4.001.—(1) In a members' voluntary winding up, this Part does not apply, except as follows—
(a)Rule 4.003 applies in the same way as it applies in a creditors' voluntary winding up;
(b)Rule 4.078 (additional provisions concerning meetings in relation to Bank of England and Deposit Protection Board) applies in the winding up of authorised institutions or former authorised institutions within the meaning of the Banking Act 1987, whether members' or creditors' voluntary or by the court;
(c)Chapters 9 (proof of debts in a liquidation), 10 (secured creditors), 15 (disclaimer) and 18 (special manager) apply wherever, and in the same way as, they apply in a creditors' voluntary winding up;
(d)Section F of Chapter 11 (the liquidator) applies only in a members' voluntary winding up, and not otherwise;
(e)Section G of that Chapter (court's power to set aside certain transactions; rule against solicitation) applies in any winding up, whether members' or creditors' voluntary or by the court;
(f)Rule 4.192 applies only in a members' voluntary winding up, and not otherwise; and
(g)Rule 4.233-CVL (liquidator's statements) applies in the same way as it applies in a creditors' voluntary winding up.
(2) Subject to paragraphs (3) to (5) this Part applies both in a creditors' voluntary winding up and in a winding up by the court; and for this purpose a winding up is treated as a creditors' voluntary winding up if, and from the time when, the liquidator forms the opinion that the company will be unable to pay its debts in full, and determines accordingly to summon a creditors' meeting under Article 81.
(3) The following Chapters, or Sections of Chapters, of this Part do not apply in a creditors' voluntary winding up—
Chapter 2—The statutory demand;
Chapter 3—to winding-up order;
Chapter 4—Petition by contributories;
Chapter 5—liquidator;
Chapter 11 (Section F)—liquidator in a members' voluntary winding up;
Chapter 13—The liquidation committee where winding up follows immediately on administration;
Chapter 16—of list of contributories;
Chapter 17—Calls;
Chapter 19—Public examination of company officers and others;
Chapter 21 (Section A)—of capital; and
Chapter 21 (Section C)-Dissolution after winding up.
(4) Subject to paragraph (5), where at the head of any Rule, or at the end of any paragraph of a Rule, there appear the words “(NO CVL APPLICATION)”, this signifies that the Rule or, as the case may be, the paragraph does not apply in a creditors' voluntary winding up.
(5) Paragraph (4) does not affect the court's power to make orders under Article 98 (exercise in relation to voluntary winding up of powers available in winding up by the court).
(6) Where to any Rule or paragraph there is given a number incorporating the letters ''CVL", that signifies that the Rule or (as the case may be) the paragraph applies in a creditors' voluntary winding up, and not in a winding up by the court.
[E.R.4.1]
4.002. (NO CVL APPLICATION)
(1) Insofar as this Part applies to winding up by the court, it applies (subject to paragraphs (2) to (4)) whether the petition for winding up is presented under any of the several paragraphs of Article 102, namely—
paragraph (a)—company special resolution for winding up by the court;
paragraph (b)—public company without certificate under Article 127 of the Companies Order;
paragraph (c)—public company;
paragraph (d)—company not commencing business after formation, or suspending business;
paragraph (e)—of company's members reduced below two;
paragraph (f)—unable to pay its debts;
paragraph (g)—court's power under the “just and equitable” rule;
or under any enactment enabling the presentation of a winding-up petition.
(2) Except as provided by paragraphs (3) or (4) or by any particular Rule, the Rules apply whether the petition for winding up is presented by the company, the directors, one or more creditors, one or more contributories, the Department, the official receiver, or any person entitled under any enactment to present such a petition.
(3) Chapter 2 (statutory demand) has no application except in relation to an unpaid creditor of the company satisfying Article 103(1)(a) (the first of the cases specified of the company being deemed unable to pay its debts within Article 102(/)) or Article 186(1) (the equivalent provision in relation to unregistered companies).
(4) Chapter 3 (petition to winding-up order) has no application to a petition for winding up presented by one or more contributories; and in relation to a petition so presented Chapter 4 has effect.
[E.R.4.2]
4.003. Where by any provision of the Order or the Rules about winding up, the time for doing anything is limited, the court may extend the time, either before or after it has expired, on such terms, if any, as it thinks fit.
[E.R.4.3]
4.004.—(1) This Chapter does not apply where a petition for the winding up of a company is presented under Article I 04 on or after the date on which the Rules come into operation and the petition is based on failure to comply with a written demand served on the company before that date.
(2) A written demand served by a creditor on a company under Article 103(1)(a) (registered companies) or 186(1)(a) (unregistered companies) is known in winding-up proceedings as “the statutory demand”.
(3) The statutory demand must be dated, and be signed either by the creditor himself or by a person stating himself to be authorised to make the demand on the creditor's behalf.
[E.R.4.4]
4.005.—(1) The statutory demand must state the amount of the debt and the consideration for it (or, if there is no consideration, the way in which it arises).[FORM 4.01]
(2) If the amount claimed in the demand includes—
(a)any charge by way of interest not previously notified to the company as included in its liability, or
(b)any other charge accruing from time to time,
the amount or rate of the charge must be separately identified, and the grounds on which payment of it is claimed must be stated.
(3) The amount claimed in respect of a charge mentioned in paragraph (2) must be limited to that which has accrued due at the date of the demand.
[E.R.4.5]
4.006.—(1) The statutory demand must include an explanation to the company of the following matters—
(a)the purpose of the demand, and the fact that, if the demand is not complied with, proceedings may be instituted for the winding up of the company;
(b)the time within which it must be complied with, if that consequence is to be avoided; and
(c)the methods of compliance which are open to the company.
(2) Information must be provided for the company as to how an officer or representative of it may enter into communication with one or more named individuals, with a view to securing or compounding for the debt to the creditor's satisfaction.
(3) In the case of any individual so named in the demand, his address and telephone number (if any) must be given.
[E.R.4.6]
4.007.—(1) The petition, verified by affidavit in accordance with Rule 4.012, shall be filed in court.[FORM 4.02] [FORM 4.03]
(2) No petition shall be filed unless there is produced with it the receipt for the deposit payable on presentation.
(3) If the petitioner is other than the company itself, there shall be delivered with the petition—
(a)one copy for service on the company, and
(b)one copy to be exhibited to the affidavit verifying service.
(4) There shall in any case be delivered with the petition—
(a)if the company is in the course of being wound up voluntarily, and a liquidator has been appointed, one copy of the petition to be sent to him;
(b)if an administration order is in force in relation to the company, one copy to be sent to the administrator;
(c)if an administrative receiver has been appointed in relation to the company, one copy to be sent to him;
(d)if there is in force for the company a voluntary arrangement under Part II of the Order, one copy for the supervisor of the arrangement; and
(e)if the company is an authorised institution or former authorised institution within the meaning of the Banking Act 1987(1) and the petitioner is not the Bank of England, one copy to be sent to the Bank.
(5) Each of the copies delivered shall have applied to it the seal of the court, and shall be issued to the petitioner.
(6) The court shall fix a venue for the hearing of the petition; and this shall be endorsed on any copy issued to the petitioner under paragraph (5).
(7) Where a petition is filed at the instance of a company's administrator the petition shall—
(a)be expressed to be the petition of the company by its administrator,
(b)state the name of the administrator, the number of the petition on which the administration order was made and the date of that order, and
(c)contain an application under Article 30 requesting that the administration order be discharged and that the court make any such order consequential upon that discharge as it thinks fit.
(8) Any petition such as is mentioned in paragraph (7) or any petition presented by the supervisor of a voluntary arrangement under Part II of the Order in force for the company shall be treated as if it were a petition filed by contributories, and Chapter 4 shall apply accordingly.
(9) Where a petition contains a request for the appointment of a person as liquidator in accordance with Article 119 (appointment of former administrator or supervisor as liquidator) the person whose appointment is sought shall, not less than 2 days before the return day for the petition, file in court a report including particulars of—
(a)a date on which he notified creditors of the company, either in writing or at a meeting of creditors, of the intention to seek his appointment as liquidator, such date to be at least 10 days before the day on which the report under this paragraph is filed, and
(b)details of any response from creditors to that notification, including any objections to his appointment.
[E.R.4.7]
4.008.—(1) Paragraphs (2) to (7) apply as regards service of the petition on the company (where the petitioner is other than the company itself); and references to the petition are to a copy of the petition bearing the seal of the court.
(2) Subject to paragraphs (3) to (6), the petition shall be served at the company's registered office, that is to say—
(a)the place which is specified, in the company's statement delivered under Article 21 of the Companies Order as the intended situation of its registered office on incorporation, or
(b)if notice has been given by the company to the registrar under Article 295 of that Order (change of registered office), the place specified in that notice or, as the case may be, in the last such notice.
(3) Service of the petition at the registered office may be effected in any of the following ways—
(a)it may be handed to a person who there and then acknowledges himself to be, or to the best of the server's knowledge, information and belief is, a director or other officer, or employee, of the company; or
(b)it may be handed to a person who there and then acknowledges himself to be authorised to accept service of documents on the company's behalf; or
(c)in the absence of any such person as is mentioned in sub-paragraph (a) or (b), it may be deposited at or about the registered office in such a way that it is likely to come to the notice of a person attending at the office.
(4) If for any reason service at the registered office is not practicable, or the company has no registered office or is an unregistered company, the petition may be served on the company by leaving it at the company's last known principal place of business in such a way that it is likely to come to the attention of a person attending there, or by delivering it to the secretary or some director, manager or principal officer of the company, wherever that person may be found.
(5) In the case of a Part XXIII company, service may be effected in any manner provided for by Article 645 of the Companies Order.
(6) If for any reason it is impracticable to effect service as provided by paragraphs (2) to (5), the petition may be served in such other manner as the court may approve or direct.
(7) Application for leave of the court under paragraph (6) may be made ex parte, on affidavit stating what steps have been taken to comply with paragraphs (2) to (5), and the reasons why it is impracticable to effect service as there provided.
[E.R.4.8]
4.009.—(1) Service of the petition shall be proved by affidavit, specifying the manner of service.[FORM 4.04] [FORM 4.05]
(2) The affidavit shall have exhibited to it—
(a)a sealed copy of the petition, and
(b)if substituted service has been ordered, a sealed copy of the order;
and it shall be filed in court immediately after service.
[E.R.4.9]
4.010.—(1) If to the petitioner's knowledge the company is in course of being wound up voluntarily, a copy of the petition shall be sent by him to the liquidator.
(2) If to the petitioner's knowledge an administrative receiver has been appointed in relation to the company, or an administration order is in force in relation to it, a copy of the petition shall be sent by him to the receiver or, as the case may be, the administrator.
(3) If to the petitioner's knowledge there is in force for the company a voluntary arrangement under Part II of the Order, a copy of the petition shall be sent by him to the supervisor of the voluntary arrangement.
(4) Subject to paragraph (5), if the company is an authorised institution or former authorised institution within the meaning of the Banking Act 1987, a copy of the petition shall be sent by the petitioner to the Bank of England.
(5) Paragraph (4) does not apply if the petitioner is the Bank of England itself.
(6) A copy of the petition which is required by this Rule to be sent shall be despatched on the next business day after the day on which the petition is served on the company.
[E.R.4.10]
4.011.—(1) When the petition is filed, the court shall forthwith send notice of its presentation to the Enforcement of Judgments Office.
(2) Unless the court otherwise directs, the petition shall be advertised once in the Gazette.[FORM 4.06]
(3) The advertisement must be made to appear—
(a)if the petitioner is the company itself, not less than 7 business days before the hearing date, and
(b)otherwise, not less than 7 business days after service of the petition on the company, nor less than 7 business days before the hearing date.
(4) The court may, if compliance with paragraph (3) is not reasonably practicable, direct that advertisement of the petition be made to appear in a specified newspaper, instead of in the Gazette.
(5) The advertisement of the petition must state—
(a)the name of the company and the address of its registered office, or—
(i)in the case of an unregistered company, the address of its principal place of business;
(ii)in the case of a Part XXIII company, the address at which service of the petition was effected;
(b)the name and address of the petitioner;
(c)where the petitioner is the company itself, the address of its registered office or, in the case of an unregistered company, of its principal place of business;
(d)the date on which the petition was presented;
(e)the venue fixed for the hearing of the petition;
(f)the name and address of the petitioner's solicitor (if any); and
(g)that any person intending to appear at the hearing (whether to support or oppose the petition) must give notice of his intention in accordance with Rule 4.016.
(6) If the petition is not duly advertised in accordance with this Rule, the court may dismiss it.
[E.R.4.11]
4.012.—(1) The petition shall be verified by an affidavit that the statements in the petition are true, or are true to the best of the deponent's knowledge, information and belief.[FORM 4.02] [FORM 4.03]
(2) If the petition is in respect of debts due to different creditors, the debts to each creditor must be separately verified.
(3) The petition shall be exhibited to the affidavit verifying it.
(4) The affidavit shall be made—
(a)by the petitioner (or if there are two or more petitioners, any one of them), or
(b)by some person such as a director, company secretary or similar company officer, or a solicitor, who has been concerned in the matters giving rise to the presentation of the petition, or
(c)by some responsible person who is duly authorised to make the affidavit and has the requisite knowledge of those matters.
(5) Where the deponent is not the petitioner himself, or one of the petitioners, he must in the affidavit identify himself and state—
(a)the capacity in which, and the authority by which, he makes it, and
(b)the means of his knowledge of the matters sworn to in the affidavit.
(6) The affidavit is prima facie evidence of the statements in the petition to which it relates.
(7) An affidavit verifying more than one petition shall include in its title the names of the companies to which it relates and shall set out, in respect of each company, the statements relied on by the petitioner; and a clear and legible photocopy of the affidavit shall be filed with each petition which it verifies.
[E.R.4.12]
4.013. Every director, contributory or creditor of the company is entitled to be furnished by the solicitor for the petitioner (or by the petitioner himself, if acting in person) with a copy of the petition within 2 days after requiring it, on payment of the appropriate fee.
[E.R.4.13]
4.014.—(1) The petitioner or his solicitor shall, at least 5 days before the hearing of the petition, file in court a certificate of compliance with the Rules relating to service and advertisement.[FORM 4.07]
(2) The certificate shall show—
(a)the date of presentation of the petition,
(b)the hearing date, and
(c)the date or dates on which the petition was served and advertised in compliance with the Rules.
(3) A copy of the advertisement of the petition shall be filed in court with the certificate.
(4) Non-compliance with this Rule is a ground on which the court may, if it thinks fit, dismiss the petition.
[E.R.4.14]
4.015.—(1) If at least 5 days before the hearing the petitioner, on an ex parte application, satisfies the court that—
(a)the petition has not been advertised, and
(b)no notices (whether in support or in opposition) have been received by him with reference to the petition, and
(c)the company consents to an order being made under this Rule,
the court may order that the petitioner has leave to withdraw the petition on such terms as to costs as the parties may agree.[FORM 4.08]
(2) If the petition is dismissed or withdrawn, the court shall send notice thereof to the Enforcement of Judgments Office.
(3) Where an administration order is made whilst a winding-up petition is pending, the court shall send notice of the dismissal of the petition pursuant to Article 24(1) to the Enforcement of Judgments Office.
[E.R.4.15]
4.016.—(1) Every person who intends to appear on the hearing of the petition shall give to the petitioner notice of his intention in accordance with this Rule.[FORM 4.09]
(2) The notice shall specify—
(a)the name and address of the person giving it, and any telephone number and reference which may be required for communication with him or with any other person (to be also specified in the notice) authorised to speak or act on his behalf;
(b)whether his intention is to support or oppose the petition; and
(c)the amount and nature of his debt.
(3) The notice shall be sent to the petitioner at the address shown for him in the court records, or in the advertisement of the petition required by Rule 4.011; or it may be sent to his solicitor.
(4) The notice shall be sent so as to reach the addressee not later than 16.00 hours on the business day before that which is appointed for the hearing (or, where the hearing has been adjourned, for the adjourned hearing).
(5) A person failing to comply with this Rule may appear on the hearing of the petition only with the leave of the court.
[E.R.4.16]
4.017.—(1) The petitioner shall prepare for the court a list of the persons (if any) who have given notice under Rule 4.016, specifying their names and addresses and (if known to him) their respective solicitors.[FORM 4.10]
(2) Against the name of each creditor in the list it shall be stated whether his intention is to support the petition, or to oppose it.
(3) On the day appointed for the hearing of the petition, a copy of the list shall be handed to the court before the commencement of the hearing.
(4) If any leave is given under Rule 4.016(5), the petitioner shall add to the list the same particulars in respect of the person to whom leave has been given.
[E.R.4.17]
4.018.—(1) If the company intends to oppose the petition, its affidavit in opposition shall be filed in court not less than 7 days before the hearing date.
(2) A copy of the affidavit shall be sent by the company to the petitioner, forthwith after filing.
[E.R.4.18]
4.019.—(1) This Rule applies where a person petitions and is subsequently found not entitled to so do, or where the petitioner—
(a)fails to advertise his petition within the time prescribed by the Rules or such extended time as the court may allow, or
(b)consents to withdraw his petition, or to allow it to be dismissed, consents to an adjournment, or fails to appear in support of his petition when it is called on in court on the day originally fixed for the hearing, or on a day to which it is adjourned, or
(c)appears, but does not apply for an order in the terms of the prayer of his petition.
(2) The court may, on such terms as it thinks just, substitute as petitioner any creditor or contributory who in its opinion would have a right to present a petition, and who is desirous of prosecuting it.
(3) An order of the court under this Rule may, where a petitioner fails to advertise his petition within the time prescribed by the Rules, or consents to withdraw his petition, be made at any time.
[E.R.4.19]
4.020.—(1) When a winding-up order has been made, the court shall forthwith give notice of the fact to the official receiver.[FORM 4.11] [FORM 4.12] [FORM 4.13]
(2) The petitioner and every other person who has appeared on the hearing of the petition shall, not later than the business day following that on which the order is made, leave at the court all the documents required for enabling the order to be completed forthwith.
(3) It is not necessary for the court to appoint a venue for any person to attend to settle the order, unless in any particular case the special circumstances make an appointment necessary.
[E.R.4.20]
4.021.—(1) When the winding-up order has been made, 3 copies of it, sealed with the seal of the court, shall be sent forthwith by the court to the official receiver.
(2) The official receiver shall cause a sealed copy of the order to be served on the company by prepaid letter addressed to it at its registered office (if any) or, if there is no registered office, at its principal or last known principal place of business.
(3) Alternatively, the order may be served on such other person or persons, or in such other manner, as the court directs.
(4) The official receiver shall forward to the registrar the copy of the order which by Article 110(1) is directed to be so forwarded by the company.
(5) The official receiver shall forthwith—
(a)cause the order to be gazetted,
(b)advertise the order in such newspaper as the official receiver may select, and
(c)send notice of the making of the order to the Enforcement of Judgments Office.
[E.R.4.21]
4.022. Where a winding-up order is made and there is at the time of the presentation of the petition in force for the company a voluntary arrangement under Part II of the Order, any expenses properly incurred as expenses of the administration of the arrangement in question shall be a first charge on the company's assets.
[E.R.4.21 A]
4.023.—(1) Any application for rescission of a winding-up order shall be made within 7 days after the date on which the order was made.
(2) If an order is made rescinding a winding-up order or staying the winding-up proceedings, 3 copies of it, sealed with the seal of the court, shall be sent forthwith by the court to the official receiver.
(3) The official receiver shall forthwith forward one sealed copy of the order to the registrar and one sealed copy of the order to the Enforcement of Judgments Office.
4.024.—(1) The petition shall specify the grounds on which it is presented and shall be filed in court with one copy for service under this Rule.[FORM 4.14]
(2) No petition shall be filed unless there is produced with it the receipt for the deposit payable on presentation.
(3) The court shall fix a hearing for a day (“the return day”) on which, unless the court otherwise directs, the petitioner and the company shall attend before the Master in chambers for directions to be given in relation to the procedure on the petition.
(4) On fixing the return day, the court shall return to the petitioner a sealed copy of the petition for service, endorsed with the return day and time of hearing.
(5) The petitioner shall, at least 14 days before the return day, serve a sealed copy of the petition on the company.
[E.R.4.22]
4.025.—(1) On the return day, or at any time after it, the court shall give such directions as it thinks appropriate with respect to the following matters—
(a)service of the petition, whether in connection with the venue for a further hearing, or for any other purpose;
(b)whether particulars of claim and defence are to be delivered, and generally as to the procedure on the petition;
(c)whether, and if so by what means, the petition is to be advertised;
(d)the manner in which any evidence is to be adduced at any hearing before the Judge and in particular (but without prejudice to the generality of sub-paragraphs (a) to (c)) as to—
(i)the taking of evidence wholly or in part by affidavit or orally;
(ii)the cross-examination of any deponents to affidavits;
(iii)the matters to be dealt with in evidence;
(e)any other matter affecting the procedure on the petition or in connection with the hearing and disposal of the petition.
(2) In giving directions under paragraph (1)(a), the court shall have regard to whether any of the persons specified in Rule 4.010 should be served with a copy of the petition.
[E.R.4.23]
4.026. The following Rules in Chapter 3 apply, with the necessary modifications—
Rule 4.016 (notice of appearance);
Rule 4.017 (list of appearances);
Rule 4.020 (notice and settling of winding-up order);
Rule 4.021 (transmission and advertisement of order); and Rule 4.022 (expenses of voluntary arrangement).
[E.R.4.24]
4.027.—(1) An application to the court for the appointment of a provisional liquidator under Article 115 may be made by the petitioner, or by a creditor of the company, or by a contributory, or by the company itself, or by the Department, or by any person who under any enactment would be entitled to present a petition for the winding up of the company.
(2) The application must be supported by an affidavit stating—
(a)the grounds on which it is proposed that a provisional liquidator should be appointed;
(b)if some person other than the official receiver is proposed to be appointed, that the person has consented to act and, to the best of the applicant's belief, is qualified to act as an insolvency practitioner in relation to the company;
(c)whether or not the official receiver has been informed of the application and, if so, has been furnished with a copy of it;
(d)whether to the applicant's knowledge—
(i)there has been proposed or is in force for the company a voluntary arrangement under Part II of the Order, or
(ii)an administrator or administrative receiver is acting in relation to the company, or
(iii)a liquidator has been appointed for its voluntary winding up; and
(e)the applicant's estimate of the value of the assets in respect of which the provisional liquidator is to be appointed.
(3) The applicant shall send copies of the application and of the affidavit in support to the official receiver, who may attend the hearing and make any representations which he thinks appropriate.
(4) If for any reason it is not practicable to comply with paragraph (3), the official receiver must be informed of the application in sufficient time for him to be able to attend.
(5) The court may on the application, if satisfied that sufficient grounds are shown for the appointment, make it on such terms as it thinks fit.
[E.R.4.25]
4.028.—(1) Where a provisional liquidator has been appointed the court shall forthwith give notice of the fact to the official receiver.[FORM 4.15]
(2) A copy of that notice shall at the same time be sent by the court to the provisional liquidator where he is not the official receiver.
[E.R.4.25A]
4.029.—(1) The order appointing the provisional liquidator shall specify the functions to be carried out by him in relation to the company's affairs.[FORM 4.16]
(2) The court shall, forthwith after the order is made, send sealed copies of the order as follows—
(a)if the official receiver is appointed, 2 copies to him;
(b)if a person other than the official receiver is appointed—
(i)2 copies to that person, and
(ii)one copy to the official receiver;
(c)if there is an administrative receiver acting in relation to the company, one copy to him.
(3) Of the 2 copies of the order sent to the official receiver under paragraph (2)(a), or to another person under paragraph (2)(b)(i), one shall in each case be sent by the recipient to the company or, if a liquidator has been appointed for the company's voluntary winding up, to him.
[E.R.4.26]
4.030.—(1) Before an order appointing the official receiver as provisional liquidator is issued, the applicant for it shall deposit with him, or otherwise secure to his satisfaction, such sum as the court directs to cover the official receiver's remuneration and expenses.
(2) If the sum deposited or secured subsequently proves to be insufficient, the court may, on application by the official receiver, order that an additional sum be deposited or secured. If the order is not complied with within 2 days after service of it on the person to whom it is directed, the court may discharge the order appointing the provisional liquidator.
(3) If a winding-up order is made after a provisional liquidator has been appointed, any money deposited under this Rule shall (unless it is required by reason of insufficiency of assets for payment of remuneration and expenses of the provisional liquidator) be repaid to the person depositing it (or as that person may direct) out of the assets, in the prescribed order of priority.
[E.R.4.27]
4.031.—(1) Paragraph (2) and Rules 4.032 to 4.034 apply where an insolvency practitioner is appointed to be provisional liquidator under Article 115.
(2) The cost of providing the security required under the Order shall be paid in the first instance by the provisional liquidator; but—
(a)if a winding-up order is not made, the person so appointed is entitled to be reimbursed out of the property of the company, and the court may make an order on the company accordingly, and
(b)if a winding-up order is made, he is entitled to be reimbursed out of the assets in the prescribed order of priority.
[E.R.4.28]
4.032.—(1) If the provisional liquidator fails to give or keep up his security, the court may remove him, and make such order as it thinks fit as to costs.
(2) If an order is made under this Rule removing the provisional liquidator, or discharging the order appointing him, the court shall give directions as to whether any, and if so what, steps should be taken for the appointment of another person in his place.
[E.R.4.29]
4.033.—(1) The remuneration of the provisional liquidator (other than the official receiver) shall be fixed by the court from time to time on his application.
(2) In fixing his remuneration, the court shall take into account—
(a)the time properly given by him (as provisional liquidator) and his staff in attending to the company's affairs;
(b)the complexity (or otherwise) of the case;
(c)any respects in which, in connection with the company's affairs, there falls on the provisional liquidator any responsibility of an exceptional kind or degree;
(d)the effectiveness with which the provisional liquidator appears to be carrying out, or to have carried out, his duties; and
(e)the value and nature of the property with which he has to deal.
(3) Without prejudice to any order the court may make as to costs, the provisional liquidator's remuneration (whether the official receiver or another) shall be paid to him, and the amount of any expenses incurred by him (including the remuneration and expenses of any special manager appointed under Article 151) reimbursed—
(a)if a winding-up order is not made, out of the property of the company, and
(b)if a winding-up order is made, out of the assets, in the prescribed order of priority,
or, in either case (the relevant funds being insufficient), out of the deposit under Rule 4.030.
(4) Unless the court otherwise directs, in a case falling within paragraph (3)(a) the provisional liquidator may retain out of the company's property such sums or property as are or may be required for meeting his remuneration and expenses.
(5) Where a person other than the official receiver has been appointed provisional liquidator, and the official receiver has taken any steps for the purpose of obtaining a statement of affairs or has performed any other duty under the Rules, he shall pay the official receiver such sum (if any) as the court may direct.
[E.R.4.30]
4.034.—(1) The appointment of the provisional liquidator may be terminated by the court on his application, or on that of any of the persons specified in Rule 4.027(1).
(2) If the provisional liquidator's appointment terminates, in consequence of the dismissal of the winding-up petition or otherwise, the court may give such directions as it thinks fit with respect to the accounts of his administration or any other matters which it thinks appropriate.
[E.R.4.31]
4.035. (NO CVL APPLICATION)
(1) This Rule and Rules 4.036 and 4.039 to 4.041 apply where the official receiver determines to require a statement of the company's affairs to be made out and submitted to him in accordance with Article 111.[FORM 4.17]
(2) He shall send notice to each of the persons whom he considers should be made responsible under that Article, requiring them to prepare and submit the statement.
(3) The persons to whom that notice is sent are referred to in this Chapter as “the deponents”.
(4) The notice shall inform each of the deponents—
(a)of the names and addresses of all others (if any) to whom the same notice has been sent;
(b)of the time within which the statement must be delivered;
(c)of the effect of Article 111(7) (penalty for non-compliance); and
(d)of the application to him, and to each of the other deponents, of Article 199 (duty to provide information, and to attend on the official receiver if required).
(5) The official receiver shall, on request, furnish a deponent with instructions for the preparation of the statement and with the forms required for that purpose.
[E.R.4.32]
4.036. (NO CVL APPLICATION)
(1) The statement of affairs shall be in Form 4.18, shall contain all the particulars required by that form and shall be verified by affidavit by the deponents (using the same form).[FORM 4.18]
(2) The official receiver may require any of the persons mentioned in Article 111(3) to submit an affidavit of concurrence, stating that he concurs in the statement of affairs.
(3) An affidavit of concurrence made under paragraph (2) may be qualified in respect of matters dealt with in the statement of affairs, where the maker of the affidavit is not in agreement with the deponents, or he considers the statement to be erroneous or misleading, or he is without the direct knowledge necessary for concurring in the statement.
(4) The statement of affairs shall be delivered to the official receiver by the deponent making the affidavit of verification (or by one of them, if more than one), together with a copy of the verified statement.
(5) Every affidavit of concurrence shall be delivered to the official receiver by the person who makes it, together with a copy.
(6) The official receiver shall file the verified copy of the statement and the affidavits of concurrence (if any) in court.
(7) The affidavit may be sworn before an official receiver or a deputy official receiver, or before an officer of the Department or the court duly authorised in that behalf.
[E.R.4.33]
4.037-CVL.—(1) This Rule applies with respect to the statement of affairs made out by the liquidator under Article 81(3) or (as the case may be) by the directors under Article 85(1).[FORM 4.19] [FORM 4.20]
(2) Where it is made out by the liquidator, the statement of affairs shall be delivered by him to the registrar within 7 days after the creditors' meeting summoned under Article 81(2).[FORM 4.21]
(3) Where it is made out by the directors under Article 85(1) the statement of affairs shall be delivered by them to the liquidator in office following the creditors' meeting summoned under Article 84 forthwith after that meeting has been held; and he shall, within 7 days, deliver it to the registrar.
(4) A statement of affairs under Article 85(1) may be made up to a date not more than 14 days before that on which the resolution for voluntary winding up is passed by the company.
[E.R.4.34-CVL]
4.038-CVL. Where a liquidator is nominated by the company at a general meeting held on a day prior to that on which the creditors' meeting summoned under Article 84 is held, the directors shall forthwith after his nomination or the making of the statement of affairs, whichever is the later, deliver to him a copy of the statement of affairs.
[E.R.4.34A-CVL]
4.039. (NO CVL APPLICATION)
(1) Where the official receiver thinks that it would prejudice the conduct of the liquidation for the whole or part of the statement of affairs to be disclosed, he may apply to the court for an order of limited disclosure in respect of the statement, or any specified part of it.
(2) The court may on the application order that the statement or, as the case may be, the specified part of it be not filed, or that it is to be filed separately and not be open to inspection otherwise than with leave of the court.
[E.R.4.35]
4.040. (NO CVL APPLICATION)
(1) The power of the official receiver under Article 111(5) to give a release from the obligation imposed by that Article, or to grant an extension of time, may be exercised at the official receiver's own discretion, or at the request of any deponent.
(2) A deponent may, if he requests a release or extension of time and it is refused by the official receiver, apply to the court for it.
(3) The court may, if it thinks that no sufficient cause is shown for the application, dismiss it; but it shall not do so unless the applicant has had an opportunity to attend the court for an ex parte hearing, of which he has been given at least 7 days' notice.
(4) If the application is not dismissed under paragraph (3), the court shall fix a venue for it to be heard, and give notice to the deponent accordingly.
(5) The deponent shall, at least 14 days before the hearing date, send to the official receiver a notice stating the venue and accompanied by a copy of the application, and of any evidence which he (the deponent) intends to adduce in support of it.
(6) The official receiver may appear and be heard on the application; and, whether or not he appears, he may file a written report of any matters which he considers ought to be drawn to the court's attention.
(7) If a report is filed under paragraph (6), a copy of it shall be sent by the official receiver to the deponent, not later than 5 days before the hearing date.
(8) Sealed copies of any order made on the application shall be sent by the court to the deponent and the official receiver.
(9) On any application under this Rule the applicant's costs shall be paid in any event by him and, unless the court otherwise orders, no allowance towards them shall be made out of the assets.
[E.R.4.36]
4.041. (NO CVL APPLICATION)
(1) If any deponent cannot himself prepare a proper statement of affairs, the official receiver may, at the expense of the assets, employ some person or persons to assist in the preparation of the statement.
(2) At the request of any deponent, made on the grounds that he cannot himself prepare a proper statement, the official receiver may authorise an allowance, payable out of the assets, towards expenses to be incurred by the deponent in employing some person or persons to assist him in preparing it.
(3) Any such request by the deponent shall be accompanied by an estimate of the expenses involved; and the official receiver shall only authorise the employment of a named person or a named firm, being in either case approved by him.
(4) An authorisation given by the official receiver under this Rule shall be subject to such conditions (if any) as he thinks fit to impose with respect to the manner in which any person may obtain access to relevant books and papers.
(5) Nothing in this Rule relieves a deponent from any obligation with respect to the preparation, verification and submission of the statement of affairs, or to the provision of information to the official receiver or the liquidator.
(6) Any payment out of the assets under this Rule shall be made in the prescribed order of priority.
(7) Paragraphs (2) to (6) may be applied, on application to the official receiver by any deponent, in relation to the making of an affidavit of concurrence.
[E.R.4.37]
4.042-CVL.—(1) Payment may be made out of the company's assets, either before or after the commencement of the winding up, of any reasonable and necessary expenses of preparing the statement of affairs under Article 85.
(2) Any payment under paragraph (1) is an expense of the liquidation.
(3) Where a payment under paragraph (1) is made before the commencement of the winding up, the director presiding at the creditors' meeting held under Article 84 shall inform the meeting of the amount of the payment and the identity of the person to whom it was made.
(4) The liquidator appointed under Article 86 may make a payment under paragraph (1) (subject to paragraph (5)); but if there is a liquidation committee, he must give the committee at least 7 days' notice of his intention to make it.
(5) A payment under paragraph (1) shall not be made by the liquidator to himself, or to any associate of his, otherwise than with the approval of the liquidation committee, the creditors, or the court.
(6) This Rule is without prejudice to the powers of the court under Rule 4.229 (voluntary winding up superseded by winding up by the court).
[E.R.4.38-CVL]
4.043. (NO CVL APPLICATION)
(1) Any of the persons specified in Article 199(3) shall, at the request of the official receiver, furnish him with accounts of the company of such nature, as at such date, and for such period, as he may specify.
(2) The period specified may begin from a date up to 3 years preceding the date of the presentation of the winding-up petition, or from an earlier date to which audited accounts of the company were last prepared.
(3) The court may, on the official receiver's application, require accounts for any earlier period.
(4) Rule 4.041 applies (with the necessary modifications) in relation to accounts to be furnished under this Rule as it applies in relation to the statement of affairs.
(5) The accounts shall, if the official receiver so requires, be verified by affidavit and (whether or not so verified) delivered to him within 21 days of the request under paragraph (1), or such longer period as he may allow.
(6) Two copies of the accounts and (where required) the affidavit shall be delivered to the official receiver by whoever is required to furnish them; and the official receiver shall file one copy in court (with the affidavit, if any).
[E.R.4.39]
4.044-CVL.—(1) Any of the persons specified in Article 199(3) shall, at the request of the liquidator, furnish him with accounts of the company of such nature, as at such date, and for such period, as he may specify.
(2) The specified period for the accounts may begin from a date up to 3 years preceding the date of the resolution for winding up, or from an earlier date to which audited accounts of the company were last prepared.
(3) The accounts shall, if the liquidator so requires, be verified by affidavit and (whether or not so verified) delivered to him, with the affidavit if required, within 21 days from the request under paragraph (1), or such longer period as he may allow.
[E.R.4.40-CVL]
4.045-CVL.—(1) Where a person is required under Rule 4.044-CVL to furnish accounts, the liquidator may, with the sanction of the liquidation committee (if there is one) and at the expense of the assets, employ some person or persons to assist in the preparation of the accounts.
(2) At the request of the person subject to the requirement, the liquidator may, with that sanction, authorise an allowance, payable out of the assets, towards expenses to be incurred by that person in employing others to assist him in preparing the accounts.
(3) Any such request shall be accompanied by an estimate of the expenses involved; and the liquidator shall only authorise the employment of a named person or a named firm, being in either case approved by him.
[E.R.4.41-CVL]
4.046. (NO CVL APPLICATION)
(1) The official receiver may at any time require the deponents, or any one or more of them to submit (in writing) further information amplifying, modifying or explaining any matter contained in the statement of affairs, or in accounts submitted in pursuance of the Order or the Rules.
(2) The information shall, if the official receiver so directs, be verified by affidavit, and (whether or not so verified) delivered to him within 21 days of the requirement under paragraph (1), or such longer period as he may allow.
(3) Two copies of the documents containing the information and (where verification is directed) the affidavit shall be delivered by the deponent to the official receiver, who shall file one copy in court (with the affidavit, if any).
[E.R.4.42]
4.047. (NO CVL APPLICATION)
(1) The official receiver shall, at least once after the making of the winding-up order, send a report to creditors and contributories with respect to the proceedings in the winding up, and the state of the company's affairs.
(2) The official receiver shall file in court a copy of any report sent under this Chapter.
[E.R.4.43]
4.048. Any reference in this Chapter to creditors is to creditors of the company who are known to the official receiver or (as the case may be) the liquidator or, where a statement of the company's affairs has been submitted, are identified in the statement.
[E.R.4.44]
4.049. (NO CVL APPLICATION)
(1) Where a statement of affairs has been submitted and filed in court, the official receiver shall send out to creditors and contributories a report containing a summary of the statement (if he thinks fit, as amplified, modified or explained by virtue of Rule 4.046) and such observations (if any) as he thinks fit to make with respect to it, or to the affairs of the company in general.
(2) The official receiver need not comply with paragraph (1) if he has previously reported to creditors and contributories with respect to the company's affairs (so far as known to him) and he is of opinion that there are no additional matters which ought to be brought to their attention.
[E.R.4.45]
4.050. (NO CVL APPLICATION)
(1) This Rule applies where, in the company's case, release from the obligation to submit a statement of affairs has been granted by the official receiver or the court.
(2) As soon as may be after the release has been granted, the official receiver shall send to creditors and contributories a report containing a summary of the company's affairs (so far as within his knowledge), and his observations (if any) with respect to it, or to the affairs of the company in general.
(3) The official receiver need not comply with paragraph (2) if he has previously reported to creditors and contributories with respect to the company's affairs (so far as known to him) and he is of opinion that there are no additional matters which ought to be brought to their attention.
[E.R.4.46]
4.051. (NO CVL APPLICATION)
(1) The court may, on the official receiver's application, relieve him of any duty imposed on him by this Chapter, or authorise him to carry out the duty in a way other than there required.
(2) In considering whether to act under this Rule, the court shall have regard to the cost of carrying out the duty, to the amount of the assets available, and to the extent of the interest of creditors or contributories, or any particular class of them.
[E.R.4.47]
4.052. (NO CVL APPLICATION)
(1) If proceedings in the winding up are stayed by order of the court, any duty of the official receiver to send reports under Rules 4.047 to 4.051 ceases.
(2) Where the court grants a stay, it may include in its order such requirements on the company as it thinks fit with a view to bringing the stay to the notice of creditors and contributories.
[E.R.4.48]
4.053-CVL. The liquidator shall, within 28 days of a meeting held under Article 81 or 84, send to creditors and contributories of the company—
(a)a copy or summary of the statement of affairs, and
(b)a report of the proceedings at the meeting.
[E.R.4.49-CVL]
4.054. Where under Article 118 the court appoints as the company's liquidator a person who was formerly its administrator and that person becomes aware of creditors not formerly known to him in his capacity as administrator, he shall send to those creditors a copy of any statement or report sent by him to creditors under Rule 2.19, so noted as to indicate that it is being sent under this Rule.
[E.R.4.49A]
4.055. (NO CVL APPLICATION)
(1) If under Article 116(5) the official receiver decides to summon meetings of the company's creditors and contributories for the purpose of nominating a person to be liquidator in place of himself, he shall fix a venue for each meeting, in neither case more than 4 months from the date of the winding-up order.
(2) When for each meeting a venue has been fixed, notice of the meetings shall be given to the court and—
(a)in the case of the creditors' meeting, to every creditor who is known to the official receiver or is identified in the company's statement of affairs; and
(b)in the case of the contributories' meeting, to every person appearing (by the company's books or otherwise) to be a contributory of the company.
(3) Notice to the court shall be given forthwith, and the other notices shall be given at least 21 days before the date fixed for each meeting respectively.
(4) The notice to creditors shall specify a time and date, not more than 4 days before the date fixed for the meeting, by which they must lodge proofs and (if applicable) proxies, in order to be entitled to vote at the meeting; and the same applies in respect of contributories and their proxies.
(5) Notice of the meetings shall also be given by public advertisement.
(6) Where the official receiver receives a request by creditors under Article 116(5)(c) for meetings of creditors and contributories to be summoned, and it appears to him that the request is properly made in accordance with the Order, he shall—[FORM 4.22]
(a)withdraw any notices previously given by him under Article l 16(5)(b) (that he has decided not to summon such meetings),
(b)fix the venue of each meeting for not more than 3 months from his receipt of the creditors' request, and
(c)act in accordance with paragraphs (2) to (5), as if he had decided under Article 116 to summon the meetings.
(7) Meetings summoned by the official receiver under this Rule are known respectively as “the first meeting of creditors” and “the first meeting of contributories”, and jointly as “the first meetings in the liquidation”.
(8) Where the company is an authorised institution or former authorised institution within the meaning of the Banking Act 1987(2), additional notices are required by Rule 4.078.
[E.R.4.50]
4.056-CVL.—(1) This Rule applies in the case of a meeting of creditors summoned by the liquidator under Article 81 (where, in what starts as a members' voluntary winding up, he forms the opinion that the company will be unable to pay its debts) or a meeting under Article 84 (first meeting of creditors in a creditors' voluntary winding up).
(2) The notice summoning the meeting shall specify a venue for the meeting and the time (not earlier than 12.00 hours on the business day before the day fixed for the meeting) by which, and the place at which, creditors must lodge any proxies necessary to entitle them to vote at the meeting.
(3) Where the company is an authorised institution or former authorised institution within the meaning of the Banking Act 1987, additional notices are required by Rule 4.078.
[E.R.4.51-CVL]
4.057. (NO CVL APPLICATION)
(1) At the first meeting of creditors, no resolutions shall be taken other than the following—
(a)a resolution to appoint a named insolvency practitioner to be liquidator, or two or more insolvency practitioners as joint liquidators;
(b)a resolution to establish a liquidation committee;
(c)(unless it has been resolved to establish a liquidation committee) a resolution specifying the terms on which the liquidator is to be remunerated, or to defer consideration of that matter;
(d)(if, and only if, two or more persons are appointed to act jointly as liquidator) a resolution specifying whether acts are to be done by both or all of them, or by only one ;
(e)(where the meeting has been requisitioned under Article 116), a resolution authorising payment out of the assets, as an expense of the liquidation, of the cost of summoning and holding the meeting and any meeting of contributories so requisitioned and held;
(f)a resolution to adjourn the meeting for not more than 3 weeks;
(g)any other resolution which the chairman thinks it right to allow for special reasons.
(2) The same applies as regards the first meeting of contributories, but that meeting shall not pass any resolution to the effect of paragraph (1)(c) or (e).
(3) At neither meeting shall any resolution be proposed which has for its object the appointment of the official receiver as liquidator.
[E.R.4.52]
4.058-CVL. Rule 4.057(1), except sub-paragraph (e), applies to a creditors' meeting under Article 81 or 84.
[E.R.4.53-CVL]
4.059-CVL. Where a company meeting at which a resolution for voluntary winding up is to be proposed is adjourned, any resolution passed at a meeting under Article 84 held before the holding of the adjourned company meeting only has effect on and from the passing by the company of a resolution for winding up.
[E.R.4.53A-CVL]
4.060-CVL.—(1) At any meeting held under Article 84 where the statement of affairs laid before the meeting does not state the company's affairs as at the date of the meeting, the directors of the company shall cause to be made to the meeting, either by the director presiding at the meeting or by another person with knowledge of the relevant matters, a report (written or oral) on any material transactions relating to the company occurring between the date of the making of the statement of affairs and that of the meeting.
(2) Any such report shall be recorded in the minutes of the meeting kept under Rule 4.077.
[E.R.4.53B-CVL]
4.061.—(1) The official receiver or the liquidator may at any time summon and conduct meetings of creditors or of contributories for the purpose of ascertaining their wishes in all matters relating to the liquidation; and in relation to any meeting summoned under the Order or the Rules, the person summoning it is referred to as “the convener”.
(2) When (in either case) a venue for the meeting has been fixed, notice of it shall be given by the convener—
(a)in the case of a creditors' meeting, to every creditor who is known to him or is identified in the company's statement of affairs; and[FORM 4.23]
(b)in the case of a meeting of contributories, to every person appearing (by the company's books or otherwise) to be a contributory of the company.[FORM 4.24]
(3) Notice of the meeting shall be given at least 21 days before the date fixed for it, and shall specify the purpose of the meeting.
(4) The notice shall specify a time and date, not more than 4 days before the date fixed for the meeting, by which, and the place at which, creditors must lodge proofs and proxies, in order to be entitled to vote at the meeting; and the same applies in respect of contributories and their proxies. (NO CVL APPLICATION)
(5-CVL) The notice shall specify a time and date, not more than 4 days before that fixed for the meeting, by which, and the place at which, creditors (if not individuals attending in person) must lodge proxies, in order to be entitled to vote at the meeting.
(6) Additional notice of the meeting may be given by public advertisement if the convener thinks fit, and shall be so given if the court orders.
[E.R.4.54]
4.062. (NO CVL APPLICATION)
(1) This Rule applies both to a meeting of creditors and to a meeting of contributories.
(2) Where the convener of the meeting is the official receiver, he, or a person nominated by him, shall be chairman.
(3) A nomination under paragraph (2) shall be in writing, unless the nominee is another official receiver or a deputy official receiver.
(4) Where the convener is other than the official receiver, the chairman shall be he, or a person nominated in writing by him.
(5) A person nominated under paragraph (4) must be either—
(a)one who is qualified to act as an insolvency practitioner in relation to the company, or
(b)an employee of the liquidator or his firm who is experienced in insolvency matters.
[E.R.4.55]
4.063-CVL.—(1) This Rule applies both to a meeting of creditors (except a meeting under Article 81 or 84) and to a meeting of contributories.
(2) The liquidator, or a person nominated by him in writing to act, shall be chairman of the meeting.
(3) A person nominated under paragraph (2) must be either—
(a)one who is qualified to act as an insolvency practitioner in relation to the company, or
(b)an employee of the liquidator or his firm who is experienced in insolvency matters.
[E.R.456-CVL]
4.064.—(1) Subject to paragraph (2), any request by creditors to the liquidator (whether or not the official receiver) for a meeting of creditors or contributories, or meetings of both, to be summoned shall be accompanied by—[FORM 4.22]
(a)a list of the creditors concurring with the request and the amount of their respective claims in the winding up;
(b)from each creditor concurring, written confirmation of his concurrence; and
(c)a statement of the purpose of the proposed meeting.
(2) Paragraph (1)(a) and (b) does not apply if the requisitioning creditor's debt is alone sufficient, without the concurrence of other creditors.
(3) The liquidator shall, if he considers the request to be properly made in accordance with the Order, fix a venue for the meeting, not more than 35 days from his receipt of the request.
(4) The liquidator shall give 21 days' notice of the meeting, and the venue for it, to creditors.
(5) Paragraphs (1) to (4) apply to the requisitioning by contributories of contributories' meetings, with the following modifications—[FORM 4.25]
(a)for the reference in paragraph (1)(a) to the creditors' respective claims substitute the contributories' respective values (being the amounts for which they may vote at any meeting); and
(b)the persons to be given notice under paragraph (4) are those appearing (by the company's books or otherwise) to be contributories of the company.
(NO CVL APPLICATION)
[E.R.4.57]
4.065.—(1) This Rule applies to meetings of creditors and to meetings of contributories.
(2) Whenever a meeting is summoned, the convener shall give at least 21 days' notice to such of the company's personnel as he thinks should be told of, or be present at, the meeting.
(3) In paragraph (2), "the company's personnel" means the persons referred to in sub-paragraphs (a) to (d) of Article 199(3) (present and past officers, employees, etc.).
(4) If the meeting is adjourned, the chairman of the meeting shall, unless for any reason he thinks it unnecessary or impracticable, give notice of the adjournment to such (if any) of the company's personnel as he considers appropriate, being persons who were not themselves present at the meeting.
(5) The convener may, if he thinks fit, give notice to any one or more of the company's personnel that he is, or they are, required to be present at the meeting, or to be in attendance.
(6) In the case of any meeting, any one or more of the company's personnel, and any other persons, may be admitted, but—
(a)they must have given reasonable notice of their wish to be present, and
(b)it is a matter for the chairman's discretion whether they are to be admitted or not, and his decision is final as to what (if any) intervention may be made by any of them.
(7) If it is desired to put questions to any one of the company's personnel who is not present, the chairman may adjourn the meeting with a view to obtaining his attendance.
(8) Where one of the company's personnel is present at a meeting, only such questions may be put to him as the chairman may in his discretion allow.
[E.R.4.58]
4.066.—(1) In the case of any meeting of creditors or contributories to be held under the Order or the Rules, the court may order that notice of the meeting be given by public advertisement, and not by individual notice to the persons concerned.
(2) In considering whether to act under this Rule, the court shall have regard to the cost of public advertisement, to the amount of the assets available, and to the extent of the interest of creditors or of contributories, or any particular class of either of them.
[E.R.4.59]
4.067.—(1) In fixing the venue for a meeting of creditors or contributories, the convener shall have regard to the convenience of the persons (other than whoever is to be chairman) who are invited to attend.
(2) Meetings shall in all cases be summoned for commencement between 10.00 and 16.00 hours on a business day, unless the court otherwise directs.
(3) With every notice summoning a meeting of creditors or contributories there shall be sent out forms of proxy.[FORM 8.4] or [FORM 8.5]
[E.R.4.60]
4.068.—(1) Subject to paragraphs (3) and (4), the expenses of summoning and holding a meeting of creditors or contributories at the instance of any person other than the official receiver or the liquidator shall be paid by that person, who shall deposit with the liquidator security for their payment.
(2) The sum to be deposited shall be such as the official receiver or liquidator (as the case may be) determines to be appropriate; and neither shall act without the deposit having been made.
(3) Where a meeting of creditors is so summoned, it may vote that the expenses of summoning and holding it, and of summoning and holding any meeting of contributories requisitioned at the same time, shall be payable out of the assets, as an expense of the liquidation.
(4) Where a meeting of contributories is summoned on the requisition of contributories, it may vote that the expenses of summoning and holding it shall be payable out of the assets, but subject to the right of creditors to be paid in full, with interest.
(5) To the extent that any deposit made under this Rule is not required for the payment of expenses of summoning and holding a meeting, it shall be repaid to the person who made it.
[E.R.4.61]
4.069-CVL.—(1) Payment may be made out of the company's assets, either before or after the commencement of the winding up, of any reasonable and necessary expenses incurred in connection with the summoning, advertisement and holding of a creditors' meeting under Article 84.
(2) Any payment under paragraph (1) is an expense of the liquidation.
(3) Where payments under paragraph (1) are made before the commencement of the winding up, the director presiding at the creditors' meeting shall inform the meeting of their amount and the identity of the persons to whom they were made.
(4) The liquidator appointed under Article 86 may make a payment under paragraph (1) (subject to paragraph (5)); but if there is a liquidation committee, he must give the committee at least 7 days' notice of his intention to make the payment.
(5) A payment under paragraph (1) shall not be made by the liquidator to himself, or to any associate of his, otherwise than with the approval of the liquidation committee, the creditors, or the court.
(6) This Rule is without prejudice to the powers of the court under Rule 4.229 (voluntary winding up superseded by winding up by the court).
[E.R.4.62-CVL]
4.070.—(1) Subject to paragraphs (2), (3), (4), (6) and (7), at a meeting of creditors or contributories, a resolution is passed when a majority (in value) of those present and voting, in person or by proxy, have voted in favour of the resolution.
(2) The value of contributories is determined by reference to the number of votes conferred on each contributory by the company's articles.
(3) In the case of a resolution for the appointment of a liquidator—
(a)subject to paragraph (4), if on any vote there are two nominees for appointment, the person who obtains the more support is appointed;
(b)if there are three or more nominees, and one of them has a clear majority over both or all the others together, that one is appointed; and
(c)in any other case, the chairman of the meeting shall continue to take votes (disregarding at each vote any nominee who has withdrawn and, if no nominee has withdrawn, the nominee who obtained the least support last time), until a clear majority is obtained for any one nominee.
(4) In a winding up by the court 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. (NO CVL APPLICATION)
(5) The chairman may at any time put to the meeting a resolution for the joint appointment of any two or more nominees.
(6) Where a resolution is proposed which affects a person in respect of his remuneration or conduct as liquidator, or as proposed or former liquidator, the vote of that person, and of any partner or employee of his, shall not be reckoned in the majority required for passing the resolution.
(7) Paragraph (6) applies with respect to a vote given by a person (whether personally or on his behalf by a proxy-holder) either as creditor or contributory or as proxy-holder for a creditor or a contributory (but subject to Rule 8.6).
[E.R.4.63]
4.071. Where the chairman at a meeting of creditors or contributories holds a proxy which requires him to vote for a particular resolution, and no other person proposes that resolution—
(a)he shall himself propose it, unless he considers that there is good reason for not doing so, and
(b)if he does not propose it, he shall forthwith after the meeting notify his principal of the reason why not.
[E.R.4.64]
4.072.—(1) This Rule applies to meetings of creditors and to meetings of contributories.
(2) Once only in the course of any meeting, the chairman may, in his discretion and without an adjournment, declare the meeting suspended for any period up to one hour.
(3) The chairman at any meeting may in his discretion, and shall if the meeting so resolves, adjourn it to such time and place as seems to him to be appropriate in the circumstances.
(4) An adjournment under paragraph (3) is subject to Rule 4.120(3) or, as the case may be, 4.121-CVL(3), in a case where the liquidator or his nominee is chairman, and a resolution has been proposed for the liquidator's removal.
(5) If within a period of 30 minutes from the time appointed for the commencement of a meeting a quorum is not present, then the chairman may, at his discretion, adjourn the meeting to such time and place as he may appoint.
(6) An adjournment under this Rule shall not be for a period of more than 21 days; and Rule 4.067(1) and (2) applies.
(7) If there is no person present to act as chairman, some other person present (being entitled to vote) may make the appointment under paragraph (4), with the agreement of others present (being persons so entitled).
(8) Failing an agreement under paragraph (7), the adjournment shall be to the same time and place in the next following week or, if that is not a business day, to the business day immediately following.
(9) 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 the adjourned meeting.
[E.R.4.65]
4.073.—(1) Subject to paragraphs (2) to (5) and Rule 4.074-CVL, at a meeting of creditors a person is entitled to vote as a creditor only if—
(a)there has been duly lodged (in a winding up by the court by the time and date stated in the notice of the meeting) a proof of the debt claimed to be due to him from the company, and the claim has been admitted under Rule 4.076 for the purpose of entitlement to vote, and
(b)there has been lodged, by the time and date stated in the notice of the meeting, any proxy requisite for that entitlement.
(2) The court may, in exceptional circumstances, by order declare the creditors, or any class of them, entitled to vote at creditors' meetings, without being required to prove their debts.
(3) Where a creditor is entitled to vote under paragraph (2), the court may, on the application of the liquidator, make such consequential orders as it thinks fit (as for example an order treating a creditor as having proved his debt for the purpose of permitting payment of dividend).
(4) A creditor shall not vote in respect of a debt for an unliquidated amount, or any debt whose value is not ascertained, except where the chairman agrees to put upon the debt an estimated minimum value for the purpose of entitlement to vote and admits his proof for that purpose.
(5) A secured creditor is entitled to vote only in respect of the balance (if any) of his debt after deducting the value of his security as estimated by him.
(6) A creditor shall not vote in respect of a debt on, or secured by, a current bill of exchange or promissory note, unless he is willing—
(a)to treat the liability to him on the bill or note of every person who is liable on it antecedently to the company, and against whom a bankruptcy order has not been made (or, in the case of a company, which has not gone into liquidation), as a security in his hands, and
(b)to estimate the value of the security and (for the purpose of entitlement to vote, but not for dividend) to deduct it from his proof.
[E.R.4.67]
4.074-CVL. At a creditors' meeting, the chairman may allow a creditor to vote, notwithstanding that he has failed to comply with Rule 4.073(1)(a), if satisfied that the failure was due to circumstances beyond the creditor's control.
[E.R.4.68-CVL]
4.075. At a meeting of contributories, voting rights are as at a general meeting of the company, subject to any provision in the articles affecting entitlement to vote, either generally or at a time when the company is in liquidation.
[E.R.4.69]
4.076.—(1) At any creditors' meeting the chairman has power to admit or reject a creditor's proof for the purpose of his entitlement to vote; and the power is exercisable with respect to the whole or any part of the proof.
(2) The chairman's decision under this Rule, or in respect of any matter arising under Rule 4.073, is subject to appeal to the court by any creditor or contributory.
(3) If the chairman is in doubt whether a proof should be admitted or rejected, he shall mark it as objected to and allow the creditor to vote, subject to his vote being subsequently declared invalid if the objection to the proof is sustained.
(4) If on an appeal the chairman'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) Neither the official receiver, nor any person nominated by him to be chairman, is personally liable for costs incurred by any person in respect of an application under this Rule; and the chairman (if other than the official receiver or a person so nominated) is not so liable unless the court makes an order to that effect. (NO CVL APPLICATION)
(6-CVL) The liquidator or his nominee as chairman is not personally liable for costs incurred by any person in respect of an application under this Rule, unless the court makes an order to that effect.
[E.R.4.70]
4.077.—(1) At any meeting, the chairman shall cause minutes of the proceedings to be kept. The minutes shall be signed by him, and retained as part of the records of the liquidation.
(2) The chairman shall also cause to be made up and kept a list of all the creditors or, as the case may be, contributories who attended the meeting.
(3) The minutes of the meeting shall include a record of every resolution passed.
(4) It is the chairman's duty to see to it that particulars of all such resolutions, certified by him, are filed in court not more than 21 days after the date of the meeting. (NO CVL APPLICATION)
[E.R.4.71]
4.078.—(1) This Rule applies where a company goes, or proposes to go, into liquidation and it is an authorised institution or former authorised institution within the meaning of the Banking Act 1987(3).
(2) Notice of any meeting of the company at which it is intended to propose a resolution for its winding up shall be given by the directors to the Bank of England and to the Deposit Protection Board.
(3) Notice to the Bank and the Board shall be the same as given to members of the company.
(4) Where a creditors' meeting is summoned by the liquidator under Article 81 or, in a creditors' voluntary winding up, is summoned under Article 84, the same notice of the meeting must be given to the Bank and the Board as is given to creditors under Rule 4.056-CVL.
(5) Where the company is being wound up by the court, notice of the first meetings of creditors and contributories shall be given to the Bank and the Board by the official receiver.
(6) Where in the winding up (whether voluntary or by the court) a meeting of creditors or contributories or of the company is summoned for the purpose of—
(a)receiving the liquidator's resignation, or
(b)removing the liquidator, or
(c)appointing a new liquidator,
the person summoning the meeting and giving notice of it shall also give notice to the Bank and the Board.
(7) The Board is entitled to be represented at any meeting of which it is required by this Rule to be given notice; and Schedule 1 has effect with respect to the voting rights of the Board at such a meeting.
[E.R.4.72]
4.079.—(1) Where a company is being wound up by the court, a person claiming to be a creditor of the company and wishing to recover his debt in whole or in part must (subject to any order of the court under Rule 4.073(2)) submit his claim in writing to the liquidator. (NO CVL APPLICATION)
(2-CVL) In a voluntary winding up (whether members' or creditors') the liquidator may require a person claiming to be a creditor of the company and wishing to recover his debt in whole or in part, to submit the claim in writing to him.
(3) A creditor who claims (whether or not in writing) is referred to as “proving” for his debt; and a document by which he seeks to establish his claim is his “proof”.
(4) Subject to paragraph (5), a proof must be in the form known as “proof of debt” (whether the form prescribed by the Rules, or a substantially similar form), which shall be made out by or under the directions of the creditor, and signed by him or a person authorised in that behalf. (NO CVL APPLICATION)[FORM 4.26]
(5) Where a debt is due to a Minister of the Crown or a Government Department, the proof need not be in that form, but it must show all such particulars of the debt as are required in the form used by other creditors and as are relevant in the circumstances. (NO CVL APPLICATION)
(6-CVL) The creditor's proof may be in any form.
(7) In certain circumstances, specified in Rule 4.083, the proof must be in the form of an affidavit.
[E.R.4.73]
4.080. (NO CVL APPLICATION)
(1) Forms of proof shall be sent out by the liquidator to every creditor of the company who is known to him, or is identified in the company's statement of affairs.
(2) The forms shall accompany (whichever is first)—
(a)the notice to creditors under Article 116(5)(b) (official receiver's decision not to call meetings of creditors and contributories), or
(b)the first notice calling a meeting of creditors, or
(c)where a liquidator is appointed by the court, the notice of his appointment sent by him to creditors.
(3) Where, with the leave of the court under Rule 4.109(5), the liquidator advertises his appointment, he shall send proofs to the creditors within 4 months after the date of the winding-up order.
(4) Paragraphs (1) to (3) are subject to any order of the court dispensing with the requirement to send out forms of proof, or altering the time at which the forms are to be sent.
[E.R.4.74]
4.081. (NO CVL APPLICATION)
(1) Subject to Rule 4.079(5), the following matters shall be stated in a creditor's proof of debt—
(a)the creditor's name and address;
(b)the total amount of his claim as at the date on which the company went into liquidation;
(c)whether or not that amount includes outstanding uncapitalised interest;
(d)whether or not the claim includes value added tax;
(e)whether the whole or any part of the debt falls within any (and if so which) of the categories of preferential debts under Article 346 of, and Schedule 4 to, the Order (as read with Schedule 4 to the Social Security Pensions (Northern Ireland) Order 1975(4));
(f)particulars of how and when the debt was incurred by the company;
(g)particulars of any security held, the date when it was given and the value which the creditor puts upon it; and
(h)the name, address and authority of the person signing the proof (if other than the creditor himself).
(2) There shall be specified in the proof any documents by reference to which the debt can be substantiated; but (subject to paragraph (3)) it is not essential that such documents be attached to the proof or submitted with it.
(3) The liquidator, or the chairman or convener of any meeting, may call for any document or other evidence to be produced to him, where he thinks it necessary for the purpose of substantiating the whole or any part of the claim made in the proof.
[E.R.4.75]
4.082-CVL. The liquidator, or the convener or chairman of any meeting, may, if he thinks it necessary for the purpose of clarifying or substantiating the whole or any part of a creditor's claim made in his proof, call for details of any matter specified in sub-paragraphs (a) to (h) of Rule 4.081(1), or for the production to him of such documentary or other evidence as he may require.
[E.R.4.76-CVL]
4.083.—(1) The liquidator may, if he thinks it necessary, require a claim of debt to be verified by means of an affidavit, for which purpose there shall be used the form known as “affidavit of debt”, or a substantially similar form.[FORM 4.27]
(2) An affidavit may be required notwithstanding that a proof of debt has already been lodged.
(3) The affidavit may be sworn before an official receiver or before an officer of the Department or of the court duly authorised in that behalf. (NO CVL APPLICATION)
[E.R.4.77]
4.084.—(1) Subject to paragraph (3), every creditor bears the cost of proving his own debt, including such as may be incurred in providing documents or evidence under Rule 4.081 (3) or 4.082-CVL.
(2) Subject to paragraph (3), costs incurred by the liquidator in estimating the quantum of a debt under Rule 4.092 (debts not bearing a certain value) are payable out of the assets, as an expense of the liquidation.
(3) Paragraphs (1) and (2) apply unless the court otherwise orders.
[E.R.4.78]
4.085. The liquidator shall, so long as proofs lodged with him are in his hands, allow them to be inspected, at all reasonable times on any business day, by any of the following persons—
(a)any creditor who has submitted his proof of debt (unless his proof has been wholly rejected for purposes of dividend or otherwise);
(b)any contributory of the company;
(c)any person acting on behalf of either of the above.
[E.R.4.79]
4.086. (NO CVL APPLICATION)
(1) Where a liquidator is appointed, the official receiver shall forthwith transmit to him all the proofs which he has so far received, together with an itemised list of them.
(2) The liquidator shall sign the list by way of receipt for the proofs, and return it to the official receiver.
(3) From then on, all proofs of debt shall be sent to the liquidator, and retained by him.
[E.R.4.80]
4.087.—(1) If a new liquidator is appointed in place of another, the former liquidator shall transmit to him all proofs which he has received, together with an itemised list of them.
(2) The new liquidator shall sign the list by way of receipt for the proofs, and return it to his predecessor.
[E.R.4.81]
4.088.—(1) A proof may be admitted for dividend either for the whole amount claimed by the creditor, or for part of that amount.
(2) If the liquidator rejects a proof in whole or in part, he shall prepare a written statement of his reasons for doing so, and send it forthwith to the creditor.
[E.R.4.82]
4.089.—(1) If a creditor is dissatisfied with the liquidator's decision with respect to his proof (including any decision on the question of preference), he may apply to the court for the decision to be reversed or varied.
(2) The application under paragraph (1) must be made within 21 days of his receiving the statement sent under Rule 4.088(2).
(3) A contributory or any other creditor may, if dissatisfied with the liquidator's decision admitting or rejecting the whole or any part of a proof, make such an application within 21 days of becoming aware of the liquidator's decision.
(4) Where application is made to the court under this Rule, the court shall fix a venue for the application to be heard, notice of which shall be sent by the applicant to the creditor who lodged the proof in question (if it is not himself) and to the liquidator.
(5) The liquidator shall, on receipt of the notice, file in court the relevant proof, together (if appropriate) with a copy of the statement sent under Rule 4.088(2).
(6) After the application has been heard and determined, the proof shall, unless it has been wholly disallowed, be returned by the court to the liquidator.
(7) The official receiver is not personally liable for costs incurred by any person in respect of an application under this Rule; and the liquidator (if other than the official receiver) is not so liable unless the court makes an order to that effect.
[E.R.4.83]
4.090. A creditor's proof may at any time, by agreement between himself and the liquidator, be withdrawn or varied as to the amount claimed.
[E.R.4.84]
4.091.—(1) The court may expunge a proof or reduce the amount claimed—
(a)on the liquidator's application, where he thinks that the proof has been improperly admitted, or ought to be reduced; or
(b)on the application of a creditor, if the liquidator declines to interfere in the matter.
(2) Where application is made to the court under this Rule, the court shall fix a venue for the application to be heard, notice of which shall be sent by the applicant—
(a)in the case of an application by the liquidator, to the creditor who made the proof, and
(b)in the case of an application by a creditor, to the liquidator and to the creditor who made the proof (if not himself).
[E.R.4.85]
4.092.—(1) The liquidator shall estimate the value of any debt which, by reason of its being subject to any contingency or for any other reason, does not bear a certain value; and he may revise any estimate previously made, if he thinks fit, by reference to any change of circumstances or to information becoming available to him.
(2) The liquidator shall inform the creditor as to his estimate under paragraph (1) and any revision of it.
(3) Where the value of a debt is estimated under this Rule, or by the court under Article 143(3) or (5), the amount provable in the winding up in the case of that debt is that of the estimate for the time being.
[E.R.4.86]
4.093. Unless the liquidator allows, a proof in respect of money owed on a bill of exchange, promissory note, cheque or other negotiable instrument or security cannot be admitted unless there is produced the instrument or security itself or a copy of it, certified by the creditor or his authorised representative to be a true copy.
[E.R.4.87]
4.094.—(1) If a secured creditor realises his security, he may prove for the balance of his debt, after deducting the amount realised.
(2) If a secured creditor voluntarily surrenders his security for the general benefit of creditors, he may prove for his whole debt, as if it were unsecured.
[E.R.4.88]
4.095. There shall in every case be deducted from the claim all trade and other discounts which would have been available to the company but for its liquidation, except any discount for immediate, early or cash settlement.
[E.R.4.89]
4.096.—(1) This Rule applies where, before the company goes into liquidation there have been mutual credits, mutual debts or other mutual dealings between the company and any creditor of the company proving or claiming to prove for a debt in the liquidation.
(2) An account shall be taken of what is due from each party to the other in respect of the mutual dealings, and the sums due from one party shall be set off against the sums due from the other.
(3) Sums due from the company to another party shall not be included in the account taken under paragraph (2) if that other party had notice at the time they became due that a meeting of creditors had been summoned under Article 84 or (as the case may be) a petition for the winding up of the company was pending.
(4) Only the balance (if any) of the account is provable in the liquidation. Alternatively (as the case may be) the amount shall be paid to the liquidator as part of the assets.
[E.R.4.90]
4.097.—(1) For the purpose of proving a debt incurred or payable in a currency other than sterling, the amount of the debt shall be converted into sterling at the official exchange rate prevailing on the date when the company went into liquidation.
(2) “The official exchange rate” is the middle market rate at the Bank of England, as published for the date in question. In the absence of any such published rate, it is such rate as the court determines.
[E.R.4.91]
4.098.—(1) In the case of rent and other payments of a periodical nature, the creditor may prove for any amounts due and unpaid up to the date when the company went into liquidation.
(2) Where at that date any payment was accruing due, the creditor may prove for so much as would have fallen due at that date, if accruing from day to day.
[E.R.4.92]
4.099.—(1) In the circumstances described in paragraphs (2) and (3), and subject to paragraph (4), the creditor's claim may include interest on the debt for periods before the company went into liquidation, although not previously reserved or agreed.
(2) If the debt is due by virtue of a written instrument, and payable at a certain time, interest may be claimed for the period from that time to the date when the company went into liquidation.
(3) If the debt is due otherwise, interest may only be claimed if, before that date, a demand for payment of the debt was made in writing by or on behalf of the creditor, and notice given that interest would be payable from the date of the demand to the date of payment.
(4) Interest under paragraph (3) may only be claimed for the period from the date of the demand to that of the company's going into liquidation and for all the purposes of the Order and the Rules shall be chargeable at a rate not exceeding that mentioned in paragraph (5).
(5) The rate of interest to be claimed under paragraphs (2) and (3) is the rate applicable to a money judgment of the High Court on the date when the company went into liquidation.
[E.R.4.93]
4.100. A creditor may prove for a debt of which payment was not yet due on the date when the company went into liquidation, but subject to Rule 11.13 (adjustment of dividend where payment made before time).
[E.R.4.94]
4.101.—(1) A secured creditor may, with the agreement of the liquidator or the leave of the court, at any time alter the value which he has, in his proof of debt, put upon his security.
(2) However, if a secured creditor—
(a)being the petitioner, has in the petition put a value on his security, or
(b)has voted in respect of the unsecured balance of his debt,
he may re-value his security only with leave of the court. (NO CVL APPLICATION)
[E.R.4.95]
4.102.—(1) If a secured creditor omits to disclose his security in his proof of debt, he shall surrender his security for the general benefit of creditors, unless the court, on application by him, relieves him from the effect of this Rule on the ground that the omission was inadvertent or the result of honest mistake.
(2) If the court grants that relief, it may require or allow the creditor's proof of debt to be amended, on such terms as may be just.
[E.R.4.96]
4.103.—(1) The liquidator may at any time give notice to a creditor whose debt is secured that he proposes, at the expiration of 28 days from the date of the notice, to redeem the security at the value put upon it in the creditor's proof.
(2) The creditor then has 21 days (or such longer period as the liquidator may allow) in which, if he so wishes, to exercise his right to re-value his security (with the leave of the court, where Rule 4.101 (2) applies).
(3) If the creditor re-values his security, the liquidator may only redeem at the new value.
(4) If the liquidator redeems the security, the cost of transferring it is payable out of the assets.
(5) A secured creditor may at any time, by a notice in writing, call on the liquidator to elect whether he will or will not exercise his power to redeem the security at the value then placed on it; and the liquidator then has 6 months in which to exercise the power or determine not to exercise it.
[E.R.4.97]
4.104.—(1) Subject to paragraph (2), the liquidator, if he is dissatisfied with the value which a secured creditor puts on his security (whether in his proof or by way of re-valuation under Rule 4.103), may require any property comprised in the security to be offered for sale.
(2) The terms of sale shall be such as may be agreed, or as the court may direct; and if the sale is by auction, the liquidator on behalf of the company, and the creditor on his own behalf, may appear and bid.
[E.R.4.98]
4.105. If a creditor who has valued his security subsequently realises it (whether or not at the instance of the liquidator)—
(a)the net amount realised shall be substituted for the value previously put by the creditor on the security, and
(b)that amount shall be treated in all respects as an amended valuation made by him.
[E.R.4.99]
4.106. (NO CVL APPLICATION)
(1) This Rule applies where a person is appointed as liquidator either by a meeting of creditors or by a meeting of contributories.
(2) The chairman of the meeting shall certify the appointment, but not unless and until the person appointed has provided him with a written statement to the effect that he is an insolvency practitioner, duly qualified under the Order to be the liquidator, and that he consents so to act.[FORM 4.28] [FORM 4.29]
(3) The liquidator's appointment is effective from the date on which the appointment is certified, that date to be endorsed on the certificate.
(4) The chairman of the meeting (if not himself the official receiver) shall send the certificate to the official receiver.
(5) The official receiver shall in any case send the certificate to the liquidator and file a copy of it in court.
[E.R.4.100]
4.107-CVL.—(1) This Rule applies where a person is appointed as liquidator either by a meeting of creditors or by a meeting of the company.
(2) Subject to paragraph (4), the chairman of the meeting shall certify the appointment, but not unless and until the person appointed has provided him with a written statement to the effect that he is an insolvency practitioner, duly qualified under the Order to be the liquidator, and that he consents so to act; the liquidator's appointment takes effect upon the passing of the resolution for that appointment.[FORM 4.28] [FORM 4.29]
(3) Subject to paragraph (4), the chairman shall send the certificate forthwith to the liquidator, who shall keep it as part of the records of the liquidation.
(4) Paragraphs (2) and (3) need not be complied with in the case of a liquidator appointed by a company meeting and replaced by another liquidator appointed on the same day by a creditors' meeting.
[E.R.4.101-CVL]
4.108-CVL. Where a vacancy in the office of liquidator occurs in the manner mentioned in Article 90, a meeting of creditors to fill the vacancy may be convened by any creditor or, if there were more liquidators than one, by the continuing liquidators.
[E.R.4.JOJA-CVL]
4.109. (NO CVL APPLICATION)
(1) This Rule applies where the liquidator is appointed by the court under Article 118(4) (different persons nominated by creditors and contributories) or Article 119 (liquidation following administration or voluntary arrangement).[FORM 4.30] [FORM 4.31]
(2) The court's order shall not issue unless and until the person appointed has filed in court a statement to the effect that he is an insolvency practitioner, duly qualified under the Order to be the liquidator, and that he consents so to act.
(3) Thereafter, the court shall send 2 copies of the order to the official receiver. One of the copies shall be sealed, and this shall be sent to the person appointed as liquidator.
(4) The liquidator's appointment takes effect from the date of the order.
(5) The liquidator shall, within 28 days of his appointment, give notice of it to all creditors and contributories of the company of whom he is aware in that period. Alternatively, if the court allows, he may advertise his appointment in accordance with the court's directions.
(6) In his notice or advertisement under this Rule the liquidator shall—
(a)state whether he proposes to summon meetings of creditors and contributories for the purpose of establishing a liquidation committee, or proposes to summon only a meeting of creditors for that purpose, and
(b)if he does not propose to summon any such meeting, set out the powers of the creditors under the Order to require him to summon one.
[E.R.4.102]
4.110-CVL.—(1) This Rule applies where the liquidator is appointed by the court under Article 86(3) or 94.[FORM 4.30] [FORM 4.31]
(2) The court's order shall not issue unless and until the person appointed has filed in court a statement to the effect that he is an insolvency practitioner, duly qualified under the Order to be the liquidator, and that he consents so to act.
(3) Thereafter, the court shall send a sealed copy of the order to the liquidator, whose appointment takes effect from the date of the order.
(4) Not later than 28 days from his appointment, the liquidator shall give notice of it to all creditors of the company of whom he is aware in that period. Alternatively, if the court allows, he may advertise his appointment in accordance with the court's directions.
[E.R.4.103-CVL]
4.111. (NO CVL APPLICATION)
(1) This Rule applies where the official receiver applies to the Department to appoint a liquidator in place of himself, or refers to the Department the need for an appointment.
(2) If the Department makes an appointment, it shall send 2 copies of the certificate of appointment to the official receiver, who shall transmit one such copy to the person appointed, and file the other in court.
(3) The certificate shall specify the date from which the liquidator's appointment is to be effective.
[E.R.4.104]
4.112. A copy of the certificate of the liquidator's appointment or (as the case may be) a sealed copy of the court's order, may in any proceedings be adduced as proof that the person appointed is duly authorised to exercise the powers and perform the duties of liquidator in the company's winding up.
[E.R.4.105]
4.113.—(1) Subject to paragraph (2-CVL), where the liquidator is appointed by a creditors' or contributories' meeting, or by a meeting of the company, he shall, on receiving his certificate of appointment, give notice of his appointment in such newspaper as he thinks most appropriate for ensuring that it comes to the notice of the company's creditors and contributories.
(2-CVL) Paragraph (1) need not be complied with in the case of a liquidator appointed by a company meeting and replaced by another liquidator appointed on the same day by a creditors' meeting.
(3) The expense of giving notice under this Rule shall be borne in the first instance by the liquidator; but he is entitled to be reimbursed out of the assets, as an expense of the liquidation.
(4) Paragraph (3) applies also in the case of the notice or advertisement required where the appointment is made by the court or the Department.
(5) In the case of a winding up by the court, the liquidator, however he is appointed, shall also forthwith notify his appointment to the registrar. (NO CVL APPLICATION)[FORM 4.32]
[E.R.4.106]
4.114. (NO CVL APPLICATION)
(1) This Rule applies only where the liquidator is appointed in succession to the official receiver acting as liquidator.
(2) When the liquidator's appointment takes effect, the official receiver shall forthwith do all that is required for putting him into possession of the assets.
(3) On taking possession of the assets, the liquidator shall discharge any balance due to the official receiver on account of—
(a)expenses properly incurred by him and payable under the Order or the Rules, and
(b)any advances made by him in respect of the assets, together with interest on such advances at the rate applicable to a money judgment of the High Court at the date of the winding-up order.
(4) Alternatively, the liquidator may (before taking office) give to the official receiver a written undertaking to discharge any such balance out of the first realisation of assets.
(5) The official receiver has a charge on the assets in respect of any sums due to him under paragraph (3). But, where the liquidator has realised assets with a view to making those payments, the official receiver's charge does not extend in respect of sums deductible by the liquidator from the proceeds of realisation, as being expenses properly incurred therein.
(6) The liquidator shall from time to time out of the realisation of assets discharge all guarantees properly given by the official receiver for the benefit of the estate, and shall pay all the official receiver's expenses.
(7) The official receiver shall give to the liquidator all such information relating to the affairs of the company and the course of the winding up as he (the official receiver) considers to be reasonably required for the effective discharge by the liquidator of his duties as such.
(8) The liquidator shall also be furnished with a copy of any report made by the official receiver under Chapter 7.
[E.R.4.107]
4.115.—(1) Before resigning his office, the liquidator must call a meeting of creditors for the purpose of receiving his resignation. The notice summoning the meeting shall indicate that this is the purpose, or one of the purposes, of it, and shall draw the attention of creditors to Rule 4.128 or, as the case may be, Rule 4.129-CVL with respect to the liquidator's release.[FORM 4.23]
(2) A copy of the notice shall at the same time also be sent to the official receiver. (NO CVL APPLICATION)
(3) The notice to creditors under paragraph (1) must be accompanied by an account of the liquidator's administration of the winding up including a summary of his receipts and payments.
(4) In the case of a winding up by the court, the account of the liquidator's administration of the winding up under paragraph (3) must also include a statement by him that he has reconciled his account with that which is held by the Department in respect of the winding up. (NO CVL APPLICATION)
(5) Subject to paragraph (6), the liquidator may only proceed under this Rule on grounds of ill health or because—
(a)he intends ceasing to be in practice as an insolvency practitioner, or
(b)there is some conflict of interest or change of personal circumstances which precludes or makes impracticable the further discharge by him of the duties of liquidator.
(6) Where two or more persons are acting as liquidator jointly, any one of them may proceed under this Rule (without prejudice to the continuation in office of the other or others) on the ground that, in his opinion and that of the other or others, it is no longer expedient that there should continue to be the present number of joint liquidators.
(7) If there is no quorum present at the meeting summoned to receive the liquidator's resignation, the meeting is deemed to have been held, a resolution is deemed to have been passed that the liquidator's resignation be accepted and the creditors are deemed not to have resolved against the liquidator having his release.
(8) Where paragraph (7) applies any reference in the Rules to a resolution that the liquidator's resignation be accepted is replaced by a reference to the making of a written statement, signed by the person who, had there been a quorum present, would have been chairman of the meeting, that no quorum was present and that the liquidator may resign.
[E.R.4.108]
4.116. (NO CVL APPLICATION)
(1) This Rule applies where a meeting is summoned to receive the liquidator's resignation.
(2) If the chairman of the meeting is other than the official receiver, and there is passed at the meeting any of the following resolutions—
(a)that the liquidator's resignation be accepted,
(b)that a new liquidator be appointed,
(c)that the resigning liquidator be not given his release,
the chairman shall, within 3 days, send to the official receiver a copy of the resolution.
(3) If it has been resolved to accept the liquidator's resignation, the chairman shall send to the official receiver a certificate to that effect.
(4) If the creditors have resolved to appoint a new liquidator, the certificate of his appointment shall also be sent to the official receiver within that time; and Rule 4.106 shall be complied with in respect of it.
(5) If the liquidator's resignation is accepted, the notice of it required by Article 146(6) shall be given by him forthwith after the meeting; and he shall send a copy of the notice to the official receiver.[FORM 4.33]
(6) The notice under Article 146(6) shall be accompanied by a copy of the account sent to creditors under Rule 4.115(3).
(7) The official receiver shall file a copy of the notice in court.
(8) The liquidator's resignation is effective as from the date on which the official receiver files the copy notice in court, that date to be endorsed on the copy notice.
[E.R.4.109]
4.117-CVL.—(1) This Rule applies where a meeting is summoned to receive the liquidator's resignation.
(2) If his resignation is accepted, the notice of it required by Article 145(5) shall be given by him forthwith after the meeting.[FORM 4.34]
(3) Where a new liquidator is appointed in place of the one who has resigned, the certificate of his appointment shall be delivered forthwith by the chairman of the meeting to the new liquidator.
[E.R.4.110-CVL]
4.118.—(1) If at a creditors' meeting summoned to accept the liquidator's resignation it is resolved that it be not accepted, the court may, on the liquidator's application, make an order giving him leave to resign.[FORM 4.35]
(2) The court's order may include such provision as it thinks fit with respect to matters arising in connection with the resignation, and shall determine the date from which the liquidator's release is effective.
(3) The court shall send 3 sealed copies of the order to the liquidator, who shall forthwith send one of the copies to the official receiver and one to the registrar. (NO CVL APPLICATION)
(4-CVL) The court shall send 2 sealed copies of the order to the liquidator, who shall forthwith send one of them to the registrar.[FORM 4.36]
(5) On sending notice of his resignation to the court, the liquidator shall send a copy of it to the official receiver. (NO CVL APPLICATION)[FORM 4.37]
[E.R.4.111]
4.119. Where a new liquidator is appointed in place of one who has resigned, the former shall, in giving notice of his appointment, state that his predecessor has resigned and (if it be the case) that he has been given his release.
[E.R.4.112]
4.120. (NO CVL APPLICATION)
(1) Where a meeting of creditors is summoned for the purpose of removing the liquidator, the notice summoning it shall indicate that this is the purpose, or one of the purposes, of the meeting; and the notice shall draw the attention of creditors to Article 148(4) with respect to the liquidator's release.[FORM 4.23]
(2) A copy of the notice shall at the same time also be sent to the official receiver.
(3) At the meeting, a person other than the liquidator or his nominee may be elected to act as chairman; but if the liquidator or his nominee is chairman and a resolution has been proposed for the liquidator's removal, the chairman shall not adjourn the meeting without the consent of at least one-half (in value) of the creditors present (in person or by proxy) and entitled to vote.
(4) Where the chairman of the meeting is other than the official receiver, and there is passed at the meeting any of the following resolutions—
(a)that the liquidator be removed,
(b)that a new liquidator be appointed,
(c)that the removed liquidator be not given his release,
the chairman shall, within 3 days, send to the official receiver a copy of the resolution.
(5) If it has been resolved to remove the liquidator under paragraph 4(a), the chairman shall send to the official receiver a certificate to that effect.[FORM 4.38]
(6) If the creditors have resolved to appoint a new liquidator, the certificate of his appointment shall also be sent to the official receiver within that time; and Rule 4.106 shall be complied with in respect of it.
[E.R.4.113]
4.121-CVL.—(1) A meeting held under Article 145(2)(b) for the removal of the liquidator shall be summoned by him if requested by 25 per cent. in value of the company's creditors, excluding those who are connected with it.
(2) The notice summoning the meeting shall indicate that the removal of the liquidator is the purpose, or one of the purposes, of the meeting; and the notice shall draw the attention of creditors to Article 147(2) with respect to the liquidator's release.[FORM 4.23]
(3) At the meeting, a person other than the liquidator or his nominee may be elected to act as chairman; but if the liquidator or his nominee is chairman and a resolution has been proposed for the liquidator's removal, the chairman shall not adjourn the meeting without the consent of at least one-half (in value) of the creditors present (in person or by proxy) and entitled to vote.
[E.R.4.114-CVL]
4.122. Where a meeting under Rule 4.120 or 4.121-CVL is to be held, or is proposed to be summoned, the court may, on the application of any creditor, give directions as to the mode of summoning it, the sending out and return of forms of proxy, the conduct of the meeting, and any other matter which appears to the court to require regulation or control under this Rule.
[E.R.4.115]
4.123. (NO CVL APPLICATION)
(1) Where the creditors have resolved that the liquidator be removed, the official receiver shall file in court the certificate of removal.
(2) The resolution is effective as from the date on which the official receiver files the certificate of removal in court, and that date shall be endorsed on the certificate.
(3) A copy of the certificate, so endorsed, shall be sent by the official receiver to the liquidator who has been removed, to the registrar and, if a new liquidator has been appointed, to him.
(4) The official receiver shall not file the certificate in court unless and until the Department has certified to him that the removed liquidator has reconciled his account with that held by the Department in respect of the winding up.
[E.R.4.116]
4.124-CVL. Where the creditors have resolved that the liquidator be removed, the chairman of the creditors' meeting shall forthwith—
(a)if at the meeting another liquidator was not appointed, send the certificate of the liquidator's removal to the registrar, and[FORM 4.39]
(b)otherwise, deliver the certificate to the new liquidator, who shall send it to the registrar.
[E.R.4.117-CVL]
4.125. Where a new liquidator is appointed in place of one removed, the former shall, in giving notice of his appointment, state that his predecessor has been removed and (if it be the case) that he has been given his release.
[E.R.4.118]
4.126. (NO CVL APPLICATION)
(1) This Rule applies where application is made to the court for the removal of the liquidator, or for an order directing the liquidator to summon a meeting of creditors for the purpose of removing him.[FORM 4.40]
(2) The court may, if it thinks that no sufficient cause is shown for the application, dismiss it; but it shall not do so unless the applicant has had an opportunity to attend the court for an ex parte hearing, of which he has been given at least 7 days' notice.
(3) If the application is not dismissed under paragraph (2), the court shall fix a venue for it to be heard.
(4) The court may require the applicant to make a deposit or give security for the costs to be incurred by the liquidator on the application.
(5) The applicant shall, at least 14 days before the hearing date, send to the liquidator and the official receiver a notice stating the venue and accompanied by a copy of the application, and of any evidence which he intends to adduce in support of it.
(6) Subject to any contrary order of the court, the costs of the application are not payable out of the assets.
(7) Where the court removes the liquidator—
(a)it shall send 2 copies of the order of removal to him, one to be sent by him forthwith to the registrar with notice of his ceasing to act and one to be sent to the official receiver;
(b)the order may include such provision as the court thinks fit with respect to matters arising in connection with the removal; and
(c)if the court appoints a new liquidator, Rule 4.109 applies.
[E.R.4.119]
4.127-CVL.—(1) This Rule applies where application is made to the court for the removal of the liquidator, or for an order directing the liquidator to summon a creditors' meeting for the purpose of removing him.[FORM 4.40]
(2) The court may, if it thinks that no sufficient cause is shown for the application, dismiss it; but it shall not do so unless the applicant has had an opportunity to attend the court for an ex parte hearing, of which he has been given at least 7 days' notice.
(3) If the application is not dismissed under paragraph (2), the court shall fix a venue for it to be heard.
(4) The court may require the applicant to make a deposit or give security for the costs to be incurred by the liquidator on the application.
(5) The applicant shall, at least 14 days before the hearing date, send to the liquidator a notice stating the venue and accompanied by a copy of the application, and of any evidence which he intends to adduce in support of it.
(6) Subject to any contrary order of the court, the costs of the application are not payable out of the assets.
(7) Where the court removes the liquidator—
(a)it shall send 2 copies of the order of removal to him, one to be sent by him forthwith to the registrar, with notice of his ceasing to act;[FORM 4.41]
(b)the order may include such provision as the court thinks fit with respect to matters arising in connection with the removal; and
(c)if the court appoints a new liquidator, Rule 4.110-CVL applies.
[E.R.4.120-CVL]
4.128. (NO CVL APPLICATION)
(1) Where the liquidator's resignation is accepted by a meeting of creditors which has not resolved against his release, he has his release from when his resignation is effective under Rule 4.116.
(2) Where the liquidator is removed by a meeting of creditors which has not resolved against his release, that fact shall be stated in the certificate of removal.
(3) Where—
(a)the liquidator resigns, and the creditors' meeting called to receive his resignation has resolved against his release, or
(b)he is removed by a creditors' meeting which has so resolved, or is removed by the court,
he must apply to the Department for his release.[FORM 4.42]
(4) When the Department gives the release, it shall so certify and send the certificate to the official receiver, to be filed in court.
(5) A copy of the certificate shall be sent by the Department to the former liquidator, whose release is effective from the date of the certificate.
[E.R.4.121]
4.129-CVL.—(1) Where the liquidator's resignation is accepted by a meeting of creditors which has not resolved against his release, he has his release from when he gives notice of his resignation to the registrar.[FORM 4.41]
(2) Where the liquidator is removed by a creditors' meeting which has not resolved against his release, that fact shall be stated in the certificate of removal.
(3) Where—
(a)the liquidator resigns, and the creditors' meeting called to receive his resignation has resolved against his release, or
(b)he is removed by a creditors' meeting which has so resolved, or is removed by the court,
he must apply to the Department for his release.[FORM 4.41]
(4) When the Department gives the release, it shall so certify and send the certificate to the registrar.
(5) A copy of the certificate shall be sent by the Department to the former liquidator, whose release is effective from the date of the certificate.
[E.R.4.122-CVL]
4.130. (NO CVL APPLICATION)
(1) If the Department decides to remove the liquidator, it shall before doing so notify the liquidator and the official receiver of its decision and the grounds of it, and specify a period within which the liquidator may make representations against implementation of the decision.
(2) If the Department directs the removal of the liquidator, it shall forthwith—
(a)file notice of its decision in court, and
(b)send notice to the liquidator and the official receiver.
(3) If the liquidator is removed by direction of the Department—
(a)Rule 4.128 applies as regards the liquidator obtaining his release, as if he had been removed by the court, and
(b)the court may make any such order in his case as it would have power to make if he had been so removed.
[E.R.4.123]
4.131. (NO CVL APPLICATION)
(1) The official receiver shall, before giving notice to the Department under Article 148(3) (that the winding up is for practical purposes complete), send out notice of his intention to do so to all creditors who have proved their debts.
(2) The notice shall in each case be accompanied by a summary of the official receiver's receipts and payments as liquidator.
(3) The Department, when it has determined the date from which the official receiver is to have his release, shall give notice to the court that it has done so. The notice shall be accompanied by the summary referred to in paragraph (2).
[E.R.4.124]
4.132. (NO CVL APPLICATION)
(1) Where the liquidator is other than the official receiver, he shall give at least 28 days' notice of the final meeting of creditors to be held under Article 124. The notice shall be sent to all creditors who have proved their debts; and the liquidator shall cause it to be gazetted at least one month before the meeting is to be held.[FORM 4.23]
(2) The liquidator's report laid before the meeting under that Article shall contain an account of the liquidator's administration of the winding up, including—
(a)a summary of his receipts and payments, and
(b)a statement by him that he has reconciled his account with that which is held by the Department in respect of the winding up.
(3) At the final meeting, the creditors may question the liquidator with respect to any matter contained in his report, and may resolve against him having his release.
(4) The liquidator shall give notice to the court that the final meeting has been held; and the notice shall state whether or not the creditors have resolved against his release, and be accompanied by a copy of the report laid before the final meeting. A copy of the notice shall be sent by the liquidator to the official receiver.[FORM 4.43]
(5) If there is no quorum present at the final meeting, the liquidator shall report to the court that a final meeting was summoned in accordance with the Rules, but there was no quorum present; and the final meeting is then deemed to have been held, and the creditors not to have resolved against the liquidator having his release.
(6) If the creditors at the final meeting have not so resolved, the liquidator is released when the notice under paragraph (4) is filed in court. If they have so resolved, the liquidator must obtain his release from the Department and Rule 4.128 applies accordingly.
[E.R.4.125]
4.133-CVL.—(1) The liquidator shall give at least 28 days' notice of the final meeting of creditors to be held under Article 92. The notice shall be sent to all creditors who have proved their debts.[FORM 4.23]
(2) At the final meeting, the creditors may question the liquidator with respect to any matter contained in the account required under the Article, and may resolve against the liquidator having his release.
(3) Where the creditors have so resolved, he must obtain his release from the Department; and Rule 4.129-CVL applies accordingly.
[E.R.4.126-CVL]
4.134.—(1) The liquidator is entitled to receive remuneration for his services as such.
(2) The remuneration shall be fixed either—
(a)as a percentage of the value of the assets which are realised or distributed, or of the one value and the other in combination, or
(b)by reference to the time properly given by the responsible insolvency practitioner (as liquidator) and his staff in attending to matters arising in the winding up.
(3) Where the liquidator is other than the official receiver, it is for the liquidation committee (if there is one) to determine whether the remuneration is to be fixed under paragraph (2)(a) or (b) and, if under paragraph (2)(a), to determine any percentage to be applied as there mentioned.
(4) In arriving at that determination, the committee shall have regard to the following matters—
(a)the complexity (or otherwise) of the case,
(b)any respects in which, in connection with the winding up, there falls on the responsible insolvency practitioner (as liquidator) any responsibility of an exceptional kind or degree,
(c)the effectiveness with which the responsible insolvency practitioner appears to be carrying out, or to have carried out, his duties as liquidator, and
(d)the value and nature of the assets with which the liquidator has to deal.
(5) If there is no liquidation committee, or the committee does not make the requisite determination, the liquidator's remuneration may be fixed (in accordance with paragraph (2)) by a resolution of a meeting of creditors; and paragraph (4) applies to them as it does to the liquidation committee.
(6) If not fixed under paragraphs (2) to (5), the liquidator's remuneration shall be in accordance with the scale laid down for the official receiver by general regulations.
[E.R.4.127]
4.135.—(1) Where the liquidator sells assets on behalf of a secured creditor, he is entitled to take for himself, out of the proceeds of sale, a sum by way of remuneration equivalent to that which is chargeable in corresponding circumstances by the official receiver under general regulations.
(2) Where there are joint liquidators, it is for them to agree between themselves as to how the remuneration payable should be apportioned. Any dispute arising between them may be referred—
(a)to the court, for settlement by order, or
(b)to the liquidation committee or a meeting of creditors, for settlement by resolution.
(3) If the liquidator is a solicitor and employs his own firm, or any partner in it, to act on behalf of the company, profit costs shall not be paid unless this is authorised by the liquidation committee, the creditors or the court.
[E.R.4.128]
4.136. If the liquidator's remuneration has been fixed by the liquidation committee, and he considers the rate or amount to be insufficient, he may request that it be increased by resolution of the creditors.
[E.R.4.129]
4.137.—(1) If the liquidator considers that the remuneration fixed for him by the liquidation committee, or by resolution of the creditors, or as under Rule 4.134(6), is insufficient, he may apply to the court for an order increasing its amount or rate.
(2) The liquidator shall give at least 14 days' notice of his application to the members of the liquidation committee; and the committee may nominate one or more members to appear or be represented, and to be heard, on the application.
(3) If there is no liquidation committee, the liquidator's notice of his application shall be sent to such one or more of the company's creditors as the court may direct, which creditors may nominate one or more of their number to appear or be represented.
(4) The court may, if it appears to be a proper case, order the costs of the liquidator's application, including the costs of any member of the liquidation committee appearing or being represented on it, or any creditor so appearing or being represented, to be paid out of the assets.
[E.R.4.130]
4.138.—(1) Any creditor of the company may, with the concurrence of at least 25 per cent. in value of the creditors (including himself), apply to the court for an order that the liquidator's remuneration be reduced, on the grounds that it is, in all the circumstances, excessive.
(2) The court may, if it thinks that no sufficient cause is shown for a reduction, dismiss the application; but it shall not do so unless the applicant has had an opportunity to attend the court for an ex parte hearing, of which he has been given at least 7 days' notice.
(3) If the application is not dismissed under paragraph (2), the court shall fix a venue for it to be heard, and give notice to the applicant accordingly.
(4) The applicant shall, at least 14 days before the hearing date, send to the liquidator a notice stating the venue and accompanied by a copy of the application, and of any evidence which the applicant intends to adduce in support of it.
(5) If the court considers the application to be well-founded, it shall make an order fixing the remuneration at a reduced amount or rate.
(6) Unless the court orders otherwise, the costs of the application shall be paid by the applicant, and are not payable out of the assets.
[E.R.4.131]
4.139. (NO CVL APPLICATION)
(1) Subject to paragraph (2), where the liquidator (other than the official receiver) has died, it is the duty of his personal representatives to give notice of the fact to the official receiver, specifying the date of the death.
(2) Paragraph (1) does not apply if notice has been given under paragraphs (3), (4) or (5).
(3) If the deceased liquidator was a partner in a firm, notice may be given to the official receiver 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 Department for the authorisation of insolvency practitioners.
(4) Notice of the death may be given by any person producing to the official receiver the relevant death certificate or a copy of it.
(5) The official receiver shall give notice to the court, for the purpose of fixing the date of the deceased liquidator's release, and to the registrar.
[E.R.4.132]
4.140-CVL.—(1) Subject to paragraph (2), where the liquidator has died, it is the duty of his personal representatives to give notice of the fact, and of the date of death, to the registrar and to the liquidation committee (if any) or a member of that committee.[FORM 4.45]
(2) In the alternative, notice of the death may be given—
(a)if the deceased liquidator was a partner in a firm, by a partner qualified to act as an insolvency practitioner or who is a member of any body approved by the Department for the authorisation of insolvency practitioners, or
(b)by any person, if he delivers with the notice a copy of the relevant death certificate.
[E.R.4.133-CVL]
4.141. (NO CVL APPLICATION)
(1) This Rule applies where the liquidator vacates office on ceasing to be qualified to act as an insolvency practitioner in relation to the company.
(2) He shall forthwith give notice of his doing so to the official receiver, who shall give notice to the Department and the registrar.[FORM 4.46]
(3) The official receiver shall file in court a copy of his notice under paragraph (2).
(4) Rule 4.128 applies as regards the liquidator obtaining his release, as if he had been removed by the court.
[E.R.4.134]
4.142-CVL.—(1) This Rule applies where the liquidator vacates office on ceasing to be qualified to act as an insolvency practitioner in relation to the company.
(2) He shall forthwith give notice of his doing so to the registrar and the Department.[FORM 4.47] [FORM 4.46]
(3) Rule 4.129-CVL applies as regards the liquidator obtaining his release, as if he had been removed by the court.
[E.R.4.135-CVL]
4.143-CVL. Where the liquidator vacates office in consequence of the court making a winding-up order against the company, Rule 4.129-CVL applies as regards his obtaining his release, as if he had been removed by the court.
[E.R.4.136-CVL]
4.144. (NO CVL APPLICATION)
(1) Where the liquidator intends to vacate office, whether by resignation or otherwise, he shall give notice of his intention to the official receiver together with notice of any creditors' meeting to be held in respect of his vacation of office, including any meeting to receive his resignation.
(2) The notice to the official receiver must be given at least 21 days before any such creditors' meeting.
(3) Where there remains any property of the company which has not been realised, applied, distributed or otherwise fully dealt with in the winding up, the liquidator shall include in his notice to the official receiver details of the nature of that property, its value (or the fact that it has no value), its location, any action taken by the liquidator to deal with that property or any reason for his not dealing with it, and the current position in relation to it.
[E.R.4.137]
4.145.—(1) Where the liquidator ceases to be in office as such, in consequence of removal, resignation or cesser of qualification as an insolvency practitioner, he is under obligation forthwith to deliver up to the person succeeding him as liquidator the assets (after deduction of any expenses properly incurred, and distributions made, by him) and further to deliver up to that person—
(a)the records of the liquidation, including correspondence, proofs and other related papers appertaining to the administration while it was within his responsibility, and
(b)the company's books, papers and other records.
(2) When the winding up is for practical purposes complete, the liquidator shall forthwith file in court all proofs remaining with him in the proceedings. (NO CVL APPLICATION)
(3) Where the liquidator vacates office under Article 146(7) (final meeting of creditors), he shall deliver up to the official receiver the company's books, papers and other records which have not already been disposed of in accordance with general regulations in the course of the liquidation. (NO CVL APPLICATION)
[E.R.4.138]
4.146.—(1) This Rule applies where the liquidator is appointed by a meeting of the company.
(2) The chairman of the meeting shall certify the appointment, but not unless and until the person appointed has provided him with a written statement to the effect that he is an insolvency practitioner, duly qualified under the Order to be the liquidator, and that he consents so to act.[FORM 4.28] [FORM 4.29]
(3) The chairman shall send the certificate forthwith to the liquidator, who shall keep it as part of the records of the liquidation.
(4) Not later than 28 days from his appointment, the liquidator shall give notice of it to all creditors of the company of whom he is aware in that period.
[E.R.4.139]
4.147.—(1) This Rule applies where the liquidator is appointed by the court under Article 94.
(2) The court's order shall not issue unless and until the person appointed has filed in court a statement to the effect that he is an insolvency practitioner, duly qualified under the Order to be the liquidator, and that he consents so to act.[FORM 4.30] [FORM 4.31]
(3) Thereafter, the court shall send a sealed copy of the order to the liquidator, whose appointment takes effect from the date of the order.
(4) Not later than 28 days from his appointment, the liquidator shall give notice of it to all creditors of the company of whom he is aware in that period.
[E.R.4.140]
4.148. A copy of the certificate of the liquidator's appointment or (as the case may be) a sealed copy of the court's order appointing him may in any proceedings be adduced as proof that the person appointed is duly authorised to exercise the powers and perform the duties of liquidator in the company's winding up.
[E.R.4.141]
4.149.—(1) Before resigning his office, the liquidator must call a meeting of the company for the purpose of receiving his resignation. The notice summoning the meeting shall indicate that this is the purpose, or one of the purposes, of it.
(2) The notice under paragraph (1) must be accompanied by an account of the liquidator's administration of the winding up, including a summary of his receipts and payments.
(3) Subject to paragraph (4), the liquidator may only proceed under this Rule on grounds of ill health or because—
(a)he intends ceasing to be in practice as an insolvency practitioner, or
(b)there is some conflict of interest or change of personal circumstances which precludes or makes impracticable the further discharge by him of the duties of liquidator.
(4) Where two or more persons are acting as liquidator jointly, any one of them may proceed under this Rule (without prejudice to the continuation in office of the other or others) on the ground that, in his opinion or that of the other or others, it is no longer expedient that there should continue to be the present number of joint liquidators.
(5) If there is no quorum present at the meeting summoned to receive the liquidator's resignation, the meeting is deemed to have been held.
(6) The notice of the liquidator's resignation required by Article 145(5) shall be given by him forthwith after the meeting.[FORM 4.34]
(7) Where a new liquidator is appointed in place of one who has resigned, the former shall, in giving notice of his appointment, state that his predecessor has resigned.
[E.R.4.142]
4.150.—(1) This Rule applies where application is made to the court for the removal of the liquidator, or for an order directing the liquidator to summon a company meeting for the purpose of removing him.
(2) The court may, if it thinks that no sufficient cause is shown for the application, dismiss it; but it shall not do so unless the applicant has had an opportunity to attend the court for an ex parte hearing, of which he has been given at least 7 days' notice.
(3) If the application is not dismissed under paragraph (2), the court shall fix a venue for it to be heard.
(4) The court may require the applicant to make a deposit or give security for the costs to be incurred by the liquidator on the application.
(5) The applicant shall, at least 14 days before the hearing date, send to the liquidator a notice stating the venue and accompanied by a copy of the application, and of any evidence which he intends to adduce in support of it.
(6) Subject to any contrary order of the court, the costs of the application are not payable out of the assets.
(7) Where the court removes the liquidator—
(a)it shall send 2 copies of the order of removal to him, one to be sent by him forthwith to the registrar, with notice of his ceasing to act;[FORM 4.40] [FORM 4.41]
(b)the order may include such provision as the court thinks fit with respect to matters arising in connection with the removal; and
(c)if the court appoints a new liquidator, Rule 4.147 applies.
[E.R.4.143]
4.151.—(1) Where the liquidator resigns, he has his release from the date on which he gives notice of his resignation to the registrar.[FORM 4.41]
(2) Where the liquidator is removed by a meeting of the company, he shall forthwith give notice to the registrar of his ceasing to act.[FORM 4.41]
(3) Where the liquidator is removed by the court, he must apply to the Department for his release.[FORM 4.42]
(4) When the Department gives the release, it shall so certify and send the certificate to the registrar.
(5) A copy of the certificate shall be sent by the Department to the former liquidator, whose release is effective from the date of the certificate.
[E.R.4.144]
4.152.—(1) Subject to paragraph (2), where the liquidator has died, it is the duty of his personal representatives to give notice of the fact, and of the date of death, to the company's directors, or any one of them, and to the registrar.[FORM 4.45]
(2) In the alternative, notice of the death may be given—
(a)if the deceased liquidator was a partner in a firm, by a partner qualified to act as an insolvency practitioner or who is a member of any body approved by the Department for the authorisation of insolvency practitioners, or
(b)by any person, if he delivers with the notice a copy of the relevant death certificate.
[E.R.4.145]
4.153.—(1) This Rule applies where the liquidator vacates office on ceasing to be qualified as an insolvency practitioner in relation to the company.
(2) He shall forthwith give notice of his doing so to the registrar and the Department.[FORM 4.47] [FORM 4.46]
(3) Rule 4.151 applies as regards the liquidator obtaining his release, as if he had been removed by the court.
[E.R.4.146]
4.154. Where the liquidator vacates office in consequence of the court making a winding-up order against the company, Rule 4.151 applies as regards his obtaining his release, as if he had been removed by the court.
[E.R.4.147]
4.155. Where the liquidator ceases to be in office as such, in consequence of removal, resignation or cesser of qualification as an insolvency practitioner, he is under obligation forthwith to deliver up to the person succeeding him as liquidator the assets (after deduction of any expenses properly incurred, and distributions made, by him) and further to deliver up to that person—
(a)the records of the liquidation, including correspondence, proofs and other related papers appertaining to the administration while it was within his responsibility, and
(b)the company's books, papers and other records.
[E.R.4.148]
4.156.—(1) The liquidator is entitled to receive remuneration for his services as such.
(2) The remuneration shall be fixed either—
(a)as a percentage of the value of the assets which are realised or distributed, or of the one value and the other in combination, or
(b)by reference to the time properly given by the responsible insolvency practitioner (as liquidator) and his staff in attending to matters arising in the winding up;
and the company in general meeting shall determine whether the remuneration is to be fixed under sub-paragraph (a) or (b) and, if under sub-paragraph (a), the percentage to be applied as there mentioned.
(3) In arriving at that determination the company in general meeting shall have regard to the matters set out in paragraph (4) of Rule 4.134.
(4) If not fixed under paragraphs (2) and (3), the liquidator's remuneration shall be in accordance with the scale laid down for the official receiver by general regulations.
(5) Rule 4.135 shall apply in relation to the remuneration of the liquidator in respect of the matters there mentioned and for this purpose references in that Rule to “the liquidation committee” and “a meeting of creditors” shall be read as references to the company in general meeting.
(6) If the liquidator considers that the remuneration fixed for him by the company in general meeting, or as under paragraph (4), is insufficient, he may apply to the court for an order increasing its amount or rate.
(7) The liquidator shall give at least 14 days' notice of an application under paragraph (6) to the company's contributories, or such one or more of them as the court may direct, and the contributories may nominate any one or more of their number to appear or be represented.
(8) The court may, if it appears to be a proper case, order the costs of the liquidator's application, including the costs of any contributory appearing or being represented on it, to be paid out of the assets.
[E.R.4.148A]
4.157.—(1) If in the administration of the estate the liquidator enters into any transaction with a person who is an associate of his, the court may, on the application of any person interested, set the transaction aside and order the liquidator to compensate the company for any loss suffered in consequence of it.
(2) This does not apply if either—
(a)the transaction was entered into with the prior consent of the court, or
(b)it is shown to the court's satisfaction that the transaction was for value, and that it was entered into by the liquidator without knowing, or having any reason to suppose, that the person concerned was an associate.
(3) Nothing in this Rule is to be taken as prejudicing the operation of any rule of law or equity with respect to a liquidator's dealings with trust property, or the fiduciary obligations of any person.
[E.R.4.149]
4.158.—(1) Where the court is satisfied that any improper solicitation has been used by or on behalf of the liquidator in obtaining proxies or procuring his appointment, it may order that no remuneration out of the assets be allowed to any person by whom, or on whose behalf, the solicitation was exercised.
(2) An order of the court under this Rule overrides any resolution of the liquidation committee or the creditors, or any other provision of the Rules relating to the liquidator's remuneration.
[E.R.4.150]
4.159. (NO CVL APPLICATION)
For the purposes of this Chapter—
(a)an “insolvent winding up” is where the company is being wound up on the grounds which include inability to pay its debts, and
(b)a “solvent winding up” is where the company is being wound up on grounds which do not include that one.
[E.R.4.151]
4.160.—(1) Subject to Rule 4.162, the liquidation committee shall consist as follows—
(a)in any case of at least three, and not more than five, creditors of the company, elected by the meeting of creditors held under Article 120, and
(b)also, in the case of a solvent winding up, where the contributories' meeting held under that Article so decides, of up to three contributories, elected by that meeting.
(NO CVL APPLICATION)
(2-CVL) The committee must have at least three members before it can be established.
(3) Any creditor of the company (other than one whose debt is fully secured) is eligible to be a member of the committee, so long as—
(a)he has lodged a proof of his debt, and
(b)his proof has neither been wholly disallowed for voting purposes, nor wholly rejected for purposes of distribution or dividend.
(4) No person can be a member as both a creditor and a contributory.
(5) A body corporate may be a member of the committee, but it cannot act as such otherwise than by a representative appointed under Rule 4.167.
(6) Members of the committee elected or appointed to represent the creditors are called “creditor members”; and those elected or appointed to represent the contributories are called “contributory members”.
(7) Where a representative of the Deposit Protection Board exercises the right (under section 58 of the Banking Act 1987(5)) to be a member of the committee, he is to be regarded as an additional creditor member.
[E.R.4.152]
4.161.—(1) The liquidation committee does not come into being, and accordingly cannot act, until the liquidator has issued a certificate of its due constitution.[FORM 4.48]
(2) If the chairman of the meeting which resolves to establish the committee is not the liquidator, he shall forthwith give notice of the resolution to the liquidator (or, as the case may be, the person appointed as liquidator by that same meeting), and inform him of the names and addresses of the persons elected to be members of the committee.
(3) No person may act as a member of the committee unless and until he has agreed to do so and, unless the relevant proxy or authorisation contains a statement to the contrary, such agreement may be given by his proxy-holder or representative under Article 383 of the Companies Order present at the meeting establishing the committee.
(4) The liquidator's certificate of the committee's due constitution shall not issue before the minimum number of persons (in accordance with Rule 4.160) who are to be members of the committee have agreed to act.
(5) As and when the others (if any) agree to act, the liquidator shall issue an amended certificate.
(6) The liquidator shall file the certificate, and any amended certificate, in court and shall send a copy to the registrar. (NO CVL APPLICATION)
(7-CVL) The certificate, and any amended certificate, shall be sent by the liquidator to the registrar.[FORM 4.48] [FORM 4.49]
(8) If after the first establishment of the committee there is any change in its membership, the liquidator shall report the change to the court and to the registrar. (NO CVL APPLICATION)[FORM 4.50]
(9-CVL) If after the first establishment of the committee there is any change in its membership, the liquidator shall report the change to the registrar.[FORM 4.50] [FORM 4.49]
[E.R.4.153]
4.162. (NO CVL APPLICATION)
(1) Paragraphs (2) to (4) apply where the creditors' meeting under Article 120 does not decide that a liquidation committee should be established, or decides that a committee should not be established.
(2) The meeting of contributories under that Article may appoint one of their number to make application to the court for an order to the liquidator that a further creditors' meeting be summoned for the purpose of establishing a liquidation committee; and—
(a)the court may, if it thinks that there are special circumstances to justify it, make that order, and
(b)the creditors' meeting summoned by the liquidator in compliance with the order is deemed to have been summoned under Article 120.
(3) If the creditors' meeting so summoned does not establish a liquidation committee, a meeting of contributories may do so.
(4) The committee shall then consist of at least three, and not more than five, contributories elected by that meeting; and Rule 4.161 applies, substituting for the reference in paragraph (4) of that Rule to Rule 4.160 a reference to this paragraph.
[E.R.4.154]
4.163.—(1) Subject to paragraphs (2) and (4), it is the duty of the liquidator to report to the members of the liquidation committee all such matters as appear to him to be, or as they have indicated to him as being, of concern to them with respect to the winding up.
(2) In the case of matters so indicated to him by the committee, the liquidator need not comply with any request for information where it appears to him that—
(a)the request is frivolous or unreasonable, or
(b)the cost of complying would be excessive, having regard to the relative importance of the information, or
(c)there are not sufficient assets to enable him to comply.
(3) Where the committee has come into being more than 28 days after the appointment of the liquidator, he shall report to them, in summary form, what actions he has taken since his appointment, and shall answer all such questions as they may put to him regarding his conduct of the winding up hitherto.
(4) A person who becomes a member of the committee at any time after its first establishment is not entitled to require a report to him by the liquidator, otherwise than in summary form, of any matters previously arising.
(5) Nothing in this Rule disentitles the committee, or any member of it, from having access to the liquidator's records of the liquidation, or from seeking an explanation of any matter within the committee's responsibility.
[E.R.4.155]
4.164.—(1) Subject to paragraph (2), meetings of the liquidation committee shall be held when and where determined by the liquidator.
(2) The liquidator shall call a first meeting of the committee to take place within 3 months of his appointment or of the committee's establishment (whichever is the later); and thereafter he shall call a meeting—
(a)if so requested by a creditor member of the committee or his representative (the meeting then to be held within 21 days of the request being received by the liquidator), and
(b)for a specified date, if the committee has previously resolved that a meeting be held on that date.
(3) The liquidator shall give 7 days' written notice of the venue of a meeting to every member of the committee (or his representative, if designated for that purpose), unless in any case the requirement of the notice has been waived by or on behalf of any member.
(4) For the purpose of paragraph (3), waiver may be signified either at or before the meeting.
[E.R.4.156]
4.165.—(1) The chairman at any meeting of the liquidation committee shall be the liquidator, or a person nominated by him to act.
(2) A person so nominated must be either—
(a)one who is qualified to act as an insolvency practitioner in relation to the company, or
(b)an employee of the liquidator or his firm who is experienced in insolvency matters.
[E.R.4.157]
4.166.—(1) A meeting of the committee is duly constituted if due notice of it has been given to all the members, and at least two creditor members are present or represented. (NO CVL APPLICATION)
(2-CVL) A meeting of the committee is duly constituted if due notice of it has been given to all the members, and at least two members are present or represented.
[E.R.4.158]
4.167.—(1) A member of the liquidation committee may, in relation to the business of the committee, be represented by another person duly authorised by him for that purpose.
(2) A person acting as a committee-member's representative must hold a letter of authority entitling him so to act (either generally or specially) and signed by or on behalf of the committee-member, and for this purpose any proxy or any authorisation under Article 383 of the Companies Order in relation to any meeting of creditors (or, as the case may be, members or contributories) of the company shall, unless it contains a statement to the contrary, be treated as such a letter of authority to act generally signed by or on behalf of the committee-member.
(3) The chairman at any meeting of the committee may call on a person claiming to act as a committee-member's representative to produce his letter of authority, and may exclude him if it appears that his authority is deficient.
(4) No member may be represented by a body corporate, or by a person who is an undischarged bankrupt or is subject to a composition or arrangement with his creditors.
(5) No person shall—
(a)on the same committee, act at one and the same time as representative of more than one committee-member, or
(b)act both as a member of the committee and as representative of another member.
(6) Where a member's representative signs any document on the member's behalf, the fact that he so signs must be stated below his signature.
[E.R.4.159]
4.168. A member of the liquidation committee may resign by notice in writing delivered to the liquidator.
[E.R.4.160]
4.169.—(1) A person's membership of the liquidation committee is automatically terminated if—
(a)he becomes bankrupt or compounds or arranges with his creditors, or
(b)at 3 consecutive meetings of the committee he is neither present nor represented (unless at the third of those meetings it is resolved that this Rule is not to apply in this case).
(2) However, if the cause of termination is the member's bankruptcy, his trustee in bankruptcy replaces him as a member of the committee.
(3) The membership of a creditor member is also automatically terminated if he ceases to be, or is found never to have been, a creditor.
[E.R.4.161]
4.170.—(1) A creditor member of the committee may be removed by resolution at a meeting of creditors; and a contributory member may be removed by a resolution of a meeting of contributories.
(2) In either case, 14 days' notice must be given of the intention to move the resolution.
[E.R.4.162]
4.171.—(1) Paragraphs (2) to (5) apply if there is a vacancy among the creditor members of the committee.
(2) The vacancy need not be filled if the liquidator and a majority of the remaining creditor members so agree and if the total number of members does not fall below the minimum required by Rule 4.160.
(3) The liquidator may appoint any creditor (being qualified under the Rules to be a member of the committee) to fill the vacancy, if a majority of the other creditor members agree to the appointment, and the creditor concerned consents to act.
(4) Alternatively, a meeting of creditors may resolve that a creditor be appointed (with his consent) to fill the vacancy. In this case, at least 14 days' notice must have been given of the resolution to make such an appointment (whether or not of a person named in the notice).
(5) Where the vacancy is filled by an appointment made by a creditors' meeting at which the liquidator is not present, the chairman of the meeting shall report to the liquidator the appointment which has been made.
[E.R.4.163]
4.172.—(1) Paragraphs (2) to (6) apply if there is a vacancy among the contributory members of the committee.
(2) The vacancy need not be filled if the liquidator and a majority of the remaining contributory members so agree and if, in the case of a committee of contributory members only, the total number of members does not fall below the minimum required by Rule 4.162(4) or, as the case may be, 4.179(5).
(3) The liquidator may appoint any contributory member (being qualified under the Rules to be a member of the committee) to fill the vacancy, if a majority of the other contributory members agree to the appointment, and the contributory concerned consents to act.
(4) Alternatively, a meeting of contributories may resolve that a contributory be appointed (with his consent) to fill the vacancy. In this case, at least 14 days' notice must have been given of the resolution to make such an appointment (whether or not of a person named in the notice).
(5-CVL) Where the contributories make an appointment under paragraph (4), the creditor members of the committee may, if they think fit, resolve that the person appointed ought not to be a member of the committee; and—
(a)that person is not then, unless the court otherwise directs, qualified to act as a member of the committee, and
(b)on any application to the court for a direction under this paragraph the court may, if it thinks fit, appoint another person (being a contributory) to fill the vacancy on the committee.
(6) Where the vacancy is filled by an appointment made by a contributories' meeting at which the liquidator is not present, the chairman of the meeting shall report to the liquidator the appointment which has been made.
[E.R.4.164]
4.173. (NO CVL APPLICATION)
(1) At any meeting of the committee, each member of it (whether present himself, or by his representative) has one vote; and a resolution is passed when a majority of the creditor members present or represented have voted in favour of it.
(2) Subject to paragraph (3), the votes of contributory members do not count towards the number required for passing a resolution, but the way in which they vote on any resolution shall be recorded.
(3) Paragraph (2) does not apply where, by virtue of Rule 4.162 or 4.179, the only members of the committee are contributories. In that case the committee is to be treated for voting purposes as if all its members were creditors.
(4) Every resolution passed shall be recorded in writing, either separately or as part of the minutes of the meeting. The record shall be signed by the chairman and kept with the records of the liquidation.
[E.R.4.165]
4.174-CVL.—(1) At any meeting of the committee, each member of it (whether present himself, or by his representative) has one vote; and a resolution is passed when a majority of the members present or represented have voted in favour of it.
(2) Every resolution passed shall be recorded in writing, either separately or as part of the minutes of the meeting. The record shall be signed by the chairman and kept with the records of the liquidation.
[E.R.4.166-CVL]
4.175.—(1) In accordance with this Rule, the liquidator may seek to obtain the agreement of members of the liquidation committee to a resolution by sending to every member (or his representative designated for the purpose) a copy of the proposed resolution.
(2) Where the liquidator makes use of the procedure allowed by this Rule, he shall send out to members of the committee or their representatives (as the case may be) a copy of any proposed resolution on which a decision is sought, which shall be set out in such a way that agreement with or dissent from each separate resolution may be indicated by the recipient on the copy so sent.
(3) Any creditor member of the committee may, within 7 business days from the date of the liquidator sending out a resolution, require him to summon a meeting of the committee to consider the matters raised by the resolution. (NO CVL APPLICATION)
(4-CVL) Any member of the committee may, within 7 business days from the date of the liquidator sending out a resolution, require him to summon a meeting of the committee to consider the matters raised by the resolution.
(5) In the absence of such a request, the resolution is deemed to have been passed by the committee if and when the liquidator is notified in writing by a majority of the creditor members that they concur with it. (NO CVL APPLICATION)
(6-CVL) In the absence of such a request, the resolution is deemed to have been passed by the committee if and when the liquidator is notified in writing by a majority of the members that they concur with it.
(7) A copy of every resolution passed under this Rule, and a note that the committee's concurrence was obtained, shall be kept with the records of the liquidation.
[E.R.4.167]
4.176.—(1) The liquidator shall, as and when directed by the liquidation committee (but not more often than once in any period of 2 months), send a written report to every member of the committee setting out the position generally as regards the progress of the winding up and matters arising in connection with it, to which he (the liquidator) considers the committee's attention should be drawn.
(2) In the absence of such directions by the committee, the liquidator shall send such a report not less often than once in every period of 6 months.
(3) The obligations of the liquidator under this Rule are without prejudice to those imposed by Rule 4.163.
[E.R.4.168]
4.177. The liquidator shall defray out of the assets, in the prescribed order of priority, any reasonable travelling expenses directly incurred by members of the liquidation committee or their representatives in respect of their attendance at the committee's meetings, or otherwise on the committee's business.
[E.R.4.169]
4.178.—(1) This Rule applies to—
(a)any member of the liquidation committee,
(b)any committee-member's representative,
(c)any person who is an associate, or who has been an associate at any time in the last 12 months, of a member of the committee or of a committee-member's representative, and
(d)any person who has been a member of the committee or a committee-member's representative at any time in the last 12 months or who is, or has been at any time in the last 12 months, an associate of such a person.
(2) Subject to paragraph (3), a person to whom this Rule applies shall not enter into any transaction whereby he—
(a)receives out of the company's assets any payment for services given or goods supplied in connection with the administration, or
(b)obtains any profit from the administration, or
(c)acquires any asset forming part of the estate.
(3) Such a transaction may be entered into by a person to whom this Rule applies—
(a)with the prior leave of the court, or
(b)if he does so as a matter of urgency, or by way of performance of a contract in force before the date on which the company went into liquidation, and obtains the court's leave for the transaction, having applied for it without undue delay, or
(c)with the prior sanction of the liquidation committee, where it is satisfied (after full disclosure of the circumstances) that the person will be giving full value in the transaction.
(4) Where in the committee a resolution is proposed that sanction be accorded for a transaction to be entered into which, without that sanction or the leave of the court, would be in contravention of this Rule, no member of the committee, and no representative of a member, shall vote if he is to participate directly or indirectly in the transaction.
(5) The court may, on the application of any person interested—
(a)set aside a transaction on the ground that it has been entered into in contravention of this Rule, and
(b)make with respect to it such other order as it thinks fit, including (subject to paragraph (6)) an order requiring a person to whom this Rule applies to account for any profit obtained from the transaction and compensate the estate for any resultant loss.
(6) In the case of a person to whom this Rule applies as an associate of a member of the committee or of a committee-member's representative, the court shall not make any order under paragraph (5), if satisfied that he entered into the relevant transaction without having any reason to suppose that in doing so he would contravene this Rule.
(7) The costs of an application to the court for leave under this Rule are not payable out of the assets, unless the court so orders.
[E.R.4.170]
4.179.—(1) This Rule applies if the liquidator issues a certificate that the creditors have been paid in full, with interest in accordance with Article 160.
(2) The liquidator shall forthwith file the certificate in court and send a copy to the registrar. (NO CVL APPLICATION)[FORM 4.51]
(3-CVL) The liquidator shall forthwith send a copy of the certificate to the registrar.[FORM 4.52] [FORM 4.51]
(4) The creditor members of the liquidation committee cease to be members of the committee.
(5) The committee continues in being unless and until abolished by decision of a meeting of contributories, and (subject to paragraph (6)) so long as it consists of at least three contributory members.
(6) The committee does not cease to exist on account of the number of contributory members falling below three, unless and until 28 days have elapsed since the issue of the liquidator's certificate under paragraph (1).
(7) At any time when the committee consists of less than three contributory members, it is suspended and cannot act.
(8) Contributories may be co-opted by the liquidator, or appointed by a contributories' meeting, to be members of the committee; but the maximum number of members is five.
(9) Rules 4.159 to 4.178 continue to apply to the liquidation committee (with any necessary modifications) as if all the members of the committee were creditor members.
[E.R.4.171]
4.180. (NO CVL APPLICATION)
(1) At any time when the functions of the liquidation committee are vested in the Department under Article 120(4) or (5), requirements of the Order or the Rules about notices to be given, or reports to be made, to the committee by the liquidator do not apply, otherwise than as enabling the committee to require a report as to any matter.
(2) Where the committee's functions are so vested under Article 120(5), they may be exercised by the official receiver.
[E.R.4.172]
4.181. The acts of the liquidation committee established for any winding up are valid notwithstanding any defect in the appointment, election or qualifications of any member of the committee or any committee-member's representative or in the formalities of its establishment.
[E.R.4.172A]
4.182.—(1) This Chapter applies where—
(a)the winding-up order has been made immediately upon the discharge of an administration order under Part III of the Order, and
(b)the court makes an order under Article 119(1) appointing as liquidator the person who was previously the administrator.
(2) In this Chapter, “insolvent winding up”, “solvent winding up”, “creditor member” and “contributory member” mean the same as in Chapter 12.
[E.R.4.173]
4.183.—(1) If under Article 38 a creditors' committee has been established for the purposes of the administration, then (subject to paragraph (2) and Rules 4.184 to 4.187) that committee continues in being as the liquidation committee for the purposes of the winding up, and—
(a)it is deemed to be a committee established as such under Article 120, and
(b)no action shall be taken under paragraphs (1) to (3) of that Article to establish any other.
(2) This Rule does not apply if, at the time when the court's order under Article 119(1) is made, the committee under Article 38 consists of less than three members; and a creditor who was, immediately before that date, a member of it, ceases to be a member on the making of the order if his debt is fully secured.
[E.R.4.174]
4.184.—(1) Subject to paragraph (2), the liquidation committee shall consist of at least three, and not more than five, creditors of the company, elected by the creditors' meeting held under Article 38 or (in order to make up numbers or fill vacancies) by a creditors' meeting summoned by the liquidator after the company goes into liquidation.
(2) In the case of a solvent winding up, the liquidator shall, on not less than 21 days' notice, summon a meeting of contributories, in order to elect (if it so wishes) contributory members of the liquidation committee, up to three in number.
[E.R.4.175]
4.185.—(1) The liquidator shall issue a certificate of the liquidation committee's continuance, specifying the persons who are, or are to be, members of it.[FORM 4.53]
(2) It shall be stated in the certificate whether or not the liquidator has summoned a meeting of contributories under Rule 4.184(2), and whether (if so) the meeting has elected contributories to be members of the committee.
(3) Pending the issue of the liquidator's certificate, the committee is suspended and cannot act.
(4) No person may act, or continue to act, as a member of the committee unless and until he has agreed to do so; and the liquidator's certificate shall not issue until at least the minimum number of persons required under Rule 4.184 to form a committee have signified their agreement.
(5) As and when the others signify their agreement, the liquidator shall issue an amended certificate.[FORM 4.53]
(6) The liquidator's certificate (or, as the case may be, the amended certificate) shall be filed by him in court.
(7) If subsequently there is any change in the committee's membership, the liquidator shall report the change to the court.[FORM 4.50]
[E.R.4.176]
4.186.—(1) As soon as may be after the issue of the liquidator's certificate under Rule 4.185, the liquidator shall report to the liquidation committee what actions he has taken since the date on which the company went into liquidation.
(2) A person who becomes a member of the committee after that date is not entitled to require a report to him by the liquidator, otherwise than in a summary form, of any matters previously arising.
(3) Nothing in this Rule disentitles the committee, or any member of it, from having access to the records of the liquidation (whether relating to the period when he was administrator, or to any subsequent period), or from seeking an explanation of any matter within the committee's responsibility.
[E.R.4.177]
4.187. Except as provided in this Chapter, Rules 4.163 to 4.181 apply to the liquidation committee following the issue of the liquidator's certificate under Rule 4.185, as if it had been established under Article 120.
[E.R.4.178]
4.188. (NO CVL APPLICATION)
(1) The duties imposed on the court by the Order with regard to the collection of the company's assets and their application in discharge of its liabilities are discharged by the liquidator as an officer of the court subject to its control.
(2) In the discharge of his duties the liquidator, for the purposes of acquiring and retaining possession of the company's property, has the same powers as a receiver appointed by the court, and the court may on his application enforce such acquisition or retention accordingly.
[E.R.4.179]
4.189.—(1) Whenever the liquidator has sufficient funds in hand for the purpose he shall, subject to the retention of such sums as may be necessary for the expenses of the winding up, declare and distribute dividends among the creditors in respect of the debts which they have respectively proved.
(2) The liquidator shall give notice of his intention to declare and distribute a dividend.
(3) Where the liquidator has declared a dividend, he shall give notice of it to the creditors, stating how the dividend is proposed to be distributed. The notice shall contain such particulars with respect to the company, and to its assets and affairs, as will enable the creditors to comprehend the calculation of the amount of the dividend and the manner of its distribution.
[E.R.4.180]
4.190. (NO CVL APPLICATION)
(1) Debts other than preferential debts rank equally between themselves in the winding up and, after the preferential debts, shall be paid in full unless the assets are insufficient for meeting them, in which case they abate in equal proportions between themselves.
(2) Paragraph (1) applies whether or not the company is unable to pay its debts.
[E.R.4.181]
4.191.—(1) In the calculation and distribution of a dividend the liquidator shall make provision—
(a)for any debts which appear to him to be due to persons who, by reason of the distance of their place of residence, may not have had sufficient time to tender and establish their proofs,
(b)for any debts which are the subject of claims which have not yet been determined, and
(c)for disputed proofs and claims.
(2) A creditor who has not proved his debt before the declaration of any dividend is not entitled to disturb, by reason that he has not participated in it, the distribution of that dividend or any other dividend declared before his debt was proved, but—
(a)when he has proved that debt he is entitled to be paid, out of any money for the time being available for the payment of any further dividend, any dividend or dividends which he has failed to receive, and
(b)any dividend or dividends payable under sub-paragraph (a) shall be paid before that money is applied to the payment of any such further dividend.
(3) No action lies against the liquidator for a dividend; but if he refuses to pay a dividend the court may, if it thinks fit, order him to pay it and also to pay, out of his own money—
(a)interest on the dividend, at the rate applicable to a money judgment of the High Court, from the time when it was withheld, and
(b)the costs of the proceedings in which the order to pay is made.
[E.R.4.182]
4.192. (NO CVL APPLICATION)
(1) In a members' voluntary winding up the liquidator may give notice in such newspaper as he considers most appropriate for the purpose of drawing the matter to the attention of the company's creditors that he intends to make a distribution to creditors.
(2) The notice shall specify a date (“the last date for proving”) up to which proofs may be lodged. The date shall be the same for all creditors and not less than 21 days from that of the notice.
(3) The liquidator is not obliged to deal with proofs lodged after the last date for proving; but he may do so, if he thinks fit.
(4) A creditor who has not proved his debt before the last date for proving or after that date increases the claim in his proof is not entitled to disturb, by reason that he has not participated in it, either at all or, as the case may be, to the extent that his increased claim would allow, that distribution or any other distribution made before his debt was proved or his claim increased; but when he has proved his debt or, as the case may be, increased his claim, he is entitled to be paid, out of any money for the time being available for the payment of any further distribution, any distribution or distributions which he has failed to receive.
(5) Where the distribution proposed to be made is to be the only or the final distribution in that winding up, the liquidator may, subject to paragraph (6), make that distribution without regard to the claim of any person in respect of a debt not already proved.
(6) Where the distribution proposed to be made is one specified in paragraph (5), the notice given under paragraph (1) shall state the effect of paragraph (5).
[E.R.4.182A]
4.193. Without prejudice to provisions of the Order about disclaimer, the liquidator may, with the permission of the liquidation committee, divide in its existing form amongst the company's creditors, according to its estimated value, any property which from its peculiar nature or other special circumstances cannot be readily or advantageously sold.
[E.R.4.183]
4.194.—(1) Any permission given by the liquidation committee or the court under Article 142(1)(a), or under the Rules, shall not be a general permission but shall relate to a particular proposed exercise of the liquidator's power in question; and a person dealing with the liquidator in good faith and for value is not concerned to enquire whether any such permission has been given.
(2) Where the liquidator has done anything without that permission, the court or the liquidation committee may, for the purpose of enabling him to meet his expenses out of the assets, ratify what he has done; but neither shall do so unless it is satisfied that the liquidator has acted in a case of urgency and has sought ratification without undue delay.
[E.R.4.184]
4.195. (NO CVL APPLICATION)
(1) The powers conferred on the court by Article 198 (enforced delivery of company property) are exercisable by the liquidator or, where a provisional liquidator has been appointed, by him.
(2) Any person on whom a requirement under Article 198(2) is imposed by the liquidator or provisional liquidator shall, without avoidable delay, comply with it.
[E.R.4.185]
4.196.—(1) When the liquidator has realised all the company's assets or so much of them as can, in his opinion, be realised without needlessly protracting the liquidation, he shall give notice, under Part 11, either—
(a)of his intention to declare a final dividend, or
(b)that no dividend, or further dividend, will be declared.
(2) The notice shall contain all such particulars as are required by Part 11 and shall require claims against the assets to be established by a date specified in the notice.
(3) After that date, the liquidator shall—
(a)defray any outstanding expenses of the winding up out of the assets, and
(b)if he intends to declare a final dividend, declare and distribute that dividend without regard to the claim of any person in respect of a debt not already proved.
(4) The court may, on the application of any person, postpone the date specified in the notice.
[E.R.4.186]
4.197.—(1) Where the liquidator disclaims property under Article 152, the notice of disclaimer shall contain such particulars of the property disclaimed as enable it to be easily identified.[FORM 4.54]
(2) The notice shall be signed by the liquidator and filed in court, with a copy. The court shall secure that both the notice and the copy are sealed and endorsed with the date of filing.
(3) The copy notice, so sealed and endorsed, shall be returned by the court to the liquidator as follows—
(a)if the notice has been delivered at the office of the court by the liquidator in person, it shall be handed to him,
(b)if it has been delivered by some person acting on the liquidator's behalf, it shall be handed to that person, for immediate transmission to the liquidator, and
(c)otherwise, it shall be sent to the liquidator by first class post.
(4) The court shall cause to be endorsed on the original notice, or otherwise recorded on the file, the manner in which the copy notice was returned to the liquidator.
(5) For the purposes of Article 152, the date of the prescribed notice is that which is endorsed on it, and on the copy, in accordance with this Rule.
[E.R.4.187]
4.198.—(1) Within 7 days after the day on which the copy of the notice of disclaimer is returned to him under Rule 4.197, the liquidator shall send or give copies of the notice (showing the date endorsed as required by that Rule) to the persons mentioned in paragraphs (2) to (6).[FORM 4.54]
(2) Where the property disclaimed is of a leasehold nature, he shall send or give a copy to every person who (to his knowledge) claims under the company as underlessee or mortgagee.
(3) He shall in any case send or give a copy of the notice to every person who (to his knowledge)—
(a)claims an interest in the disclaimed property, or
(b)is under any liability in respect of the property, not being a liability discharged by the disclaimer.
(4) If the disclaimer is of an unprofitable contract, he shall send or give copies of the notice to all such persons as, to his knowledge, are parties to the contract or have interests under it.
(5) Subject to paragraph (6), if subsequently it comes to the liquidator's knowledge, in the case of any person, that he has such an interest in the disclaimed property as would have entitled him to receive a copy of the notice of disclaimer in pursuance of paragraphs (2) to (4), the liquidator shall then forthwith send or give to that person a copy of the notice.
(6) Paragraph (5) does not apply if—
(a)the liquidator is satisfied that the person has already been made aware of the disclaimer and its date, or
(b)the court, on the liquidator's application, orders that compliance is not required in that particular case.
[E.R.4.188]
4.199. The liquidator disclaiming property may, without prejudice to his obligations under Articles 152 to 154 and Rules 4.197 and 4.198, at any time give notice of the disclaimer to any persons who in his opinion ought, in the public interest or otherwise, to be informed of it.[FORM 4.54]
[E.R.4.189]
4.200. The liquidator shall notify the court from time to time as to the persons to whom he has sent or given copies of the notice of disclaimer under Rules 4.198 and 4.199, giving their names and addresses, and the nature of their respective interests.
[E.R.4.190]
4.201. Where, in the case of any property, application is made to the liquidator by an interested party under Article 152(4) (request for decision whether the property is to be disclaimed or not), the application—
(a)shall be delivered to the liquidator personally or by registered post, and
(b)shall be made in the form known as “notice to elect”, or a substantially similar form.[FORM 4.55]
[E.R.4.191]
4.202.—(1) If, in the case of property which the liquidator has the right to disclaim, it appears to him that there is some person who claims, or may claim, to have an interest in the property, he may give notice to that person calling on him to declare within 14 days whether he claims any such interest and, if so, the nature and extent of it.[FORM 4.56]
(2) Failing compliance with the notice, the liquidator is entitled to assume that the person concerned has no such interest in the property as will prevent or impede its disclaimer.
[E.R.4.192]
4.203. Any disclaimer of property by the liquidator is presumed valid and effective, unless it is proved that he has been in breach of his duty with respect to the giving of notice of disclaimer, or otherwise under Articles 152 to 154, or under this Chapter.
[E.R.4.193]
4.204.—(1) This Rule applies with respect to an application by any person under Article 155 for an order of the court to vest or deliver disclaimed property.
(2) The application must be made within 3 months of the applicant becoming aware of the disclaimer, or of his receiving a copy of the liquidator's notice of disclaimer sent under Rule 4.198, whichever is the earlier.
(3) The applicant shall with his application file in court an affidavit—
(a)stating whether he applies under sub-paragraph (a) of Article 155(1) (claim of interest in the property) or under sub-paragraph (b) (liability not discharged);
(b)specifying the date on which he received a copy of the liquidator's notice of disclaimer, or otherwise became aware of the disclaimer; and
(c)specifying the grounds of his application and the order which he desires the court to make under Article 155.
(4) The court shall fix a venue for the hearing of the application; and the applicant shall, not later than 7 days before the date fixed, give to the liquidator notice of the venue, accompanied by copies of the application and the affidavit under paragraph (3).
(5) On the hearing of the application, the court may give directions as to other persons (if any) who should be sent or given notice of the application and the grounds on which it is made.
(6) Sealed copies of any order made on the application shall be sent by the court to the applicant and the liquidator.
(7) Subject to paragraph (8), in a case where the property disclaimed is of a leasehold nature, and Article 153 applies to suspend the effect of the disclaimer, there shall be included in the court's order a direction giving effect to the disclaimer.
(8) Paragraph (7) does not apply if, at the time when the order is issued, other applications under Article 155 are pending in respect of the same property.
[E.R.4.194]
4.205. The duties of the court with regard to the settling of the list of contributories are, by virtue of the Rules, delegated to the liquidator.
[E.R.4.195]
4.206.—(1) Subject to paragraph (2), the liquidator shall, as soon as may be after his appointment, exercise the court's power to settle a list of the company's contributories for the purposes of Article 126 and, with the court's approval, rectify the register of members.
(2) The liquidator's duties under this Rule are performed by him as an officer of the court subject to the court's control.
[E.R.4.196]
4.207.—(1) The list shall identify—
(a)the several classes of the company's shares (if more than one), and
(b)the several classes of contributories, distinguishing between those who are contributories in their own right and those who are so as representatives of, or liable for the debts of, others.
(2) In the case of each contributory there shall in the list be stated—
(a)his address,
(b)the number and class of shares, or the extent of any other interest to be attributed to him, and
(c)if the shares are not fully paid up, the amounts which have been called up and paid in respect of them (and the equivalent, if any, where his interest is other than shares).
[E.R.4.197]
4.208.—(1) Having settled the list, the liquidator shall forthwith give notice, to every person included in the list, that he has done so.
(2) The notice given to each person shall state—
(a)in what character, and for what number of shares or what interest, he is included in the list,
(b)what amounts have been called up and paid up in respect of the shares or interest, and
(c)that in relation to any shares or interest not fully paid up, his inclusion in the list may result in the unpaid capital being called.
(3) The notice shall inform any person to whom it is given that, if he objects to any entry in, or omission from, the list, he should so inform the liquidator in writing within 21 days from the date of the notice.
(4) On receipt of any such objection, the liquidator shall within 14 days give notice to the objector either—
(a)that he has amended the list (specifying the amendment), or
(b)that he considers the objection to be not well-founded and declines to amend the list.
(5) The notice under paragraph 4(a) or (b) shall inform the objector of the effect of Rule 4.209.
[E.R.4.198]
4.209.—(1) If a person objects to any entry in, or exclusion from, the list of contributories as settled by the liquidator and, notwithstanding notice by the liquidator declining to amend the list, maintains his objection, he may apply to the court for an order removing the entry to which he objects or (as the case may be) otherwise amending the list.
(2) The application must be made within 21 days of the service on the applicant of the liquidator's notice under Rule 4.208(4).
[E.R.4.199]
4.210. The liquidator may from time to time vary or add to the list of contributories as previously settled by him, but subject in all respects to Rules 4.205 to 4.209.
[E.R.4.200]
4.211. The official receiver is not personally liable for any costs incurred by a person in respect of an application to set aside or vary his act or decision in settling the list of contributories, or varying or adding to the list; and the liquidator (if other than the official receiver) is not so liable unless the court makes an order to that effect.
[E.R.4.201]
4.212. Subject to Rule 4.213, the powers conferred by the Order with respect to the making of calls on contributories are exercisable by the liquidator as an officer of the court subject to the court's control.
[E.R.4.202]
4.213.—(1) Where the liquidator proposes to make a call, and there is a liquidation committee, he may summon a meeting of the committee for the purpose of obtaining its sanction.
(2) At least 7 days' notice of the meeting shall be given by the liquidator to each member of the committee.
(3) The notice shall contain a statement of the proposed amount of the call, and the purpose for which it is intended to be made.
[E.R.4.203]
4.214.—(1) For the purpose of obtaining the leave of the court for the making of a call on any contributories of the company, the liquidator shall apply ex parte, supporting his application by affidavit.[FORM 4.57]
(2) There shall in the application be stated the amount of the proposed call, and the contributories on whom it is to be made.
(3) The court may direct that notice of the order be given to the contributories concerned, or to other contributories, or may direct that the notice be publicly advertised.[FORM 4.58]
[E.R.4.204]
4.215.—(1) Notice of the call shall be given to each of the contributories concerned, and shall specify—[FORM 4.59]]
(a)the amount or balance due from him in respect of it, and
(b)whether the call is made with the sanction of the court or the liquidation committee.
(2) Payment of the amount due from any contributory may be enforced by order of the court.[FORM 4.60]
[E.R.4.205]
4.216.—(1) An application made by the liquidator under Article 151 for the appointment of a person to be special manager shall be supported by a report setting out the reasons for the application.
(2) The report under paragraph (1) shall include the applicant's estimate of the value of the assets in respect of which the special manager is to be appointed.
(3) This Chapter applies also with respect to an application by the provisional liquidator, where one has been appointed, and references to the liquidator are to be read accordingly as including the provisional liquidator. (NO CVL APPLICATION)
(4) The court's order appointing the special manager shall specify the duration of his appointment, which may be for a period of time, or until the occurrence of a specified event. Alternatively, the order may specify that the duration of the appointment is to be subject to a further order of the court.[FORM 4.61]
(5) The appointment of a special manager may be renewed by order of the court.
(6) The special manager's remuneration shall be fixed from time to time by the court.
(7) The acts of the special manager are valid notwithstanding any defect in his appointment or qualifications.
[E.R.4.206]
4.217.—(1) The appointment of the special manager does not take effect until the person appointed has given (or, being allowed by the court to do so, undertaken to give) security to the person who applies for him to be appointed.
(2) It is not necessary that security shall be given for each separate company liquidation; but it may be given either specially for a particular liquidation, or generally for any liquidation in relation to which the special manager may be employed as such.
(3) The amount of the security shall be not less than the value of the assets in respect of which he is appointed, as estimated by the applicant in his report under Rule 4.216.
(4) When the special manager has given security to the person applying for his appointment, that person shall file in court a certificate as to the adequacy of the security.
(5) The cost of providing the security shall be paid in the first instance by the special manager; but—
(a)where a winding-up order is not made, he is entitled to be reimbursed out of the property of the company, and the court may make an order on the company accordingly, and
(b)where a winding-up order is made, he is entitled to be reimbursed out of the assets in the prescribed order of priority.
(NO CVL APPLICATION)
(6-CVL) The cost of providing the security shall be paid in the first instance by the special manager; but he is entitled to be reimbursed out of the assets, in the prescribed order of priority.
[E.R.4.207]
4.218.—(1) If the special manager fails to give the required security within the time stated for that purpose by the order appointing him, or any extension of that time that may be allowed, the liquidator shall report the failure to the court, which may thereupon discharge the order appointing the special manager.
(2) If the special manager fails to keep up his security, the liquidator shall report his failure to the court, which may thereupon remove the special manager, and make such order as it thinks fit as to costs.
(3) If an order is made under this Rule removing the special manager, or discharging the order appointing him, the court shall give directions as to whether any, and if so what, steps should be taken for the appointment of another special manager in his place.
[E.R.4.208]
4.219.—(1) The special manager shall produce accounts, containing details of his receipts and payments, for the approval of the liquidator.
(2) The accounts shall be in respect of 3-month periods for the duration of the special manager's appointment (or for a lesser period, if his appointment terminates less than 3 months from its date, or from the date to which the last accounts were made up).
(3) When the accounts have been approved, the special manager's receipts and payments shall be added to those of the liquidator.
[E.R.4.209]
4.220.—(1) The special manager's appointment terminates if the winding-up petition is dismissed or if, a provisional liquidator having been appointed, the latter is discharged without a winding-up order having been made. (NO CVL APPLICATION)
(2) If the liquidator is of opinion that the employment of the special manager is no longer necessary or profitable for the company, he shall apply to the court for directions, and the court may order the special manager's appointment to be terminated.
(3) The liquidator shall make the same application if a resolution of the creditors is passed, requesting that the appointment be terminated.
[E.R.4.210]
4.221.—(1) If the official receiver applies to the court under Article 113 for the public examination of any person, a copy of the court's order shall, forthwith after its making, be served on that person.[FORM 4.62]
(2) Where the application relates to a person falling within Article 113(1)(c) (promoters, past managers, etc.), it shall be accompanied by a report by the official receiver indicating—
(a)the grounds on which the person is supposed to fall within that sub-paragraph, and
(b)whether, in the official receiver's opinion, it is likely that service of the order on the person can be effected by post at a known address.
(3) If in his report the official receiver gives it as his opinion that, in a case to which paragraph (2) applies, there is no reasonable certainty that service by post will be effective, the court may direct that the order be served by some means other than, or in addition to, post.
(4) In a case to which paragraphs (2) and (3) apply, the court shall rescind the order if satisfied by the person to whom it is directed that he does not fall within Article 113(1)(c).
[E.R.4.211]
4.222.—(1) The court's order shall appoint a venue for the examination of the person to whom it is directed (“the examinee”) and direct his attendance thereat.
(2) The official receiver shall give at least 14 day's notice of the hearing date—
(a)if a liquidator has been nominated or appointed, to him;
(b)if a special manager has been appointed, to him; and
(c)subject to any contrary direction of the court, to every creditor and contributory of the company who is known to the official receiver or is identified in the company's statement of affairs.
(3) The official receiver may, if he thinks fit, cause notice of the order to be given, by advertisement in one or more newspapers, at least 14 days before the hearing date; but, unless the court otherwise directs, there shall be no such advertisement before at least 7 days have elapsed since the examinee was served with the order.
[E.R.4.212]
4.223.—(1) Subject to paragraph (2), a request to the official receiver by creditors or contributories under Article 113(2) shall be made in writing and be accompanied by—[FORM 4.63] [FORM 4.64]
(a)a list of the creditors concurring with the request and the amounts of their respective claims in the liquidation or (as the case may be) of the contributories so concurring, with their respective values, and
(b)from each creditor or contributory concurring, written confirmation of his concurrence.
(2) Paragraph (1) does not apply if the requisitioning creditor's debt or, as the case may be, requisitioning contributory's shareholding is alone sufficient, without the concurrence of others.
(3) The request must specify the name of the proposed examinee, the relationship which he has, or has had, to the company and the reasons why his examination is requested.
(4) Before an application to the court is made on the request, the requisitionists shall deposit with the official receiver such sum as the latter may determine to be appropriate by way of security for the expenses of the hearing of a public examination, if ordered.
(5) Subject to paragraphs (6) and (7), the official receiver shall, within 28 days of receiving the request, make the application to the court required by Article 113(2).
(6) If the official receiver is of opinion that the request is an unreasonable one in the circumstances, he may apply to the court for an order relieving him from the obligation to make the application otherwise required by that paragraph.
(7) If the court so orders, and the application for the order was made ex parte, notice of the order shall be given forthwith by the official receiver to the requisitionists. If the application for an order is dismissed, the official receiver's application under Article 113(2) shall be made forthwith on conclusion of the hearing of the application first mentioned.
[E.R.4.213]
4.224.—(1) Where the examinee is suffering from any mental disorder or physical affliction or disability rendering him unfit to undergo or attend for public examination, the court may, on application in that behalf, either stay the order for his public examination or direct that it shall be conducted in such manner and at such place as it thinks fit.[FORM 4.65]
(2) Application under this Rule shall be made—
(a)by a person who has been appointed by a court in the United Kingdom or elsewhere to manage the affairs of, or to represent, the examinee, or
(b)by a relative or friend of the examinee who the court considers to be a proper person to make the application, or
(c)by the official receiver.
(3) Where the application is made a person other than the official receiver, then—
(a)it shall, unless the examinee is a patient within the meaning of the Mental Health (Northern Ireland) Order 1986 (6), be supported by the affidavit of a registered medical practitioner as to the examinee' s mental and physical condition;
(b)at least 7 days' notice of the application shall be given to the official receiver and the liquidator (if other than the official receiver); and
(c)before any order is made on the application, the applicant shall deposit with the official receiver such sum as the latter certifies to be necessary for the additional expenses of any examination that may be ordered on the application.
(4) An order made on the application may provide that the expenses of the examination are to be payable, as to a specified proportion, out of the deposit under paragraph (3)(c) instead of out of the assets.
(5) Where the application is made by the official receiver it may be made ex parte, and may be supported by evidence in the form of a report by the official receiver to the court.
[E.R.4.214]
4.225.—(1) The examinee shall at the hearing be examined on oath; and he shall answer all such questions as the court may put, or allow to be put, to him.
(2) Any of the persons allowed by Article 113(4) to question the examinee may, with the approval of the court (made known either at the hearing or in advance of it), appear by solicitor or counsel; or he may in writing authorise another person to question the examinee on his behalf.
(3) The examinee may at his own expense employ a solicitor with or without counsel, who may put to him such questions as the court may allow for the purpose of enabling him to explain or qualify any answers given by him, and may make representations on his behalf.
(4) There shall be made in writing such record of the examination as the court thinks proper. The record shall be read over either to or by the examinee, signed by him, and verified by affidavit at a venue fixed by the court.[FORM 4.66]
(5) The written record may, in any proceedings (whether under the Order or otherwise) be used as evidence against the examinee of any statement made by him in the course of his public examination.
(6) If criminal proceedings have been instituted against the examinee, and the court is of opinion that the continuance of the hearing would be calculated to prejudice a fair trial of those proceedings, the hearing may be adjourned.
[E.R.4.215]
4.226.—(1) The public examination may be adjourned by the court from time to time, either to a fixed date or generally.[FORM 4.67]
(2) Where the examination has been adjourned generally, the court may at any time on the application of the official receiver or of the examinee—
(a)fix a venue for the resumption of the examination, and[FORM 4.68]
(b)give directions as to the manner in which, and the time within which, notice of the resumed public examination is to be given to persons entitled to take part in it.
(3) Where application under paragraph (2) is made by the examinee, the court may grant it on terms that the expenses of giving the notices required by that paragraph shall be paid by him and that, before a venue for the resumed public examination is fixed, he shall deposit with the official receiver such sum as the latter considers necessary to cover those expenses.
[E.R.4.216]
4.227.—(1) Where a public examination of the examinee has been ordered by the court on a creditors' or contributories' requisition under Rule 4.223, the court may order that the expenses of the examination are to be paid, as to a specified proportion, out of the deposit under Rule 4.223(4), instead of out of the assets.
(2) In no case do the costs of a public examination fall on the official receiver personally.
[E.R.4.217]
4.228.—(1) The expenses of the liquidation are payable out of the assets in the following order of priority—
(a)expenses properly chargeable or incurred by the official receiver or the liquidator in preserving, realising or getting in any of the assets of the company;
(b)any other expenses incurred or disbursements made by the official receiver or under his authority, including those incurred or made in carrying on the business of the company;
(c)(i)the fee payable under any order made under Article 361 for the performance by the official receiver of his general duties as official receiver;
(ii)any repayable deposit lodged by the petitioner under any such order as security for the fee mentioned in head (i);
(d)any other fees payable under any order made under Article 361, including those payable to the official receiver, and any renumeration payable to him under general regulations;
(e)the cost of any security provided by a provisional liquidator, liquidator or special manager in accordance with the Order or the Rules;
(f)the remuneration of the provisional liquidator (if any);
(g)any deposit lodged on an application for the appointment of a provisional liquidator;
(h)the costs of the petitioner, and of any person appearing on the petition whose costs are allowed by the court;
(j)the remuneration of the special manager (if any);
(k)any amount payable to a person employed or authorised, under Chapter 6, to assist in the preparation of a statement of affairs or of accounts;
(l)any allowance made, by order of the court, towards costs on an application for release from the obligation to submit a statement of affairs, or for an extension of time for submitting such a statement;
(m)any necessary disbursements by the liquidator in the course of his administration (including any expenses incurred by members of the liquidation committee or their representatives and allowed by the liquidator under Rule 4.177, but not including any payment of corporation tax in circumstances referred to in sub-paragraph (p));
(n)the remuneration or emoluments of any person who has been employed by the liquidator to perform any services for the company, as required or authorised by or under the Order or the Rules;
(o)the remuneration of the liquidator, up to any amount not exceeding that which is payable to the official receiver under general regulations;
(p)the amount of any corporation tax on chargeable gains accruing on the realisation of any asset of the company (without regard to whether the realisation is effected by the liquidator, a secured creditor, or a receiver or manager appointed to deal with a security);
(q)the balance, after payment of any sums due under sub-paragraph (o), of any remuneration due to the liquidator.
(2) The costs of employing a shorthand writer, if appointed by an order of the court made at the instance of the official receiver in connection with an examination, rank in priority with those specified in paragraph (1)(a). The costs of employing a shorthand writer so appointed in any other case rank after the allowance mentioned in paragraph (1)(l) and before the disbursements mentioned in paragraph (1)(m).
(3) Paragraph (2) shall apply to the costs of a mechanical recording as it applies to the costs of a shorthand writer.
(4) Any expenses incurred in holding an examination under Rule 4.224 (examinee unfit), where the application for it is made by the official receiver, rank in priority with those specified in paragraph (1)(a).
[E.R.4.218]
4.229. In a winding up by the court which follows immediately on a voluntary winding up (whether members' voluntary or creditors' voluntary), such remuneration of the voluntary liquidator and costs of the voluntary liquidation as the court may allow are to rank in priority with the expenses specified in Rule 4.228(1)(a).
[E.R.4.219]
4.230.—(1) In a winding up by the court, the priorities laid down by Rules 4.228 and 4.229 are subject to the power of the court to make orders under Article 134, where the assets are insufficient to satisfy the liabilities.
(2) Nothing in those Rules applies to or affects the power of any court, in proceedings by or against the company, to order costs to be paid by the company, or the liquidator; nor do they affect the rights of any person to whom such costs are ordered to be paid.
[E.R.4.220]
4.231.—(1) This Rule applies where the liquidator intends to apply to the court for an order authorising a return of capital.
(2) The application shall be accompanied by a list of the persons to whom the return is to be made.
(3) The list shall include the same details of those persons as appears in the settled list of contributories, with any necessary alterations to take account of matters after settlement of the list, and the amount to be paid to each person.
(4) Where the court makes an order authorising the return, it shall send a sealed copy of the order to the liquidator.
[E.R.4.221]
4.232.—(1) The liquidator shall inform each person to whom a return is made of the rate of return per share, and whether it is expected that any further return will be made.
(2) Any payments made by the liquidator by way of the return may be sent by post, unless for any reason another method of making the payment has been agreed with the payee.
[E.R.4.222]
4.233.—(1) Subject to paragraphs (3) and (4), the statement which Article 162 requires the liquidator to send to the registrar, if the winding up is not concluded within one year from its commencement, shall be sent not more than 30 days after the expiration of that year, and thereafter every year until the winding up is concluded.[FORM 4.69]
(2) For this purpose the winding up is concluded at the date of the dissolution of the company, except that if at that date any assets or funds of the company remain unclaimed or undistributed in the hands or under the control of the liquidator or any former liquidator, the winding up is not concluded until those assets or funds have either been distributed or paid into the Insolvency Account.
(3) Subject to paragraph (2), the liquidator's final statement shall be sent forthwith after the conclusion of the winding up.
(4) No statement shall be required to be delivered under this Rule where the return of the final meeting in respect of the company under Articles 80 or 92 is delivered before the date at which the statement is to be delivered and that return shows that no assets or funds of the company remain unclaimed or undistributed in the hands or under the control of the liquidator or any former liquidator; but where this paragraph applies, the liquidator shall deliver a copy of that return to the registrar.
(5) Every statement sent to the registrar under Article 162 shall be in duplicate.
[E.R.4.223-CVL]
4.234.—(1) Where the Department gives a direction under—
(a)Article 168 (application for directions concerning a company's early dissolution), or
(b)Article 169 (application for postponement of dissolution),
he shall send 2 copies of the direction to the applicant for it.
(2) Of those copies one shall be sent by the applicant to the registrar, to comply with Article 168(5) or, as the case may be, 169(4).
[E.R.4.224]
4.235. Following an appeal under Article 168(4) or 169(3) (against a decision of the Department under the applicable Article) the court shall send 2 sealed copies of its order to the person in whose favour the appeal was determined; and that party shall send one of the copies to the registrar to comply with Article 168(5) or, as the case may be, 169(4).[FORM 4.10]
[E.R.4.225]
4.236. This Chapter—
(a)relates to the leave required under Article 180 (restriction on re-use of name of company in insolvent liquidation) for a person to act as mentioned in Article 180(3) in relation to a company with a prohibited name,
(b)prescribes the cases excepted from that provision, that is to say, those in which a person to whom the Article applies may so act without that leave.
[E.R.4.226]
4.237. When considering an application for leave under Article 180, the court may call on the liquidator, or any former liquidator, of the liquidating company for a report of the circumstances in which that company became insolvent, and the extent (if any) of the applicant's apparent responsibility for its doing so.
[E.R.4.227]
4.238.—(1) Where a company (“the successor company”) acquires the whole, or substantially the whole, of the business of an insolvent company, under arrangements made by an insolvency practitioner acting as its liquidator, administrator or administrative receiver, or as supervisor of a voluntary arrangement under Part II of the Order, the successor company may for the purposes of Article 180 give notice under this Rule to the insolvent company's creditors.
(2) To be effective, the notice must be given within 28 days from the completion of the arrangements, to all creditors of the insolvent company of whose addresses the successor company is aware in that period; and it must specify—
(a)the name and registered number of the insolvent company and the circumstances in which its business has been acquired by the successor company,
(b)the name which the successor company has assumed, or proposes to assume for the purpose of carrying on the business, if that name is or will be a prohibited name under Article 180, and
(c)any change of name which it has made, or proposes to make, for that purpose under Article 38 of the Companies Order.
(3) The notice may name a person to whom Article 180 may apply as having been a director or shadow director of the insolvent company, and give particulars as to the nature and duration of that directorship, with a view to his being a director of the successor company or being otherwise associated with its management.
(4) If the successor company has effectively given notice under this Rule to the insolvent company's creditors, a person who is so named in the notice may act in relation to the successor company in any of the ways mentioned in Article 180(3), notwithstanding that he has not the leave of the court under that Article.
[E.R.4.228]
4.239.—(1) Where a person to whom Article 180 applies as having been a director or shadow director of the liquidating company applies for leave of the court under that Article not later than 7 days from the date on which the company went into liquidation, he may, during the period specified in paragraph (2), act in any of the ways mentioned in Article 180(3) notwithstanding that he has not the leave of the court under that Article.
(2) The period referred to in paragraph (1) begins with the day on which the company goes into liquidation 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 leave under Article 180, whichever of those days occurs first.
[E.R.4.229]
4.240. The court's leave under Article 180(3) is not required where the company there referred to, though known by a prohibited name within the meaning of the Article—
(a)has been known by that name for the whole of the period of 12 months ending with the day before the liquidating company went into liquidation, and
(b)has not at any time in those 12 months been dormant within the meaning of Article 260(5) of the Companies Order.
[E.R.4.230]