Legalize / United Kingdom / Statutory-Instrument

The Energy Supply Company Administration (Scotland) Rules 2013

Type Statutory-Instrument

Publication 2013-04-30

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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Reform history JSON API

(b) upon receipt of such written notice the energy administrator shall, 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, it shall 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 (application for winding-up) for an order to wind up the energy supply company, the energy administrator shall, in addition to the requirements of paragraphs (2) and (4), notify the creditors of whether the energy administrator intends to seek appointment as liquidator.

Notification by energy administrator of court order

56

(1) Where the court makes an order to end the energy supply company administration, the energy supply company administrator shall notify the registrar of companies in Form ESCA16(S), attaching a copy of the court order and a copy of the final progress report.

(2) Where the court makes an order to end the energy supply company administration and the applicant was not the energy administrator then that applicant shall give a copy of the order to the energy administrator.

Moving from energy supply company administration to creditors’ voluntary liquidation

57

(1) A notice pursuant to paragraph 83(3) of Schedule B1 to the 1986 Act shall be in Form ESCA17(S).

(2) As soon as reasonably practicable after the day on which the registrar of companies registers that notice, the person who has ceased to be the energy administrator (whether or not that person becomes the liquidator) must send a final progress report (which must include details of the assets to be dealt with in the liquidation) to the registrar of companies and to—

(a) all other persons who received notice of the administrator’s appointment;

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

(3) 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 15(1)(l) or Rule 33(1)(h)—

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

(b) where a creditors’ meeting is held in accordance with Rule 28, as a consequence of such a meeting.

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

(5) Where the creditors nominate a different person, the nomination must, where applicable, include the declaration required by section 231 of the 1986 Act (appointment to office of two or more persons).

Moving from energy supply company administration to dissolution

58

(1) The notice required by paragraph 84(1) of Schedule B1 to the 1986 Act shall be in Form ESCA18(S) and shall be accompanied by a final progress report.

(2) As soon as reasonably practicable a copy of the notice and accompanying documents shall be sent 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

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

(4) The notice required by paragraph 84(8) of Schedule B1 to the 1986 Act shall be in Form ESCA19(S).

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

Provision of information to the Secretary of State

59

Where the energy supply company administration ends pursuant to paragraphs 79, 83 or 84 of Schedule B1 to the 1986 Act, the energy administrator shall, within 5business days from the date of the end of the energy supply company administration, provide the Secretary of State with the following information—

(a) a breakdown of the relevant debts (within the meaning of section 99(4) of the 2011 Act (licence conditions to secure funding of energy supply company administration)) of the energy supply company, which remain outstanding; and

(b) details of any shortfall (within the meaning of section 99(3)(a) of the 2011 Act) in the property of the energy supply company available for meeting those relevant debts.

Part 8 — Replacing an Energy Administrator

Grounds for resignation

60

(1) The energy administrator may give notice of the energy administrator’s resignation on grounds of ill health or because—

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

(b) there is some conflict of interest, or change of 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 leave 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

61

The energy administrator must give to the persons specified below at least 5 business days’ notice in Form ESCA20(S) of the energy administrator’s intention to resign, or to apply for the court’s leave to do so—

(a) the Secretary of State;

(b) GEMA;

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

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

Notice of resignation

62

(1) The notice of resignation shall be in Form ESCA21(S), lodged in court and a copy sent to the registrar of companies.

(2) A copy of the notice of resignation shall be sent, not more than 5 business days after it has been lodged in court, to all those to whom notice of intention to resign was sent.

Application to court to remove energy administrator from office

63

(1) An application to the court to remove an energy administrator from office shall be served upon—

(a) the energy administrator;

(b) the Secretary of State;

(d) the joint energy administrator (if any); and

(e) where there is no joint energy administrator, the energy supply company and all the creditors, including any floating charge holders.

(2) An applicant under this Rule shall, within 5 business days of the order being made, send a copy of the order to—

(a) all those to whom notice of the application was sent; and

(b) the registrar of companies in Form ESCA22(S).

Incapacity to act, through death or otherwise

64

(1) Subject to paragraph (2), where the energy administrator has died, it is the duty of the energy administrator’s executors to give notice of that fact to the court and to the registrar of companies, specifying the date of death, in Form ESCA22(S).

(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 also be given by any person.

(4) Where an 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(2) of Schedule B1 to the 1986 Act, the energy administrator shall also give notice to the registrar of companies in Form ESCA22(S).

Application to replace

65

(1) Where an application is made to the court under paragraph 91 of Schedule B1 to the 1986 Act to appoint a replacement energy administrator, the application shall be accompanied by a Statement of the Proposed Energy Administrator in Form ESCA1(S).

(2) A copy of the application shall be served, in addition to those persons listed in section 156(2) of the 2004 Act (application for energy administration orders) and Rule 6, on the person who made the application for the energy administration order.

(3) Where the court makes an order filling a vacancy in the office of energy administrator, the same provisions shall apply, subject to such modification as may be necessary, in respect of giving notice of, and advertising, the appointment as in the case of the original appointment of an energy administrator.

Notification and advertisement of appointment of replacement energy administrator

66

(1) This Rule applies where any person has appointed an energy administrator in accordance with these Rules and a replacement energy administrator is appointed.

(2) The replacement energy administrator shall send notice of the appointment in Form ESCA23(S) to the registrar of companies.

(3) The same provisions apply in respect of giving notice of, and advertising, the replacement appointment as in the case of an initial appointment, and all statements, consents and other documents as required shall also be required in this case.

(4) All forms and notices shall clearly identify that the appointment is of a replacement energy administrator.

Joint or concurrent appointments

67

(1) Where a person is appointed in accordance with paragraph 103 of Schedule B1 to the 1986 Act to act as energy administrator jointly or concurrently with the persons then acting, the same provisions shall apply, subject to this Rule and to such other modification as may be necessary, in respect of the making of this appointment as in the case of the original appointment of an administrator.

(2) The additional energy administrator shall send notice of the appointment in Form ESCA23(S) to the registrar of companies.

Hand-over of assets to successor energy administrator

68

(1) This Rule applies where a person appointed as energy administrator (“the succeeding energy administrator”) succeeds a previous energy administrator (“the former energy administrator”).

(2) When the succeeding energy administrator’s appointment takes effect, the former energy administrator shall forthwith do all that is required for putting the succeeding energy administrator into possession of the energy supply company’s assets.

(3) The former energy administrator shall give to the succeeding energy administrator all such information, relating to the affairs of the energy supply company and the course of the energy administration, as the succeeding energy administrator considers to be reasonably required for the effective discharge of the succeeding energy administrator’s duties as such and shall hand over all books, accounts, statements of affairs, statements of claim and other records and documents in the former energy administrator’s possession relating to the affairs of the energy supply company and its energy administration.

Part 9 — Prescribed Part

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

69

An application under section 176A(5) of the 1986 Act (share of assets for unsecured creditors) shall include averments as to—

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

(b) the financial position of the energy supply company;

(c) the basis of 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 insolvency practitioner is acting in relation to the energy supply company and, if so, the address of that insolvency practitioner.

Notice of order under section 176A(5) of the 1986 Act

70

(1) Where the court makes an order under section 176A(5) of the 1986 Act the energy administrator shall, as soon as reasonably practicable after the making of the order—

(a) send to the energy supply company a copy of the order certified by the clerk of court;

(b) send to the registrar of companies a copy of the order together with Form ESCA24(S); and

(2) The court may direct that the requirement of paragraph (1)(c) of this Rule be met by the publication of a notice containing the standard content and stating that the court has made an order disapplying the requirement to set aside the prescribed part.

(3) The notice referred to in paragraph (2) must be published as soon as reasonably practicable in the Edinburgh Gazette and may be advertised in such other manner as the administrator thinks fit.

Part 10 — Proxies and Company Representation

Definition of “proxy”

71

(1) For the purposes of these Rules, a person (“the principal”) may authorise another person (“the proxy-holder”) to attend, speak and vote as the principal’s representative at meetings of creditors or of the energy supply company in energy administration proceedings, and any such authority is referred to as a proxy.

(2) A proxy may be given either generally for all meetings in energy supply company administration proceedings or specifically for any meeting or class of meetings.

(3) Only one proxy may be given by the principal for any one meeting; and it may only be given to one person, being an individual aged 18 or over. The principal may nevertheless nominate one or more other such persons 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 any person to whom such a proxy is given cannot decline to be a proxy-holder in relation to that proxy.

(5) A proxy may require the holder to vote on behalf of the principal on matters arising for determination at any meeting, or to abstain, either as directed or in accordance with the holder’s own discretion; and it may authorise or require the holder to propose, in the principal’s name, a resolution to be voted on by the meeting.

Form of proxy

72

(1) With every notice summoning a meeting of creditors or of the energy supply company in energy administration proceedings there shall be sent out forms of proxy in form ESCA25(S).

(2) A form of proxy shall not be sent out with the name or description of any person inserted in it.

(3) A proxy shall be in the form sent out with the notice summoning the meeting or in a form substantially to the same effect.

(4) A form of proxy shall be filled out and signed by the principal, or by some person acting under the authority of the principal and, where it is signed by someone other than the principal, the nature of that person’s authority shall be stated on the form.

Use of proxy at meeting

73

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

(2) A proxy may be lodged at or before the meeting at which it is to be used.

(3) 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, the other person may use the energy administrator’s proxies as if that person were the proxy-holder.

(4) 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 any resolution for the appointment of that person jointly with another or others.

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

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

Retention of proxies

74

(1) Proxies used for voting at any meeting shall be retained by the chair of the meeting.

(2) The chair shall deliver the proxies forthwith after the meeting to the energy administrator (where that is someone other than the chair).

(3) The energy administrator shall retain all proxies in the sederunt book.

Right of inspection

75

(1) The energy administrator shall, 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 claim has been wholly rejected for 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 administration proceedings is entitled, immediately before or in the course of the meeting, to inspect proxies and associated documents (including claims)—

(a) to be used in connection with that meeting; or

(b) sent or given to the chair of that meeting or to any other person by a creditor or member for the purpose of that meeting, whether or not they are to be used at it.

Proxy-holder with financial interest

76

(1) A proxy-holder shall 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 that way.

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

(3) This Rule applies also to any person acting as chair of a meeting and using proxies in that capacity in accordance with Rule 73(3); and in the application of this Rule to any such person, the proxy-holder is deemed an associate of that person.

Representation of corporations

77

(1) Where a person is authorised under section 323 of the Companies Act (representation of corporations at meetings) to represent a corporation at a meeting of creditors or of the energy supply company, that person shall produce to the chair of the meeting a copy of the resolution from which that person derives authority

(2) The copy resolution must be executed in accordance with the provisions of section 48(3) of the Companies Act (execution of documents by companies), 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 sign a proxy on behalf of a principal which is a corporation to be in the form of a resolution of that corporation.

Part 11 — Giving of Notice

Application

78

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

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

(a) the lodging of any petition or application or other document with the court;

(b) the service of any application or other document lodged with the court;

(d) the submission of documents to the registrar of companies.

Personal delivery of documents

79

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

Sending by post

80

(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, a notice or other document may be sent by post, and subject to the following provisions of this Rule, any form of post may be used.

(2) For a notice or other document to be properly sent by post, it must be contained in an envelope addressed to the person to whom it is to be sent, and pre-paid for either first or second class post.

(3) Any notice or other document to be sent by post may be sent to the last known address of the person to whom the document is to be sent.

(4) Where first class post is used, the document is to be deemed to be received on the second business day after the date of posting, unless the contrary is shown.

(5) Where second class post is used, the document is to be deemed to be received on the fourth business day after the date of posting unless the contrary is shown.

Notice by and to representatives

81

Where under the 1986 Act or these Rules a notice or other document is required or authorised to be given, sent or delivered by a person (“the sender”) to another (“the recipient”), it may be given, sent or delivered by any person duly authorised by the sender to do so to any person duly authorised by the recipient to receive or accept it.

Notice to joint energy administrators

82

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

The form of notices and other documents

83

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.

Certificate of giving notice etc

84

(1) Where in any proceedings a notice or other document is required to be given, delivered or sent by the energy administrator, the date of giving, sending or delivering it may be proved by means of a certificate signed by the energy administrator or on the energy administrator’s behalf by the energy administrator’s solicitor, or a partner or employee of either of them, that the notice or other document was duly given, posted or otherwise sent, or delivered, on the date stated in the certificate.

(2) 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.

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

(4) A certificate purporting to be signed by or on behalf of the energy administrator, or by the person mentioned in paragraph (2), shall be deemed unless the contrary is shown, to be sufficient evidence of the matters stated therein.

Electronic delivery in energy administration proceedings – general

85

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

(3) 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, who may not make a charge for sending it in that form.

(4) 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).

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

Use of websites by energy administrator

86

(1) This Rule applies for the purposes of section 246B of the 1986 Act (use of websites)[^f00018].

(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, who may not make a charge for sending it in that form.

(5) 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

87

(1) Where the court is satisfied that the expense of sending notices in accordance with Rule 86 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).

Part 12 — General Provisions

Validity of proceedings

88

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.

Evidence of proceedings at meetings

89

A report of proceedings at a meeting of the energy supply company or of the creditors in an energy administration, which is signed by a person designed as the chair of that meeting, shall be deemed, unless the contrary is shown, to be sufficient evidence of the matters contained in that report.

Right to list of creditors and copy documents

90

(1) Subject to Rule 91, in any energy administration proceedings, a creditor who has the right to inspect documents also has the right to require the energy administrator to furnish the creditor with a list of the energy supply company’s creditors and the amounts of their respective debts.

(2) Where the energy administrator is requested by the Secretary of State, GEMA, a creditor or member to supply a copy of any document, the energy administrator is entitled to require payment of the appropriate fee in respect of the supply of that copy.

(3) Subject to Rule 91, where a person has the right to inspect documents, the right includes that of taking copies of those documents, on payment of the appropriate fee.

(4) In this Rule, the appropriate fee means 15 pence per A4 or A5 page and 30 pence per A3 page.

Confidentiality of documents

91

(1) Where the energy administrator considers, in the case of a document forming part of the records of those proceedings—

(a) that it should be treated as confidential; or

(b) that it is of such nature that its disclosure would be calculated to be injurious to the interest of the creditors or the members,

the energy administrator may decline to allow it to be inspected by a person who would otherwise be entitled to inspect it.

(2) Where under this Rule the energy administrator refuses inspection of a document, the person who made that request may apply to the court for an order to overrule the refusal and the court may either overrule it altogether, or sustain it, either unconditionally or subject to such conditions, if any, as it thinks fit to impose.

(3) Nothing in this Rule entitles the energy administrator to decline to allow inspection of any claim or proxy.

Energy administrator’s caution

92

(1) Wherever under these Rules any person has to appoint a person to the office of energy administrator, the person making the appointment must be satisfied that the person appointed or to be appointed has caution for the proper performance of that person’s functions.

(2) In any energy supply company administration proceedings the cost of the energy administrator’s caution shall be paid as an expense of the energy administration.

Punishment of offences

93

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

Forms for use in energy administration proceedings

94

(1) The forms contained in the Schedule to these Rules shall be used in, and in connection with, energy supply company administration proceedings.

(2) The forms shall be used with such variations, if any, as the circumstances may require.

Electronic submission of information instead of submission of forms to the Secretary of State, energy administrators and of copies to the registrar of companies

95

(1) This Rule applies in any case where information in a prescribed form is required by these Rules to be sent by any person to the Secretary of State or the energy administrator, or a copy of a prescribed form is to be sent to the registrar of companies.

(2) A requirement of the kind mentioned in paragraph (1) is treated as having been satisfied where—

(a) the information is submitted electronically with the agreement of the person to whom the information is sent;

(b) the form in which the electronic submission is made satisfies the requirements of the person to whom the information is sent (which may include a requirement that the information supplied can be reproduced in the format of the prescribed form);

(d) the person to whom the information is sent can provide in legible form the information so submitted.

(3) Where information in a prescribed form is permitted to be sent electronically under paragraph (2), any requirement in the prescribed form that the prescribed form be accompanied by a signature is taken to be satisfied—

(a) if the identity of the person who is supplying the information in the prescribed form and whose signature is required 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 person who is providing the information in the prescribed form, and the recipient has no reason to doubt the truth of that statement.

(4) Where information required in a prescribed form has been supplied to a person, whether or not it has been supplied electronically in accordance with paragraph (2), and a copy of that information is required to be supplied to another person falling within paragraph (1), the requirements contained in paragraph (2) apply in respect of the supply of the copy to that other person, as they apply in respect of the original.

Electronic submission of information instead of submission of forms in all other cases

96

(1) Subject to paragraph (5), this Rule applies in any case where Rule 94 does not apply, where information in a prescribed form is required by these Rules to be sent by any person.

(2) A requirement of the kind mentioned in paragraph (1) is treated as having been satisfied where—

(a) the person to whom the information is sent has agreed—

(i) to receiving the information electronically and to the form in which it is to be sent; and

(ii) to the specified manner in which paragraph (3) is to be satisfied;

(b) all the information required to be given in the prescribed form is provided in the electronic submission; and

(3) Any requirement in a prescribed form that it be accompanied by a signature is taken to be satisfied if the identity of the person who is supplying the information and whose signature is required, is confirmed in the specified manner.

(4) Where information required in prescribed form has been supplied to a person, whether or not it has been supplied electronically in accordance with paragraph (2), and a copy of that information is required to be supplied to another person falling within paragraph (1), the requirements contained in paragraph (2) apply in respect of the supply of the copy to that other person, as they apply in respect of the original.

Contents of notices to be published in the Edinburgh Gazette under the 1986 Act or these Rules

97

(1) Where under the 1986 Act or these Rules a notice must be published in the Edinburgh Gazette, in addition to any content specifically required by the 1986 Act or any other provision of these Rules, the content of such a notice must be as set out in this Rule.

(2) All notices published must specify insofar as it is applicable in relation to the particular notice—

(a) the name and postal address of the energy administrator acting in the proceedings;

(b) the capacity in which the energy administrator is acting and the date of appointment;

(d) the name of any person other than the energy administrator (if any) who may be contacted regarding the proceedings;

(e) the number assigned to the energy administrator by the Secretary of State;

(f) the court name and any number assigned to the proceedings by the court;

(g) the registered name of the energy supply company;

(h) the registered number of the energy supply company;

(i) the registered office of the energy supply company, or if an unregistered company, the postal address of its principal place of business;

(j) any principal trading address of the energy supply company if this is different from its registered office;

(k) any name under which the energy supply company was registered in the 12 months prior to the date of the commencement of the proceedings which are the subject of the Gazette notice; and

(l) any name or style (other than the energy supply company’s registered name) under which—

(i) the company carried on business; and

(ii) any debt owed to a creditor was incurred.

Notices otherwise advertised under the 1986 Act or these Rules

98

(1) Where under the 1986 Act or these Rules a notice may be advertised otherwise than in the Edinburgh Gazette, in addition to any content specifically required by the 1986 Act or any other provision of these Rules, the content of such a notice must be as set out in this Rule.

(2) All notices published must specify insofar as it is applicable in relation to the particular notice—

(a) the name and postal address of the energy administrator acting in the proceedings to which the notice relates;

(b) either an e-mail address, or a telephone number, through which the energy administrator may be contacted;

(d) the registered number of the energy supply company;

(e) any name under which the energy supply company was registered in the 12 months prior to the date of the commencement of the proceedings which are the subject of the notice; and

(f) any name or style (other than the energy supply company’s registered name) under which—

(i) the energy supply company carried on business; and

(ii) any debt owed to a creditor was incurred.

Notices otherwise advertised – other additional provisions

99

The information required to be contained in a notice to which Rule 97 applies must be included in the advertisement of that notice in a manner that is reasonably likely to ensure, in relation to the form of the advertising used, that a person reading, hearing or seeing the advertisement, will be able to read, hear or see that information.

Omission of unobtainable information

100

Information required under Rules 97 and 98 to be included in a notice may be omitted if it is not reasonably practicable to obtain it.

Fees, expenses, etc.

101

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

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

Power of court to cure defects in procedure

102

(1) The court may, on the application of any person having an interest—

(a) if there has been a failure to comply with any requirement of the 1986 Act, the 2004 Act, the 2011 Act or these Rules, make an order waiving any such failure and, so far as practicable, restoring any person prejudiced by the failure to the position that person would have been in but for the failure;

(b) if for any reason anything required or authorised to be done in, or in connection with, the energy administration proceedings cannot be done, make such order as may be necessary to enable that thing to be done.

(2) The court, in an order under paragraph (1), may impose such conditions, including conditions as to expenses, as it thinks fit and may—

(a) authorise or dispense with the performance of any act in the energy supply company administration proceedings;

(b) extend or waive any time limit specified in the 1986 Act, the 2004 Act, the 2011 Act or these Rules.

(3) An application under paragraph (1)—

(a) may at any time be remitted by the sheriff to the Court of Session, of the sheriff’s own accord or on an application by any person having an interest;

(b) shall be so remitted, if the Court of Session so directs on an application by any such person,

if the sheriff or the Court of Session, as the case may be, considers that the remit is desirable because of the importance or complexity of the matters raised by the application.

(4) The energy administrator shall record in the sederunt book the decision of the court.

Sederunt book

103

(1) The energy administrator shall maintain a sederunt book during the energy administrator’s term of office for the purpose of providing an accurate record of the energy supply company administration.

(2) Without prejudice to the generality of the above paragraph, there shall be inserted in the sederunt book a copy of anything required to be recorded in it by any provision of the 1986 Act or of these Rules.

(3) The energy administrator shall make the sederunt book available for inspection at all reasonable hours by any interested person.

(4) Any entry in the sederunt book shall be sufficient evidence of the facts stated therein, except where it is founded on by the energy administrator in energy administrator’s own interest.

(5) Without prejudice to paragraph (3), the energy administrator shall retain, or shall make arrangements for retention of, the sederunt book for a period of ten years from the date on which the energy administration ends.

(6) Where the sederunt book is maintained in non-documentary form it shall be capable of reproduction in legible form.

Disposal of energy supply company’s books, papers and other records

104

(1) Where an energy supply company has been the subject of energy administration proceedings (“the original proceedings”) which have terminated and other insolvency proceedings (“the subsequent proceedings”) have commenced in relation to that energy supply company, the energy administrator appointed in relation to the original proceedings, shall, before the expiry of the later of—

(a) the period of 30 days following a request to the energy administrator to do so by the responsible insolvency practitioner appointed in relation to the subsequent proceedings; or

(b) the period of 6 months after the energy supply company entered energy administration,

deliver to the responsible insolvency practitioner appointed in relation to the subsequent proceedings the books, papers and other records of the energy supply company.

(2) The energy administrator shall dispose of the books, papers and records of the energy supply company in accordance with the directions of the court or, if by the date which is 12 months after dissolution of the energy supply company no such directions have been given, the energy administrator may do so after that date in such a way as the energy administrator deems appropriate.

(3) The energy administrator or former energy administrator shall within 14 days of a request by the Secretary of State give the Secretary of State particulars of any money in the energy administrator’s hands or under the energy administrator’s control representing unclaimed or undistributed assets of the energy supply company or dividends or other sums due to any person as a member or former member of the energy supply company.

Information about time spent on a case

105

(1) Subject as set out in this Rule, the energy administrator shall on request in writing made by any person mentioned in paragraph (2), supply free of charge to that person a statement of the kind described in paragraph (3).

(2) The persons referred to in paragraph (1) are—

(a) any creditor or member of the energy supply company; and

(b) any director of the energy supply company.

(3) The statement referred to in paragraph (1) shall comprise in relation to the period beginning with the date of the energy administrator’s appointment and ending with the relevant date the following details—

(a) the total number of hours spent on the case by the energy administrator and any staff assigned to the case during that period;

(b) for each grade of individual so engaged, the average hourly rate at which any work carried out by individuals in that grade is charged; and

(4) In relation to paragraph (3) the “relevant date” means the date next before the date of the making of the request on which the energy administrator has completed any period in office which is a multiple of six months or, where the energy administrator has vacated office, the date that the energy administrator vacated office.

(5) Where the energy administrator has vacated office, an obligation to provide information under this Rule shall only arise in relation to a request that is made within 2 years of the date on which the energy administrator vacated office.

(6) Any statement required to be provided to any person under this Rule shall be supplied within 28 days of the date of the receipt of the request by the energy administrator.

SCHEDULE — Forms

Signed

Michael Fallon — Minister of State — Department of Energy and Climate Change — 30th April 2013

Explanatory note

(This note is not part of the Rules)

EXPLANATORY NOTE

These Rules set out the procedure for the conduct of energy supply company administration proceedings in Scotland. Energy supply company administration is a special insolvency regime specifically created for the companies that supply gas and electricity in Great Britain.

The framework for the energy supply company administration regime is set out in Chapter 5 of Part 2 of the Energy Act 2011 (c.16). That Act applies (with modifications) much of Chapter 3 of Part 3 of the Energy Act 2004 (c.20), which provides for a special insolvency regime for energy companies that run and operate gas and electricity networks in Great Britain. Only energy supply companies as defined in section 94 of the Energy Act 2011 may enter energy supply company administration. These are companies that hold a licence granted under section 7A(1)(a) or (b) of the Gas Act 1986 to supply gas, or a licence granted under section 6(1)(d) of the Electricity Act 1989 to supply electricity.

The energy supply company administration process is commenced by an application to court for an energy supply company administration order. Such an application can be made by either the Secretary of State or, with the consent of the Secretary of State, by the Gas and Electricity Markets Authority.

An insolvency practitioner appointed to manage the affairs, business and property of the energy supply company is defined in section 94(2) of the Energy Act 2011 as an energy administrator.

These Rules are based upon the provisions of the existing Insolvency (Scotland) Rules 1986 (S.I.1986/1915) but are a stand-alone set of rules applicable only to energy supply company administration proceedings. These Rules apply to energy supply companies which the courts in Scotland have jurisdiction to wind up. There are separate Rules (The Energy Supply Company Administration Rules 2013 – S.I.2013/) which apply to energy supply companies which the courts in England and Wales have jurisdiction to wind up.

Part 1 of these Rules contains the interpretation and application provisions.

Part 2 sets out the procedure to be followed in relation to proceedings for the appointment of an energy administrator and on whom such proceedings must be served.

Part 3 details the initial steps to be taken in energy supply company administration proceedings. These include the notification and advertisement of the energy administrator’s appointment and the preparation of a statement of the energy supply company’s affairs. Part 3 also sets out the information that must be given to creditors in the energy administrator’s proposals.

Part 4 governs the conduct of creditors and company meetings called by an energy administrator during energy supply company administration proceedings. Part 4 also deals with the provision of progress reports relating to the administration and applications by the administrator to dispose of secured property.

Part 5 makes provision in respect of claims in the energy supply company administration and how they are to be established and quantified, as well as the voting rights that flow from claims which are accepted. It also provides for a criminal offence in respect of false claims by creditors.

Part 6 concerns distributions to creditors of the energy supply company and the expenses of the administration. It sets out the order of priority in any distribution and the mechanism for calculating the outlays and remuneration of the energy administrator.

Part 7 sets out the arrangements for ending an energy supply company administration. There are specific provisions detailing the ending of an energy supply company administration by court order, as well as the process by which an energy supply company administration moves into either a creditors’ voluntary liquidation or dissolution of the energy supply company.

Part 8 deals with the requirements and procedures for replacing an energy administrator and includes provisions relating to the resignation of an energy administrator and the removal of an energy administrator from office by court order.

Part 9 makes provision in respect of the share of the assets of the energy supply company for unsecured creditors (the prescribed part).

Part 10 makes provision for the use of proxies at creditors’ or members’ meetings held during an energy supply company administration, including the rights of inspection of such proxies and the procedure to be followed where a proxy-holder has a financial interest in the outcome of a resolution to be voted on at the meeting.

Part 11 deals with the rules relating to the giving of notices in relation to the energy supply company administration. It includes provisions relating to electronic delivery and the use of websites by the energy administrator.

Part 12 deals with miscellaneous provisions, including the energy administrator’s caution, electronic submission of forms, content of notices and provides the court with power to cure defects in procedure.

The Schedule to the Rules contains the forms that are to be used in energy supply company administration proceedings. The forms in this Schedule are based upon the forms contained in the Insolvency (Scotland) Rules 1986 which deal with ordinary administration, but have been modified for the purposes of energy supply company administration.

A full impact assessment has been produced for this instrument, and has been placed in the library of each House of Parliament. Copies are obtainable from Dawn Armstrong, Demand Reduction and Retail Markets, Department of Energy and Climate Change, 3 Whitehall Place, London SW1A 2HD ( email:dawn.armstrong@decc.gsi.gov.uk). The impact assessment is also available alongside the instrument at www.legislation.gov.uk.

Footnotes

[^f00001]: 1986 c.45. Section 411 has been amended on a number of occasions, but those amendments are not relevant for present purposes. Relevant amendments to the Act are, where appropriate, set out in the footnotes below.

[^f00002]: 2004 c.20. Section 159(3) was amended by the Energy Act 2011 (c.16), section 97.

[^f00003]: 2011 c.16.

[^f00004]: 2006 c.46.

[^f00005]: S.I. 1986/1915, as amended by S.I. 1987/1921, 1999/1820, 2001/4040, 2002/2709. 2003/2108, 2003/2109, 2003/2111, 2006/734, 2006/735, 2008/393, 2008/662, 2009/662, 2009/2375 and 2010/688.

[^f00006]: Section 176A was inserted by the Enterprise Act 2002 (c.40), section 252.

[^f00007]: Schedule B1 was inserted by the Enterprise Act 2002 (c.40), section 248 and Schedule 16.

[^f00008]: Sections 156 to 167 of, and Schedules 20 and 21 to, the Energy Act 2004 (special administration regime for energy licensees) which include the provisions of that Act referred to in these Rules were modified in relation to their application to energy supply company administration orders by the Energy Act 2011 (c.16), section 96.

[^f00009]: Section 124A was inserted by the Companies Act 1989 (c.40), section 60(3). It was amended by the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c.27), Schedule 2 paragraph 27 and S.I. 2001/3649 Article 305.

[^f00010]: 1986 c.45; section 235 was amended by the Enterprise Act 2002 (c.40), Schedule 17 paragraph 24.

[^f00011]: 1986 c.45. Section 176A was inserted by the Enterprise Act 2002 ((c. 40), section 252.

[^f00012]: Section 323 was amended by S.I. 2009/1632 reg. 6.

[^f00013]: Section 246A was inserted by S.I. 2010/18, Article 3.

[^f00014]: Section 176A was inserted by the Enterprise Act 2002 (c.40), section 252.

[^f00015]: 1838 c.110, as amended by S.I. 1998/2940, Article 3.

[^f00016]: Section 386 was amended by the Enterprise Act 2002 (c.40), section 251 and by the Pension Schemes Act 1993 (c.48), Schedule 8 paragraph 18..

[^f00017]: Section 242 was amended by the Enterprise Act 2002 (c.40), Schedule 17 paragraph 28.

[^f00018]: Section 246B was inserted by S.I. 2010/18, Article 3.

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