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The Smart Meter Communication Licensee Administration (England and Wales) Rules 2020

Type Statutory-Instrument

Publication 2020-06-19

State In force

Department Queen's Printer of Acts of Parliament

Source legislation.gov.uk

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Made: 19th June 2020

Laid before Parliament: 24th June 2020

Coming into force: 1st August 2020

The Lord Chancellor makes the following Rules in exercise of the powers conferred by section 411 of the Insolvency Act 1986[^f00001] and section 159(3) of the Energy Act 2004[^f00002] as applied by section 4 of the Smart Meters Act 2018[^f00003], with the concurrence of the Secretary of State and, in the case of those rules that affect court procedure, of the Lord Chief Justice, and after consulting the committee existing for that purpose under section 413 of the Insolvency Act 1986[^f00004]:

PART 1 — Introductory provisions

Citation and commencement

1

These Rules may be cited as the Smart Meter Communication Licensee Administration (England and Wales) Rules 2020 and come into force on 1st August 2020.

Construction and interpretation

2

(1) In these Rules—

“the 1986 Act” means the Insolvency Act 1986;

“the 2004 Act” means the Energy Act 2004;

“the 2018 Act” means the Smart Meters Act 2018;

“the appropriate fee” means 15 pence per A4 or A5 page and 30 pence per A3 page;

“authenticated” is to be interpreted in accordance with Rule 169;

“business day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday in any part of Great Britain under or by virtue of the Banking and Financial Dealings Act 1971[^f00005];

“contributory” has the same meaning as in section 79 of the 1986 Act[^f00006];

“CPR” means the Civil Procedure Rules 1998[^f00007];

“deliver” and “delivery” are to be interpreted in accordance with Chapter 1 of Part 14;

“district judge of the High Court” means a district judge sitting in an assigned district registry as a district judge of the High Court under section 100 of the Senior Courts Act 1981[^f00008];

“enforcement agent” means a person authorised by section 63(2) of the Tribunals, Courts and Enforcement Act 2007[^f00009] to act as an enforcement agent;

“enforcement officer” means an individual who is authorised to act as an enforcement officer under the Courts Act 2003[^f00010];

“file with the court” means deliver to the court[^f00011] for filing;

“the Gazette” means the London Gazette;

“gazetted” means advertised once in the London Gazette;

“GEMA” means the Gas and Electricity Markets Authority;

“High Court Judge” means a judge listed in section 4(1) of the Senior Courts Act 1981[^f00012];

“Insolvency and Companies Court Judge” means a person appointed to the office of Insolvency and Companies Court Judge under section 89(1) of the Senior Courts Act 1981[^f00013];

“insolvency proceedings” means any proceedings under the 1986 Act or the Insolvency Rules;

“the Insolvency Rules” means the Insolvency (England and Wales) Rules 2016[^f00014];

“IP number” means the number assigned to a person as an insolvency practitioner by the Secretary of State;

“joint SMCL administrator” means a person appointed to act jointly or concurrently as SMCL administrator of the SMCL;

“practice direction” means a direction as to the practice and procedure of any court within the scope of the CPR;

“prescribed part” has the same meaning as it does in section 176A(2) of the 1986 Act[^f00015];

“pre-smart meter communication licensee administration costs” are— fees charged; and expenses incurred, by the SMCL administrator, or another person qualified to act as an insolvency practitioner, before the SMCL entered SMCL administration but with a view to its doing so;

“proving” and “proof”, in relation to a debt, have the meanings given in Rule 48(2);

“proxy” and “the proxy-holder” are to be interpreted in accordance with Rule 143;

“qualified to act as an insolvency practitioner” has the meaning given by Part 13 of the 1986 Act;

“qualifying floating charge” is to be interpreted in accordance with paragraph 14(2) of Schedule B1 to the 1986 Act[^f00016];

“registrar of companies” means the registrar of companies for England and Wales;

“serve” and “service” are to be interpreted in respect of a particular document by reference to Chapter 3 of Part 14;

“SMCL” means a smart meter communication licensee[^f00017];

“SMCL administration” means administration entered into pursuant to the making of an SMCL administration order;

“SMCL administration order” means a smart meter communication licensee administration order[^f00018];

“SMCL administration proceedings” means any proceedings under sections 156 to 167 of, and Schedules 20 and 21 to, the 2004 Act[^f00019], sections 2 to 10 of the 2018 Act or these Rules;

“SMCL administrator” means a smart meter communication administrator[^f00020];

“solicitor” means a solicitor of the Senior Courts and includes any other person who, for the purpose of the Legal Services Act 2007[^f00021] is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act) or is exempt from such authorisation by virtue of section 19 of and Schedule 3 to that Act;

“statement of proposals” has the meaning given in Rule 21;

“statement of truth” means a statement of truth made in accordance with CPR Part 22[^f00022];

“unpaid pre-smart meter communication licensee administration costs” are pre-smart meter communication licensee administration costs which had not been paid when the SMCL entered SMCL administration;

“venue” in relation to any proceedings, attendance before the court, or meeting means the time, date and place for the proceedings, attendance, or meeting or the time and date for a meeting which is held in accordance with section 246A of the 1986 Act[^f00023] without any place being specified for it;

“witness statement” means a witness statement made in accordance with CPR Part 32[^f00024] and verified by a statement of truth.

(2) If a provision of the 1986 Act referred to in these Rules has been modified by Schedule 20 to the 2004 Act (as applied and modified by the 2018 Act), that reference is to that provision of the 1986 Act as so modified.

(3) References to provisions of the 2004 Act are, where those provisions have been applied and modified by the 2018 Act, references to those provisions as so modified.

(4) In these Rules expressions defined in section 10 of the 2018 Act have the meanings given to them in that section.

(5) Where the SMCL is a non-GB company[^f00025], references in these Rules to the affairs, business and property of the SMCL are references only to its affairs and business so far as carried on in Great Britain and to its property in Great Britain.

(6) Where the SMCL is an unregistered company, any requirement to deliver information to the registrar of companies applies only if the company is subject to a requirement imposed by virtue of section 1043 or 1046(1) of the Companies Act 2006[^f00026].

“Debt”, “liability”

3

(1) “Debt” means (subject to paragraph (2)) any of the following—

(a) any debt or liability to which the SMCL is subject at the date on which it entered SMCL administration;

(b) any debt or liability to which the SMCL may become subject after that date by reason of any obligation incurred before that date;

(2) For the purpose of any provision of the 1986 Act, section 154 to 171 of and Schedule 20 and 21 to the 2004 Act, the 2018 Act, or these Rules, any liability in tort is a debt provable in the SMCL administration if either—

(a) the cause of action has accrued at the date on which the SMCL entered SMCL administration; or

(b) all the elements necessary to establish the cause of action exist at that date except for actionable damage.

(3) For the purposes of references in any provision of the 1986 Act, section 154 to 171 of and Schedules 20 and 21 to the 2004 Act, the 2018 Act or these Rules, to a debt or liability, it is immaterial whether the debt or liability is present or future, whether it is certain or contingent, or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion; and references in any such provision to owing a debt are to be read accordingly.

(4) In any provision of the 1986 Act, section 154 to 171 of and Schedule 20 and 21 to the 2004 Act, or these Rules, except in so far as the context otherwise requires, “liability” means (subject to paragraph (2) above) a liability to pay money or money’s worth, including any liability under an enactment, any liability for breach of trust, any liability in contract, tort or bailment, and any liability arising out of an obligation to make restitution.

Application

4

(1) These Rules apply in relation to an SMCL—

(a) which the courts in England and Wales have jurisdiction to wind up; and

(b) where SMCL administration proceedings are commenced on or after the date on which these Rules come into force.

(2) Nothing contained in the Insolvency Rules applies to SMCL administration proceedings commenced on or after the date on which these Rules come into force.

PART 2 — Appointment of SMCL administrator by court

Form of application

5

(1) An application for an SMCL administration order must—

(a) be headed “Smart meter communication licensee administration application”;

(b) include immediately below the heading, the full name, registered address, registered number and any other trading names of the SMCL; and

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

(3) The application must contain a statement—

(a) of the nominal capital of the SMCL, the number of shares into which the capital is divided and the nominal value of each share;

(b) of the amount of capital paid up or treated as paid up of the SMCL;

(d) that—

(i) the applicant believes, for the reasons set out in the witness statement in support of the application that the SMCL is, or is likely to become, unable to pay its debts; or

(ii) the Secretary of State has certified that it would be appropriate to wind up the SMCL under section 124A of the 1986 Act[^f00027]; and

(e) that the applicant requests the court—

(i) to make an SMCL administration order in relation to the SMCL;

(ii) to appoint the proposed person to be the SMCL administrator; and

(iii) to make such ancillary order as the applicant may request, and such other order as the court thinks appropriate.

(4) The application must be authenticated by the applicant or the applicant’s solicitor and dated.

6

(1) References in this Part to a statement and consent to act are to a statement by a proposed SMCL administrator which complies with the requirements of paragraphs (2) to (4).

(2) The statement must—

(a) be headed “Proposed SMCL administrator’s statement and consent to act”; and

(b) include immediately below the heading, the full name, registered address, registered number and any other trading names of the SMCL.

(3) The statement must contain—

(a) a certificate that the proposed SMCL administrator is qualified to act as an insolvency practitioner in relation to the SMCL;

(b) the proposed SMCL administrator’s IP number;

(c) the name of the relevant recognised professional body which is the source of the proposed SMCL administrator’s authorisation to act in relation to the SMCL;

(d) a statement that the proposed SMCL administrator consents to act as SMCL administrator of the SMCL;

(e) a statement whether or not the proposed SMCL administrator has had any prior professional relationship with the SMCL and, if so, a short summary of that relationship;

(f) the name of the applicant; and

(g) a statement that the proposed SMCL administrator is of the opinion that the objective of the SMCL administration is reasonably likely to be achieved in the particular case.

(4) The statement must be authenticated and dated by the proposed SMCL administrator.

(5) Where a number of persons are proposed to be appointed to act jointly or concurrently as the SMCL administrator each must make a separate statement and consent to act.

Witness statement in support of the application

7

(1) An application for an SMCL administration order must be accompanied by a witness statement which complies with this Rule

(2) The witness statement must state the nature of the authority of the person making it and the means of that person’s knowledge of the matters to which the witness statement relates.

(3) The witness statement must set out—

(a) the financial position of the SMCL, specifying, to the best of the applicant’s knowledge and belief, the SMCL’s assets and liabilities, including contingent and prospective liabilities;

(b) details of any security known or believed to be held by creditors of the SMCL and whether in any case the security is such as to confer power on the holder to appoint an administrative receiver or to appoint an administrator under paragraph 14 of Schedule B1 to the 1986 Act;

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

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

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

(g) details of any application for permission of the court to pass a resolution for the voluntary winding up of the SMCL, so far as within the immediate knowledge of the applicant;

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

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

Filing of application

8

(1) An application for an SMCL administration order must be commenced in the High Court.

(2) The application must be filed with the court together with the witness statement in support and the proposed SMCL administrator’s statement and consent to act.

(3) An application filed with the court in hard copy form must be accompanied by a sufficient number of copies of the application and the witness statement for service in accordance with Rule 9.

(4) The court must fix a venue for the hearing of the application.

(5) Each copy of the application filed with the court must—

(a) have applied to it the seal of the court;

(b) be endorsed with—

(i) the date and time of filing; and

(ii) the venue fixed by the court; and

(6) After the application has been filed and until an order is made, it is the duty of the applicant to file with the court notice of the existence of any insolvency proceedings in relation to the SMCL, as soon as the applicant becomes aware of them.

Service of application

9

(1) In this Rule, references to the application are to a copy of the application delivered by the court under Rule 8(5)(c) and the witness statement required by Rule 7.

(2) Notification for the purposes of section 156(2) of the 2004 Act must be by service of the application.

(3) In addition to those persons referred to in section 156(2) of the 2004 Act, the applicant must serve the application—

(a) on the person proposed as SMCL administrator;

(b) on the SMCL;

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

(e) if there is pending a petition for the winding up of the SMCL, on—

(i) the petitioner; and

(ii) any provisional liquidator;

(f) if a supervisor of a voluntary arrangement under Part 1 of the 1986 Act has been appointed, on that person;

(g) on any creditor who has served notice in accordance with section 164 of the 2004 Act of the creditor’s intention to enforce the creditor’s security over property of the SMCL;

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

(i) if the applicant is GEMA, on the Secretary of State.

(4) A certificate of service which complies with the requirements in Rule 174 must be filed with the court as soon as reasonably practicable after service, and in any event no later than the business day before the hearing of the application.

Notice to officers charged with distress or other legal process

10

The applicant must as soon as reasonably practicable after filing the application deliver a notice of it being made to—

(a) any enforcement officer, enforcement agent or other officer who to the applicant’s knowledge is charged with distress or other legal process against the SMCL or its property; and

(b) any person who to the applicant’s knowledge has distrained against the SMCL or its property.

The hearing

11

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

(a) the person proposed for appointment as SMCL administrator;

(b) the SMCL;

(d) GEMA;

(e) one or more of the directors of the SMCL;

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

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

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

(i) any person who has presented a petition for the winding up of the SMCL;

(j) any supervisor of a voluntary arrangement under Part 1 of the 1986 Act;

(k) any creditor who has served notice in accordance with section 164 of the 2004 Act of the creditor’s intention to enforce the creditor’s security over property of the SMCL;

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

(2) Where the court makes an SMCL administration order the order must—

(a) be headed “SMCL administration order”;

(b) include immediately below the heading—

(i) the full name, registered address, registered number and any other trading names of the SMCL; and

(ii) details of the court where the proceedings are and the relevant court reference number; and

(3) The matters are—

(a) the name and title of the judge making the order;

(b) the address for service of the applicant;

(d) an order that during the period the order is in force the affairs, business and property of the SMCL are to be managed by the SMCL administrator;

(e) the name of the person appointed as SMCL administrator;

(f) an order that that person is appointed as SMCL administrator of the SMCL;

(g) the date of the order (and if the court so orders, the time); and

(h) such other provisions if any as the court thinks just.

(4) Where two or more SMCL administrators are appointed the order must also specify—

(a) which functions (if any) are to be exercised by those persons acting jointly; and

(b) which functions (if any) are to be exercised by any or all of those persons.

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

Notice of SMCL administration order

12

(1) If the court makes an SMCL administration order, it must as soon as reasonably practicable deliver two sealed copies of the order to the person who made the application.

(2) The applicant must deliver a sealed copy of the order as soon as reasonably practicable to the person appointed as SMCL administrator.

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

PART 3 — Process of SMCL administration

Notification and advertisement of SMCL administrator’s appointment

13

(1) The SMCL administrator must, as soon as reasonably practicable after the date of the SMCL administration order, deliver a notice of the appointment—

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

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

(c) to any holder of a qualifying floating charge who, to the SMCL administrator’s knowledge, has served notice in accordance with section 163 of the 2004 Act[^f00028] that the person is seeking to appoint an administrator;

(d) if a receiver or an administrative receiver has been appointed, to that person;

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

(f) if there is pending a petition for the winding up of the SMCL, to the petitioner and also to the provisional liquidator (if any);

(g) to any supervisor of a voluntary arrangement under Part 1 of the 1986 Act;

(h) to any creditor who, to the SMCL administrator’s knowledge, has served notice in accordance with section 164 of the 2004 Act of that person’s intention to enforce that person’s security over property of the SMCL;

(i) to any enforcement officer, enforcement agent or other officer who, to the SMCL administrator’s knowledge, is charged with distress or other legal process against the SMCL or its property; and

(j) to any person who, to the SMCL administrator’s knowledge, has distrained against the SMCL or its property.

(2) The notice of appointment must state—

(a) that an SMCL administrator has been appointed; and

(b) the date of the appointment.

(3) The SMCL administrator—

(a) must, as soon as reasonably practicable after the date of the SMCL administration order, have gazetted the notice of appointment; and

(b) may advertise the notice of appointment in such other manner as the SMCL administrator thinks fit.

(4) Where, under a provision of Schedule B1 to the 1986 Act or these Rules, the SMCL administrator is required to deliver a notice of the appointment to any person, the notice must—

(a) be headed “Notice of SMCL administrator’s appointment”;

(b) include immediately below the heading—

(i) the full name, registered address, registered number and any other trading names of the SMCL; and

(ii) details of the court where the proceedings are and the relevant court reference number;

(d) state that the person mentioned in sub-paragraph (c) has been appointed as SMCL administrator of the SMCL.

(5) The notice must be authenticated and dated by the SMCL administrator.

Notice requiring statement of affairs

14

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

(2) A requirement under paragraph 47(1) of Schedule B1 to the 1986 Act for one or more relevant persons to provide the SMCL administrator with a statement of the affairs of the SMCL must be made by a notice delivered to such persons (and each person to whom such a notice is delivered is referred to in this Part as a “nominated person”).

(3) The notice must—

(a) be headed “Notice requiring statement of affairs”;

(b) include immediately below the heading—

(i) the full name, registered address, registered number and any other trading names of the SMCL; and

(ii) details of the court where the proceedings are and the relevant court reference number;

(c) require each nominated person to prepare and submit to the SMCL administrator a statement of the affairs of the SMCL; and

(d) inform each nominated person of—

(i) the names and addresses of all others (if any) to whom the same notice has been delivered;

(ii) the requirement to deliver the statement of affairs to the SMCL administrator no later than 11 days after receipt of the notice; and

(iii) the effect of paragraph 48(4) of Schedule B1 to the 1986 Act (offence of non-compliance) and section 235 of the 1986 Act[^f00029] (duty to co-operate with the SMCL administrator).

(4) The SMCL administrator must inform each nominated person that a document for the preparation of the statement of affairs capable of completion in compliance with Rule 15 will be supplied if requested.

(5) The nominated person (or one of them, if more than one) must deliver the statement of affairs to the SMCL administrator with the statement of truth required by paragraph 47(2)(a) of Schedule B1 to the 1986 Act and a copy of each statement.

Statement of affairs: content

15

(1) The statement of affairs must—

(a) be headed “Statement of affairs”;

(b) include immediately below the heading—

(i) the full name, registered address, registered number and any other trading names of the SMCL; and

(ii) details of the court where the proceedings are and the relevant court reference number; and

(c) state that it is a statement of the affairs of the SMCL on a specified date, being the date on which it entered SMCL administration.

(2) The statement of affairs must contain (in addition to the matters required by paragraph 47(2) of Schedule B1 to the 1986 Act)—

(a) a summary of the assets of the SMCL, setting out the book value and the estimated realisable value of—

(i) any assets subject to a fixed charge;

(ii) any assets subject to a floating charge;

(iii) any uncharged assets; and

(iv) the total value of all the assets available for preferential creditors;

(b) a summary of the liabilities of the SMCL, setting out—

(i) the amount of preferential debts;

(ii) an estimate of the deficiency with respect to preferential debts or the surplus available after paying the preferential debts;

(iii) an estimate of the prescribed part if applicable;

(iv) the amount of debt secured by floating charges;

(v) an estimate of the total assets available to pay debts secured by floating charges;

(vi) an estimate of the deficiency with respect to debts secured by floating charges or the surplus available after paying the debts secured by fixed or floating charges;

(vii) the amount of unsecured debts (excluding preferential debts);

(viii) an estimate of the deficiency with respect to unsecured debts or the surplus available after paying unsecured debts;

(ix) any issued and called-up capital; and

(x) an estimate of the deficiency with respect to, or surplus available to, members of the SMCL;

(i) any creditors under hire-purchase, chattel leasing or conditional sales agreements; and

(ii) any creditors claiming retention of title over property in the SMCL’s possession; and

(d) the name and address of each member of the SMCL and the number, nominal value and other details of the shares held by each member.

(3) The list of creditors required by paragraph 47(2) of Schedule B1 to the 1986 Act and paragraph (2)(c) of this Rule must contain the following particulars except where paragraphs (4) and (5) apply—

(a) the name and postal address of the creditor;

(b) the amount of the debt owed to the creditor;

(d) the date on which any such security was given; and

(e) the value of any such security.

(4) This paragraph applies where the particulars required by paragraph (3) relate to creditors who are either—

(a) employees or former employees of the SMCL; or

(b) consumers claiming amounts paid in advance for the supply of goods or services.

(5) Where paragraph (4) applies—

(a) the statement of affairs itself must state separately for each of paragraphs (4)(a) and (b) the number of such creditors and the total of the debts owed to them; and

(b) the particulars required by paragraph (3) must be set out in separate schedules to the statement of affairs for each of paragraphs (4)(a) and (b).

Statement of concurrence

16

(1) The SMCL administrator may require a relevant person to deliver to the SMCL administrator a statement of concurrence.

(2) A statement of concurrence is a statement, verified by a statement of truth, that that person concurs in the statement of affairs submitted by a nominated person.

(3) The SMCL administrator must inform the nominated person that the relevant person mentioned in paragraph (1) has been required to deliver a statement of concurrence.

(4) The nominated person must deliver a copy of the statement of affairs to every relevant person who has been required to submit a statement of concurrence.

(5) The relevant person must deliver the required statement of concurrence together with a copy to the SMCL administrator before the end of the period of five business days (or such other period as the SMCL administrator may agree) beginning with the day on which the relevant person receives the statement of affairs.

(6) A statement of concurrence must—

(a) be headed “Statement of concurrence”; and

(b) include immediately below the heading—

(i) the full name, registered address, registered number and any other trading names of the SMCL; and

(ii) details of the court where the proceedings are and the relevant court reference number.

(7) A statement of concurrence may be qualified in relation to matters dealt with in the statement of affairs where the person making the statement of concurrence—

(a) is not in agreement with the statement of affairs;

(b) considers the statement of affairs to be erroneous or misleading; or

Filing of statement of affairs etc.

17

(1) Subject to Rule 18, the SMCL administrator must as soon as reasonably practicable deliver to the registrar of companies a copy of the statement of affairs and any statement of concurrence.

(2) However, the SMCL administrator must not deliver to the registrar of companies with the statement of affairs any schedule required by Rule 15(5)(b).

Limited disclosure

18

(1) If the SMCL administrator thinks that it would prejudice the conduct of the SMCL administration or might reasonably be expected to lead to violence against any person for the whole or part of the statement of affairs or a statement of concurrence to be disclosed, the SMCL administrator may apply to the court for an order in relation to the particular statement, or a specified part of it.

(2) The court may, on such application, order that the whole of, or a specified part of, a statement referred to in paragraph (1) must not be delivered to the registrar of companies.

(3) The SMCL administrator must as soon as reasonably practicable deliver to the registrar of companies—

(a) a copy of the order; and

(b) the statement of affairs and any statement of concurrence to the extent provided by the order.

(4) A creditor may apply to the court for an order that the SMCL administrator disclose any statement or a specified part of it in relation to which an order has been made under paragraph (2).

(5) The application under paragraph (4) must be supported by a witness statement.

(6) The applicant must deliver to the SMCL administrator notice of the application under paragraph (4) at least three business days before the hearing.

(7) The court may, on an application under paragraph (4), make any order for disclosure subject to any conditions as to confidentiality, duration, the scope of the order in the event of any change of circumstances, or other matters as it thinks just.

(8) If there is a material change in circumstances rendering an order under paragraph (2) wholly or partially unnecessary, the SMCL administrator must, as soon as reasonably practicable after the change, apply to the court for the order or any part of it to be rescinded or amended.

(9) The SMCL administrator must, as soon as reasonably practicable after the making of an order under paragraph (8), deliver to the registrar of companies a copy of the statement of affairs and any statement of concurrence to the extent provided by the order.

(10) If, after the SMCL administrator has sent a statement of proposals under paragraph 49 of Schedule B1 to the 1986 Act[^f00030], a statement of affairs is delivered to the registrar of companies in accordance with paragraph (9), the SMCL administrator must deliver to the creditors a copy or summary of the statement of affairs as delivered to the registrar of companies.

(11) The provisions of CPR Part 31 do not apply to any application under this Rule.

Release from duty to submit statement of affairs; extension of time

19

(1) The power of the SMCL administrator under paragraph 48(2) of Schedule B1 to the 1986 Act to revoke a requirement to provide a statement of affairs or to extend the period within which it must be submitted may be exercised at the SMCL administrator’s own discretion or at the request of a nominated person.

(2) The nominated person may apply to the court if the SMCL administrator refuses that person’s request for a revocation or extension.

(3) The court may, if it thinks that no sufficient cause is shown for the application, dismiss it without giving notice to any party other than the applicant.

(4) If the application is not dismissed, the court must fix a venue for it to be heard, and give notice to the applicant accordingly.

(5) The applicant must, at least 14 days before the hearing, deliver to the SMCL administrator a notice stating the venue with a copy of the application and of any evidence on which the applicant intends to rely.

(6) The SMCL administrator may appear and be heard on the application and, whether or not the SMCL administrator appears, the SMCL administrator may file a report of any matters which the SMCL administrator considers ought to be drawn to the court’s attention.

(7) If such a report is filed, the SMCL administrator must deliver a copy of it to the applicant not less than five business days before the date fixed for the hearing.

(8) Sealed copies of any order made on the application must be delivered by the court to the applicant and the SMCL administrator.

(9) On an application under this Rule, the applicant’s costs must be paid by the applicant in any event, but the court may order that an allowance of all or part of them may be payable as an expense of the SMCL administration.

Expenses of statement of affairs

20

(1) The expenses of a nominated person which the SMCL administrator considers to have been reasonably incurred in making a statement of affairs or of a relevant person in making a statement of concurrence must be paid by the SMCL administrator as an expense of the SMCL administration.

(2) A decision by the SMCL administrator that expenses were not reasonably incurred (and are therefore not payable as an expense of the SMCL administration) may be appealed by way of an application to the court.

(3) Nothing in this Rule relieves a relevant person of any obligation with respect to the making and delivery of a statement of affairs or statement of concurrence.

SMCL administrator’s proposals

21

(1) This Rule applies to the statement the SMCL administrator is required to make under paragraph 49 of Schedule B1 to the 1986 Act (“the statement of proposals”).

(2) The statement of proposals must include (in addition to those matters set out in paragraph 49 of Schedule B1 to the 1986 Act)—

(a) details of the court where the proceedings are and the relevant court reference number;

(b) the full name, registered address, registered number and any other trading names of the SMCL;

(c) details relating to the SMCL administrator’s appointment, including the date of appointment and whether the application was made by the Secretary of State or GEMA and, where there are joint SMCL administrators, details of the matters set out in section 158(5) of the 2004 Act;

(d) the names of the directors and secretary of the SMCL and details of any shareholdings in the SMCL they may have;

(e) an account of the circumstances giving rise to the appointment of the SMCL administrator;

(f) if a statement of affairs has been submitted—

(i) a copy or summary of it, except so far as an order under Rule 18 limits disclosure of it, and excluding any schedule referred to in Rule 15(5)(b), or the particulars relating to individual creditors contained in any such schedule,

(ii) details of who provided the statement of affairs, and

(iii) any comments which the SMCL administrator may have upon the statement of affairs;

(g) if an order under Rule 18 (limited disclosure) has been made—

(i) a statement of that fact, and

(ii) the date of the order;

(h) if no statement of affairs has been submitted—

(i) details of the financial position of the SMCL at the latest practicable date (which must, unless the court orders otherwise, be a date not earlier than that on which the SMCL entered SMCL administration), and

(ii) an explanation as to why there is no statement of affairs;

(i) a full list of the company’s creditors in accordance with paragraph (3) if either—

(i) no statement of affairs has been submitted, or

(ii) a statement of affairs has been submitted but it does not include such a list, or the SMCL administrator believes the list included is less than full;

(j) except where the SMCL administrator proposes a voluntary arrangement in relation to the SMCL and subject to paragraph (6)—

(i) to the best of the SMCL administrator’s knowledge and belief—

(aa) an estimate of the value of the prescribed part (whether or not the SMCL administrator proposes to make an application to court under section 176A(5) of the 1986 Act or section 176A(3) of the 1986 Act applies); and

(bb) an estimate of the value of the SMCL’s net property; and

(ii) a statement whether the SMCL administrator proposes to make an application to the court under section 176A(5) of the 1986 Act and if so the reason for the application;

(k) a statement of any pre-smart meter communication licensee administration costs charged or incurred by the SMCL administrator or, to the SMCL administrator’s knowledge, by any other person qualified to act as an insolvency practitioner;

(l) a statement of how it is envisaged the objective of the SMCL administration will be achieved and how it is proposed that the SMCL administration will end;

(m) the manner in which the affairs and business of the SMCL—

(i) have, since the date of the SMCL administrator’s appointment, been managed and financed, including where any assets have been disposed of, the reasons for such disposals and the terms upon which such disposals were made; and

(ii) will continue to be managed and financed; and

(n) such other information (if any) as the SMCL administrator thinks necessary.

(3) The list of creditors required by paragraph (2)(i) must contain the following particulars except where paragraphs (4) and (5) apply—

(a) the name and postal address of the creditor;

(b) the amount of the debt owed to the creditor;

(d) the date on which any such security was given; and

(e) the value of any such security.

(4) This paragraph applies where the particulars required by paragraph (3) relate to creditors who are either—

(a) employees or former employees of the SMCL; or

(b) consumers claiming amounts paid in advance for the supply of goods or services.

(5) Where paragraph (4) applies—

(a) the list of creditors required by paragraph (2)(i) must state separately for each of paragraphs (4)(a) and (b) the number of such creditors and the total of the debts owed to them;

(b) the particulars required by paragraph (3) must be set out in separate schedules to the list of creditors for each of paragraphs (4)(a) and (b); and

(c) the SMCL administrator must not deliver any such schedule to the registrar of companies with the statement of proposals.

(6) The SMCL administrator may exclude from an estimate under paragraph (2)(j) information the disclosure of which could seriously prejudice the commercial interests of the company, and if such information is excluded from the calculation the estimate must be accompanied by a statement to that effect.

(7) This paragraph applies where it is proposed that the SMCL administration will end by the SMCL moving to a creditors’ voluntary liquidation; and in that case, the statement required by paragraph (2)(l) must include—

(a) details of the proposed liquidator;

(b) where applicable, the declaration required by section 231 of the 1986 Act[^f00031]; and

(c) a statement that the creditors may nominate a different person as liquidator in accordance with paragraph 83(7)(a) of Schedule B1 to the 1986 Act[^f00032] and Rule 93(4).

Statement of pre-smart meter communication licensee administration costs

22

A statement of pre-smart meter communication licensee administration costs under Rule 21(2)(k) must include—

(a) details of any agreement under which the fees were charged and expenses incurred, including the parties to the agreement and the date on which the agreement was made;

(b) details of the work done for which the fees were charged and expenses incurred;

(c) an explanation of why the work was done before the SMCL entered SMCL administration and how it had been intended to further the achievement of the objective of the SMCL administration;

(d) a statement of the amount of the pre-smart meter communication licensee administration costs, setting out separately—

(i) the fees charged by the SMCL administrator;

(ii) the expenses incurred by the SMCL administrator;

(iii) the fees charged (to the SMCL administrator’s knowledge) by any other person qualified to act as an insolvency practitioner (and, if more than one, by each separately); and

(iv) the expenses incurred (to the SMCL administrator’s knowledge) by any other person qualified to act as an insolvency practitioner (and, if more than one, by each separately);

(e) a statement of the amounts of pre-smart meter communication licensee administration costs which have already been paid, set out separately as under sub-paragraph (d);

(f) the identity of the person who made the payment or, if more than one person made the payment, the identity of each such person and of the amounts paid by each such person, set out separately as under sub-paragraph (d);

(g) a statement of the amounts of unpaid pre-smart meter communication licensee administration costs, set out separately as under paragraph (d); and

(h) a statement that the payment of unpaid pre-smart meter communication licensee administration costs as an expense of the SMCL administration is subject to approval under Rule 47.

Ancillary provisions about delivery of SMCL administrator’s proposals

23

(1) Where the court orders, on an application by the SMCL administrator under paragraph 107 of Schedule B1 to the 1986 Act, an extension of the period in paragraph 49(5) of Schedule B1 to the 1986 Act for delivering copies of the statement of proposals, the SMCL administrator must as soon as reasonably practicable after the making of the order—

(a) deliver a notice of the extension to every creditor of the SMCL and every member of the SMCL of whose address (in either case) the SMCL administrator is aware; and

(b) deliver a copy of the notice of the extension to the registrar of companies.

(2) The notice mentioned in paragraph (1) must—

(a) be headed “Notice of extension of time period”;

(b) include immediately below the heading—

(i) details of the court where the proceedings are and the relevant court reference number; and

(ii) the full name, registered address, registered number and any other trading names of the SMCL; and

(3) Where the SMCL administrator wishes to publish a notice under paragraph 49(6) of Schedule B1 to the 1986 Act, the notice must—

(a) be advertised in such manner as the SMCL administrator thinks fit; and

(b) be published as soon as reasonably practicable after the SMCL administrator has delivered the statement of proposals to the SMCL’s creditors but no later than 8 weeks (or such other period as may be agreed by the creditors or as the court may order) from the date on which the SMCL entered SMCL administration.

Limited disclosure of SMCL administrator’s statement of proposals

24

(1) If the SMCL administrator thinks that it would prejudice the conduct of the SMCL administration or might reasonably be expected to lead to violence against any person for any of the matters specified in Rule 21(2)(h) and (i) to be disclosed, the SMCL administrator may apply to the court for an order in relation to any specified part of the statement of proposals.

(2) The court may, on such application, order that some or all of the specified part of the statement must not be delivered to the registrar of companies or to creditors or members of the SMCL as otherwise required by paragraph 49(4) of Schedule B1 to the 1986 Act.

(3) The SMCL administrator must as soon as reasonably practicable deliver to the persons specified in paragraph 49(4) of Schedule B1 to the 1986 Act the statement of proposals (to the extent provided by the order) and an indication of the nature of the matter in relation to which the order was made.

(4) The SMCL administrator must also deliver a copy of the order to the registrar of companies.

(5) A creditor may apply to the court for an order that the SMCL administrator disclose any part of a statement of proposals in relation to which an order has been made under paragraph (2).

(6) The application under paragraph (5) must be supported by a witness statement.

(7) The applicant must deliver to the SMCL administrator notice of the application under paragraph (5) at least three business days before the hearing.

(8) The court may, on an application under paragraph (5), make any order for disclosure subject to any conditions as to confidentiality, duration, the scope of the order in the event of any change of circumstances, or other matters as it thinks just.

(9) If there is a material change in circumstances rendering an order under paragraph (2) wholly or partially unnecessary, the SMCL administrator must, as soon as reasonably practicable after the change, apply to the court for the order or any part of it to be rescinded or amended.

(10) The SMCL administrator must, as soon as reasonably practicable after the making of an order under paragraph (9), deliver to the persons specified in paragraph 49(4) of Schedule B1 to the 1986 Act a copy of the statement of proposals to the extent provided by the order and an indication of the nature of the matter in relation to which the order was made.

(11) The provisions of CPR Part 31 do not apply to any application under this Rule.

Revision of the SMCL administrator’s proposals

25

(1) Where paragraph 54(2) of Schedule B1 to the 1986 Act applies, the SMCL administrator must, as soon as reasonably practicable, make a statement setting out the revisions to the SMCL administrator’s proposals and send it to all those to whom the SMCL administrator is required to send a copy of the revised proposals.

(2) The statement of revised proposals must—

(a) be headed “Statement of SMCL administrator’s revised proposals”; and

(b) include immediately below the heading—

(i) the full name, registered address, registered number and any other trading names of the SMCL; and

(ii) details of the court where the proceedings are and the relevant court reference number.

(3) The statement of revised proposals must include—

(a) details relating to the SMCL administrator’s appointment, including the date of appointment and whether the SMCL administration application was made by the Secretary of State or GEMA;

(b) the names of the directors and secretary of the SMCL and details of any shareholdings in the SMCL they may have;

(d) details of the revision including details of the SMCL administrator’s assessment of the likely impact of the revision upon creditors generally or upon each class of creditors;

(e) where the revision relates to the ending of the SMCL administration by a creditors’ voluntary liquidation and the nomination of a person to be the proposed liquidator of the SMCL—

(i) details of the proposed liquidator;

(ii) where applicable, the declaration required by section 231 of the 1986 Act; and

(iii) a statement that the creditors may nominate a different person as liquidator in accordance with paragraph 83(7)(a) of Schedule B1 to the 1986 Act and Rule 93(4); and

(f) any other information that the SMCL administrator thinks necessary.

(4) Subject to paragraph 54(4) of Schedule B1 to the 1986 Act, within five business days of sending out the statement in paragraph (1) above to the creditors, the SMCL administrator must send a copy of the statement to every member of the SMCL.

(5) A notice under paragraph 54(4) of Schedule B1 to the 1986 Act must—

(a) be advertised in such manner as the SMCL administrator thinks fit as soon as reasonably practicable after the SMCL administrator has sent the statement to the creditors; and

(b) state—

(i) that members may request in writing a copy of the statement of revised proposals; and

(ii) the address to which to write.

Reports

26

(1) The SMCL administrator must prepare a report (the “progress report”).

(2) The progress report must—

(a) be headed “SMCL administrator’s progress report”; and

(b) include immediately below the heading—

(i) the full name, registered address, registered number and any other trading names of the SMCL; and

(ii) details of the court where the proceedings are and the relevant court reference number.

(3) The progress report must include—

(a) full details of the SMCL administrator’s name and address, date of appointment and any changes in SMCL administrator;

(b) the name and address of the applicant for the SMCL administration application;

(d) details of progress during the period of the report, including a receipts and payments account (as detailed in paragraph (4));

(e) details of any assets that remain to be realised; and

(f) any other relevant information for the creditors.

(4) A receipts and payments account must—

(a) state what assets of the SMCL have been realised, for what value, and what payments have been made to creditors or others;

(b) be in the form of an abstract showing receipts and payments during the period of the report; and

(c) where the SMCL administrator has ceased to act, include a statement as to the amount paid to unsecured creditors by virtue of the application of section 176A of the 1986 Act (prescribed part).

(5) The progress report must cover the periods of—

(a) six months starting on the date on which the SMCL entered SMCL administration; and

(b) each subsequent period of six months.

(6) The periods for which progress reports are required under paragraph (5) are unaffected by any change in the SMCL administrator.

(7) The SMCL administrator must send a copy of the progress report within one month of the end of the period covered by the report, to—

(a) the registrar of companies;

(b) the Secretary of State;

(d) the creditors; and

(e) the court,

but this paragraph does not apply when the report is a final progress report within the meaning of Part 9.

(8) The court may, on the SMCL administrator’s application, extend the period of one month mentioned in paragraph (7) above, or make such other order in respect of the content of the report as it thinks fit.

(9) It is an offence for the SMCL administrator to fail to comply with this Rule.

PART 4 — Meetings

CHAPTER 1 — Creditors’ meetings

Creditors’ meetings generally

27

(1) This Rule applies to creditors’ meetings summoned by the SMCL administrator under paragraph 62 of Schedule B1 to the 1986 Act[^f00033].

(2) Subject to paragraphs (7), (8) and (10), where the SMCL administrator summons a meeting of creditors the SMCL administrator must deliver at least 14 days’ notice of the meeting to all creditors who are known to the SMCL administrator and had claims against the SMCL at the date when the SMCL entered SMCL administration unless that creditor has subsequently been paid in full.

(3) The notice must—

(a) be headed “Notice of a meeting of creditors”;

(b) include immediately below the heading—

(i) the full name, registered address, registered number and any other trading names of the SMCL; and

(ii) details of the court where the proceedings are and the relevant court reference number; and

(4) In fixing the venue for the meeting, the SMCL administrator must have regard to the convenience of creditors and the meeting must be summoned for commencement between 10.00 am and 4.00 pm on a business day, unless the court otherwise directs.

(5) The notice must also—

(a) specify the purpose of the meeting;

(b) contain a statement of the effect of Rule 31 (entitlement to vote); and

(6) As soon as reasonably practicable after notice of the meeting has been given, the SMCL administrator must have gazetted a notice which must—

(a) state—

(i) that a creditors’ meeting is to take place;

(ii) the venue fixed for the meeting; and

(iii) the purpose of the meeting; and

(b) contain a statement of the effect of Rule 31 (entitlement to vote).

(7) If within 30 minutes from the time fixed for the commencement of the meeting there is no person present to act as chair, the meeting stands adjourned to the same time and place in the following week or, if that is not a business day, the business day immediately following.

(8) If within 30 minutes from the time fixed for the commencement of the meeting those persons attending the meeting do not constitute a quorum, the chair may adjourn the meeting to such time and place as the chair may appoint.

(9) Once only in the course of the meeting the chair may, without an adjournment, declare the meeting suspended for a period up to one hour.

(10) The chair may, and must if the meeting so resolves, adjourn the meeting to such time and place as seems to the chair to be appropriate in the circumstances.

(11) An adjournment under paragraph (10) must not be for a period of more than 14 days, subject to any direction of the court.

(12) If there are subsequently further adjournments, the final adjournment must not be to a day later than 14 days after the date on which the meeting was originally held, subject to any direction of the court.

(13) Where a meeting is adjourned under this Rule, proofs and proxies may be used if lodged at any time up to midday on the business day immediately before resumption of the adjourned meeting.

(14) Paragraph (4) applies to the venue fixed for a meeting adjourned under this Rule.

Quorum at meeting of creditors

28

(1) Any meeting of creditors in SMCL administration proceedings is competent to act if a quorum is present.

(2) A quorum is at least one creditor who is—

(a) entitled to vote; and

(b) present or represented by proxy by any person (including the chair).

(3) Where at any meeting of creditors—

(a) the provisions of this Rule as to a quorum being present are satisfied by the attendance of—

(i) the chair alone; or

(ii) one other person in addition to the chair; and

(b) the chair is aware, by virtue of proofs and proxies received or otherwise, that one or more additional persons would, if attending, be entitled to vote,

the meeting must not commence until at least the expiry of 15 minutes after the time appointed for its commencement.

The chair at meetings

29

(1) At any meeting of creditors summoned by the SMCL administrator, either the SMCL administrator must be chair, or a person nominated by the SMCL administrator in writing to act in the SMCL administrator’s place.

(2) A person so nominated must be either—

(a) one who is qualified to act as an insolvency practitioner in relation to the SMCL; or

(b) an employee of the SMCL administrator or the SMCL administrator’s firm who is experienced in insolvency matters.

Creditors’ meeting for nomination of alternative liquidator

30

(1) Where under Rules 21(7) or 25(3)(e) the SMCL administrator has proposed that the SMCL enter creditors’ voluntary liquidation once the SMCL administration has ended, the SMCL administrator must, in the circumstances detailed in paragraph (2), call a meeting of creditors for the purpose of nominating a person other than the person named as proposed liquidator in the SMCL administrator’s statement of proposals or revised proposals (“the relevant statement of proposals”).

(2) The SMCL administrator must call a meeting of creditors where such a meeting is requested by creditors of the SMCL whose debts amount to at least 10% of the total debts of the SMCL.

(3) The request for a creditors’ meeting for the purpose set out in paragraph (1) must be made by notice delivered to the SMCL administrator within eight business days of the date on which the relevant statement of proposals was sent to the creditor making the request.

(4) The notice must—

(a) be headed “Creditor’s request for a meeting”; and

(b) include immediately below the heading—

(i) the full name, registered address, registered number and any other trading names of the SMCL; and

(ii) details of the court where the proceedings are and the relevant court reference number.

(5) The notice must include—

(a) the name and address of the creditor making the request, and the amount of the requesting creditor’s debt in the SMCL administration;

(b) a list of creditors concurring with the request, showing the amounts of their respective debts in the SMCL administration; and

but sub-paragraphs (b) and (c) do not apply if the requesting creditor’s debt is alone sufficient without the concurrence of other creditors.

(6) A meeting requested under this Rule must be held within 28 days of the SMCL administrator’s receipt of the notice requesting the meeting.

Entitlement to vote

31

(1) A person is entitled to vote at a meeting of creditors in SMCL administration proceedings only if—

(a) the person has delivered to the SMCL administrator, no later than midday on the business day before the meeting, details in writing of the debt which the person claims to be due to that person from the SMCL and those details include any calculation for the purposes of Rules 33 and 34;

(b) the claim has been duly admitted under Rule 32 or this Rule; and

(c) there has been lodged with the SMCL administrator any proxy which the person intends to be used on the person’s behalf.

(2) The chair of the meeting may allow a creditor to vote, notwithstanding that the creditor has failed to comply with paragraph (1)(a), if satisfied that the failure was due to circumstances beyond the creditor’s control.

(3) The chair of the meeting may call for any document or other evidence to be produced to the chair, where the chair thinks it necessary for the purpose of substantiating the whole or any part of the claim.

(4) Votes are calculated according to the amount of each creditor’s claim as at the date on which the SMCL entered SMCL administration, less—

(a) any payments that have been made to the creditor after that date in respect of the claim; and

(b) any adjustment by way of set-off which has been made in accordance with Rule 59 or would have been made if that Rule were applied on the date on which the votes are counted.

(5) A creditor may not vote in respect of a debt for an unliquidated amount, or any debt whose value is not ascertained, except where the chair agrees to put upon the debt an estimated minimum value for the purpose of entitlement to vote and admits the claim for that purpose.

(6) No vote may be cast by virtue of a claim more than once on any resolution put to the meeting.

Admission and rejection of claims

32

(1) At any creditors’ meeting the chair has power to admit or reject a creditor’s claim for the purpose of the creditor’s entitlement to vote; and the power is exercisable with respect to the whole or any part of the claim.

(2) The chair’s decision under this Rule, or in respect of any matter arising under Rule 31, is subject to appeal to the court by any creditor.

(3) If the chair is in doubt whether a claim should be admitted or rejected, the chair must mark it as objected to and allow the creditor to vote, subject to the creditor’s vote being subsequently declared invalid if the objection to the claim is sustained.

(4) If on appeal the chair’s decision is reversed or varied, or a creditor’s vote is declared invalid, the court may order that another meeting be summoned, or make such other order as it thinks just.

(5) An application to the court by way of appeal under this Rule against a decision of the chair must be made no later than 21 days after the date of the meeting.

(6) Neither the SMCL administrator nor any person nominated by the SMCL administrator to be chair is personally liable for costs incurred by any person in respect of an appeal to the court under this Rule, unless the court makes an order to that effect.

Secured creditors

33

At a meeting of creditors a secured creditor is entitled to vote only in respect of the balance (if any) of the creditor’s debt after deducting the value of the creditor’s security as estimated by the creditor.

Hire-purchase, conditional sale and chattel leasing agreements

34

(1) Subject to paragraph (2), an owner of goods under a hire-purchase or chattel leasing agreement, or a seller of goods under a conditional sale agreement, is entitled to vote in respect of the amount of the debt due and payable to the owner by the SMCL on the date on which the SMCL entered SMCL administration.

(2) In calculating the amount of any debt for this purpose, no account is to be taken of any amount attributable to the exercise of any right under the relevant agreement so far as the right has become exercisable solely by virtue of the making of an SMCL administration application or any matter arising as a consequence, or of the SMCL entering SMCL administration.

Resolutions

35

(1) Except where this Rule provides otherwise, a resolution is passed at a creditors’ meeting when a majority (in value) of those voting (in person or by proxy) have voted in favour of it.

(2) A resolution is not passed if those voting against it include more than half in value of the creditors to whom notice of the meeting was delivered and who are not, to the best of the chair’s belief, persons connected with the SMCL.

(3) In the case of a resolution for the nomination of a person to act as liquidator once the SMCL administration has ended—

(a) subject to paragraph (4), if on any vote there are two persons put forward by creditors for nomination as liquidator, the person who obtains the most support is nominated as liquidator;

(b) if there are three or more persons put forward by creditors for nomination as liquidator and one of them has a clear majority over both or all the others together, that one is nominated as liquidator;

(c) in any other case, the chair of the meeting must continue to take votes (disregarding at each vote any person who has withdrawn and, if no person has withdrawn, the person who obtained the least support last time), until a clear majority is obtained for any one person.

(4) The support referred to in paragraph (3)(a) must represent a majority (in value) of all those present (in person or by proxy) at the meeting and entitled to vote.

(5) Where on such a resolution no person is nominated as liquidator, the person named as proposed liquidator in the SMCL administrator’s proposals or revised proposals under Rules 21(7) or 25(3)(e) is nominated to act as liquidator once the SMCL administration has ended.

(6) The chair may at any time put to the meeting a resolution for the joint appointment of any two or more persons put forward by creditors for nomination as liquidator.

(7) In this Rule “connected with the SMCL” has the same meaning as “connected with a company” in section 249 of the 1986 Act.

Minutes

36

(1) The chair of the creditors’ meeting must ensure that minutes of its proceedings are kept.

(2) The minutes must be authenticated by the chair, and be retained by the SMCL administrator as part of the records of the SMCL administration.

(3) The minutes must include—

(a) a list of the names of creditors who attended (personally or by proxy) and their claims; and

(b) a record of every decision made and how creditors voted.

CHAPTER 2 — Company meetings

Venue and conduct of company meeting

37

(1) Where the SMCL administrator summons a meeting of members of the SMCL, the SMCL administrator must fix a venue for it having regard to their convenience.

(2) The chair of the meeting must be the SMCL administrator or a person nominated by the SMCL administrator in writing to act in the SMCL administrator’s place.

(3) A person so nominated must be either—

(a) one who is qualified to act as an insolvency practitioner in relation to the SMCL, or

(b) an employee of the SMCL administrator or the SMCL administrator’s firm who is experienced in insolvency matters.

(4) If within 30 minutes from the time fixed for commencement of the meeting there is no person present to act as chair, the meeting stands adjourned to the same time and place in the following week or, if that day is not a business day, to the business day immediately following.

(5) Subject to anything to the contrary in the 1986 Act and these Rules, the meeting must be summoned and conducted—

(a) in accordance with the law of England and Wales, including any applicable provision in or made under the Companies Act 2006, in the case of an SMCL incorporated—

(i) in England and Wales; or

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

(b) in accordance with the law of the state applicable to meetings of the SMCL, in the case of an SMCL incorporated in an EEA state other than the United Kingdom.

(6) The chair of the meeting must ensure that minutes of its proceedings are entered in the SMCL’s minute book.

CHAPTER 3 — Remote attendance

Remote attendance at meetings

38

(1) This Rule applies to a request to the convener of a meeting under section 246A(9) of the 1986 Act to specify a place for the meeting.

(2) The request must be accompanied by—

(a) in the case of a request by creditors, a list of the creditors making or concurring with the request and the amounts of their respective debts in the SMCL administration;

(b) in the case of a request by members, a list of the members making or concurring with the request and their voting rights; and

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

(4) Where the convener considers that the request has been properly made in accordance with the 1986 Act and this Rule, the convener must—

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

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

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

(b) set a venue (including specification of a place) for the meeting, the date of which must be no later than 28 days after the original date for the meeting; and

(5) The notices required by paragraphs (4)(a) and (c) may be delivered at the same or different times.

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

Action where person excluded

39

(1) In this Rule and Rules 40 and 41 an “excluded person” means a person who has taken all steps necessary to attend a meeting under the arrangements which—

(a) have been put in place by the convener of the meeting under section 246A(6) of the 1986 Act; but

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

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

(a) continue the meeting;

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

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

(a) the chair decides in consequence of a complaint under Rule 41 to declare the meeting void and hold the meeting again; or

(b) the court directs otherwise.

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

Indication to excluded person

40

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

(2) A request under paragraph (1) must be made as soon as reasonably practicable and, in any event, no later than 4.00 pm on the business day following the day on which the exclusion is claimed to have occurred.

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

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

(b) the SMCL administrator where it is made after the conclusion of the business of the meeting.

(4) Where satisfied that the person making the request is an excluded person, the person to whom the request is made under paragraph (3) must give the indication as soon as reasonably practicable and, in any event, no later than 4.00 pm on the business day following the day on which the request was made under paragraph (1).

Complaint

41

(1) Any person may make a complaint who—

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

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

(2) The person to whom the complaint must be made (“the appropriate person”) is—

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

(b) the SMCL administrator, where it is made after the meeting.

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

(a) consider whether there is an excluded person;

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

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

(4) Paragraph (5) applies where—

(a) the appropriate person is satisfied that the complainant is an excluded person;

(b) during the period of the person’s exclusion a resolution was put to the meeting and voted on; and

(5) Subject to paragraph (6), where satisfied that the effect of the intended vote in paragraph (4), if cast, would have changed the result of the resolution, the appropriate person must—

(a) count the intended vote as being cast in accordance with the complainant’s stated intention;

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

(c) where notice of the result of the resolution has been delivered to those entitled to attend the meeting, deliver notice to them of the change.

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

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

(8) A complaint must be made as soon as reasonably practicable and, in any event, no later than 4.00 pm on the business day following—

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

(b) where an indication is sought under Rule 40, the day on which the complainant received the indication.

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

CHAPTER 4 — Notice of meetings

Notice of meetings by advertisement only

42

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

(2) In considering whether to make such an order, the court must have regard to the cost of advertisement, the amount of assets available and the extent of the interest of creditors and members or any particular class of either.

Non-receipt of notice of meeting

43

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 delivered have received it.

PART 5 — Disposal of charged property

Authority to dispose of property

44

(1) This Rule applies where the SMCL administrator applies to the court under paragraphs 71 or 72 of Schedule B1 to the 1986 Act for authority to dispose of—

(a) property of the SMCL which is subject to a security other than a floating charge; or

(b) goods in the possession of the SMCL under a hire-purchase agreement.

(2) The court must fix a venue for the hearing of the application, and the SMCL administrator must as soon as reasonably practicable deliver notice of the venue to the holder of the security or, as the case may be, the owner of the goods.

(3) If an order is made under paragraphs 71 or 72 of Schedule B1 to the 1986 Act the court must deliver two sealed copies to the SMCL administrator.

(4) The SMCL administrator must deliver—

(a) one of the sealed copies to the holder of the security or the owner of the goods; and

(b) a copy of the sealed order to the registrar of companies.

PART 6 — Expenses of the SMCL administration

Expenses

45

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

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

(3) The cost of the security required by section 390(3) of the 1986 Act for the proper performance of the SMCL administrator’s functions is an expense of the SMCL administration.

Priority of expenses of SMCL administration

46

(1) The expenses of the SMCL administration are payable in the following order of priority—

(a) expenses properly incurred by the SMCL administrator in performing the SMCL administrator’s functions in the SMCL administration, except for those expenses referred to in sub-paragraph (g);

(b) the cost of any security provided by the SMCL administrator in accordance with the 1986 Act or these Rules;

(c) the costs of the applicant for the SMCL administration order and any person appearing on the hearing of the application whose costs were allowed by the court;

(d) any amount payable to a person in respect of assistance in the preparation of a statement of affairs or statement of concurrence;

(e) any allowance made, by the order of the court, towards costs on an application for release from the obligation to submit a statement of affairs or statement of concurrence;

(f) any necessary disbursements by the SMCL administrator in the course of the SMCL administration (but not including any payment of corporation tax in circumstances referred to in sub-paragraph (i));

(g) the remuneration of any person who has been employed by the SMCL administrator to perform any services for the SMCL, as required or authorised under the 1986 Act, the 2004 Act, the 2018 Act or these Rules;

(h) the remuneration of the SMCL administrator fixed by the court under Part 8 of these Rules and unpaid pre-smart meter communication licensee administration costs approved under Rule 47;

(i) the amount of any corporation tax on chargeable gains accruing on the realisation of any asset of the SMCL (irrespective of the person by whom the realisation is effected).

(2) The priorities laid down by paragraph (1) are subject to paragraph (3) and subject to the power of the court to make orders under paragraph (5) where the assets are insufficient to satisfy the liabilities.

(3) Where there is a former SMCL administrator, the items in paragraph 99 of Schedule B1 to the 1986 Act[^f00034] are payable in priority to the expenses in this Rule.

(4) For the purposes of paragraph 99(3) of Schedule B1 to the 1986 Act, the former SMCL administrator’s remuneration and expenses shall comprise all those items set out in paragraph (1)(a) to (h) of this Rule.

(5) The court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the assets of the expenses incurred in the SMCL administration in such order of priority as the court thinks just.

Pre-smart meter communication licensee administration costs

47

Where the SMCL administrator has made a statement of pre-smart meter communication licensee administration costs under Rule 21(2)(k), the SMCL administrator (where the costs consist of fees charged or expenses incurred by the SMCL administrator) or other insolvency practitioner (where the costs consist of fees charged or expenses incurred by that practitioner) must, before paying such costs, apply to the court for a determination of whether and to what extent the unpaid pre-smart meter communication licensee administration costs are approved for payment.

PART 7 — Claims by and distributions to creditors

CHAPTER 1 — Machinery of proving a debt

Proving a debt

48

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