge of the applicant, the protected energy company maintains a bank account or, where no such office is known to the applicant, the registered office of that person, or, if there is no such office, his usual or last known address.

• (6) Delivery of the documents to any place or address may be made by leaving them there, or sending them by first class post.

Proof of service

11

• (1) Service of the application shall be verified by an affidavit of service in Form EA3, specifying the date on which, and the manner in which, service was effected.

• (2) The affidavit of service, with a sealed copy of the application exhibited to it, shall be filed with the court as soon as reasonably practicable after service, and in any event not less than 1 day before the hearing of the application.

The hearing

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• (1) At the hearing of the energy administration application, any of the following may appear or be represented—

• (a) the Secretary of State;

• (b) GEMA;

• (c) the protected energy company;

• (d) one or more of the directors;

• (e) if an administrative receiver has been appointed, that person;

• (f) any person who has presented a petition for the winding-up of the protected energy company;

• (g) the person proposed for appointment as energy administrator;

• (h) any person that is the holder of a qualifying floating charge;

• (i) any person who has applied to the court for an administration order under Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act;

• (j) any creditor who has served notice in accordance with section 164 of the 2004 Act of his intention to enforce his security over the protected energy company’s property;

• (k) any supervisor of a voluntary arrangement under Part I of the 1986 Act;

• (l) with the permission of the court, any other person who appears to have an interest justifying his appearance.

• (2) If the court makes an energy administration order, it shall be in Form EA4.

• (3) If the court makes an energy administration order, the costs of the applicant, and of any person whose costs are allowed by the court, are payable as an expense of the energy administration.

Notice of energy administration order

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• (1) If the court makes an energy administration order, it shall as soon as reasonably practicable send two sealed copies of the order to the person who made the application.

• (2) The applicant shall send a sealed copy of the order as soon as reasonably practicable to the person appointed as energy administrator.

• (3) If the court makes an order under section 157(1)(d) of the 2004 Act or any other order under section 157(1)(f) of the 2004 Act, it shall give directions as to the persons to whom, and how, notice of that order is to be given.

PART 3 — PROCESS OF ENERGY ADMINISTRATION

Notification and advertisement of energy administrator’s appointment

14

• (1) The energy administrator shall advertise his appointment once in the Gazette, and once in such newspaper as he thinks most appropriate for ensuring that the appointment comes to the notice of the protected energy company’s creditors. The advertisement shall be in Form EA5.

• (2) The energy administrator shall, as soon as reasonably practicable after the date specified in paragraph 46(6) of Schedule B1 to the 1986 Act, give notice of his appointment—

• (a) if the application for the energy administration order was made by the Secretary of State, to GEMA;

• (b) if the application for the energy administration order was made by GEMA, to the Secretary of State;

• (c) if a receiver or an administrative receiver has been appointed, to him;

• (d) if there is pending a petition for the winding up of the protected energy company, to the petitioner (and to the provisional liquidator, if any);

• (e) to any person who has applied to the court for an administration order under Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act, in relation to the protected energy company;

• (f) to any enforcement officer who, to the energy administrator’s knowledge, is charged with execution or other legal process against the protected energy company;

• (g) to any person who, to the energy administrator’s knowledge, has distrained against the protected energy company or its property;

• (h) to any supervisor of a voluntary arrangement under Part I of the 1986 Act;

• (i) to any holder of a qualifying floating charge who, to the energy administrator’s knowledge, has served notice in accordance with section 163 of the 2004 Act that he is seeking to appoint an administrator; and

• (j) to any creditor who, to the energy administrator’s knowledge, has served notice in accordance with section 164 of the 2004 Act of his intention to enforce his security over property of the protected energy company.

• (3) Where, under a provision of Schedule B1 to the 1986 Act or these Rules, the energy administrator is required to send a notice of his appointment to any person, he shall do so in Form EA6.

Notice requiring statement of affairs

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• (1) In this Part “relevant person” shall have the meaning given to it in paragraph 47(3) of Schedule B1 to the 1986 Act.

• (2) The energy administrator shall send notice in Form EA7 to each relevant person whom he determines appropriate requiring him to prepare and submit a statement of the protected energy company’s affairs.

• (3) The notice shall inform each of the relevant persons—

• (a) of the names and addresses of all others (if any) to whom the same notice has been sent;

• (b) of the time within which the statement must be delivered;

• (c) of the effect of paragraph 48(4) of Schedule B1 to the 1986 Act (penalty for non-compliance); and

• (d) of the application to him, and to each other relevant person, of section 235 of the 1986 Act[^f00010] (duty to provide information, and to attend on the energy administrator, if required).

• (4) The energy administrator shall furnish each relevant person to whom he has sent notice in Form EA7 with the forms required for the preparation of the statement of affairs.

Verification and filing

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• (1) The statement of the protected energy company’s affairs shall be in Form EA8, contain all the particulars required by that form and shall be verified by a statement of truth by the relevant person.