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The Payment and Electronic Money Institution Insolvency (England and Wales) Rules 2021

Type Statutory-Instrument

Publication 2021-10-21

Last updated 2022-08-10

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(6) No determination may be made upon the application until expiry of the twenty-one days referred to in paragraph (5) or, if the recipient does give notice of intent in accordance with that paragraph, until the recipient has been afforded the opportunity to make representations or to appear or be represented on the application, as the case may be.

(7) If the former administrator or the former administrator’s personal representative (whether or not the original applicant) considers that the portion determined upon application to the creditors’ committee or the creditors and customers is insufficient, that person may apply—

(a) in the case of a determination by the creditors’ committee, to the creditors and customers for a resolution increasing the portion;

(b) in the case of a resolution of the creditors and customers (whether under paragraph (1) or under sub-paragraph (a)), to the court for an order increasing the portion;

and paragraphs (4) to (6) apply as appropriate.

CHAPTER 3 — Replacing the administrator

Grounds for resignation

171

(1) The administrator may resign in the following circumstances—

(a) on grounds of ill health,

(b) that the administrator intends ceasing to be in practice as an insolvency practitioner, or

(c) that there is some conflict of interest, or change of personal circumstances, which precludes or makes impracticable the further discharge by that person of the duties of administrator.

(2) The administrator may, with the permission of the court, resign on grounds other than those specified in paragraph (1).

Notice of intention to resign

172

(1) The administrator must in all cases give at least five business days’ notice of their intention to resign, or their intention to apply for the court’s permission to do so, to the following persons—

(a) if there is a continuing administrator of the institution, to that person, and

(b) if there is a creditors’ committee, to it.

(2) If there is no continuing administrator and no creditors’ committee, the administrator must give at least five business days’ notice of their intention to resign, or their intention to apply for the court’s permission to do so, to the institution and its creditors and customers of whose claim the administrator is aware and whom the administrator has a means of contacting.

(3) Where the administrator was appointed on the application of the FCA or the Secretary of State, notice under paragraph (1) or paragraph (2) must also be given to the applicant.

(4) Notice under paragraph (1) or paragraph (2) must set out—

(a) a statement that the proceedings are being held in the court and the court reference number;

(b) the full name, registered address, registered number of the institution;

(d) either—

(i) the date on which the administrator’s resignation shall take effect, or

(ii) the date upon which the administrator intends to apply to the court for leave to resign.

Notice of resignation

173

(1) The notice of resignation must set out—

(a) a statement that the proceedings are being held in the court and the court reference number,

(b) the full name, registered address and registered number of the institution,

(d) whether or not the person resigning is the sole administrator of the institution, and

(e) a statement that either—

(i) the administrator resigns from office with effect from a specified date, or

(ii) the court gave the administrator leave to resign (and the statement must include the date of the court’s permission) and that the administrator therefore resigns with effect from a specified date.

(2) The notice must be filed with the court and a copy of the notice of resignation must be sent not more than five business days after it has been filed with the court to all those to whom the notice of intention to resign was sent.

(3) The administrator must notify the registrar of companies of their resignation.

Application to court to remove administrator from office

174

(1) Any application under paragraph 88 must state the grounds on which it is requested that the administrator should be removed from office.

(2) Notice of the application must be served on—

(a) the administrator,

(b) the person who made the application for the special administration order,

(d) the joint administrator (if any),

(e) where there is neither a creditors’ committee nor a joint administrator, the institution and all the creditors and customers of whose claim the administrator is aware and of whom they have a means of contacting, and

(f) the FCA.

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

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

(5) The applicant must send notice of the order to the registrar of companies within five business days of the order being made.

Notice of vacation of office when administrator ceases to be qualified

175

Where the administrator who has ceased to be qualified to act as an insolvency practitioner in relation to the institution gives notice in accordance with paragraph 89, notice must also be given to—

(a) the registrar of companies, and

(b) where the administrator was appointed on the application of the FCA or the Secretary of State, to the applicant.

Administrator deceased

176

(1) Subject to paragraphs (2) to (4), where the administrator has died, it is the duty of the administrator’s personal representatives to give notice of the fact to the court, specifying the date of the death. This does not apply if notice has been given under either paragraph (3) or (4) of this rule.

(2) Notice of the death must also be sent to the registrar of companies.

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

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

Application to replace

177

(1) Where an application is made to court under paragraph 91(1) to appoint a replacement administrator, the application must be accompanied by a written statement by the person proposed to be the replacement administrator.

(2) The written statement must be in accordance with rule 7.

(3) A copy of the application must be served on—

(a) the person who made the application for a special administration order,

(b) the institution (if neither the institution nor its directors are the applicant),

(d) the FCA (if not the applicant).

(4) Rule 10 shall apply to the service of an application under paragraph 91(1) as it applies to service of the application for a special administration order.

(5) Rules 11 and 13 apply to an application under this rule and rule 16(1) and (2) shall apply to the notice of appointment under paragraph 91(1) as it applies to notice of a special administration order.

Notification and advertisement of appointment of replacement administrator

178

(1) Subject to rule 180, where a replacement administrator is appointed, the same provisions apply in respect of giving notice of, and advertising, the replacement appointment as in the case of the initial appointment.

(2) All statements, consents and notices as are required for the initial appointment are also required in the case of the appointment of a replacement administrator.

(3) All notices must clearly identify that the appointment is of a replacement administrator.

Notification and advertisement of appointment of joint administrator

179

Subject to rule 180, where, after an initial appointment has been made, an additional person or persons are to be appointed as joint administrator, the same rules apply in respect of giving notice of and advertising the appointment as applied in relation to the initial appointment.

Notification of new administrator

180

(1) The replacement or additional administrator must send notice of the appointment to the registrar of companies.

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

(a) the name and business address of the administrator appointed,

(b) the name, registered address and registered number of the institution in respect of which the appointment is made,

(c) whether the administrator is appointed to replace an existing administrator or in addition to a previously appointed administrator, and

(d) the date from which the administrator’s appointment will take effect.

Administrator’s duties on vacating office

181

(1) Where the administrator (‘A’) ceases to be in office in consequence of this Chapter, A is under obligation as soon as is reasonably practicable to deliver up to the person succeeding A as administrator (‘B’)—

(a) the assets (after deduction of any expenses properly incurred and distributions made by A),

(b) the records of the special administration, including correspondence, proofs and other related papers appertaining to the special administration while it was within A’s responsibility, and

(2) If A makes default in complying with this rule, A is liable to a fine and, for continued contravention, to a daily default fine in each case as set out in the Schedule to these Rules.

PART 9 — End of special administration

Final progress reports

182

(1) In this Part, reference to a progress report is to a report in the form specified in rule 87.

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

(a) the administrator’s proposals (including whether the FCA has given a direction under regulation 38 and whether that direction has been withdrawn),

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

(d) the outcome.

Application to court by administrator

183

(1) An application to court under paragraph 79 for an order ending a special administration must have attached to it—

(a) a progress report for the period since the last progress report (if any) or the date the institution entered special administration, and

(b) a statement indicating what the administrator thinks should be the next steps for the institution (if applicable).

(2) Before making the application under paragraph (1), the administrator must—

(a) give notice in writing to—

(i) the applicant for the special administration order under which the administrator was appointed,

(ii) the creditors and customers, and

(iii) the FCA, and

(b) attach to the application a statement that the creditors and customers have been notified of the application and copies of any response to that notification.

(3) Notice under paragraph (2)(a) must be given at least five business days before the date that the administrator intends to make the application.

(4) The administrator—

(a) must send a copy of the application under paragraph (1) to the FCA,

(b) must, within five business days of filing the application, gazette a notice undertaking to provide a copy of the application to any person who so requests it (and an address to which they can write), and

Application to court by creditor

184

(1) Where a creditor applies to the court to end the special administration a copy of the application must be served on—

(a) the administrator,

(b) the person who made the application for the special administration order, and

(2) Service must be effected not less than five business days before the date fixed for the hearing.

(3) The persons in paragraph (1) may appear at the hearing of the application.

(4) Where the court makes an order to end the special administration, the court must send a copy of the order to the administrator.

Notification by administrator of court order

185

Where the court makes an order to end the special administration, the administrator must send—

(a) a copy of the court order to the registrar of companies within the period of fourteen days beginning with the date of the order,

(b) a copy of the final progress report to the registrar of companies as soon as is reasonably practicable, and

(c) a copy of the court order and a copy of the final progress report to all other persons to whom notice of the administrator’s appointment was delivered as soon as is reasonably practicable.

Moving from special administration to dissolution

186

(1) Where, for the purposes of paragraph 84(1), the administrator sends a notice of moving from special administration to dissolution to the registrar of companies, the administrator must attach to that notice a copy of the final progress report.

(2) As soon as is reasonably practicable, a copy of the notice and the attached document must be sent to all other persons who received notice of the administrator’s appointment.

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

PART 10 — Court procedure and practice

CHAPTER 1 — Application of the CPR

Principal court rules and practice to apply

187

(1) The provisions of the CPR in the first column of the table in this rule (including any related practice direction) apply to special administration by virtue of the provisions of these Rules set out in the second column with any necessary modifications, except so far as inconsistent with these Rules.

Provision of CPR	Provisions of these Rules
CPR Part 6 (service of documents)	Chapter 4 of Part 10
CPR Part 18 (further information)	Rules 192 and 213(c)(ii)
CPR Part 31 (disclosure and inspection of documents)	Rules 192 and 213
CPR Part 37¹⁹ (miscellaneous provisions about payments into court)	Rule 191
CPR Parts 44 (general rules about costs) and 47 (procedure for assessment of costs and default provisions)	Chapter 10 of Part 10
CPR Part 52²⁰ (appeals)	Chapter 12 of Part 10

(2) Subject to paragraph (3), the provisions of the CPR (including any related practice direction) not referred to in the table apply to proceedings under the Regulations and these Rules with any necessary modifications, except so far as inconsistent with these Rules.

(3) Proceedings in a special administration must be allocated to the multi-track for which CPR Part 29 makes provision, and accordingly those provisions of the CPR which provide for allocation questionnaires and track allocation do not apply.

(4) CPR Part 32 applies to a false statement in a document verified by a statement of truth made under these Rules as it applies to a false statement in a document verified by a statement of truth made under CPR Part 22.

CHAPTER 2 — The Court

Shorthand writers — nomination, appointment, remuneration and costs

188

(1) The judge or registrar may in writing nominate one or more persons to be official shorthand writers to the court.

(2) The court may, at any time in the course of the special administration appoint a shorthand writer to take down evidence of a person examined under section 236 of the IA 1986²¹.

(3) The remuneration of a shorthand writer appointed under this rule must be paid by the party at whose instance the appointment was made, or out of the insolvent estate, or otherwise, as the court may direct.

(4) Any question arising as to the rates of remuneration payable under this rule must be determined by the court.

Court file

189

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

(2) Any documents which are filed with the court under the Regulations or these Rules must be placed on the file opened in accordance with paragraph (1).

(3) The following persons may inspect or obtain from the court a copy of, or a copy of any document or documents contained in, the file opened in accordance with paragraph (1)—

(a) the administrator,

(b) the Secretary of State,

(d) any person who is a creditor of the institution if that person provides the court with a statement in writing confirming that that person is a creditor, and

(e) any person who is a customer of the institution if that person provides the court with a statement in writing confirming that that person is a customer.

(4) The same right to inspect or obtain a copy of, or a copy of any document or documents contained in, the file opened in accordance with paragraph (1) is exercisable by—

(a) an officer or former officer of the institution in special administration, or

(b) a member of the institution or a contributory in the special administration.

(5) A person’s right to inspect or obtain a copy of, or a copy of any document or documents contained in, the file opened in accordance with paragraph (1) may be exercised on that person’s behalf by someone authorised to do so by that person.

(6) Any person who is not otherwise entitled to inspect or obtain a copy of, or a copy of any document or documents contained in, the file opened in accordance with paragraph (1) may do so if that person has the permission of the court.

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

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

(a) the administrator,

(b) the FCA, or

(9) Where any person wishes to exercise the right to inspect the file under paragraph (3), (4), (5) or (6), that person—

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

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

(10) Where any person wishes to exercise the right to obtain a copy of, or a copy of any document or documents contained in, the file under paragraph (3), (4), (5) or (6), that person must pay any prescribed fee and—

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

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

(11) An application for—

(a) permission to inspect the file or obtain a copy of a document under paragraph (6), or

(b) a direction under paragraph (7),

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

(12) If for the purposes of powers conferred by the Regulations or these Rules, the Secretary of State makes a request to inspect or requests the transmission of the file of any insolvency proceedings, the court must comply with the request (unless the file is for the time being in use for the court’s own purposes).

Office copies of documents

190

(1) The court must provide an office copy of any document from the court file of the special administration to any person who under these Rules has the right to inspect the court file where that person has requested such a copy.

(2) A person’s rights under this rule may be exercised on that person’s behalf by that person’s solicitor.

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

Payments into court

191

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

CHAPTER 3 — Obtaining information and evidence

Further information and disclosure

192

(1) Any party to the special administration may apply to the court for an order—

(a) that any other party—

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

(ii) give additional information in relation to any such matter, in accordance with CPR Part 18 (further information), or

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

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

Witness statements — general

193

(1) Where evidence is required by the Regulations or these Rules as to any matter, such evidence may be provided in the form of a witness statement unless—

(a) in any specific case a rule (including rule 195) or the Regulations makes different provision, or

(b) the court otherwise directs.

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

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

Filing and service of witness statements

194

Unless the provision of the Regulations or Rules under which the application is made provides otherwise, or the court otherwise allows—

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

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

Evidence provided by the administrator

195

(1) Where in the special administration a witness statement is made by the administrator, the witness statement must state—

(a) the capacity in which that person makes the statement, and

(b) the person’s business address.

(2) The administrator may file a report with the court instead of a witness statement unless the application involves other parties or the court otherwise orders.

(3) In any case where a report is filed instead of a witness statement, the report must be treated for the purpose of rule 194 and any hearing before the court as if it were a witness statement.

CHAPTER 4 — Service of court documents

Application of Chapter

196

(1) Subject to paragraph (2), this Chapter applies in relation to the service of—

(a) applications,

(b) documents relating to applications, and

which are required to be served by any provision of the Regulations or these Rules (“court documents”).

(2) For the purpose of the application by this Chapter of CPR Part 6 to the service of court documents, an application within the special administration against a respondent is to be treated as a claim form.

Service of court documents within the jurisdiction

197

Except where different provision is made in the Regulations or these Rules, CPR Part 6 applies in relation to the service of court documents with such modifications as the court may direct.

Service of court documents outside jurisdiction

198

CPR Part 6 applies to the service of court documents outside the jurisdiction with such modifications as the court may direct.

Service of orders staying proceedings

199

Where the court makes an order staying any action, execution or other legal process against the property of the institution, the order may be served within the jurisdiction by serving a sealed copy of the order on the address for service of the claimant or other party having the carriage of the proceedings to be stayed.

Service on joint office-holders

200

Where there are joint administrators, service of court documents on one of them is to be treated as service on all of them.

CHAPTER 5 — Applications to court – general

Application of Chapter

201

This Chapter applies to any application made to the court under the Regulations or these Rules except an application for a special administration order under regulation 8.

Form and contents of application

202

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

(a) that the application is made under the Regulations or these Rules,

(b) the names of the parties,

(d) that the proceedings are being held in the court and the court reference number,

(e) where the court has previously allocated a number to the insolvency proceedings within which the application is made, that number,

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

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

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

(i) the applicant’s address for service.

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

Filing and service of application

203

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

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

(a) it considers it is not appropriate to do so,

(b) the rule or regulation under which the application is brought provides otherwise, or

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

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

(a) that the application be served upon persons other than those specified by the relevant provision of the Regulations or Rules,

(b) that the giving of notice to any person may be dispensed with, or

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

(a) the provision of the Regulations or these Rules under which the application is made makes different provision, or

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

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

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

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

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

Directions

204

The court may at any time give such directions as it thinks just as to—

(a) service or notice of the application on or to any person,

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

Hearings without notice

205

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

(a) the court may hear the application as soon as is reasonably practicable without fixing a venue as required by rule 203(2), or

(b) it may fix a venue for the application to be heard in which case rule 203 will apply to the extent that it is relevant,

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

Hearing of application

206

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

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

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

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

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

(4) Nothing in this rule precludes an application being made directly to the judge in a proper case.

Adjournment of the hearing of an application

207

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

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

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

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

CHAPTER 6 — Applications to the court under section 176A of the IA 1986

Application of Chapter

208

The rules in this Chapter apply to applications in connection with section 176A of the IA 1986.

Applications under section 176A(5) to disapply section 176A

209

(1) An application under section 176A(5) must be accompanied by a witness statement by the administrator.

(2) The witness statement must state—

(a) that the institution is in special administration,

(b) a summary of the financial position of the institution, and

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

Notice of application under section 176A(5)

210

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

Notice of an order under section 176A(5)

211

(1) Where the court makes an order under section 176A(5), it must as soon as is reasonably practicable deliver 2 sealed copies of the order to the applicant.

(2) Where the court has made an order under section 176A(5), the administrator must as soon as is reasonably practicable give notice to each creditor of whose address the administrator is aware.

(3) Paragraph (2) does not apply where the court directs otherwise.

(4) The court may direct that the requirement in paragraph (2) is complied with if a notice has been published by the administrator which, in addition to containing the standard contents, states that the court has made an order disapplying the requirement to set aside the prescribed part. As soon as is reasonably practicable the notice—

(a) must be gazetted, and

(b) may be advertised in such other manner as the administrator thinks fit.

(5) The administrator must send a copy of the order to the registrar of companies as soon as is reasonably practicable after the making of the order.

CHAPTER 7 — Applications for an order under section 236 of the IA 1986

Application of section 236 of the IA 1986

212

(1) This Chapter applies to applications to the court for an order under section 236 of the IA 1986.

(2) In this Chapter, “the respondent” means the person in respect of whom an order is applied for.

Form and contents of application

213

An application to which this Chapter applies—

(a) must be in writing and specify the grounds on which it is made,

(b) must specify the name of the respondent,

(i) the respondent to be ordered to appear before the court,

(ii) the respondent to be ordered to clarify any matter which is in dispute in the proceedings or to give additional information in relation to any such matter (in which case CPR Part 18 (further information) shall apply to any such order),

(iii) the respondent to submit witness statements (if so, particulars must be given of the matters to be included),

(iv) the respondent to produce books, papers or other records (if so, the items in question must be specified), or

(v) any two or more of those purposes, and

(d) may be made without notice to any other party.

Order for examination etc.

214

(1) The court may, whatever the purpose of the application, make any order which it has power to make under section 236 of the IA 1986.

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

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

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

(b) the time within which they are to be submitted to the court.

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

(5) The order must be served as soon as is reasonably practicable on the respondent.

Procedure for examination

215

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

(2) Unless the administrator objects, the following persons may attend the examination with the permission of the court and may put questions to the respondent (but only through the administrator)—

(a) any person who could have applied for an order under section 236 of the IA 1986, and

(b) any creditor or customer who has provided information on which the application was made under that section.

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

(4) The respondent may, at the respondent’s own expense, employ a solicitor with or without counsel, who may put to the respondent such questions as the court may allow for the purpose of enabling the respondent to explain or qualify any answers given by the respondent, and may make representations on the respondent’s behalf.

(5) Such written record of the examination must be made as the court thinks proper and such record must be read over either to or by the respondent and authenticated by the respondent at a venue fixed by the court.

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

Record of examination

216

(1) Unless the court otherwise directs, the written record of questions put to the respondent and the respondent’s answers, and any witness statements submitted by the respondent in compliance with an order of the court under section 236 of the IA 1986, are not to be filed with the court.

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

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

(a) the written record of the respondent’s examination,

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

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

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

Costs of proceedings under section 236 of the IA 1986

217

(1) Where the court has ordered an examination of any person under section 236 of the IA 1986 and it appears to it that the examination was made necessary because information had been unjustifiably refused by the respondent, it may order that the costs of the examination be paid by the respondent.

(2) Where the court makes an order against a person under—

(a) section 237(1)²² of the IA 1986, or

(b) section 237(2) of the IA 1986,

the costs of the application for the order may be ordered by the court to be paid by the respondent.

(3) Subject to paragraphs (1) and (2), the administrator’s costs will, unless the court otherwise orders, be paid as an expense of the special administration.

(4) A person summoned to attend for examination under this Chapter must be tendered a reasonable sum in respect of travelling expenses incurred in connection with that person’s attendance but any other costs falling on that person are at the court’s discretion.

CHAPTER 8 — People who lack capacity to manage their affairs etc.

Application of Chapter 8

218

(1) The rules in this Chapter apply where in a special administration it appears to the court that a person affected by the proceedings is unable to manage and administer that person’s own property and affairs by reason of:

(a) lacking capacity within the meaning of the Mental Capacity Act 2005²³,

(b) suffering from a physical affliction, or

(2) Such a person is referred to in this Chapter as “the incapacitated person”.

Appointment of another person to act

219

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

(2) An appointment made under paragraph (1) may be made either generally or for the purpose of any particular application or proceeding, or for the exercise of particular rights or powers which the incapacitated person might have exercised but for that person’s incapacity.

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

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

(b) any person who appears to the court to be a suitable person to make the application, or

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

Witness statement in support of application

220

An application under rule 219(3) must be supported by a witness statement made by a registered medical practitioner as to the mental or physical condition of the incapacitated person.

Service of notices following appointment

221

Any notice served on, or sent to, a person appointed under rule 219 has the same effect as if it had been served on, or given to, the incapacitated person.

CHAPTER 9 — Formal defects

Formal defects

222

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

CHAPTER 10 — Costs

Application of Chapter 10

223

(1) This Chapter applies in relation to costs in connection with the special administration.

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

Requirement to assess costs by the detailed procedure

224

(1) Where the costs of any person are payable as an expense out of the institution’s estate the amount payable must be decided by detailed assessment unless agreed between the administrator and the person entitled to payment.

(2) Where the costs of any person are payable as an expense out of the relevant funds, the amount payable must be decided by detailed assessment unless agreed between a meeting of customers and the person entitled to payment.

(3) In the absence of such agreement as is mentioned in paragraph (1) or (2), the administrator—

(a) may serve notice requiring the person entitled to payment to commence detailed assessment proceedings in accordance with CPR Part 47, and

(b) must serve such notice where the creditors’ committee resolves that the amount of the costs in either case must be decided by detailed assessment.

(4) Detailed assessment proceedings must be commenced in the court.

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

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

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

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

(7) Unless otherwise directed or authorised, the costs of the administrator are to be allowed on the standard basis for which provision is made in—

(a) CPR rule 44.3 (basis of assessment), and

(b) CPR rule 44.4 (factors to be taken into account when deciding the amount of costs).

Procedure where detailed assessment is required

225

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

(2) The certificate must include—

(a) the name and address of the person employed,

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

(3) Every person whose costs in the special administration are required to be decided by detailed assessment must, on being required in writing to do so by the administrator, commence detailed assessment proceedings in accordance with CPR Part 47.

(4) If the person whose costs in the special administration are required to be decided by detailed assessment does not commence detailed assessment proceedings within three months of the requirement under paragraph (3), or within such further time as the court, on application, may permit—

(a) the administrator may deal with the institution’s estate (or the asset pool, as applicable) without regard to any claim by that person, and

(b) that person’s claim is forfeited by such failure to commence proceedings.

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

Costs of officers charged with execution of writs or other process

226

(1) This rule applies where an enforcement officer, or other officer charged with execution of the writ or other person—

(a) is required under section 184(2)²⁴ of the IA 1986 to deliver up goods or money, or

(b) has under section 184(3) of the IA 1986 deducted costs from the proceeds of an execution or money paid to that officer or that person (as the case may be).

(2) The administrator may require in writing that the amount of the enforcement officer’s or other officer’s bill of costs be decided by detailed assessment and where such a requirement is made, rule 225(4) applies.

(3) Where, in the case of a deduction of the kind mentioned in paragraph (1)(b), any amount deducted is disallowed at the conclusion of the detailed assessment proceedings, the enforcement officer must as soon as is reasonably practicable pay a sum equal to that disallowed to the administrator for the benefit of the institution’s estate.

Costs paid otherwise than out of the institution’s estate

227

Where the amount of costs is decided by detailed assessment under an order of the court directing that those costs are to be paid otherwise than out of the institution’s estate or out of the asset pool, the costs officer must note on the final costs certificate by whom, or the manner in which, the costs are to be paid.

Award of costs against the administrator

228

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

Applications for costs

229

(1) This rule applies where a party to, or person affected by, any proceedings in the special administration applies to the court for an order allowing their costs, or part of them, incidental to the proceedings, and that application is not made at the time of the proceedings.

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

(3) The administrator may appear on an application.

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

(5) The court must specify in the order whether such costs are to be paid out of the institution’s estate or out of the asset pool.

Costs and expenses of witnesses

230

Except as directed by the court, no allowance as a witness in any examination or other proceedings before the court is to be made to an officer of the institution to which the proceedings relate.

Final costs certificate

231

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

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

CHAPTER 11 — Enforcement procedures

Enforcement of court orders

232

In a special administration, orders of the court may be enforced in the same manner as a judgment to the same effect.

Orders enforcing compliance with these Rules

233

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

(a) paragraph 47, or

(b) section 235 of the IA 1986 (duty of various persons to co-operate with administrator).

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

Warrants (general provisions)

234

(1) A warrant issued by the court under any provision of the Regulations must be addressed to such officer of the court as the warrant specifies, or to any constable.

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

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

Warrants under section 236

235

(1) When a person (‘P’) is arrested under a warrant issued under section 236 of the IA 1986, the officer arresting P must as soon as is reasonably practicable bring P before the court issuing the warrant in order that P may be examined.

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

(3) After arresting P, the officer must as soon as is reasonably practicable report to the court the arrest or delivery into custody (as the case may be) of P and apply to the court to fix a venue for P’s examination.

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

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

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

(5) Any property in P’s possession which may be seized must be—

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

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

as may be directed by the court.

CHAPTER 12 — Appeals

Application of Chapter 12

236

This Chapter applies in relation to decisions of the court under the Regulations or these Rules.

Appeals and reviews of court orders

237

(1) The court may review, rescind or vary any order made by it in the exercise of its jurisdiction under the Regulations or these Rules.

(2) Appeals in special administration proceedings are to the Civil Division of the Court of Appeal from a decision of a single judge of the court.

Procedure on appeal

238

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

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

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

Appeal against decision of the Secretary of State

239

An appeal under the Regulations against a decision of the Secretary of State must be brought within twenty-eight days of the notification of the decision.

PART 11 — Prohibited names

Preliminary

240

The rules in this Part—

(a) relate to the permission required under section 216 of the IA 1986²⁵ for a person to act in all or any of the ways specified in section 216(3) in relation to an institution with a prohibited name, and

(b) prescribe the cases excepted from section 216, that is to say, those in which a person to whom that section applies may so act without that permission.

Application for permission under section 216(3)

241

(1) At least fourteen days’ notice of any application for permission to act in all or any of the ways specified in section 216(3) must be given by the applicant to the Secretary of State, who may—

(a) appear at the hearing of the application, and

(b) whether or not appearing at the hearing, make representations.

(2) When considering an application for permission under section 216, the court may call on the administrator, or any former administrator, of the institution for a report of the circumstances in which that institution became insolvent and the extent (if any) of the applicant’s apparent responsibility for the institution becoming insolvent.

First excepted case

242

(1) This rule applies where—

(a) a person (“P”) was within the period mentioned in section 216(1) a director, or shadow director, of an institution that has gone into special administration by virtue of Ground A in regulation 9 being satisfied, and

(b) P acts in all or any of the ways specified in section 216(3) in connection with, or for the purposes of, the carrying on (or proposed carrying on) of the whole or substantially the whole of the business of the institution where that business (or substantially the whole of it) is (or is to be) acquired from the institution under arrangements—

(i) made by the administrator, or

(ii) made before the institution entered into special administration by an office-holder acting in relation to it as supervisor of a voluntary arrangement under Part 1 of the IA 1986.

(2) P will not be taken to have contravened section 216 if prior to P’s acting in the circumstances set out in paragraph (1) a notice is, in accordance with the requirements of paragraph (3)—

(a) given by P to every creditor and customer of the institution whose name and address—

(i) is known by P, or

(ii) is ascertainable by P on the making of such enquiries as are reasonable in the circumstances, and

(b) published in the Gazette.

(3) The notice referred to in paragraph (2)—

(a) may be given and published before the completion of the arrangements referred to in paragraph (1)(b) but must be given and published no later than twenty-eight days after that completion, and

(b) must contain—

(i) the name and registered number of the institution,

(ii) the date that the institution went into special administration,

(iii) P’s name,

(iv) a statement that P was a director of the institution during the period of twelve months ending with the day before the institution entered special administration,

(v) a statement that it is P’s intention to act (or, where the institution has not entered into special administration, to act or continue to act) in all or any of the ways specified in section 216(3) in connection with, or for the purposes of, the carrying on of the whole or substantially the whole of the business of the institution,

(vi) the prohibited name or, where the institution has not entered into special administration, the name under which the business is being, or is to be, carried on which would be a prohibited name in respect of P in the event of the institution entering special administration,

(vii) a statement that P would not otherwise be permitted to act in all or any of the ways specified in section 216(3) without the leave of the court or the application of an exception created by these Rules,

(viii) a statement that contravention of the prohibition created by section 216 is a criminal offence, and

(ix) a statement as set out in paragraph (6) of the effect of issuing the notice under this paragraph.

(4) Notice may in particular be given under this rule—

(a) prior to the institution entering special administration where the business (or substantially the whole of the business) is, or is to be, acquired by another company under arrangements made by an office-holder acting in relation to the institution as supervisor of a voluntary arrangement (whether or not at the time of the giving of the notice P is a director of that other company), or

(b) at a time where P is a director of another company where—

(i) the other company has acquired, or is to acquire, the whole, or substantially the whole, of the business of the institution under arrangements made by the administrator, and

(ii) it is proposed that after the giving of the notice a prohibited name should be adopted by the other company.

(5) Notice may not be given under this rule by a person who has already acted in contravention of section 216.

(6) The statement as to the effect of the notice under rule 242(2) must be as set out below—

Section 216(3) of the Insolvency Act 1986 lists the activities that a director of an institution that has gone into special administration may not undertake unless the court gives permission or there is an exception in the Payment and Electronic Money Institution Insolvency (England and Wales) Rules 2021. This includes the exceptions in Part 11 of those Rules. These activities are— (a) being a director of another company that is known by a name which is either the same as a name used by the institution in special administration during the period of twelve months ending with the day before the institution entered special administration or is so similar as to suggest an association with that institution, (b) directly or indirectly being concerned or taking part in the promotion, formation or management of any such company, or (c) directly or indirectly being concerned or taking part in the carrying on of a business otherwise than through a company under a name of the kind mentioned in (a) above. This notice is given under Rule 242 of the Payment and Electronic Money Institution Insolvency (England and Wales) Rules 2021 because the business of an institution which is in, or may go into, special administration is, or is to be, carried on otherwise than by the institution in special administration with the involvement of a director of that institution and under the same or a similar name to that of that institution. The purpose of giving this notice is to permit the director to act in these circumstances where the institution enters (or has entered) special administration without the director committing a criminal offence and, in the case of the carrying on of the business through another company, being personally liable for that company’s debts. Notice may be given where the person giving the notice is already the director of a company which proposes to adopt a prohibited name.

Second excepted case

243

(1) Where a person (“P”) to whom section 216 applies, applies for permission of the court under that section not later than seven business days from the date on which the institution went into special administration, P may, during the period specified in paragraph (2), act in any of the ways mentioned in section 216(3), notwithstanding that P has not the permission of the court under that section.

(2) The period referred to in paragraph (1) begins with the day on which the institution goes into special administration and ends either on the day falling six weeks after that date or on the day on which the court disposes of the application for permission under section 216, whichever of those days occurs first.

Third excepted case

244

The court’s permission under section 216(3) is not required where the company there referred to, though known by a prohibited name—

(a) has been known by that name for the whole of the period of twelve months ending with the day before the institution went into special administration, and

(b) has not at any time in those twelve months been dormant within the meaning of section 1169(1), (2) and (3)(a) of the CA 2006.

PART 12 — Provisions of general effect

CHAPTER 1 — Miscellaneous and general

Costs, expenses etc

245

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

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

Provable debts

246

(1) Except as provided in this rule, all claims by creditors are provable as debts against the institution whether they are present or future, certain or contingent, ascertained or sounding only in damages.

(2) Obligations arising under Part 2, 3 or 4 of the Proceeds of Crime Act 2002²⁶ are not provable.

(3) The following claims are not provable until all other claims of creditors have been paid in full with interest under rule 135:

(a) any claim arising by virtue of section 382(1)(a) of the FSMA 2000²⁷, unless it is also a claim arising by virtue of section 382(1)(b) of that Act;

(b) any claim which by virtue of the IA 1986 or any other enactment is a claim the payment of which in a special administration is to be postponed.

(4) Nothing in this rule prejudices any enactment or rule of law under which a particular kind of debt is not provable.

False representation of status for purpose of inspecting documents

247

(1) It is an offence for a person who does not have a right under these Rules to inspect a relevant document falsely to claim to be a creditor, customer, member of the institution or contributory of the institution with the intention of gaining sight of the relevant document.

(2) A relevant document is one which is on the court file or in the hands of the administrator or any other person and which a creditor, customer, member of the institution or contributory of the institution has a right to inspect under these Rules.

(3) A person guilty of an offence under this rule is liable to imprisonment or a fine, or both, as set out in the Schedule.

Punishment of offences

248

The Schedule has effect with respect to the ways in which certain contraventions of the Rules are punishable.

CHAPTER 2 — The giving of notice and the supply of documents

Application

249

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

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

(a) any application to the court,

(b) any evidence in support of that application, or

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

Personal delivery

250

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

(2) A document is personally delivered if it is delivered in accordance with the rules for personal service in CPR Part 6.

Postal delivery of documents

251

(1) A notice or other document may be sent by post in accordance with the provisions of this rule unless in any particular case some other form of delivery is required by the Regulations or these Rules or an order of the court.

(2) First class or second class post may be used to deliver a notice or other document except where these Rules require first class post to be used.

(3) Unless the contrary is shown—

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

(b) a notice or other document sent by second class post is 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 notice or other document was posted, the date of that post-mark is to be treated as the date on which the notice or other document was posted.

(4) 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.

Notice etc to authorised recipients

252

Where a notice or other document is to be given, delivered or sent to a person under the Regulations or these Rules, it may be given, delivered or sent instead to any other person authorised in writing to accept delivery on behalf of the first-mentioned person.

CHAPTER 3 — The giving of notice and the supply of documents to or by the administrator

Application

253

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

(2) This Chapter does not apply to the submission of notices or other documents to the registrar of companies.

(3) Rules 257 to 260 do not apply to the filing of any notice or other document with the court.

The form

254

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

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

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

Proof of sending

255

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

(2) A certificate under paragraph (1) may be given by—

(a) the administrator,

(b) the administrator’s solicitor, or

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

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

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

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

Authentication

256

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

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

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

(b) where no such manner has been specified by the recipient, if the communication contains or is accompanied by a statement of the identity of the sender and the recipient has no reason to doubt the truth of that statement.

(3) If a notice, other document or information 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.

Electronic delivery — general

257

(1) A notice or other document may be given, delivered or sent by electronic means unless in any particular case some other form of delivery is required by the Regulations or these Rules or an order of the court, provided that the intended recipient of the notice or other document has—

(a) given actual consent (whether in the specific case or generally) to electronic delivery and has—

(i) not revoked that consent, and

(ii) provided an electronic address for delivery;

(b) given deemed consent in accordance with paragraph (2) (in which case the electronic address for delivery shall be the address used by the institution for communications with the intended recipient before the special administration commenced) and has not revoked that consent.

(2) For the purposes of paragraph (1) an intended recipient is deemed to have consented to the electronic delivery of a notice or other document by the administrator where the intended recipient and the institution had customarily communicated with each other by electronic means before the special administration commenced.

(3) In the absence of evidence to the contrary, a notice or other document is presumed to have been delivered by electronic means where the sender can produce a copy of the electronic communication which—

(a) contains the notice or other document, or to which the notice or other document was attached, and

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

(4) A document sent electronically is deemed to have been delivered to the recipient at 9.00am on the next business day after it was sent.

(5) Paragraph (4) does not apply in respect of notices or other documents sent electronically under Part 2.

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