The Energy Supply Company Administration Rules 2013

• (4) A notice pursuant to paragraph (1) or (3) must, in addition to the standard contents—

• (a) state that it is the intention of the energy administrator to make a distribution to creditors within the period of 2 months from the last date for proving;

• (b) specify whether the proposed dividend is interim or final;

• (c) specify a date up to which proofs may be lodged being a date which—

• (i) is the same date for all creditors; and

• (ii) is not less than 21 days from that of the notice.

• (5) Where a dividend is to be declared for preferential creditors—

• (a) the notice pursuant to paragraph (1) need only be given to those creditors in whose cases the energy administrator has reason to believe that their debts are preferential; and

• (b) the notice pursuant to paragraph (3) need only be given if the energy administrator thinks fit.

Admission or rejection of proofs

65

• (1) Unless the energy administrator has already dealt with them, within 5 business days of the last date for proving, the energy administrator must—

• (a) admit or reject (in whole or in part) proofs submitted to the energy administrator; or

• (b) make such provision in respect of them as the energy administrator thinks fit.

• (2) The energy administrator is not obliged to deal with proofs lodged after the last day for proving, but may do so, if the energy administrator thinks fit.

• (3) In the declaration of a dividend no payment shall be made more than once by virtue of the same debt.

Postponement or cancellation of dividend

66

If in the period of 2 months referred to in Rule 64(4)(a)—

• (a) the energy administrator has rejected a proof in whole or in part and application is made to the court for that decision to be reversed or varied, or

• (b) application is made to the court for the energy administrator’s decision on a proof to be reversed or varied, or for a proof to be expunged, or for a reduction of the amount claimed,

the energy administrator may postpone or cancel the dividend.

Declaration of dividend

67

• (1) Subject to paragraph (2), within the 2 month period referred to in Rule 64(4)(a), the energy administrator must proceed to declare the dividend to one or more classes of creditor of which the energy administrator gave notice.

• (2) Except with the permission of the court, the energy administrator must not declare a dividend so long as there is pending any application to the court to reverse or vary a decision of the energy administrator’s on a proof, or to expunge a proof or to reduce the amount claimed.

• (3) If the court gives permission under paragraph (2), the energy administrator must make such provision in respect of the proof in question as the court directs.

Notice of declaration of a dividend

68

• (1) Where the energy administrator declares a dividend the energy administrator must give notice of that fact to all creditors who have proved their debts.

• (2) The notice must include the following particulars relating to the energy supply company administration—

• (a) amounts raised from the sale of assets, indicating (so far as is practicable) amounts raised by the sale of particular assets;

• (b) payments made by the energy administrator when acting as such;

• (c) where the energy administrator proposed to make a distribution to unsecured creditors, the value of the prescribed part, except where the court has made an order under section 176A(5) of the 1986 Act;

• (d) provision (if any) made for unsettled claims, and funds (if any) retained for particular purposes;

• (e) the total amount of dividend and the rate of dividend;

• (f) whether, and if so when, any further dividend is expected to be declared.

Payments of dividends and related matters

69

• (1) The dividend may be distributed simultaneously with the notice declaring it.

• (2) Payment of the dividend may be made by post, or arrangements may be made with any creditor for it to be paid to the creditor in another way, or held for the creditor’s collection.

• (3) Where a dividend is paid on a bill of exchange or other negotiable instrument, the amount of the dividend shall be endorsed on the instrument, or on a certified copy of it, if required to be produced by the holder for that purpose.

Notice of no dividend, or no further dividend

70

If the energy administrator gives notice to creditors that the energy administrator is unable to declare any dividend or (as the case may be) any further dividend, the notice must contain a statement to the effect either—

• (a) that no funds have been realised; or

• (b) that the funds realised have already been distributed or used or allocated for defraying the expenses of energy supply company administration.

Proof altered after payment of dividend

71

• (1) If after payment of dividend the amount claimed by a creditor in the creditor’s proof is increased, the creditor is not entitled to disturb the distribution of the dividend; but the creditor is entitled to be paid, out of any money for the time being available for the payment of any further dividend, any dividend or dividends which the creditor has failed to receive.

• (2) Any dividend or dividends payable under paragraph (1) must be paid before the money there referred to is applied to the payment of any such further dividend.

• (3) If, after a creditor’s proof has been admitted, the proof is withdrawn or expunged, or the amount is reduced, the creditor is liable to repay to the energy administrator any amount overpaid by way of dividend.

Secured creditors

72

• (1) The following applies where a creditor re-values the creditor’s security at a time when a dividend has been declared.

• (2) If the revaluation results in a reduction of the creditor’s unsecured claim ranking for dividend, the creditor must as soon as reasonably practicable repay to the energy administrator, for the credit of the energy supply company administration, any amount received by the creditor as dividend in excess of that to which the creditor would be entitled having regard to the revaluation of the security.

• (3) If the revaluation results in an increase of the creditor’s unsecured claim, the creditor is entitled to receive from the energy administrator, out of any money for the time being available for the payment of a further dividend, before any such further dividend is paid, any dividend or dividends which the creditor has failed to receive, having regard to the revaluation of the security. However, the creditor is not entitled to disturb any dividend declared (whether or not distributed) before the date of the revaluation.

Disqualification from dividend

73

If a creditor contravenes any provision of the 1986 Act or these Rules relating to the valuation of securities, the court may, on the application of the energy administrator, order that the creditor be wholly or partly disqualified from participation in any dividend.

Assignment of right to dividend

74

• (1) If a person entitled to a dividend gives notice to the energy administrator that the person wishes the dividend to be paid to another person, or that the person has assigned the person’s entitlement to another person, the energy administrator must pay the dividend to that other accordingly.

• (2) A notice under this Rule must specify the name and address of the person to whom payment is to be made.

Adjustment where dividend paid before time

75

• (1) Where a creditor has proved for a debt of which payment is not due at the date of the declaration of dividend, the creditor is entitled to dividend equally with other creditors, but subject as follows.

• (2) For the purpose of dividend (and no other purpose), the amount of the creditor’s admitted proof (or, if a distribution has previously been made to the creditor, the amount remaining outstanding in respect of the creditor’s admitted proof) shall be reduced by applying the following formula—

$$X 1.05 n$ where— “X” is the value of the admitted proof; and “n” is the period beginning with the date that the energy supply company entered energy supply company administration and ending with the date on which the payment of the creditor’s debt would otherwise be due expressed in years and months in a decimalised form.$

PART 8 — The energy administrator

Fixing of remuneration

76

• (1) The energy administrator is entitled to receive remuneration for the energy administrator’s services.

• (2) The remuneration shall be fixed by reference to the time properly given by the energy administrator and the energy administrator’s staff in attending to matters arising in the energy supply company administration.

• (3) The remuneration of the energy administrator shall be fixed by the court and the energy administrator must make an application to court accordingly.

• (4) The energy administrator must give at least 14 days’ notice of the energy administrator’s application to the following, who may appear or be represented—

• (a) the Secretary of State;

• (b) GEMA; and

• (c) the creditors of the energy supply company.

• (5) In fixing the remuneration, the court must have regard to the following matters—

• (a) the complexity (or otherwise) of the case;

• (b) any respects in which, in connection with the energy supply company’s affairs, there falls on the energy administrator any responsibility of an exceptional kind or degree;

• (c) the effectiveness with which the energy administrator appears to be carrying out, or to have carried out, the energy administrator’s duties as such; and

• (d) the value and nature of the property with which the energy administrator has to deal.

• (6) Where there are joint energy administrators, it is for them to agree between themselves as to how the remuneration payable should be apportioned. Any dispute arising between them may be referred to the court for settlement by order.

• (7) If the energy administrator is a solicitor and employs the energy administrator’s own firm, or any partner in it, to act on behalf of the energy supply company, profit costs must not be paid unless this is authorised by the court.

Remuneration of new energy administrator

77

If a new energy administrator is appointed in place of another, any court order in effect under Rule 76 immediately before the former energy administrator ceased to hold office continues to apply in respect of the remuneration of the new energy administrator until a further court order is made in accordance with those provisions.

PART 9 — Ending energy supply company administration

Final progress reports

78

• (1) In this Part reference to a progress report is to a report in the form specified in Rule 33.

• (2) The final progress report means a progress report which includes a summary of—

• (a) the energy administrator’s proposals;

• (b) any major amendments to, or deviations from, those proposals;

• (c) the steps taken during the energy supply company administration; and

• (d) the outcome.

Application to court

79

• (1) An application to court under paragraph 79 of Schedule B1 to the 1986 Act for an order ending an energy supply company administration must have attached to it a progress report for the period since the last progress report (if any) or the date the energy supply company entered energy supply company administration and a statement indicating what the applicant thinks should be the next steps for the energy supply company (if applicable).

• (2) Where such an application is made, the applicant must—

• (a) give notice in writing to the applicant for the esc administration order (unless the applicant in both cases is the same) and the creditors of the energy supply company of the applicant’s intention to apply to court at least 5 business days before the date that the applicant intends to make an application; and

• (b) attach to the application to court a statement that the applicant has notified the creditors, and copies of any response from creditors to that notification.

• (3) Where such an application is to be made other than by the energy administrator—

• (a) the applicant must also give notice in writing to the energy administrator of the applicant’s intention to apply to court at least 5 business days before the date that the applicant intends to make an application; and

• (b) upon receipt of such written notice the energy administrator must, before the end of the 5 business day notice period, provide the applicant with a progress report for the period since the last progress report (if any) or the date the energy supply company entered energy supply company administration.

• (4) Where the application is made other than by the Secretary of State, the application must also state that it is made with the consent of the Secretary of State.

• (5) Where the energy administrator applies to court under paragraph 79 of Schedule B1 to the 1986 Act in conjunction with a petition under section 124 of the 1986 Act[^f00015] for an order to wind up the energy supply company, the energy administrator must, in addition to the requirements of paragraphs (2) and (4), notify the creditors whether the energy administrator intends to seek appointment as liquidator.

Notification by energy administrator of court order

80

• (1) Where the court makes an order to end the energy supply company administration, the energy administrator must deliver to the registrar of companies a copy of the court order and a copy of the final progress report.

• (2) Where the court makes such an order, it must, where the applicant is not the energy administrator, give a copy of the order to the energy administrator.

• (3) As soon as reasonably practicable, the energy administrator must send a copy of the notice and the final progress report to all other persons who received notice of the energy administrator’s appointment.

Moving from energy supply company administration to creditors' voluntary liquidation

81

• (1) As soon as reasonably practicable after the day on which the registrar of companies registers the notice of moving from energy supply company administration to creditors’ voluntary liquidation sent by the energy administrator for the purposes of paragraph 83(3) of Schedule B1 to the 1986 Act, the person who at that point ceases to be the energy administrator must (whether the energy administrator becomes the liquidator or not) send a final progress report (which must include details of the assets to be dealt with in the liquidation) to—

• (a) all those who received notice of the energy administrator’s appointment;

• (b) where the Secretary of State did not receive notice of the energy administrator’s appointment, to the Secretary of State; and

• (c) where GEMA did not receive notice of the energy administrator’s appointment, to GEMA,

and must deliver a copy to the registrar of companies.

• (2) For the purposes of paragraph 83(7) of Schedule B1 to the 1986 Act, a person shall be nominated as liquidator in accordance with the provisions of Rule 32(2)(g) and that person’s appointment takes effect, following registration under paragraph (1)—

• (a) by virtue of the energy administrator’s proposals or revised proposals; or

• (b) where a creditors’ meeting is held in accordance with Rule 24, as a consequence of such a meeting.

• (3) GEMA must notify the Secretary of State before consenting to the energy administrator delivering a notice of moving from energy supply company administration to creditors’ voluntary liquidation to the registrar of companies.

Moving from energy supply company administration to dissolution

82

• (1) Where, for the purposes of paragraph 84(1) of Schedule B1 to the 1986 Act, the energy administrator delivers a notice of moving from energy supply company administration to dissolution to the registrar of companies, the energy administrator must attach to that notice a final progress report.

• (2) As soon as reasonably practicable the energy administrator must send a copy of the notice and the attached document to—

• (a) all those who received notice of the energy administrator’s appointment;

• (b) where the Secretary of State did not receive notice of the energy administrator’s appointment, the Secretary of State; and

• (c) where GEMA did not receive notice of the energy administrator’s appointment, to GEMA.

• (3) Where a court makes an order under paragraph 84(7) of Schedule B1 to the 1986 Act, it must, where the applicant is not the energy administrator, give a copy of the order to the energy administrator.

• (4) The energy administrator must notify the registrar of companies in accordance with paragraph 84(8) of Schedule B1 to the 1986 Act of any order made by the court under paragraph 84(7) of Schedule B1 to the 1986 Act.

• (5) GEMA must notify the Secretary of State before directing the energy administrator to deliver a notice of moving from energy supply company administration to dissolution to the registrar of companies.

Provision of information to the Secretary of State

83

Where the energy supply company administration ends pursuant to paragraph 79, 83 or 84 of Schedule B1 to the 1986 Act, the energy administrator must, at the same time as sending the final progress report under Rule 83(1), provide the Secretary of State with the following information—

• (a) a breakdown of the relevant debts (within the meaning of section 98(4) of the 2011 Act) of the energy supply company, which remain outstanding; and

• (b) details of any shortfall (within the meaning of section 98(3)(a) of the 2011 Act) in the property of the energy supply company available for meeting those relevant debts.

PART 10 — Replacing energy administrator

Grounds for resignation

84

• (1) The energy administrator may give notice of resignation—

• (a) on the grounds of ill health; or

• (b) because the energy administrator intends ceasing to be in practice as an insolvency practitioner; or

• (c) because there is some conflict of interest, or a change in personal circumstances, which precludes or makes impracticable the further discharge by the energy administrator of the duties of energy administrator.

• (2) The energy administrator may, with the permission of the court, give notice of the energy administrator’s resignation on grounds other than those specified in paragraph (1).

Notice of intention to resign

85

The energy administrator must in all cases give at least 5 business days’ notice in Form ESCA13 of the energy administrator’s intention to resign, or to apply for the court’s permission to do so, to the following persons—

• (a) the Secretary of State;

• (b) GEMA;

• (c) if there is a continuing energy administrator of the energy supply company, to that continuing energy administrator; and

• (d) if there is no such energy administrator, to the energy supply company and its creditors.

Notice of resignation

86

• (1) The notice of resignation must be in Form ESCA14.

• (2) The notice must be filed with the court, and a copy delivered to the registrar of companies.

• (3) A copy of the notice of resignation must be sent by the energy administrator not more than 5 business days after it has been filed with the court to all those to whom notice of intention to resign was sent.

Application to court to remove energy administrator from office

87

• (1) Any application under paragraph 88 of Schedule B1 to the 1986 Act must state the grounds on which it is requested that the energy administrator should be removed from office.

• (2) Service of the notice of the application must be effected on the energy administrator, the Secretary of State, GEMA, the joint energy administrator (if any), and where there is not a joint energy administrator, to the energy supply company and all the creditors, including any floating charge holders, not less than 5 business days before the date fixed for the application to be heard.

• (3) Where a court makes an order removing the energy administrator it must give a copy of the order to the applicant who as soon as reasonably practicable must send a copy to the energy administrator.

• (4) The applicant must also within 5 business days of the order being made send a copy of the order to all those to whom notice of the application was sent.

• (5) A copy of the order must also be delivered to the registrar of companies within the same time period.

Notice of vacation of office when energy administrator ceases to be qualified to act

88

Where the energy administrator who has ceased to be qualified to act as an insolvency practitioner in relation to the energy supply company gives notice in accordance with paragraph 89 of Schedule B1 to the 1986 Act, the energy administrator must also give notice to the registrar of companies.

Energy administrator deceased

89

• (1) Subject as follows, where the energy administrator has died, it is the duty of the energy administrator’s personal representatives to give notice of the fact to the court, specifying the date of the death. This does not apply if notice has been given under either paragraph (2) or (3) of this Rule.

• (2) If the deceased energy administrator was a partner in or an employee of a firm, notice may be given by a partner in the firm who is qualified to act as an insolvency practitioner, or is a member of any body recognised by the Secretary of State for the authorisation of insolvency practitioners.

• (3) Notice of the death may be given by any person producing to the court the relevant death certificate or a copy of it.

• (4) Where a person gives notice under this Rule, that person shall also give notice to the registrar of companies.

Application to replace

90

• (1) Where an application is made to court under paragraph 91(1) of Schedule B1 to the 1986 Act to appoint a replacement energy administrator, the application must be accompanied by a written statement in Form ESCA2 by the person proposed to be the replacement energy administrator.

• (2) A copy of the application must be served, in addition to those persons listed in section 156(2) of the 2004 Act and Rule 8(3), on the person who made the application for the esc administration order.

• (3) Rule 10 shall apply to the service of an application under paragraph 91(1) of Schedule B1 to the 1986 Act as it applies to service in accordance with Rule 8.

• (4) Rules 11, 12 and 13(1) and 13(2) apply to an application under paragraph 91(1) of Schedule B1 to the 1986 Act.

Notification and advertisement of appointment of replacement energy administrator

91

Where a replacement energy administrator is appointed, the same provisions apply in respect of giving notice of, and advertising, the replacement appointment as in the case of the appointment (subject to Rule 93), and all statements, consents etc as are required shall also be required in the case of the appointment of a replacement. All forms and notices must clearly identify that the appointment is of a replacement energy administrator.

Notification and advertisement of appointment of joint energy administrator

92

Where, after an initial appointment has been made, an additional person or persons are to be appointed as joint energy administrator the same Rules shall apply in respect of giving notice of and advertising the appointment as in the case of the initial appointment, subject to Rule 93.

Notification to registrar of companies

93

The replacement or additional energy administrator must deliver notice of the appointment to the registrar of companies.

Energy administrator's duties on vacating office

94

• (1) Where the energy administrator ceases to be in office as such, in consequence of removal, resignation or cesser of qualification as an insolvency practitioner, the energy administrator is under obligation as soon as reasonably practicable to deliver up to his or her successor the assets (after deduction of any expenses properly incurred and distributions made by the energy administrator) and further to deliver up to that person—

• (a) the records of the energy supply company administration, including correspondence, proofs and other related papers appertaining to the energy supply company administration while it was within the energy administrator’s responsibility; and

• (b) the energy supply company’s books, papers and other records.

• (2) It is an offence for the energy administrator to fail to comply with this Rule.

PART 11 — Court procedure and practice

CHAPTER 1 — Applications

Preliminary

95

This Chapter applies to any application made to the court in energy supply company administration proceedings, except an application for an esc administration order.

Form and contents of application

96

• (1) Each application must be in writing and must state—

• (a) that the application is made under the 1986 Act;

• (b) the names of the parties;

• (c) the name of the energy supply company which is the subject of the energy supply company administration proceedings;

• (d) the court (and where applicable, the division or district registry of that court) in which the application is made;

• (e) where the court has previously allocated a number to the energy supply company administration proceedings within which the application is made, that number;

• (f) the nature of the remedy or order applied for or the directions sought from the court;

• (g) the names and addresses of the persons (if any) on whom it is intended to serve the application or that no person is intended to be served;

• (h) where the 1986 Act or these Rules require that notice of the application is to be given to specified persons, the names and addresses of all those persons (so far as known to the applicant); and

• (i) the applicant’s address for service.

• (2) The application must be authenticated by the applicant if the applicant is acting in person or, when the applicant is not so acting, by or on behalf of the applicant’s solicitor.

Application under section 176A(5) of the 1986 Act to disapply section 176A of the 1986 Act

97

• (1) An application under section 176A(5) of the 1986 Act[^f00016] must be accompanied by a witness statement by the energy administrator.

• (2) The witness statement must state—

• (a) that the application arises in the course of an energy supply company administration;

• (b) a summary of the financial position of the energy supply company;

• (c) the information substantiating the energy administrator’s view that the cost of making a distribution to unsecured creditors would be disproportionate to the benefits; and

• (d) whether any other office holder is acting in relation to the energy supply company and if so that office holder’s address.

Filing and service of application

98

• (1) An application must be filed in court, accompanied by one copy and a number of additional copies equal to the number of persons who are to be served with the application.

• (2) Where an application is filed with the court in accordance with paragraph (1), the court must fix a venue for the application to be heard unless—

• (a) it considers it is not appropriate to do so;

• (b) the Rule under which the application is brought provides otherwise; or

• (c) the case is one to which Rule 100 applies.

• (3) Unless the court otherwise directs, the applicant must serve a sealed copy of the application, endorsed with the venue for the hearing, on the respondent named in the application (or on each respondent if more than one).

• (4) The court may give any of the following directions—

• (a) that the application be served upon persons other than those specified by the relevant provision of the 1986 Act or these Rules;

• (b) that the giving of notice to any person may be dispensed with;

• (c) that notice be given in some way other than that specified in paragraph (3).

• (5) An application must be served at least 14 days before the date fixed for its hearing unless—

• (a) the provision of the 1986 Act or these Rules under which the application is made make different provision; or

• (b) the case is one of urgency, to which paragraph (6) applies.

• (6) Where the case is one of urgency, the court may (without prejudice to its general power to extend or abridge time limits)—

• (a) hear the application immediately, either with or without notice to, or the attendance of, other parties, or

• (b) authorise a shorter period of service than that provided for by paragraph (5);

and any such application may be heard on terms providing for the filing or service of documents, or the carrying out of other formalities, as the court thinks just.

Application under section 176A(5) of the 1986 Act

99

An application under section 176A(5) of the 1986 Act may be made without the application being served upon or notice being given to any other party.

Hearings without notice

100

Where the relevant provisions of the 1986 Act or these Rules do not require service of the application on, or notice of it to be given to, any person—

• (a) the court may hear the application as soon as reasonably practicable without fixing a venue as required by Rule 98; or

• (b) it may fix a venue for the application to be heard in which case Rule 98 applies to the extent that it is relevant;

but nothing in those provisions is to be taken as prohibiting the applicant from giving such notice if the applicant wishes to do so.

Hearing of application

101

• (1) Unless the court otherwise directs, the hearing of an application must be in open court.

• (2) In a county court, the jurisdiction of the court to hear and determine an application may be exercised by the district judge (to whom any application must be made in the first instance) unless—

• (a) a direction to the contrary has been given, or

• (b) it is not within the district judge’s power to make the order required.

• (3) In the High Court, the jurisdiction of the court to hear and determine an application may be exercised by the registrar (to whom any application must be made in the first instance) unless—

• (a) a direction to the contrary has been given, or

• (b) it is not within the registrar’s power to make the order required.

• (4) Where the application is made to the district judge in the county court or to the registrar in the High Court, the district judge or the registrar may refer to the judge any matter which the district judge or registrar thinks should properly be decided by the judge, and the judge may either dispose of the matter or refer it back to the district judge or the registrar with such directions as that judge thinks just.

• (5) Nothing in this Rule precludes an application being made directly to the judge in a proper case.

Witness statements - general

102

• (1) Subject to Rule 104, where evidence is required by the 1986 Act or these Rules as to any matter, such evidence may be provided in the form of a witness statement unless—

• (a) in any specific case a Rule or the 1986 Act makes different provision; or

• (b) the court otherwise directs.

• (2) The court may, on the application of any party to the matter in question order the attendance for cross-examination of the person making the witness statement.

• (3) Where, after such an order has been made, the person in question does not attend, that person’s witness statement shall not be used in evidence without the permission of the court.

Filing and service of witness statements

103

Unless the provisions of the 1986 Act or these Rules under which the application is made provide otherwise, or the court otherwise allows—

• (a) if the applicant intends to rely at the first hearing on evidence in a witness statement, the applicant must file the witness statement with the court and serve a copy on the respondent, not less than 14 days before the date fixed for the hearing;

• (b) where a respondent to an application intends to oppose it and rely for that purpose on evidence in a witness statement, the respondent must file the witness statement with the court and serve a copy on the applicant, not less than 5 business days before the date fixed for the hearing.

Use of reports

104

• (1) A report may be filed in court by the energy administrator instead of a witness statement, unless the application involves other parties or the court otherwise orders.

• (2) In any case where a report is filed instead of a witness statement, the report shall be treated for the purposes of Rule 102 and any hearing before the court as if it were a witness statement.

• (3) Where the witness statement is made by the energy administrator, the witness statement must state the address at which the energy administrator works.

Adjournment of hearings; directions

105

• (1) The court may adjourn the hearing of an application on such terms as it thinks just.

• (2) The court may at any time give such directions as it thinks just as to—

• (a) service or notice of the application on or to any other person;

• (b) whether particulars of claim and defence are to be delivered and generally as to the procedure on the application including whether a hearing is necessary;

• (c) the matters to be dealt with in evidence.

• (3) The court may give directions as to the manner in which any evidence is to be adduced at a resumed hearing and in particular as to—

• (a) the taking of evidence wholly or partly by witness statement or orally;

• (b) the cross-examination of the maker of a witness statement; or

• (c) any report to be made by the energy administrator.

CHAPTER 2 — Shorthand writers

Nomination and appointment of shorthand writers

106

• (1) In the High Court the judge or registrar and, in a county court, a district judge may in writing nominate one or more persons to be official shorthand writers to the court.

• (2) The court may, at any time in the course of energy supply company administration proceedings, appoint a shorthand writer to take down the evidence of a person examined under section 236 of the 1986 Act.

Remuneration

107

• (1) The remuneration of a shorthand writer appointed in energy supply company administration proceedings must be paid by the party at whose instance the appointment was made, or out of the assets of the energy supply company, or otherwise, as the court may direct.

• (2) Any question arising as to the rates of remuneration payable under this Rule shall be determined by the court in its discretion.

CHAPTER 3 — Enforcement procedures

Enforcement of court orders

108

• (1) In energy supply company administration proceedings, orders of the court may be enforced in the same manner as a judgment to the same effect.

• (2) Where a warrant for the arrest of a person is issued by the High Court, the warrant may be discharged by the county court where the person who is the subject of the warrant—

• (a) has been brought before a county court exercising energy supply company administration jurisdiction; and

• (b) has given to the county court an undertaking which is satisfactory to the county court to comply with the obligations that apply to that person under the provisions of the 1986 Act or these Rules.

Orders enforcing compliance with these Rules

109

• (1) The court may, on application by the energy administrator, make such orders as it thinks necessary for the enforcement of obligations falling on any person in accordance with—

• (a) paragraph 47 of Schedule B1 to the 1986 Act (duty to submit statement of affairs in energy supply company administration), or

• (b) section 235 of the 1986 Act[^f00017] (duty of various persons to co-operate with energy administrator).

• (2) An order of the court under this Rule may provide that all costs of and incidental to the application for it shall be borne by the person against whom the order is made.

Warrant under section 236 of the 1986 Act

110

• (1) A warrant issued by the court under section 236 of the 1986 Act (inquiry into insolvent company’s dealings) must be addressed to such officer of the High Court as the warrant specifies, or to any constable.

• (2) The persons referred to in section 236(5) of the 1986 Act (court’s power of enforcement) as the prescribed officer of the court are the tipstaff and the tipstaff’s assistants of the court.

• (3) In this Chapter references to property include books, papers and records.

• (4) When a person is arrested under a warrant issued under section 236 of the 1986 Act (“the arrested person”), the officer arresting the arrested person must as soon as reasonably practicable bring the arrested person before the court issuing the warrant in order that the arrested person may be examined.

• (5) If the arrested person cannot immediately be brought up for examination, the officer must deliver the arrested person into the custody of the governor of the prison named in the warrant (or where that prison is not able to accommodate the arrested person, the governor of such other prison with appropriate facilities that is able to accommodate the arrested person), who must keep the arrested person in custody and produce the arrested person before the court as it may from time to time direct.

• (6) After arresting the person named in the warrant, the officer must as soon as reasonably practicable report to the court the arrest or delivery into custody (as the case may be) and apply to the court to fix a venue for the arrested person’s examination.

• (7) The court must appoint the earliest practicable time for the examination, and must—

• (a) direct the governor of the prison to produce the person for examination at the time and place appointed, and

• (b) as soon as reasonably practicable give notice of the venue to the person who applied for the warrant.

• (8) Any property in the arrested person’s possession which may be seized must be—

• (a) lodged with, or otherwise dealt with as instructed by, whoever is specified in the warrant as authorised to receive it, or

• (b) kept by the officer seizing it pending the receipt of written orders from the court as to its disposal,

as may be directed by the court.

CHAPTER 4 — Court records and returns

Court file

111

• (1) The court must open and maintain a file in any case (the “court file”) where documents are filed with it under the 1986 Act or these Rules.

• (2) Any documents which are filed with the court under the 1986 Act or these Rules must be placed on the court file.

• (3) The following persons may inspect or obtain from the court a copy of, or a copy of any document or documents contained in, the court file—

• (a) the energy administrator;

• (b) the Secretary of State;

• (c) any person who is a creditor of the energy supply company to which the proceedings relate if that person provides the court with a statement in writing by confirming that that person is a creditor; and

• (d) every person who is, or at any time has been, a director or officer of the energy supply company to which the energy supply company administration proceedings relate, or who is a member of the energy supply company.

• (4) The right to inspect or obtain a copy of, or a copy of any document or documents contained in, the court file may be exercised on that person’s behalf by a person authorised to do so by that person.

• (5) Any person who is not otherwise entitled to inspect or obtain a copy of, or a copy of any document or documents contained in, the court file may do so if that person has the permission of the court.

• (6) The court may direct that the court file, a document (or part of it) or a copy of a document (or part of it) must not be made available under paragraph (3), (4) or (5) without the permission of the court.

• (7) An application for a direction under paragraph (6) may be made by—

• (a) the energy administrator; or

• (b) any person appearing to the court to have an interest.

• (8) Where any person wishes to exercise the right to inspect the court file under paragraph (3), (4) or (5), that person—

• (a) if the permission of the court is required, must file in court an application notice in accordance with these Rules; or

• (b) if the permission of the court is not required, may inspect the court file at any reasonable time.

• (9) Where any person wishes to exercise the right to obtain a copy of a document under paragraph (3), (4) or (5), that person must pay any prescribed fee and—

• (a) if the permission of the court is required, file in court an application notice in accordance with these Rules; or

• (b) if the permission of the court is not required, file in court a written request for the document.

• (10) An application for—

• (a) permission to inspect the court file or obtain a copy of a document under paragraph (5); or

• (b) a direction under paragraph (6),

may be made without notice to any other party, but the court may direct that notice must be given to any person who would be affected by its decision.

• (11) If for the purposes of powers conferred by the 1986 Act or these Rules, the Secretary of State or the energy administrator requests the transmission of the file of any insolvency proceedings, the court must comply with the request (unless the file is for the time being in use for the court’s own purposes).

CHAPTER 5 — Costs and detailed assessment

Application of Chapter 8

112

• (1) This Chapter applies in relation to costs in connection with energy supply company administration proceedings.

• (2) In this Chapter a reference to costs includes charges and expenses.

Requirement to assess costs by the detailed procedure

113

• (1) Where the costs of any person are payable as an expense out of the assets of the energy supply company, the amount payable must be decided by detailed assessment unless agreed between the energy administrator and the person entitled to payment.

• (2) In the absence of such agreement as is mentioned in paragraph (1), the energy administrator may serve notice requiring that person to commence detailed assessment proceedings in accordance with CPR Part 47.

• (3) Detailed assessment proceedings must be commenced in the court to which the energy supply company administration proceedings are allocated.

• (4) Where the costs of any person employed by the energy administrator in energy supply company administration proceedings are required to be decided by detailed assessment or fixed by order of the court, the energy administrator may make payments on account to such person in respect of those costs provided that person undertakes in writing—

• (a) to repay as soon as reasonably practicable any money which may, when detailed assessment is made, prove to have been overpaid; and

• (b) to pay interest on any such sum as is mentioned in sub-paragraph (a) at the rate specified in section 17 of the Judgments Act 1838[^f00018] on the date payment was made and for the period beginning with the date of payment and ending with the date of repayment.

• (5) In any proceedings before the court, the court may order costs to be decided by detailed assessment.

Procedure where detailed assessment required

114

• (1) Before making a detailed assessment of the costs of any person employed in energy supply company administration proceedings by the energy administrator, the costs officer must require a certificate of employment, which must be endorsed on the bill and authenticated by the energy administrator.

• (2) The certificate must include—

• (a) the name and address of the person employed;

• (b) details of the functions to be carried out under the employment; and

• (c) a note of any special terms of remuneration which have been agreed.

• (3) Every person whose costs in energy supply company administration proceedings are required to be decided by detailed assessment must, on being required in writing to do so by the energy administrator, commence detailed proceedings in accordance with CPR Part 47 (procedure for detailed assessment of costs and default provisions).

• (4) If that person does not commence detailed assessment proceedings within 3 months of the requirement under paragraph (3), or within such further time as the court, on application, may permit, the energy administrator may deal with the assets of the energy supply company without regard to any claim by that person, whose claim is forfeited by such failure to commence proceedings.

• (5) Where in any such case such a claim lies additionally against an energy administrator in the energy administrator’s personal capacity, that claim is also forfeited by such failure to commence proceedings.

• (6) Where costs have been incurred in energy supply company administration proceedings in the High Court and those proceedings are subsequently transferred to a county court, all costs of those proceedings directed by the court or otherwise required to be assessed may nevertheless, on the application of the person who incurred the costs, be ordered to be decided by detailed assessment in the High Court.

Costs paid otherwise than out of the assets of the energy supply company

115

Where the amount of costs is decided by detailed assessment under an order of the court directing that the costs are to be paid otherwise than out of the assets of the energy supply company, the costs officer must note on the final costs certificate by whom, or the manner in which, the costs are to be paid.

Award of costs against energy administrator

116

Without prejudice to any provision of the 1986 Act or these Rules by virtue of which the energy administrator is not in any event to be liable for costs and expenses, where an energy administrator is made a party to any proceedings on the application of another party to the proceedings, the energy administrator shall not be personally liable for costs unless the court otherwise directs.

Application for costs

117

• (1) This Rule applies where a party, or person affected by, any energy supply company administration proceedings—

• (a) applies to the court for an order allowing that party’s costs, or part of them, of or incidental to the proceedings; and

• (b) that application is not made at the time of the proceedings.

• (2) The person concerned must serve a sealed copy of the person’s application on the energy administrator.

• (3) The energy administrator may appear on the application.

• (4) No costs of or incidental to the application shall be allowed to the applicant unless the court is satisfied that the application could not have been made at the time of the proceedings.

Costs and expenses of witnesses

118

• (1) Except as directed by the court, no allowance as a witness in any examination or other proceedings before the court shall be made to an officer of the energy supply company to which the energy supply company administration proceedings relate.

• (2) A person making any application in energy supply company administration proceedings shall not be regarded as a witness on the hearing of the application, but the costs officer may allow the person’s expenses of travelling and subsistence.

Final costs certificate

119

• (1) A final costs certificate of the costs officer is final and conclusive as to all matters which have not been objected to in the manner provided for under the CPR.

• (2) Where it is proved to the satisfaction of a costs officer that a final costs certificate has been lost or destroyed, the costs officer may issue a duplicate.

CHAPTER 6 — Persons who lack capacity to manage their affairs

Introductory

120

• (1) The Rules in this Chapter apply where in energy supply company administration proceedings it appears to the court that a person affected by the proceedings is one who lacks capacity within the meaning of the Mental Capacity Act 2005[^f00019] to manage and administer the person’s property and affairs either—

• (a) by reason of lacking capacity within the meaning of the Mental Capacity Act 2005; or

• (b) due to physical affliction or disability.

• (2) The person concerned is referred to as “the incapacitated person”.

Appointment of another person to act

121

• (1) The court may appoint such person as it thinks just to appear for, represent or act for the incapacitated person.

• (2) The appointment may be made either generally or for the purpose of any particular application or proceeding, or for the exercise of particular rights or powers which the incapacitated person might have exercised but for the incapacitated person’s incapacity.

• (3) The court may make the appointment either of its own motion or on application by—

• (a) a person who has been appointed by a court in the United Kingdom or elsewhere to manage the affairs of, or to represent, the incapacitated person; or

• (b) any relative or friend of the incapacitated person who appears to the court to be a proper person to make the application; or

• (c) the energy administrator.

• (4) Application under paragraph (3) may be made without notice to any other party; but the court may require such notice of the application as it thinks necessary to be given to the person alleged to be incapacitated, or any other person, and may adjourn the hearing of the application to enable the notice to be given.

Witness statement in support of application

122

An application under Rule 121(3) must be supported by a witness statement made by a registered medical practitioner as to the mental or physical condition of the incapacitated person.

Service of notices following appointment

123

Any notice served on, or sent to, a person appointed under Rule 121 has the same effect as if it had been served on, or sent to, the incapacitated person.

CHAPTER 7 — Appeals in energy supply company administration proceedings

Appeals and reviews of esc administration orders

124

• (1) Every court having jurisdiction under the 1986 Act or these Rules may review, rescind or vary any order made by it in the exercise of that jurisdiction.

• (2) Appeals in civil matters in proceedings under these Rules lie as follows—

• (a) to a single judge of the High Court where the decision appealed against is made by the county court or the registrar;

• (b) to the Civil Division of the Court of Appeal from a decision of a single judge of the High Court.

• (3) A county court is not, in the exercise of its jurisdiction for the purposes of these Rules, subject to be restrained by the order of any other court, and no appeal lies from its decision in the exercise of that jurisdiction except as provided by this Rule.

Procedure on appeal

125

• (1) An appeal against a decision at first instance may only be brought with either the permission of the court which made the decision or the permission of the court which has jurisdiction to hear the appeal.

• (2) An appellant must file an appellant’s notice (within the meaning of CPR Part 52) within 21 days after the date of the decision of the court that the appellant wishes to appeal.

• (3) The procedure set out in CPR Part 52 applies to any appeal to which this Chapter applies.

CHAPTER 8 — General

Principal court rules and practice to apply

126

• (1) The CPR and the practice and procedure of the High Court (including any practice directions) apply to energy supply company administration proceedings with any necessary modifications, except so far as inconsistent with these Rules.

• (2) All energy supply company administration proceedings shall be allocated to the multi-track for which CPR Part 29 (the multi-track) makes provision; accordingly those provisions of the CPR which provide for allocation questionnaires and track allocation will not apply.

Rights of audience

127

Rights of audience in energy supply company administration proceedings are the same as in insolvency proceedings.

Formal defects

128

No energy supply company administration proceedings shall be invalidated by any formal defect or by any irregularity, unless the court before which objection is made considers that substantial injustice has been caused by the defect or irregularity, and that the injustice cannot be remedied by any order of the court.

Service of orders staying proceedings

129

Where in energy supply company administration proceedings the court makes an order staying any action, execution or other legal process against the property of the energy supply company, service of the order may be effected by sending a sealed copy of the order to whatever is the address for service of the claimant or other party having the carriage of the proceedings to be stayed.

Payment into court

130

CPR Part 37 (miscellaneous provisions about payment into court) applies to money lodged in court under these Rules.

Further information and disclosure

131

• (1) Any party to energy supply company administration proceedings may apply to the court for an order—

• (a) that any other party—

• (i) clarify any matter which is in dispute in the proceedings, or

• (ii) give additional information in relation to any such matter,

in accordance with CPR Part 18 (further information); or

• (b) to obtain disclosure from any other party in accordance with CPR Part 31 (disclosure and inspection of documents).

• (2) An application under this Rule may be made without notice being served on any other party.

Office copies of documents

132

• (1) Any person who has under these Rules the right to inspect the court file of energy supply company administration proceedings may require the court to provide the person with an office copy of any document on the file.

• (2) A person’s rights under this Rule may be exercised on the person’s behalf by the person’s solicitor.

• (3) An office copy provided by the court under this Rule must be in such form as the registrar thinks appropriate, and must bear the court’s seal.

PART 12 — Proxies and energy supply company representation

Definition of proxy

133

• (1) For the purposes of these Rules, a proxy is an authority given by a person (“the principal”) to another person (“the proxy-holder”) to attend a meeting and speak and vote as the person’s representative.

• (2) Proxies are for use at creditors’ meetings or energy supply company meetings summoned or called under Schedule B1 to the 1986 Act or these Rules.

• (3) Only one proxy may be given by a person for any one meeting at which the person desires to be represented; and it may only be given to one person, being an individual aged 18 years or over. But the principal may specify one or more other such individuals to be proxy-holder in the alternative, in the order in which they are named in the proxy.

• (4) Without prejudice to the generality of paragraph (3), a proxy for a particular meeting may be given to whoever is to be the chair of the meeting; and the chair cannot decline to be the proxy-holder in relation to that proxy.

• (5) A proxy requires the holder to give the principal’s vote on matters arising for determination at the meeting, or to abstain, or to propose, in the principal’s name, a resolution to be voted on by the meeting, either as directed or in accordance with the holder’s own discretion.

Issue and use of forms

134

• (1) When notice is given of a meeting to be held in energy supply company administration proceedings, and forms of proxy are sent out with the notice, no form so sent out shall have inserted in it the name or description of any person.

• (2) No form of proxy shall be used at any meeting except that which is sent with the notice summoning the meeting, or a substantially similar form.

• (3) A form of proxy must be authenticated by the principal, or by some person authorised by the principal (generally or with reference to a particular meeting). If the form is authenticated by a person other than the principal, the nature of the person’s authority must be stated.

Use of proxies at meetings

135

• (1) A proxy given for a particular meeting may be used at any adjournment of that meeting.

• (2) Where the energy administrator holds proxies to be used by the energy administrator as chair of the meeting, and some other person acts as chair, that other person may use the energy administrator’s proxies as if that person were the proxy-holder.

• (3) Where a proxy directs a proxy-holder to vote for or against a resolution for the appointment of a person other than the energy administrator as proposed liquidator of the energy supply company, the proxy-holder may, unless the proxy states otherwise, vote for or against (as the proxy-holder thinks fit) any resolution for the appointment of that person jointly with another or others.

• (4) A proxy-holder may propose any resolution which, if proposed by another, would be a resolution in favour of which by virtue of the proxy the proxy-holder would be entitled to vote.

• (5) Where a proxy gives specific directions as to voting, this does not, unless the proxy states otherwise, preclude the proxy-holder from voting at the proxy-holder’s discretion on resolutions put to the meeting which are not dealt with in the proxy.

Retention of proxies

136

• (1) Subject as follows, proxies used for voting at any meeting must be retained by the chair of the meeting.

• (2) The chair must deliver the proxies, as soon as reasonably practicable after the meeting, to the energy administrator (where the chair is not the energy administrator).

Right of inspection

137

• (1) The energy administrator must, so long as proxies lodged with the energy administrator are in the energy administrator’s hands, allow them to be inspected, at all reasonable times on any business day by—

• (a) the creditors, in the case of proxies used at a meeting of creditors, and

• (b) an energy supply company’s members, in the case of proxies used at a meeting of the energy supply company.

• (2) The reference in paragraph (1) to creditors is a reference to those persons who have submitted in writing a claim to be creditors of the energy supply company but does not include a person whose proof or claim has been wholly rejected for the purposes of voting, dividend or otherwise.

• (3) The right of inspection given by this Rule is also exercisable by the directors of the energy supply company.

• (4) Any person attending a meeting in energy supply company administration proceedings is entitled, immediately before or in the course of the meeting, to inspect proxies and associated documents (including proofs) sent or given, in accordance with directions contained in any notice convening the meeting, to the chair of that meeting or to any other person by a creditor or member for the purpose of that meeting.

• (5) This Rule is subject to Rule 194.

Proxy holder with financial interest

138

• (1) A proxy-holder must not vote in favour of any resolution which would directly or indirectly place the proxy-holder or any associate of the proxy-holder, in a position to receive any remuneration out of the assets of the energy supply company, unless the proxy specifically directs the proxy-holder to vote in that way.

• (2) Where a proxy-holder has authenticated the proxy as being authorised to do so by the principal and the proxy specifically directs the proxy-holder to vote in the way mentioned in paragraph (1), the proxy-holder must nevertheless not vote in that way unless the proxy-holder produces to the chair of the meeting written authorisation from the principal sufficient to show that the proxy-holder was entitled so to authenticate the proxy.

• (3) This Rule applies also to any person acting as chair of a meeting and using proxies in that capacity under Rule 135; and in its application to the chair, the proxy-holder is deemed to be an associate of the chair.

• (4) In this Rule “associate” shall have the same meaning as in section 435 of the 1986 Act.

Energy supply company representation

139

• (1) Where a person is authorised to represent a corporation at a meeting of creditors or of the energy supply company the person must produce to the chair of the meeting a copy of the resolution from which the person derives the person’s authority.

• (2) The copy resolution must be under the seal of the corporation, or certified by the secretary or a director of the corporation to be a true copy.

• (3) Nothing in this Rule requires the authority of a person to authenticate a proxy on behalf of a principal which is a corporation to be in the form of a resolution of that corporation.

PART 13 — Examination of persons in energy supply company administration proceedings

Preliminary

140

• (1) The Rules in this Part apply to applications to the court, made by the energy administrator, for an order under section 236 of the 1986 Act (inquiry into energy supply company’s dealings when it is, or alleged to be, insolvent).

• (2) The following definitions apply—

• (a) the person in respect of whom an order is applied for is “the respondent”;

• (b) “section 236” means section 236 of the 1986 Act.

Form and contents of application

141

• (1) The application must be in writing and specify the grounds on which it is made.

• (2) The application must specify the name of the respondent.

• (3) It must be stated whether the application is for the respondent—

• (a) to be ordered to appear before the court, or

• (b) to be ordered to clarify any matter which is in dispute in the proceedings or to give additional information in relation to any such matter and if so CPR Part 18 (further information) shall apply to any such order, or

• (c) to submit witness statements (if so, particulars are to be given of the matters to be included), or

• (d) to produce books, papers or other records (if so, the items in question is to be specified),

or for any two or more of those purposes.

• (4) The application may be made without notice to the respondent or any other party.

Order for examination, etc

142

• (1) The court may, whatever the purpose of the application, make any order which it has power to make under section 236.

• (2) The court, if it orders the respondent to appear before it, must specify a venue for the respondent’s appearance, which must be not less than 14 days from the date of the order.

• (3) If the respondent is ordered to file witness statements, the order must specify—

• (a) the matters which are to be dealt with in the respondent’s witness statements, and

• (b) the time within which they are to be filed in court.

• (4) If the order is to produce books, papers or other records, the time and manner of compliance must be specified.

• (5) The order must be served by the energy administrator as soon as reasonably practicable on the respondent, and it must be served personally, unless the court otherwise orders.

Procedure for examination

143

• (1) At any examination of the respondent, the energy administrator may attend in person, or be represented by a solicitor with or without counsel, and may put such questions to the respondent as the court may allow.

• (2) Any creditor who has provided information on which the application was made under section 236 may attend the examination with the permission of the court and may put questions to the respondent (but only through the energy administrator).

• (3) If the respondent is ordered to clarify any matter or to give additional information, the court must direct the respondent as to the questions which the respondent is required to answer, and to whether the respondent’s answers (if any) are to be made in a witness statement.

• (4) The respondent may at the respondent’s own expense employ a legal representative who may put to the respondent such questions as the court may allow for the purpose of enabling the respondent to explain or qualify any answers given by the respondent, and may make representations on the respondent’s behalf.

• (5) There shall be made in writing such record of the examination as the court thinks proper. The record shall be read over either to or by the respondent and authenticated by the respondent at a venue fixed by the court.

• (6) The written record may, in any proceedings (whether under the 1986 Act or otherwise) be used as evidence against the respondent of any statement made by the respondent in the course of the respondent’s examination.

Record of examination

144

• (1) Unless the court otherwise directs, the written record of questions put to the respondent and the respondent’s answers, and any witness statements submitted by the respondent in compliance with an order of the court under section 236, are not to be filed in court.

• (2) The documents set out in paragraph (3) are not open to inspection without an order of the court, by any person other than the energy administrator.

• (3) The documents to which paragraph (2) applies are—

• (a) the written record of the respondent’s examination;

• (b) copies of questions put to the respondent or proposed to be put to the respondent and answers to questions given by the respondent;

• (c) any witness statement by the respondent; and

• (d) any document on the court file as shows the grounds for the application for an order.

• (4) The court may from time to time give directions as to the custody and inspection of any documents to which this Rule applies, and as to the furnishing of copies of, or extracts from, such documents.

Cost of proceedings under section 236

145

• (1) Where the court has ordered an examination of a person under section 236, and it appears to it that the examination was made necessary because information has been unjustifiably refused by the respondent, it may order that the costs of the examination by paid by the respondent.

• (2) Where the court makes an order against a person under section 237(1) or (2) of the 1986 Act (court’s enforcement powers under section 236), the costs of the application for the order may be ordered by the court to be paid by the respondent.

• (3) Subject to paragraphs (1) and (2) above, the energy administrator’s costs shall, unless the court otherwise orders, be paid out of the assets of the energy supply company.

• (4) A person summoned to attend for examination under this Part shall be tendered a reasonable sum out of the assets of the energy supply company in respect of travelling expenses incurred in connection with the person’s attendance. Other costs falling on the person are at the court’s discretion.

PART 14 — Miscellaneous and general

Power of Secretary of State to regulate certain matters

146

• (1) The Secretary of State may, subject to the 1986 Act and the 2004 Act, make regulations with respect to any matter provided for in these Rules as relates to the carrying out of the functions of an energy administrator of an energy supply company including, without prejudice to the generality of the foregoing provision, with respect to the following matters arising in an energy supply company administration—

• (a) the preparation and keeping of books, accounts and other records, and their production to such persons as may be authorised or required to inspect them;

• (b) the auditing of an energy administrator’s accounts;

• (c) the manner in which an energy administrator is to act in relation to the energy supply company’s books, papers and other records, and the manner of their disposal by the energy administrator and others;

• (d) the supply by the energy administrator to creditors and members of the energy supply company of copies of documents relating to the energy supply company administration and the affairs of the energy supply company (on payment, in such cases as may be specified by the regulations, of the specified fee).

• (2) Regulations made pursuant to paragraph (1) may—

• (a) confer discretion on the court;

• (b) make non-compliance with any of the regulations a criminal offence;

• (c) make different provision for different cases, including different provision for different areas; and

• (d) contain such incidental, supplemental and transitional provisions as may appear to the Secretary of State necessary or expedient.

Costs, expenses, etc

147

• (1) All fees, costs, charges and other expenses incurred in the course of the energy supply company administration proceedings are to be regarded as expenses of the energy supply company administration.

• (2) The costs associated with the prescribed part shall be paid out of the prescribed part.

Provable debts

148

• (1) Subject as follows, in energy supply company administration proceedings all claims by creditors are provable as debts against the energy supply company, whether they are present or future, certain or contingent, ascertained or sounding only in damages.

• (2) Any obligation arising under a confiscation order made under Part 2, 3 or 4 of the Proceeds of Crime Act 2002[^f00020] is not provable.

• (3) The following are not provable except at a time when all other claims of creditors in the energy supply company administration proceedings (other than any of a kind mentioned in this paragraph) have been paid in full with interest under Rule 57—

• (a) any claim arising by virtue of section 382(1)(a) of the Financial Services and Markets Act 2000[^f00021], not being a claim also arising by virtue of section 382(1)(b) of that Act;

• (b) any claim which by virtue of the 1986 Act or any other enactment is a claim the payment of which is to be postponed.

• (4) Nothing in this Rule prejudices any enactment or rule of law under which a particular kind of debt is not provable, whether on grounds of public policy or otherwise.

False claim of status as creditor, etc

149

Where these Rules provide for creditors or members of an energy supply company a right to inspect any documents, whether on the court’s file or in the hands of an energy administrator or other person, it is an offence for a person, with the intention of obtaining a sight of documents which the person has not under these Rules any right to inspect, falsely to claim a status which would entitle the person to inspect them.

Punishment of offences

150

• (1) Schedule 2 to these Rules has effect with respect to the way in which contraventions of these Rules are punishable on conviction.

• (2) In relation to an offence under a provision of the Rules specified in the first column of the Schedule (the general nature of the offence being described in the second column), the third column shows whether the offence is punishable on conviction on indictment, or on summary conviction, or either in the one way or the other.

• (3) The fourth column shows, in relation to an offence, the maximum punishment by way of fine or imprisonment which may be imposed on a person convicted of the offence in the way specified in relation to it in the third column (that is to say, on indictment or summarily), a reference to a period of years or months being to a term of imprisonment of that duration.

• (4) The fifth column shows (in relation to an offence for which there is an entry in that column) that a person convicted of the offence after continued contravention is liable to a daily default fine; that is to say, the person is liable on a second or subsequent conviction of the offence to the fine specified in that column for each day on which the contravention is continued (instead of the penalty specified for the offence in the fourth column of the Schedule).

• (5) Section 431 of the 1986 Act (summary proceedings), as it applies to England and Wales, has effect in relation to offences under these Rules as to offences under the 1986 Act.

PART 15 — Provisions of general effect

CHAPTER 1 — The giving of notice and the supply of documents – general

Application

151

• (1) Subject to paragraphs (2) and (3), this Chapter applies where a notice or other document is required to be given, delivered or sent under the 1986 Act or these Rules by any person, including an energy administrator.

• (2) This Chapter does not apply to the service of—

• (a) any petition or application to the court;

• (b) any evidence in support of that petition or application; or

• (c) any order of the court.

• (3) This Chapter does not apply to the delivery of documents to the registrar of companies.

Personal delivery of documents

152

Personal delivery of a notice or other document is permissible in any case.

Postal delivery of documents

153

Unless in any particular case some other form of delivery is required by the 1986 Act, these Rules or an order of the court, a notice or other document may be sent by post in accordance with the rules for postal service in CPR Part 6 and sending by such means has effect as specified in those rules.

Non-receipt of notice of meeting

154

Where in accordance with the 1986 Act or these Rules, a meeting of creditors or other persons is summoned by notice, the meeting is presumed to have been duly summoned and held, notwithstanding that not all those to whom the notice is to be given have received it.

Notice etc to solicitors

155

Where under the 1986 Act or these Rules a notice or other document is required or authorised to be given, delivered or sent to a person, it may be given, delivered or sent instead to a solicitor authorised to accept delivery on that person’s behalf.

Notice of meetings by advertisement only

156

• (1) The court may order that notice of any meeting be given by advertisement and not by individual notice to the persons concerned.

• (2) In considering whether to act under this Rule, the court must have regard to the cost of advertisement, the amount of assets available and the extent of the interest of creditors, members or any particular class of either.

CHAPTER 2 — The giving of notice and the supply of documents by or to energy administrators etc

Application

157

• (1) Subject to paragraph (2) and (3), this Chapter applies where a notice or other document is to be given, delivered or sent under the 1986 Act or these Rules.

• (2) This Chapter does not apply to the delivery of documents to the registrar of companies.

• (3) Rules 164 to 167 do not apply to the filing of any notice or other document with the court.

Notice to joint energy administrators

158

Where two or more persons are acting jointly as the energy administrator in energy supply company administration proceedings, delivery of a document to one of them is to be treated as delivery to them all.

The form of notices and other documents

159

Subject to any order of the court, any notice or other document required to be given, delivered or sent must be in writing and where electronic delivery is permitted a notice or other document in electronic form is treated as being in writing if a copy of it is capable of being produced in legible form.

Proof of sending etc

160

• (1) Where in energy supply company administration proceedings a notice or other document is required to be given, delivered or sent by the energy administrator, the giving, delivering or sending of it may be proved by means of a certificate that the notice or other document was duly given, delivered or sent.

• (2) The certificate may be given by—

• (a) the energy administrator;

• (b) the energy administrator’s solicitor;

• (c) a partner or an employee of either of them.

• (3) In the case of a notice or other document to be given, delivered or sent by a person other than the energy administrator, the giving delivering or sending of it may be proved by means of a certificate by that person—

• (a) that the notice or document was given, delivered or sent by that person, or

• (b) that another person (named in the certificate) was instructed to give, deliver or send it.

• (4) A certificate under this Rule may be endorsed on a copy or specimen of the notice or document to which it relates.

Authentication

161

• (1) A document or information given, delivered or sent in hard copy form is sufficiently authenticated if it is signed by the person sending or supplying it.

• (2) A document or information given, delivered or sent in electronic form is sufficiently authenticated—

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

• (b) where no such manner has been specified by the recipient, 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.

Electronic delivery in energy supply company administration proceedings – general

162

• (1) Unless in any particular case some other form of delivery is required by the 1986 Act, these Rules or an order of the court and subject to paragraph (3), a notice or other document may be given, delivered or sent by electronic means provided that the intended recipient of the notice or other document has—

• (a) consented (whether in the specific case or generally) to electronic delivery (and has not revoked that consent); and

• (b) provided an electronic address for delivery.

• (2) In the absence of evidence to the contrary, a notice or other document is presumed to have been delivered where—

• (a) the sender can produce a copy of the electronic message which—

• (i) contained the notice or other document, or to which the notice or other document was attached, and

• (ii) shows the time and date the message was sent; and

• (b) that electronic message contains the address supplied under paragraph (1)(b).

• (3) A message sent electronically is deemed to have been delivered to the recipient no later than 9.00 am on the next business day after it was sent.

Electronic delivery by energy administrators

163

• (1) Where an energy administrator gives, sends or delivers a notice or other document to any person by electronic means, the notice or document must contain or be accompanied by a statement that the recipient may request a hard copy of the notice or document and specifying a telephone number, e-mail address and postal address which may be used to request a hard copy.

• (2) Where a hard copy of the notice or other document is requested, it must be sent within 5 business days of receipt of the request by the energy administrator.

• (3) An energy administrator must not require a person making a request under paragraph (2) to pay a fee for the supply of the document.

Use of websites by energy administrator

164

• (1) This Rule applies for the purposes of section 246B of the 1986 Act.

• (2) An energy administrator required to give, deliver or send a document to any person may (other than in a case where personal service is required) satisfy that requirement by sending that person a notice—

• (a) stating that the document is available for viewing and downloading on a website;

• (b) specifying the address of that website together with any password necessary to view and download the document from that site; and

• (c) containing a statement that the person to whom the notice is given, delivered or sent may request a hard copy of the document and specifying a telephone number, e-mail address and postal address which may be used to request a hard copy.

• (3) Where a notice to which this Rule applies is sent, the document to which it relates must—

• (a) be available on the website for a period of not less than 3 months after the date on which the notice is sent; and

• (b) must be in such a format as to enable it to be downloaded from the website within a reasonable time of an electronic request being made for it to be downloaded.

• (4) Where a hard copy of the document is requested it must be sent within 5 business days of the receipt of the request by the energy administrator.

• (5) An energy administrator must not require a person making a request under paragraph (4) to pay a fee for the supply of the document.

• (6) Where a document is given, delivered or sent to a person by means of a website in accordance with this Rule, it is deemed to have been delivered—

• (a) when the document was first made available on the website, or

• (b) if later, when the notice under paragraph (2) was delivered to that person.

Special provision on account of expense as to website use

165

• (1) Where the court is satisfied that the expense of sending notices in accordance with Rule 164 would, on account of the number of persons entitled to receive them, be disproportionate to the benefit of sending notice in accordance with that Rule, it may order that the requirement to give, deliver or send a relevant document to any person may (other than in a case where personal service is required) be satisfied by the energy administrator sending each of those persons a notice—

• (a) stating that all relevant documents will be made available for viewing and downloading on a website;

• (b) specifying the address of that website together with any password necessary to view and download a relevant document from that site; and

• (c) containing a statement that the person to whom the notice is given, delivered or sent may at any time request that hard copies of all, or specific, relevant documents are sent to that person, and specifying a telephone number, e-mail address and postal address which may be used to make that request.

• (2) A document to which this Rule relates must—

• (a) be available on the website for a period of not less than 12 months from the date when it was first made available on the website or, if later, from the date upon which the notice was sent, and

• (b) must be in such a format as to enable it to be downloaded from the website within a reasonable time of an electronic request being made for it to be downloaded.

• (3) Where hard copies of relevant documents have been requested, they must be sent by the energy administrator—

• (a) within 5 business days of the receipt of the energy administrator of the request to be sent hard copies, in the case of relevant documents first appearing on the website before the request was received, or

• (b) within 5 business days from the date a relevant document first appears on the website, in all other cases.

• (4) An energy administrator must not require a person making a request under paragraph (3) to pay a fee for the supply of the document.

• (5) Where a relevant document is given, delivered or sent to a person by means of a website in accordance with this Rule, it is deemed to have been delivered—

• (a) when the relevant document was first made available on the website, or

• (b) if later, when the notice under paragraph (1) was delivered to that person.

• (6) In this Rule a relevant document means any document which the energy administrator is first required to give, deliver or send to any person after the court has made an order under paragraph (1).

Electronic delivery of energy supply company administration proceedings to courts

166

• (1) Except where paragraph (2) applies or the requirements of paragraph (3) are met, no petition, application, notice or other document may be delivered or made to a court by electronic means.

• (2) This paragraph applies where electronic delivery of documents to a court is permitted by another Rule.

• (3) The requirements of this paragraph are—