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The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018

Type Statutory-Instrument

Publication 2018-10-11

Last updated 2021-10-01

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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“winding up proceedings” means insolvency proceedings listed in the United Kingdom entry in Annex A to the EU Regulation other than voluntary arrangements where they relate to individuals, bankruptcy or sequestration.

“conversion into winding up proceedings” refers to an order under Article 51 of the EU Regulation that winding up proceedings of one kind are converted into winding up proceedings of another kind.

Conversion into winding up proceedings: application

7.2

(1) This rule applies where a member State liquidator in main proceedings applies to the court under Article 51 of the EU Regulation for conversion of—

(a) a CVA or an administration into winding up proceedings of another kind; or

(b) winding up proceedings other than a CVA or an administration into a CVA or an administration.

(2) A statement containing a statutory declaration made by or on behalf of the member State liquidator must be lodged with the court in support of the application.

(3) The statement must state—

(a) that main proceedings have been opened in relation to the company in a member State other than the United Kingdom;

(b) the belief of the person making the statement that conversion of the winding up proceedings would be most appropriate as regards the interests of the local creditors and coherence between the main and secondary insolvency proceedings;

(c) the kind of winding up proceedings into which, in the opinion of the person making the statement, the winding up proceedings should be converted; and

(d) all other matters that, in the opinion of the member State liquidator, would assist the court in—

(i) deciding whether to make an order, and

(ii) considering whether and, if so, what consequential provision to include.

(4) The application and the statement must be served upon the company.

(5) Where the application is for conversion of a CVA or an administration, the application and the statement must also be served upon the supervisor or the administrator, as the case may be.

Conversion into winding up proceedings: court order

7.3

(1) On hearing an application for conversion of winding up proceedings under rule 7.2, the court may, subject to Article 51 of the EU Regulation, make such order as it thinks just.

(2) An order under paragraph (1) may contain such consequential provision as the court thinks just.

(3) An order for conversion of a CVA or an administration into winding up proceedings of another kind may provide that the company be wound up as if a resolution for voluntary winding up under section 84 were passed on the day on which the order is made.

Proceedings in another member State: duty to give notice

7.4

(1) This rule applies where the supervisor of a CVA or an administrator is required to give notice, or provide a copy of a document (including an order of the court) to the court or the registrar of companies.

(2) Where not already required to do so by Article 41 of the EU Regulation, the supervisor or administrator must also give notice or provide a copy to—

(a) any member State liquidator; or

(b) where the supervisor or administrator knows that an application has been made to commence insolvency proceedings in another member State but a member State liquidator has not yet been appointed, the court to which that application has been made.

Member State liquidator: rules on creditors' participation in proceedings

7.5

(1) The provisions in these Rules apply to a member State liquidator’s participation in proceedings in accordance with Article 45 of the EU Regulation) in the same manner as they apply to creditors’ participation in those proceedings.

(2) In this rule, “creditors’ participation”—

(a) includes the following matters—

(i) requesting and being provided with information, including inspecting or obtaining copies of documents or files,

(ii) being provided with notices or other documents,

(iii) participating and voting in decision procedures,

(iv) the establishment and operation of creditor committees,

(v) submitting statements of claim and documentary evidence of debt in respect of debts and receipt of dividends,

(vi) applying to the court and appearing at hearings and

(b) is limited to creditors’ participation from the time of the opening of proceedings in accordance with Article 2(8) of the EU Regulation.

Main proceedings in Scotland: undertaking by office-holder in respect of assets in another member State (Article 36 of the EU Regulation)

7.6

(1) This rule applies where an office-holder in main proceedings proposes to give an undertaking under Article 36 of the EU Regulation in respect of assets located in another member State.

(2) In addition to the requirements as to form and content set out in Article 36 the undertaking must contain—

(a) the heading “Proposed Undertaking under Article 36 of the EU Insolvency Regulation (2015/848)”;

(b) identification details for the main proceedings;

(d) a description of the effect of the undertaking if approved.

(3) The proposed undertaking must be delivered to all the local creditors in the member State concerned of whose address the office-holder is aware.

(4) Where the undertaking is rejected the office-holder must inform all the creditors of the company of the rejection of the undertaking as soon as reasonably practicable.

(5) Where the undertaking is approved the office-holder must as soon as reasonably practicable—

(a) send a copy of the undertaking to all the creditors with a notice informing them of the approval of the undertaking and of its effect (so far as they have not already been given this information under paragraph (2)(d));

(b) where the insolvency proceedings relate to a registered company, deliver a copy of the undertaking to the registrar of companies.

(6) The office-holder may advertise details of the undertaking in the other member State in such manner as the office-holder thinks fit.

Main proceedings in another member State: approval of undertaking offered by the member State liquidator to local creditors in the UK

7.7

(1) This rule applies where a member State liquidator proposes an undertaking under Article 36 of the EU Regulation and the secondary proceedings which the undertaking is intended to avoid would be insolvency proceedings to which these Rules apply.

(2) The decision by the local creditors whether to approve the undertaking must be made by a decision procedure subject to the rules which apply to the approval of a proposed CVA under section 4A of the Act.

(3) In Part 5, the rules in Chapters 1 to 9 apply to the decision procedure (with any necessary modifications) except for the following—5.7, 5.12, 5.14, 5.16 to 5.18 and 5.27.

(4) Where the main proceedings relate to a registered company, the member State liquidator must deliver a copy of the approved undertaking to the registrar of companies.

Powers of an office-holder or member State liquidator in proceedings concerning members of a group of companies (Article 60 of the EU Regulation)

7.8

Where an office-holder or a member State liquidator makes an application in accordance with paragraph (1)(b) of Article 60 of the EU Regulation the application must state with reasons why the applicant thinks the matters set out in points (i) to (iv) of that paragraph apply.

Group coordination proceedings (section 2 of Chapter 5 of the EU Regulation)

7.9

(1) This rules applies to an application to open group coordination proceedings by an office-holder.

(2) The application must be headed “Application under Article 61 of Regulation (EU) 2015/848 to open group coordination proceedings”

(3) The application must (in addition to the requirements in Article 61 of the EU Regulation) contain—

(a) identification and contact details for the office-holder making the application;

(b) identification details for the company and the insolvency proceedings by virtue of which the office-holder is making the application;

(c) identification details for the company and the insolvency proceedings in respect of each company which is a member of the group;

(d) contact details for the office-holders and member State liquidators appointed in those proceedings;

(e) identification details for any insolvency proceedings in respect of a member of the group which are not to be subject to the coordination because of an objection to being included; and

(f) if relevant, a copy of any such agreement as is mentioned in Article 66 of the EU Regulation.

(4) An “office-holder” in paragraph (3)(d) includes a person holding office in insolvency proceedings in relation to the company in England and Wales or Northern Ireland, and a member State liquidator.

Group coordination order (Article 68 of the EU Regulation)

7.10

(1) An order opening group coordination proceedings must contain—

(a) details of the matters set out in Article 68(1)(a) to (c) of the EU Regulation;

(b) identification details for the insolvency proceedings by virtue of which the office-holder is making the application;

(d) identification details for the insolvency proceedings which are subject to the coordination; and

(e) identification details for any insolvency proceedings for a member of the group which are not subject to the coordination because of an objection to being included.

(2) The office-holder who made the application must deliver a copy of the order to the coordinator and to any person who is, in respect of proceedings subject to the coordination—

(a) an office-holder;

(b) a person holding office in insolvency proceedings in relation to the company in England and Wales or Northern Ireland; and

Delivery of group coordination order to registrar of companies

7.11

An office-holder in respect of insolvency proceedings subject to coordination must deliver a copy of the group coordination order to the registrar of companies.

Office-holder's report

7.12

(1) This rule applies where, under the second paragraph of Article 70(2) of the EU Regulation, an office-holder is required to give reasons for not following the coordinator’s recommendations or the group coordination plan.

(2) Those reasons must be given as soon as reasonably practicable by a notice to all the creditors.

(3) In an administration, those reasons may be given in the next progress report where doing so satisfies the requirement to give the reasons as soon as reasonably practicable.

Publication of opening of proceedings by a member State liquidator

7.13

(1) This rule applies where—

(a) a company subject to insolvency proceedings has an establishment in Scotland; and

(b) a member State liquidator is required or authorised under Article 28 of the EU Regulation to publish a notice.

(2) The notice must be gazetted.

Statement by member State liquidator that insolvency proceedings in another member State are closed etc.

7.14

A statement by a member State liquidator under paragraph 84 of Schedule B1 informing the registrar of companies that a member State liquidator in insolvency proceedings open in another member State consents to the dissolution must contain—

(a) identification details for the company; and

(b) identification details for the member State liquidator.

SCHEDULE 1 — REVOCATIONS

In this Schedule, “the 1986 rules” means the Insolvency (Scotland) Rules 1986.

Name	Number	Extent of revocation
The Insolvency (Scotland) Rules 1986	S.I. 1986/1915	Parts 1 and 2 in their entirety. Rules 0.1 to 0.3 and Part 7 (and schedules 3 to 5) insofar as they apply to CVAs and administration.
The Insolvency (Scotland) Amendment Rules 1987	S.I. 1987/1921	Insofar as they amend the 1986 Rules in relation to CVAs and administration.
The Insolvency (Scotland) Amendment Rules 2002	S.I. 2002/2709	The entire S.I.
The Enterprise Act 2002 (Consequential Amendments) (Prescribed Part) (Scotland) Order 2003	S.I. 2003/2108	Part 1 insofar as it amends the 1986 Rules in relation to CVAs and administration.
The Insolvency (Scotland) Regulations 2003	S.I. 2003/2109	Part 2 and Schedule 2 insofar as they amend the 1986 Rules in relation to CVAs and administration.
The Insolvency (Scotland) Amendment Rules 2003	S.I. 2003/2111	Insofar as they amend the 1986 Rules in relation to CVAs and administration.
The Insolvency (Scotland) Amendment Rules 2006	S.I. 2006/734	The entire S.I. except for rule 13.
The Insolvency (Scotland) Amendment Rules 2008	S.I. 2008/662	The entire S.I.
The Insolvency (Scotland) Amendment Rules 2009	S.I. 2009/662	The entire S.I.
The Insolvency (Scotland) Amendment (No. 2) Rules 2009	S.I. 2009/2375	The entire S.I.
The Insolvency (Scotland) Amendment Rules 2010	S.I. 2010/688	The entire S.I.
The Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012	S.I. 2012/2404	In schedule 3, paragraph4(2)-(4).
The Insolvency (Scotland) Amendment Rules 2014	S.S.I. 2014/114	Insofar as it amends the 1986 Rules in relation to administration.
The Insolvency Amendment (EU 2015/848) Regulations 2017	S.I. 2017/702	Part 5 insofar as it amends the 1986 Rules in relation to CVAs and administration.

SCHEDULE 2 — TRANSITIONAL AND SAVINGS PROVISIONS

General

1

In this Schedule—

“the 1986 Rules” means the Insolvency (Scotland) Rules 1986 as they had effect immediately before the commencement date and a reference to “1986 Rules” followed by a rule number is a reference to a rule in the 1986 Rules; and

“the commencement date” means the date these Rules come into force.

Requirement for office-holder to provide information to creditors on opting out

2

(1) Rule 1.35, which requires an office-holder to provide information to a creditor on the right to elect to opt out under rule 1.34 in the first communication to the creditor, does not apply to—

(a) an administrator; or

(b) a supervisor of a CVA

who has delivered the first communication before the commencement date.

(2) An administrator or supervisor of a CVA may choose to deliver information on the right to opt out in which case the communication to the creditor must contain the information required by rule 1.35.

Electronic communication

3

(1) Rule 1.41(4) does not apply where the relevant proceedings commenced before the commencement date.

(2) In this paragraph relevant proceedings are commenced on—

(a) the delivery of a proposal for a voluntary arrangement to the intended nominee;

(b) the appointment of an administrator under paragraph 14 or 22 of Schedule B1; or

Statement of affairs

4

(1) The provisions of these Rules relating to statements of affairs in an administration do not apply where relevant proceedings were commenced before the commencement date and the 1986 Rules relating to statements of affairs in an administration continue to apply.

(2) In this paragraph relevant proceedings are commenced on—

(a) the appointment of an administrator under paragraph 14 or 22 of Schedule B1; or

(b) the making of an administration order;

Savings in respect of meetings to be held on or after the commencement date and resolutions by correspondence

5

(1) This paragraph applies where on or after the commencement date—

(a) a creditors' meeting is to be held as a result of a notice issued before that date in relation to a meeting for which provision is made by the 1986 Rules or the 1986 Act;

(b) a meeting is to be held as a result of a requisition by a creditor made before that date;

(c) a meeting is to be held as a result of a statement made under paragraph 52(1)(b) of Schedule B1 and a request is made before that date which obliges the administrator to summon an initial creditors' meeting.

(2) Where paragraph (1) applies, Part 5 of these Rules does not apply and the 1986 Rules relating to the following continue to apply—

(a) the requirement to hold the meeting;

(b) notice and advertisement of the meeting;

(d) recording and taking minutes of the meeting;

(e) the report or return of the meeting;

(f) membership and formalities of establishment of creditor's committees where the resolution to form the committee is passed at the meeting;

(g) the office-holder's resignation or removal at the meeting;

(h) the office-holder's release;

(i) fixing the office-holder's remuneration;

(j) hand-over of assets to a supervisor of a voluntary arrangement where the proposal is approved at the meeting;

(k) the notice of appointment of a supervisor of a voluntary arrangement where the appointment is made at the meeting;

(l) claims that remuneration is or that other expenses are excessive; and

(m) complaints about exclusion at the meeting.

(3) Where, before the commencement date, the administrator sought to obtain a resolution by correspondence under 1986 rule 2.28, the 1986 Rules relating to resolutions by correspondence continue to apply and paragraph (2) applies to any meeting that those rules require the office-holder to summon.

Progress reports and statements to the registrar of companies

6

(1) Where an obligation to prepare a progress report arises before the commencement date but has not yet been fulfilled 1986 rule 2.38 continues to apply.

(2) Where, before the commencement date, a conversion notice under paragraph 83 of Schedule B1 was sent to the registrar of companies, 1986 rule 2.47 continues to apply.

Foreign currency

7

Where, before the commencement date, an amount stated in a foreign currency on a statement of claim or evidence of debt (according to the nature of the debt claimed) is converted into sterling by the administrator under 1986 rule 4.17(2), the administrator and any successor to the administrator must continue to use that exchange rate for subsequent conversions of that currency into sterling for the purpose of distributing any assets of the insolvent estate.

CVA moratoria

8

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Applications before the court

9

Where an application to court is lodged or a petition is presented under the Act or under the 1986 Rules before the commencement date and the application or petition has not been determined or withdrawn, the 1986 Rules continue to apply to that application or petition.

Forms

10

A form contained in Schedule 5 to the 1986 Rules may be used on or after the commencement date if—

(a) the form is used to provide a statement of affairs pursuant to paragraph 4 of this Schedule;

(b) the form relates to a meeting held under the 1986 Rules to which paragraph 5 of this Schedule applies;

(c) the form is required because before the commencement date, the administrator sought to obtain the passing of a resolution by correspondence; or

(d) the form relates to any application to the court made, or petition presented, before the commencement date.

Administrations commenced before 15th September 2003

11

The 1986 Rules continue to apply to administrations where the petition for an administration order was presented before 15th September 2003.

Savings in respect of special insolvency rules: limited liability partnerships

12

The 1986 Rules insofar as they apply to insolvency proceedings under the Limited Liability Partnerships Regulations 2001 continue to have effect for the purposes of the application of those Regulations.

SCHEDULE 3 — PUNISHMENT OF OFFENCES UNDER THESE RULES

Rule creating offence	General nature of the offence	Mode of prosecution	Maximum Penalty	Daily default fine (if applicable)
1.51(1)	Falsely claiming to be a person entitled to inspect a document with the intention of gaining sight of it.	1. On indictment	2 years' imprisonment, or a fine, or both.	Not applicable.
1.51(1)	Falsely claiming to be a person entitled to inspect a document with the intention of gaining sight of it.	2. Summary	12 months' imprisonment, or a fine not exceeding the statutory maximum, or both.	Not applicable.
3.55(7)	Former administrator failing to file a notice of automatic end of administration and progress report.	Summary	A fine not exceeding level 3 on the standard scale.	One tenth of level 3 on the standard scale.
3.70(2)	Failure to comply with administrator's duties on vacating office.	Summary	A fine not exceeding level 3 on the standard scale.	One tenth of level 3 on the standard scale.
3.93(3)	Administrator failing to deliver progress reports in accordance with rule 3.93(1).	Summary	A fine not exceeding level 3 on the standard scale	One tenth of level 3 on the standard scale.
3.106(1)	Producing false evidence; failing to report false evidence	1. On indictment	2 years' imprisonment, or a fine, or both.	Not applicable
3.106(1)	Producing false evidence; failing to report false evidence	2. Summary	12 months' imprisonment, or a fine not exceeding the statutory maximum, or both.	Not applicable
3.107(7)	Failing to comply with an order requiring attendance for private examination	Summary	3 months' imprisonment, or a fine not exceeding level 5 on the standard scale, or both.	Not applicable

SCHEDULE 4 — INFORMATION TO BE INCLUDED IN THE SEDERUNT BOOK

PART 1

1

A decision of the Sheriff or the Court of Session under rule 1.56.

PART 3

2

Any statement of affairs delivered to the administrator in accordance with rule 3.29(4) subject to any order of the court made under rule 3.45 that the statement of affairs or a specified part must not be inserted in the sederunt book.

3

Any statement of concurrence delivered to the administrator in accordance with rule 3.31(1).

4

A copy of the notice of the result of the creditors' decision on a proposed revision to the administrator's proposals under rule 3.43.

5

A copy of the certified order delivered to the administrator in accordance with rule 3.49(4).

6

A record of every resolution passed at a creditors' committee meeting as recorded and authenticated in accordance with rule 3.85(3).

7

A copy of every resolution passed under rule 3.86, together with a note that agreement to the resolution of the creditors' committee was obtained.

8

Under rule 3.96:

(a) the accounts submitted for audit;

(b) the scheme of division; and

9

(1) Details of the administrator's decision to accept a claim (whether in whole or in part) under rule 3.108(1) including—

(a) the amount of the claim accepted;

(b) the category of debt, and the value of any security, as decided by the administrator.

(2) Details of the administrator's reasons for rejecting a claim (whether in whole or in part) under rule 3.108(3).

(3) Any decision of the court on an appeal under rule 3.108(5).

10

Details of—

(a) any agreement reached under rule 3.117(2)(b)(i); or

(b) any determination made under rule 3.117(2)(b)(ii).

PART 5

11

A record of a decision procedure made in accordance with rule 5.36(1).

12

A record of a deemed consent procedure made in accordance with rule 5.36(4).

PART 6

13

All proxies used for voting at a meeting, as soon as reasonably practicable after the meeting (where the chair is the office-holder), or as soon as reasonably practicable after their delivery to the office-holder in accordance with rule 6.6(2) (where the chair is not the office-holder).

Signed

Kelly Tolhurst — Parliamentary Under Secretary of State Minister for Small Business, Consumers and Corporate Responsibility — 2018-10-11

Explanatory note

(This note is not part of the Rules)

Footnotes

[^f00001]: 1986 c.45. Section 411 was amended by S.I. 2007/2194, the Banking Act 2009 (c.1), sections 125 and 160 and S.I. 2009/1941. Other amendments have been made to section 411 but these are not relevant to this instrument.

[^f00002]: S.I. 2018/174. Rules 1.33, 1.34 and 7.2 make provision which relates to winding up and which therefore requires the consent of the Scottish Ministers in accordance with Article 5(2) of S.I. 2018/174.

[^f00003]: 2015 c.26 (“the 2015 Act”).

[^f00004]: Schedule A1 was inserted by paragraph 4 of Schedule 1 to the Insolvency Act 2000 (c.39).

[^f00005]: Schedule B1 was inserted by paragraph 1 of Schedule 16 to the Enterprise Act 2002 (c.40).

[^f00006]: 2006 c.46.

[^f00007]: Section 246A was added by S.I. 2010/18 and amended by paragraph 54 of Schedule 9 to the 2015 Act and article 5 of the Public Services Reform (Corporate Insolvency and Bankruptcy) (Scotland) Order 2017 (S.S.I. 2017/209).

[^f00008]: Section 434B was inserted by S.I. 2008/948 and amended by paragraph 57 of Schedule 9 to the 2015 Act.

[^f00009]: Section 246ZF is inserted by section 122 of the 2015 Act.

[^f00010]: Section 436 was relevantly amended by S.I. 2017/702.

[^f00011]: OJ L 141, 5.6.2015 p.19.

[^f00012]: 1892 c.17. See S.I. 1993/769.

[^f00013]: 1972 c.59.

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

[^f00015]: S.I. 2003/2097.

[^f00016]: Paragraph 49 is amended by paragraph 10 of Schedule 9 to the 2015 Act.

[^f00017]: Section 436B(1) provides that a reference in the Act to a thing in writing includes that thing in electronic form; subsection (2) excludes certain sections of the Act from the application of subsection (1). Section 436B was inserted by S.I. 2010/18.

[^f00018]: Section 246C was inserted by section 124(3) of the 2015 Act and section 248A was inserted by section 124(4) of the 2015 Act.

[^f00019]: Section 246B was inserted by S.I. 2010/18.

[^f00020]: S.I. 2005/524.

[^f00021]: Paragraph 6(2) was added by the Insolvency Act 2000 (c.39) and is amended by paragraph 9(2) of Schedule 9 to the 2015 Act.

[^f00022]: “Connected with a company” is defined in section 249.

[^f00023]: There are amendments to sections 242, 244 and 245 but they are not relevant for the purposes of this rule.

[^f00024]: Section 5(2) was amended by paragraph 6 of Schedule 2 and paragraph 1 of Schedule 5 to the Insolvency Act 2000 (c.39) and by paragraph 6 of Schedule 9 to the 2015 Act.

[^f00025]: Section 2(2) was amended by paragraph 3 of Schedule 2 to the Insolvency Act 2000 (c.39) and by paragraph 2 of Schedule 9 to the 2015 Act.

[^f00026]: Section 2(4) was amended by paragraph 20 of Schedule 6 to the Deregulation Act 2015 (c.20).

[^f00027]: Paragraph 6(2) is amended by paragraph 9(2) of Schedule 9 to the 2015 Act.

[^f00028]: Paragraph 7(1)(e) is amended by paragraph 9(3) of Schedule 9 to the 2015 Act.

[^f00029]: Paragraph 8 is amended by paragraph 9(4) and (5) of Schedule 9 to the 2015 Act.

[^f00030]: Sub-paragraphs (2), (3), (4)(a) and (5)(a) of paragraph 36 are amended by paragraph 9(28) and (29) of Schedule 9 to the 2015 Act.

[^f00031]: Paragraph 28(1) is amended by paragraph 20(2)(e)(i) of Schedule 6 to the Deregulation Act 2015 (c.20).

[^f00032]: Paragraph 31(7) is amended by paragraph 9(18) and (19) of Schedule 9 to the 2015 Act.

[^f00033]: Section 246ZE is inserted by section 122 of the 2015 Act.

[^f00034]: Section 4A was added by the Insolvency Act 2000 (c.45), Schedule 2, paragraph 5. Subsections (2), (3), (4)(a) and (6)(a) are relevantly amended by paragraph 5 of Schedule 9 to the 2015 Act.

[^f00035]: Paragraph 36 is amended by paragraph 9(28) and (29) of Schedule 9 to the 2015 Act.

[^f00036]: Section 4(6) is amended by paragraph 4(4) of Schedule 9 to the 2015 Act and section 6A is inserted by paragraph 4(7) of that Schedule.

[^f00037]: Paragraph 30(3) is amended by paragraph 9(12) of Schedule 9 to the 2015 Act and paragraph 30(4) is inserted by paragraph 9(13) of that Schedule.

[^f00038]: Section 6 is amended by paragraph 7 of Schedule 9 to the 2015 Act and paragraph 38(1) to (7) and (9) are amended and (1A) and (4)(c) are inserted by paragraph 9(32) to (42) of that Schedule.

[^f00039]: Relevant amending Acts are paragraph 9 of Schedule 9 to the 2015 Act and paragraph 20 of Schedule 6 to the Deregulation Act 2015 (c.20).

[^f00040]: 1970 c.35 is amended by Schedule 12 and 13 of the Abolition of Feudal Tenure etc. (Scotland) Act 2000, asp 5, Schedule 14 of the Title Conditions (Scotland) Act 2003 asp 9 and Schedule 5 to the Land Registration etc. (Scotland) Act 2012 asp 5.

[^f00041]: 1835 c.62. There are amendments to this Act which are not relevant to this instrument.

[^f00042]: Paragraph 53 and the preceding heading are amended by paragraph 10(8) to (10) of Schedule 9 to the 2015 Act.

[^f00043]: Paragraph 51 and the preceding heading are inserted for Scotland by paragraph 1 of Schedule 16 to the Enterprise Act 2002 (c.40).

[^f00044]: Paragraph 49 is amended by paragraph 10(2) of Schedule 9 to the 2015 Act.

[^f00045]: Paragraph 52(2) is amended by paragraph 10(6) of Schedule 9 to the 2015 Act.

[^f00046]: Paragraph 54 is amended by paragraph 10(11) to (16) of Schedule 9 to the 2015 Act.

[^f00047]: Paragraph 80(4) is amended by paragraph 10(3) of Schedule 9 to the 2015 Act.

[^f00048]: Paragraph 79(2)(c) is amended by paragraph 10(29) of Schedule 9 to the 2015 Act.

[^f00049]: Sub-paragraphs (1)(b) and (2)(b) are amended by section 128(3) and sub-paragraphs (5)(b) and (8)(d) are amended by paragraphs 10(31) and (32) of Schedule 9 to the 2015 Act.

[^f00050]: Paragraph 84(5)(b) is amended by paragraph 10(33) of Schedule 9 to the 2015 Act.

[^f00051]: 2000 c.8.

[^f00052]: Amendments have been made to Schedule 6 which are not relevant to this instrument.

[^f00053]: Section 386 was amended by paragraph 18 of schedule 8 of the Pensions Schemes Act 1993 (c.48), section 13(2) of the Financial Services (Banking Reform) Act 2013 (c.33), S.I. 2003/2093, S.I. 2014/3486 and S.I. 2015/486.

[^f00054]: 2000 c.8. Section 382(1) was amended by paragraph 21(2) of Schedule 9 to the Financial Services Act 2012 (c.21).

[^f00055]: Paragraph 83 is amended by section 128(3) of the 2015 Act.

[^f00056]: Paragraph 53 is amended by paragraph 10(8) to (10) of Schedule 9 to the 2015 Act. Paragraph 54 is amended by paragraph 10(11) to (16) of Schedule 9 to the 2015 Act.

[^f00057]: Paragraph 13A is inserted by section 131 of the 2015 Act.

[^f00058]: Paragraph 18A is inserted by section 132 of the 2015 Act.

[^f00059]: Section 246ZE was added by section 122 of the 2015 Act. Subsection (11) provides that “qualifying decision procedure” means a procedure prescribed or authorised under paragraph 8A of Schedule 8 to the Act.

[^f00060]: Section 246A was inserted by S.I. 2010/18.

[^f00061]: Section 246A(9) is amended by paragraph 54(4) of Schedule 9 to the 2015 Act.

[^f00062]: Section 434B is inserted by S.I. 2008/948. The section heading is amended, and subsection (1)(a) is substituted, by paragraph 57 of Schedule 9 of the Small Business, Enterprise and Employment Act 2015 (c.26).

[^f00063]: 1995 c.7. See section 9B(2) and connected provision in regulation 5(4) of the Electronic Documents (Scotland) Regulations 2014 (S.S.I. 2014/83).

[^f00064]: S.I. 2001/1090.

INTRODUCTORY RULES

Citation and Commencement

1

These Rules may be cited as the Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018 and come into force on 6th April 2019.

Revocations

2

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

Extent and application

3

(1) These Rules extend to Scotland only.

(2) These Rules, as they relate to company voluntary arrangements under Part 1 of the Act and administration under Part 2 of the Act, apply in relation to companies which the courts in Scotland have jurisdiction to wind up.

Transitional and savings provisions

4

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

Punishment of offences

5

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

Review

6

(1) The Secretary of State must from time to time—

(a) carry out a review of the regulatory provision contained in these Rules; and

(b) publish a report setting out the conclusions of the review.

(2) The first report must be published before the end of the period of five years beginning with the day on which these Rules come into force.

(3) Subsequent reports must be published at intervals not exceeding five years.

(4) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this rule must, in particular—

(a) set out the objectives intended to be achieved by the regulatory provision referred to in paragraph (1)(a);

(b) assess the extent to which those objectives are achieved;

(d) if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(5) In this rule, “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).

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

1

(1) These Rules are made to give effect, in Scotland, in relation to moratoriums, company voluntary arrangements and administration, to—

(a) Parts A1, 1 and 2 of the Insolvency Act 1986; and

(b) the EU Regulation.

(2) Consequently, references to insolvency proceedings and requirements relating to such proceedings are, unless the context requires otherwise, limited to insolvency proceedings in respect of Parts A1, 1 and 2 of the Act and the EU Regulation (whether or not court proceedings).

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

1

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

“the Act” means the Insolvency Act 1986, and—a reference to a numbered section without mention of another Act is to that section of the Act; anda reference to Schedule ZA1, ZA2, or B1 is to that Schedule to the Act;

“the Companies Act” means the Companies Act 2006 ;

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

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

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

“attendance” and “attend”— a person attends a meeting by being present, by attending remotely in accordance with section 246A or rule 5.6, or by participating in a virtual meeting; and a person may attend a meeting in person, by proxy or by corporate representative (in accordance with section 434B of the Act or section 323 of the Companies Act, as applicable);

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

“blank proxy” is to be interpreted in accordance with rule 6.3

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

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

“COMI proceedings” means insolvency proceedings in Scotland to which the EU Regulation applies where the centre of the debtor’s main interests is in the United Kingdom;

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

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

“convener” means an office-holder or other person who seeks a decision in accordance with Part 5 of these Rules;

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

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

“debt” as it relates to administration, means any of the following—any debt or liability to which the company is subject at the relevant date;any debt or liability to which the company may become subject after the relevant date by reason of any obligation incurred before that date;any interest provable as mentioned in rule 3.111;and for the purposes of the definition of debt, “relevant date” means—in the case of an administration which was not immediately preceded by a winding up, the date on which the company entered administration; andin the case of an administration which was immediately preceded by a winding up, the date on which the company went into liquidation.

“decision date” and “decision procedure” are to be interpreted in accordance with rule 5.2;

[Note: “deemed consent procedure” is defined in section 246ZF ];

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

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

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

“establishment” has the same meaning as in Article 2(10) of the EU Regulation;

“establishment proceedings” means insolvency proceedings in Scotland to which the EU Regulation applies where the debtor has an establishment in the United Kingdom;

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

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

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

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

[Note: “hire-purchase agreement” is defined in section 436(1); ... for the purposes of that Schedule];

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

“insolvent estate” means the company's assets;

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

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

[Note: “nominee” is defined in section 1(2) in relation to company voluntary arrangements];

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

“official rate” is the rate of interest on a sheriff court decree or extract under section 9 of the Sheriff Courts (Scotland) Extracts Act 1892 (as it may be amended by section 4 of the Administration of Justice (Scotland) Act 1972) ;

“physical meeting” has the meaning given by rule 5.2;

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

“progress report” means a report which complies with rules 3.93 and 3.94;

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

“proxy” and “proxy-holder” are to be interpreted in accordance with rule 6.2;

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

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

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

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

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

“statement of claim” is to be interpreted in accordance with rule 3.105;

“statement of proposals” means a statement made by an administrator under paragraph 49 of Schedule B1 setting out proposals for achieving the purpose of an administration;

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

“virtual meeting” has the meaning given by rule 5.2;

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

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

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

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

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

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

(ii) an employee of the office-holder.

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

1

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

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

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

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

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

are not included.

1

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

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

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

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

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

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

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

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

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

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

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

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

1

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

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

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

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

1

(1) A document in electronic form is authenticated—

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

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

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

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

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

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

1

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

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

Company where it is the subject of the insolvency proceedings	In the case of a registered company—
Company where it is the subject of the insolvency proceedings	athe registered name;bfor a company incorporated in Scotland under the Companies Act or a previous Companies Act, its registered number;cfor a company incorporated outside the United Kingdom—
Company where it is the subject of the insolvency proceedings	ithe country or territory in which it is incorporated,iithe number, if any, under which it is registered, andiiithe number, if any, under which it is registered as an overseas company under Part 34 of the Companies Act.
Company where it is the subject of the insolvency proceedings	In the case of an unregistered company—
Company where it is the subject of the insolvency proceedings	dits name; andethe postal address of any principal place of business.
Company other than one which is the subject of the insolvency proceedings	In the case of a registered company—
Company other than one which is the subject of the insolvency proceedings	fthe registered name;gfor a company incorporated in any part of the United Kingdom under the Companies Act or a previous Companies Act, its registered number;hfor a company incorporated outside the United Kingdom—
Company other than one which is the subject of the insolvency proceedings	ithe country or territory in which it is incorporated;iithe number, if any, under which it is registered; andiiithe number, if any, under which it is registered as an overseas company under Part 34 of the Companies Act;
Company other than one which is the subject of the insolvency proceedings	In the case of an unregistered company—
Company other than one which is the subject of the insolvency proceedings	iits name; andjthe postal address of any principal place of business
Office-holder	kthe name of the office-holder; andlthe nature of the appointment held by the office-holder.
Contact details for an office-holder	ma postal address for the office-holder; andneither an email address, or a telephone number, through which the office-holder may be contacted.
Insolvency proceedings	oinformation identifying the company to which the insolvency proceedings relate;pif the insolvency proceedings are, or are to be, conducted in a court—ithe full name of the court and, if applicable;iiany number assigned to those insolvency proceedings by the court.

1

Where these Rules require reasons to be given for a statement that proceedings are or will be COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply, the reasons must include—

(a) the company's centre of main interests,

(b) the place of the company's registered office within the meaning of Article 3(1) of the EU Regulation and where appropriate an explanation why this is not the same as the centre of main interests, ...

(ba) the place where there is an establishment within the jurisdiction, or

(c) a statement that there is no registered office if that is the case proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply.

1

(1) Where a rule sets out the required contents of a document any title required by the rule must appear at the beginning of the document.

(2) Any other contents required by the rule (or rules where more than one apply to a particular document) must be provided in the order listed in the rule (or rules) or in another order which the maker of the document considers would be more convenient for the intended recipient.

1

Where a rule sets out the required contents of a document, the document may depart from the required contents if—

(a) the circumstances require such a departure (including where the requirement is not applicable in the particular case); or

(b) the departure (whether or not intentional) is immaterial.

[Note: the requirements in Chapter 5 must be read with rule 1.7 which sets out the information required to identify an office-holder, a company etc.]

1

(1) Where, in accordance with the Act or these Rules, a notice is to be gazetted, the notice must contain the standard contents set out in this Chapter (in addition to any content specifically required by the Act or any other provision of these Rules).

(2) Information which this Chapter requires to be included in a Gazette notice may be omitted if it is not reasonably practicable to obtain it.

1

(1) A Gazette notice must identify the insolvency proceedings and, if it is relevant to the particular notice, identify the office-holder and state—

(a) the office-holder's contact details;

(b) the office-holder's IP number;

(d) the date of the office-holder's appointment.

(2) A Gazette notice relating to a registered company must also state—

(a) its registered office;

(b) any principal trading address if this is different from its registered office;

(c) any name under which it was registered in the period of 12 months before the date of the commencement of the insolvency proceedings which are the subject of the Gazette notice; and

(d) any other name or style (not being a registered name)—

(i) under which the company carried on business, and

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

(3) A Gazette notice relating to an unregistered company must also identify the company and specify any name or style—

(a) under which the company carried on business, and

(b) in which any debt owed to a creditor was incurred.

1

(1) Where a notice is gazetted under the Act or these Rules a copy of the Gazette containing the notice is evidence of any facts stated in the notice.

(2) Where the Act or these Rules require an order of the court to be gazetted, a copy of the Gazette containing the notice of the order may be produced in any proceedings as conclusive evidence that the order was made on the date specified in the Gazette notice.

(3) Where an order of the court which is gazetted has been varied, or any matter has been erroneously or inaccurately gazetted, the person whose responsibility it was to gazette the order or other matter must, as soon as reasonably practicable, cause the variation to be gazetted or a further entry to be made in the Gazette for the purpose of correcting the error or inaccuracy.

(4) A Gazette notice, variation or correction is taken to be gazetted or published on the date it first appears in either electronic or hard copy form.

[Note: the requirements in Chapter 6 must be read with rule 1.7 which sets out the information required to identify an office-holder, a company etc.]

1

(1) Where, in accordance with the Act or these Rules, a notice is to be advertised otherwise than in the Gazette, the notice must contain the standard contents set out in this rule (in addition to any content specifically required by the Act or any other provision of these Rules).

(2) A notice relating to a company must also identify the insolvency proceedings and state—

(a) the company's principal trading address;

(b) any name under which the company was registered in the 12 months before the date of the commencement of the insolvency proceedings which are the subject of the notice; and

(i) under which the company carried on business, and

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

(3) A notice must, if it is relevant to the particular notice, identify the office-holder and specify the office-holder's contact details.

(4) Information which this rule requires to be included in a notice may be omitted if it is not reasonably practicable to obtain it.

1

Information which this Chapter requires to be stated in a notice must be so stated in a way that is clear and comprehensible.

[Note: the requirements in Chapter 7 must be read with rule 1.7 which sets out the information required to identify an office-holder, a company etc.]

1

(1) Where the Act or these Rules require a document to be delivered to the registrar of companies the document must contain the standard contents set out in this Chapter (in addition to any content specifically required by the Act or any other provision of these Rules).

(2) A document of more than one type must satisfy the requirements which apply to each.

1

(1) This rule applies where—

(a) the Act or these Rules require an office-holder to deliver any of the documents specified in paragraph (1A) to the registrar of companies, or

(b) the directors are required to deliver a copy of a court order to the registrar of companies in accordance with sections A31(7) or A32(5).

(1A) The documents specified in this paragraph are—

(a) a notice under section A38 bringing a moratorium under Part A1 of the Act to an end;

(b) an account or a summary of receipts and payments;

(d) a statement of administrator’s proposals (including a statement of revised proposals);

(e) a statement of affairs;

(f) a statement of concurrence;

(g) a notice of an administrator’s resignation under paragraph 87(2) of Schedule B1;

(h) any report including—

(i) a final report,

(ii) a progress report (including a final progress report);

(iii) a report of a creditor’s decision under paragraph 53(2) or 54(6) of Schedule B1, and

(iv) a report of a decision approving a CVA under section 4(6) and 6(A) or paragraph 30(3) and (4) of Schedule A1;

(i) a copy of the notice that a CVA has been fully implemented or terminated that the supervisor is required to deliver under rule 2.43(3).

(2) The office-holder or the directors (as the case may be) must deliver to the registrar of companies with a document mentioned in paragraph (1) a notice containing the standard contents required by this Part.

(3) Such a notice may relate to more than one document where those documents relate to the same insolvency proceedings and are delivered together to the registrar of companies.

1

(1) A document to be delivered to the registrar of companies must—

(a) identify the company;

(b) state—

(i) the nature of the document,

(ii) the section (or paragraph) of the Act, or the rule under which the document is delivered,

(iii) the date of the document,

(iv) the name and address of the person delivering the document, and

(v) the capacity in which that person is acting in relation to the company; and

(2) Where the person delivering the document is the office-holder, the address may be omitted if it has previously been notified to the registrar of companies in the insolvency proceedings and is unchanged.

1

(1) A document relating to the office of the office-holder must also identify the office-holder and state—

(a) the date of the event of which notice is delivered or of the notice (as applicable);

(b) where the document relates to—

(i) an appointment (other than an appointment to which sub-paragraph (b)(ii) refers) the person, body or court making the appointment; or

(ii) in the case of an appointment of a person as a monitor in respect of a moratorium for a company to which section A3 applies, the court with which the relevant documents, within the meaning given by section A6, were lodged.

(d) the contact details for the office-holder.

(2) Where the person delivering the document is the office-holder, the address may be omitted if it has previously been notified to the registrar of companies in the insolvency proceedings and is unchanged.

1

A document relating to another document must also state—

(a) the nature of the other document;

(b) the date of the other document; and

1

A document relating to a court order must also specify—

(a) the nature of the order;

(b) the name of the court; and

1

A return or report of a decision procedure, deemed consent procedure or meeting must also state—

(a) the purpose of the procedure or meeting;

(b) a description of the procedure or meeting used;

(d) in the case of a deemed consent procedure, the date the decision was deemed to have been made;

(e) whether, in the case of a meeting, the required quorum was in place; and

(f) the outcome (including any decisions made or resolutions passed).

1

A return or report of a matter, consideration of which has been sought from the members of a company by written resolution, must also state—

(a) the purpose of the consideration; and

(b) the outcome of the consideration (including any resolutions passed).

1

A document relating to any other event must also state—

(a) the nature of the event, including the section (or paragraph) of the Act or the rule in relation to which it took place; and

(b) the date on which the event occurred.

[Note: the requirements in Chapter 8 must be read with rule 1.7 which sets out the information required to identify an office-holder, a company etc.]

1

(1) Where the Act or these Rules require a notice to be delivered to a person other than the registrar of companies in respect of insolvency proceedings under Parts A1, 1 and 2 of the Act or the EU Regulation, the notice must contain the standard contents set out in this Chapter (in addition to any content specifically required by the Act or another provision of these Rules).

(2) A notice of more than one type must satisfy the requirements which apply to each.

(3) The requirements in respect of a document which is to be delivered to another person at the same time as the registrar of companies may be satisfied by delivering to that other person a copy of the document delivered to the registrar.

1

A notice must—

(a) state the nature of the notice;

(b) identify the insolvency proceedings;

(d) in the case of a notice delivered by the office-holder, state the contact details for the office-holder.

1

A notice relating to the office of the office-holder must also identify the office-holder and state—

(a) the date of the event of which notice is delivered;

(b) Where the document relates to—

(i) an appointment (other than an appointment to which sub-paragraph (b)(ii) refers) the person, body or court making the appointment; or

(ii) in the case of an appointment of a person as a monitor in respect of a moratorium for a company to which section A3 applies, the court with which the relevant documents, within the meaning given by section A6, were lodged.

1

A notice relating to a document must also state—

(a) the nature of the document;

(b) the date of the document; and

1

A notice relating to court proceedings must also identify those proceedings and if the notice relates to a court order state—

(a) the nature of the order; and

(b) the date of the order.

1

A notice of the result of a decision procedure, deemed consent procedure or meeting must also state—

(a) the purpose of the procedure or meeting;

(b) a description of the procedure or meeting used;

(d) in the case of a deemed consent procedure, the date the decision was deemed to have been made;

(e) whether, in the case of a meeting, the required quorum was in place; and

(f) the outcome (including any decisions made or resolutions passed).

1

A return or report of a matter, consideration of which has been sought from the members of a company by written resolution, must also specify—

(a) the purpose of the consideration; and

(b) the outcome of the consideration (including any resolutions passed).

Application of Chapter

[Note: the registrar's rules include provision for the electronic delivery of documents.]

1

(1) Subject to paragraph (2) this Chapter applies where a document is required under the Act or these Rules to be delivered, lodged, forwarded, furnished, given, sent, or submitted in respect of insolvency proceedings under Parts 1 and 2 of the Act or the EU Regulation unless the Act, a rule or an order of the court makes different provision.

(2) Rules 1.41 and 1.43 to 1.46 do not apply to—

(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 delivery of a document to the registrar of companies, except in accordance with paragraph 3.

(3) In respect of delivery of a document to the registrar of companies—

(a) subject to sub-paragraph (b) only the following rules in this Chapter apply: rules 1.38 (postal delivery of documents), 1.39 (delivery by document exchange), 1.40 (personal delivery) and 1.47 (proof of delivery of documents);

(b) requirements imposed under section 1068 and rules made under section 1117 of the Companies Act apply to determine the date when any document is received by the registrar of companies.

(4) Where a document is required or permitted to be served at a company's registered office service may be effected at a previous registered office in accordance with section 87(2) of the Companies Act.

(5) In the case of an overseas company service may be effected in any manner provided for by section 1139(2) of the Companies Act.

Delivery to the creditors and opting out

1

(1) Where the Act or a rule requires an office-holder to deliver a document to the creditors, or the creditors in a class, the requirement is satisfied by the delivery of the document to all such creditors of whose address the office-holder is aware other than opted-out creditors unless the opt out does not apply.

(2) Where a creditor has opted out from receiving documents, the opt out does not apply to—

(a) a notice which the Act requires to be delivered to all creditors without expressly excluding opted-out creditors;

(b) a notice of a change in the office-holder or the contact details for the office-holder;

(c) a notice as provided for by section 246C(2) (notices of distributions, intended distributions and notices required to be given by court order); or

(d) a document which these Rules require to accompany a notice within sub-paragraphs (a) to (c).

(3) The office-holder must begin to treat a creditor as an opted-out creditor as soon as reasonably practicable after delivery of the creditor's election to opt out.

(4) An office-holder in any consecutive insolvency proceedings of a different kind under Parts 1, 2, 4 or 5 of the Act in respect of the same company who is aware that a creditor was an opted-out creditor in the earlier insolvency proceedings must treat the creditor as an opted-out creditor in the consecutive insolvency proceedings.

Creditor's election to opt out

1

(A1) This rule does not apply in relation to a moratorium under Part A1 of the Act.

(1) A creditor may at any time elect to be an opted-out creditor.

(2) The creditor's election to opt out must be by a notice in writing authenticated and dated by the creditor.

(3) The creditor must deliver the notice to the office-holder.

(4) A creditor becomes an opted-out creditor when the notice is delivered to the office-holder.

(5) An opted-out creditor—

(a) will remain an opted-out creditor for the duration of the insolvency proceedings unless the opt out is revoked; and

(b) is deemed to be an opted-out creditor in respect of any consecutive insolvency proceedings under Parts 1, 2, 4 or 5 of the Act of a different kind relating to the same company.

(6) The creditor may at any time revoke the election to opt out by a further notice in writing, authenticated and dated by the creditor and delivered to the office-holder.

(7) The creditor ceases to be an opted-out creditor from the date the notice is delivered to the office-holder.

Office-holder to provide information to creditors on opting out

1

(A1) This rule does not apply in relation to a moratorium under Part A1 of the Act.

(1) The office-holder must, in the first communication with a creditor, inform the creditor in writing that the creditor may elect to opt out of receiving further documents relating to the insolvency proceedings.

(2) The communication must contain—

(a) identification and contact details for the office-holder;

(b) a statement that the creditor has the right to elect to opt out of receiving further documents about the insolvency proceedings unless—

(i) the Act requires a document to be delivered to all creditors without expressly excluding opted-out creditors;

(ii) the document is a notice relating to a change in the office-holder or the office-holder's contact details;

(iii) the document is a notice of a dividend or proposed dividend; or

(iv) the document is a notice which the court orders to be sent to all creditors or all creditors of a particular category to which the creditor belongs;

(c) a statement that opting out will not affect the creditor's entitlement to receive dividends should any be paid to creditors;

(d) a statement that unless these Rules provide to the contrary opting out will not affect any right the creditor may have to vote in a decision procedure or to participate in a deemed consent procedure in the insolvency proceedings although the creditor will not receive notice of it;

(e) a statement that a creditor who opts out will be treated as having opted out in respect of any consecutive insolvency proceedings of a different kind in respect of the same company; and

(f) information about how the creditor may elect to be or cease to be an opted-out creditor.

Delivery of documents to authorised recipients

1

Where under the Act or these Rules a document is to be delivered to a person (other than by being served on that person), it may be delivered instead to any other person authorised in writing to accept delivery on behalf of the first-mentioned person.

Delivery of documents to joint office-holders

1

Where there are joint office-holders in insolvency proceedings, delivery of a document to one of them is to be treated as delivery to all of them.

Postal delivery of documents

1

(1) A document is delivered if it is sent by post in accordance with the provisions of this rule.

(2) A document delivered by post may be delivered to the last known address of a person.

(3) First class or second class post may be used to deliver a document.

(4) Unless the contrary is shown—

(a) a document sent by first class post is to be treated as delivered on the second business day after the day on which it is posted;

(b) a document sent by second class post is to be treated as delivered on the fourth business day after the day on which it is posted;

(c) where a post-mark appears on the envelope in which a document was posted, the date of that post-mark is to be treated as the date on which the document was posted.

(5) In this rule “post-mark” means a mark applied by a postal operator which records the date on which a letter entered the postal system of the postal operator.

Delivery by document exchange

1

(1) A document is delivered to a member of a document exchange if it is delivered to that document exchange.

(2) Unless the contrary is shown, a document is to be treated as delivered—

(a) one business day after the day it is delivered to the document exchange where the sender and the intended recipient are members of the same document exchange; or

(b) two business days after the day it is delivered to the departure facility of the sender's document exchange where the sender and the intended recipient are members of different document exchanges.

Personal delivery of documents

1

(1) A document is delivered if it is personally delivered in accordance with this rule.

(2) In the case of an individual, a document is personally delivered if it is left with that individual.

(3) In the case of a legal person, a document is personally delivered if it is left with an individual at the registered office, official address or place of business of that legal person.

Electronic delivery of documents

1

(1) A document is delivered if it is sent by electronic means and the following conditions apply.

(2) The conditions are that the intended recipient of the document has—

(a) given actual or deemed consent for the electronic delivery of the document;

(b) not revoked that consent before the document is sent; and

(3) Consent may relate to a specific case or generally.

(4) For the purposes of paragraph (2)(a) an intended recipient is deemed to have consented to the electronic delivery of a document where the intended recipient and the company who is the subject of the insolvency proceedings had customarily communicated with each other by electronic means before the insolvency proceedings commenced.

(5) Unless the contrary is shown, a document is to be treated as delivered by electronic means to an electronic address where the sender can produce a copy of the electronic communication which—

(a) contains the document; and

(b) shows the time and date the communication was sent and the electronic address to which it was sent.

(6) Unless the contrary is shown, a document sent electronically is treated as delivered to the electronic address to which it is sent at 9.00 a.m. on the next business day after it was sent.

Electronic delivery of documents to the court

1

(1) A document may not be delivered to a court by electronic means unless this is expressly permitted by Rules of Court.

(2) A document delivered by electronic means is to be treated as delivered to the court at the time it is recorded by the court as having been received or otherwise as the Rules of Court provide.

Electronic delivery by office-holders

1

(1) Where an office-holder delivers a document by electronic means, the document must contain, or be accompanied by, a statement that the recipient may request a hard copy of the document and a telephone number, email address and postal address that may be used to make that request.

(2) An office-holder who receives such a request must deliver a hard copy of the document to the recipient free of charge within five business days of receipt of the request.

Use of website by office-holder to deliver a particular document (section 246B )

[Note: rule 3.54(3) allows notice of an extension to an administration to be given on a website and rule 2.25(6) does likewise in respect of notice of the result of the consideration of a proposal for a CVA]

1

(1) This rule applies for the purposes of section 246B.

(2) An office-holder who proposes to satisfy the requirement to deliver a document to any person by making it available on a website in accordance with section 246B(1) must deliver a notice to that person which contains—

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

(b) the website's address and any password necessary to view and download the document; and

(c) a statement that that person may request a hard copy of the document together with a telephone number, email address and postal address which may be used to make that request.

(3) An office-holder who receives such a request must deliver a hard copy of the document to the person who made the request free of charge within five business days of receipt of the request.

(4) A document to which a notice under paragraph (2) relates must—

(a) remain available on the website for the period required by rule 1.46; and

(b) be in a format that enables it to be downloaded within a reasonable time of an electronic request being made for it to be downloaded.

(5) A document which is delivered to a person by means of a website in accordance with this rule is deemed to have been delivered—

(a) when it is first made available on the website; or

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

(6) Section 246B(1) does not apply to a notice delivered under paragraph (2).

(7) In this rule “document” includes any notice or information in any other form.

General use of website to deliver documents

1

(1) The office-holder may deliver a notice to each person to whom a document will be required to be delivered in the insolvency proceedings which contains—

(a) a statement that future documents in the insolvency proceedings other than those mentioned in paragraph (2) will be made available for viewing and downloading on a website without notice to the recipient and that the office-holder will not be obliged to deliver any such documents to the recipient of the notice unless it is requested by that person;

(b) a telephone number, email address and postal address which may be used to make a request for a hard copy of a document;

(i) any document available for viewing on the website,

(ii) any document which may be made available there in the future; and

(d) the address of the website and any password required to view and download a relevant document from that site.

(2) A statement under paragraph (1)(a) does not apply to the following documents—

(a) a document for which personal delivery is required; and

(b) a document which is not delivered generally.

(3) A document is delivered generally if it is delivered to some or all of the following classes of persons—

(a) members,

(b) creditors,

(4) An office-holder who has delivered a notice under paragraph (1) is under no obligation—

(a) to notify a person to whom the notice has been delivered when a document to which the notice applies has been made available on the website; or

(b) to deliver a hard copy of such a document unless a request for a hard copy is received under paragraph (1)(c).

(5) An office-holder who receives a request under paragraph (1)(c)—

(a) in respect of a document which is already available on the website must deliver a hard copy of the document to the recipient free of charge within five business days of receipt of the request; and

(b) in respect of all future documents must deliver each such document in accordance with the requirements for delivery of such a document in the Act and these Rules.

(6) A document to which a statement under paragraph (1)(a) applies must—

(a) remain available on the website for the period required by rule 1.46; and

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

(7) A document which is delivered to a person by means of a website in accordance with this rule, is deemed to have been delivered—

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

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

(8) Paragraph (7) does not apply in respect of a person who has made a request under paragraph (1)(c)(ii) for hard copies of all future documents.

Retention period for documents made available on websites

1

(1) This rule applies to a document which is made available on a website under rules 1.44, 1.45, 2.24(7) and 3.54(3).

(2) Such a document must continue to be made available on the website until two months after the end of the particular insolvency proceedings or the release of the last person to hold office as the office-holder in those insolvency proceedings, whichever is later.

Proof of delivery of documents

1

(1) A certificate complying with this rule is proof that a document has been duly delivered to the recipient in accordance with this Chapter unless the contrary is shown.

(2) A certificate must state the method of delivery and the date of the sending, posting or delivery (as the case may be).

(3) In the case of an office-holder the certificate must be given by—

(a) the office-holder;

(b) the office-holder's solicitor; or

(4) In the case of a person other than an office-holder the certificate must be given by that person and must state—

(a) that the document was delivered by that person; or—

(b) that another person (named in the certificate) was instructed to deliver it.

(5) A certificate under this rule may be endorsed on a copy of the document to which it relates.

Delivery of statements of claim and documentary evidence of debt

1

(1) Once a statement of claim or documentary evidence of debt has been delivered to an office-holder in accordance with these Rules it need not be delivered again.

(2) Accordingly, where these Rules require such delivery by a certain time, that requirement is satisfied if that statement or evidence has already been delivered.

(3) This rule also applies where a creditor in an administration is deemed to have submitted a statement of claim and documentary evidence of a debt in winding up proceedings which immediately preceded the administration.

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