The Rules of the Supreme Court (Amendment No. 3) 1986

Rule 13

SCHEDULE

“ORDER 102 THE COMPANIES ACT 1985

Definitions

1.   In this Order—

“the Act” means the Companies Act 1985;

“the companies court registrar” means any officer of the High Court who is a registrar within the meaning of any rules for the time being in force relating to the winding up of companies;

“the Court”, without prejudice to Order 1, rule 4(2), includes the companies court registrar.

Applications to be made by originating summons

2.— (1) Except in the case of the applications mentioned in rules 3 and 4, every application under the Act must, in accordance with Order 5, rule 3, be made by originating summons.

(2) An originating summons under this rule shall be in Form No. 10 in Appendix A unless the application made by summons is—

(a) an application under section 427 of the Act for an order to make provision for all or any of the matters mentioned in subsection (3) of that section where an order sanctioning the compromise or arrangement to which the application relates has previously been made, or

(b) an application under section 713 of the Act for an order directing a company and any officer thereof to make good any such default as is mentioned in that section, or

(c) an application under section 244(1) of the Act for an order directing the directors of a company or any of them to make good any such default as is therein mentioned, or

(d) an application under section 216 of the Act for an order directing that any shares in a company shall be subject to the restrictions imposed by Part XV of the Act.

(3) An application under section 721 of the Act may be made by ex parte originating summons.

(4) An originating summons under this rule may be issued out of the office of the companies court registrar or any Chancery district registry, and Order 7, rule 5(2), shall not apply in relation to such a summons.

Applications to be made by originating motion

3.— (1) The following applications under the Act must be made by originating motion, namely, applications—

(a) under section 88(6) for an order extending the time for delivery to the registrar of companies of any documents required by that section to be delivered,

(b) under section 432 for an order declaring that the affairs of a company ought to be investigated by an inspector appointed by the Secretary of State,

(c) under section 436 for an inquiry into any such case as is therein mentioned,

(d) under section 456(1) for an order directing that any shares in or debentures of a company shall cease to be subject to restrictions imposed by Part XV,

(e) under section 456(4) for an order directing that any shares in or debentures of a company shall, on a sale, cease to be subject to restrictions imposed by Part XV,

(f) under section 651 for an order declaring a dissolution of a company which has not been wound up to have been void,

(g) under section 359(1) for rectification of the registrar of members of a company, and

(h) under section 217(5) for amendment of the registrar of interests in shares of a company.

(2) The notice of the motion by which any such application is made may be issued out of the office of the companies court registrar, or any Chancery district registry.

Applications to be made by petition

4.— (1) The following applications under the Act must be made by petition, namely, applications—

(a) under section 5 to cancel the alteration of a company's objects,

(b) under section 17 to cancel the alteration of a condition contained in a company's memorandum,

(c) under section 130 to confirm a reduction of the share premium account of a company,

(d) under section 136 to confirm a reduction of the share capital of a company,

(e) under section 127 to cancel any variation or abrogation of the rights attached to any class of shares in a company,

(f) under section 425 to sanction a compromise or arrangement between a company and its creditors or any class of them or between a company and its members or any class of them,

(g) under section 653 for an order restoring the name of a company to the register where the application is made in conjunction with an application for the winding up of the company,

(h) under section 690 to cancel the alteration of the form of a company's constitution,

(i) under section 727 for relief from liability of an officer of a company or a person employed by a company as auditor,

(j) under section 54(1) to cancel a special resolution to which that section applies,

(k) under section 157(2) or section 176(1) to cancel a special resolution to which either of those sections applies, and

(l) under section 170 in relation to the reduction of capital redemption reserve.

(2) A petition by which any such application is made may be presented in the office of the companies court registrar, or any Chancery district registry, and Order 9, rule 3, shall not apply in relation to such a petition.

Assignment and entitlement of proceedings

5.— (1) All proceedings to which this Order relates shall be assigned to the Chancery Division.

(2) Every originating summons, notice of originating motion and petition by which any such proceedings are begun and all affidavits, notices and other documents in those proceedings must be entitled in the matter of the company in question and in the matter of the Companies Act 1985.

Summons for directions

6.— (1) After presentation of a petition by which any such application as is mentioned in rule 4 is made, the petitioner, except where his application is one of those mentioned in paragraph (2), must take out a summons for directions under this rule.

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

(a) an application under section 425 of the Act to sanction a compromise or arrangement unless there is included in the petition for such sanction an application for an order under section 427 of the Act,

(b) an application under section 653 of the Act for an order restoring the name of a company to the register,

(c) an application under section 54(1) of the Act for an order cancelling a special resolution to which that section applies, and

(d) an application under section 157(2) or 176(1) of the Act for an order cancelling a special resolution to which those sections apply.

(3) On the hearing of the summons the Court may by order give such directions as to the proceedings to be taken before the hearing of the petition as it thinks fit including, in particular, directions for the publication of notices and the making of any inquiry.

(4) Where the application made by the petition is to confirm a reduction of the share capital, the share premium account, or the capital redemption reserve of a company, then, without prejudice to the generality of paragraph (3), the Court may give directions—

(a) for an inquiry to be made as to the debts of, and claims against, the company or as to any class or classes of such debts or claims;

(b) as to the proceedings to be taken for settling the list of creditors entitled to object to the reduction and fixing the date by reference to which the list is to be made;

and the power of the Court under section 136(6) of the Act to direct that *section 136(3) to (5) thereof shall not apply as regards any class of creditors may be exercised on any hearing of the summons.

(5) *Rules 7 to 12 shall have effect subject to any directions given by the Court under this rule.

Inquiry as to debts: company to make list of creditors

7.— (1) Where under rule 6 the Court orders such an inquiry as is mentioned in paragraph (4) thereof, the company in question must, within 7 days after the making of the order, file in the office of the companies court registrar an affidavit made by an officer of the company competent to make it verifying a list containing—

(a) the name and address of every creditor entitled to any debt or claim to which the inquiry extends,

(b) the amount due to each creditor in respect of such debt or claim or, in the case of a debt or claim which is subject to any contingency or sounds only in damages or for some other reason does not bear a certain value, a just estimate of the value thereof, and

(c) the total of those amounts and values.

(2) The deponent must state in the affidavit his belief that at the date fixed by the Court as the date by reference to which the list is to be made there is no debt or claim which, if that date were the commencement of the winding up of the company, would be admissible in proof against the company, other than the debts or claims set out in the list and any debts or claims to which the inquiry does not extend, and must also state his means of knowledge of the matters deposed to.

(3) The list must be left at the office mentioned in paragraph (1) not later than one day after the affidavit is filed.

Inspection of list of creditors

8.— (1) Copies of the list made under rule 7 with the omission, unless the Court otherwise directs, of the amount due to each creditor and the estimated value of any debt or claim to which any creditor is entitled, shall be kept at the registered office of the company and at the office of that company's solicitor and of that solicitor's London agent, if any.

(2) Any person shall be entitled during ordinary business hours, on payment of a fee of 5p to inspect the said list at any such office and to take extracts therefrom.

Notice to creditors

9.   Within 7 days after filing the affidavit required by rule 7 the company must send by post to each creditor named in the list exhibited to the affidavit, at his last known address, a notice stating—

(a) the amount of the reduction sought to be confirmed,

(b) the effect of the order directing an inquiry as to debts and claims,

(c) the amount or value specified in the list as due or estimated to be due to that creditor, and

(d) the time fixed by the Court within which, if he claims to be entitled to a larger amount, he must send particulars of his debt or claim and the name and address of his solicitor, if any, to the company's solicitor.

Advertisement of petition and list of creditors

10.   After filing the affidavit required by rule 7 the company must insert, in such newspapers and at such times as the Court directs, a notice stating—

(a) the date of presentation of the petition and the amount of the reduction thereby sought to be confirmed,

(b) the inquiry ordered by the Court under rule 6,

(c) the places where the list of creditors may be inspected in accordance with rule 9, and

(d) the time within which any creditor not named in the list who claims to be entitled to any debt or claim to which the inquiry extends must send his name and address, the name and address of his solicitor, if any, and particulars of his debt or claim to the company's solicitor.

Affidavit as to claims made by creditors

11.   Within such time as the Court directs the company must file in the office of the companies court registrar an affidavit made by the company's solicitor and an officer of the company competent to make it—

(a) proving service of the notices mentioned in rule 9 and advertisement of the notice mentioned in rule 10,

(b) verifying a list containing the names and addresses of the person (if any) who in pursuance of such notices sent in particulars of debts or claims, specifying the amount of each debt or claim,

(c) distinguishing in such list those debts or claims which are wholly, or as to any and what part thereof, admitted by the company, disputed by the company or alleged by the company to be outside the scope of the inquiry, and

(d) stating which of the persons named in the list made under rule 7, and which of the persons named in the list made under this rule, have been paid or consent to the reduction sought to be confirmed.

Adjudication of disputed claims

12.   If the company contends that a person is not entitled to be entered in the list of creditors in respect of any debt or claim or in respect of the full amount claimed by him in respect of any debt or claim, then, unless the company is willing to secure payment of that debt or claim by appropriating the full amount of the debt or claim, the company must, if the Court so directs, send to that person by post at his last known address a notice requiring him—

(a) within such time as may be specified in the notice, being not less than 4 clear days after service thereof, to file an affidavit proving his debt or claim or, as the case may be, so much thereof as is not admitted by the company, and

(b) to attend the adjudication of his debt or claim at the place and time specified in the notice, being the time appointed by the Court for the adjudication of debts and claims.

Certifying lists of creditors entitled to object to reduction

13.   The list of creditors entitled to object to such reduction as is mentioned in rule 6(4), as settled by the Court under section 136(4) of the Act, shall be certified and filed by the companies court registrar and his certificate shall—

(a) specify the debts or claims (if any) disallowed by the court;

(b) distinguish the debts of claims (if any) the full amount of which is admitted by the company, the debts or claims (if any) the full amount of which, though not admitted by the company, the company is willing to appropriate, the debts or claims (if any) the amount of which has been fixed by adjudication of the Court under section 136(4) of the Act and other debts or claims;

(c) specify the total amount of the debts or claims payment of which has been secured by appropriation under the said section 136(4);

(d) show which creditors consent to the reduction and the total amount of their debts or claims;

(e) specify the creditors who sought to prove their debts or claims under rule 12 and state which of such debts or claims were allowed.

Evidence of consent of creditor

14.   The consent of a creditor to such reduction as is mentioned in rule 6(4) may be proved in such manner as the Court thinks sufficient.

Time, etc. of hearing of petition for confirmation of reduction

15.— (1) A petition for the confirmation of any such reduction as is mentioned in rule 6(4) shall not, where the Court has directed an inquiry pursuant to that rule, be heard before the expiration of at least 8 clear days after the filing of the certificate mentioned in rule 13.

(2) Before the hearing of such a petition, a notice specifying the day appointed for the hearing must be published at such times and in such newspapers as the Court may direct.

Affidavits to be filed in district registry

16.   Where an application to which this Order relates is proceeding in any Chancery district registry, all affidavits made in connection with the application must be filed in that registry.”.