The Insolvency (Scotland) Amendment Rules 2014

Claims in liquidation

8.  For Rule 4.16 (application of the Bankruptcy Act)(1) substitute—

“False claims or evidence

4.16.— (1) If a creditor produces under Rule 4.15 a statement of claim, account, voucher or other evidence which is false—

(a) the creditor shall be guilty of an offence unless the creditor shows that the creditor neither knew nor had reason to believe that the statement of claim, account, voucher or other evidence was false;

(b) the company shall be guilty of an offence if the company—

(i) knew or became aware that the statement of claim, account, voucher or other evidence was false; and

(ii) failed as soon as practicable after acquiring such knowledge to report it to the liquidator.

(2) A person convicted of an offence under paragraph (1) shall be liable—

(a) on summary conviction—

(i) to a fine not exceeding the statutory maximum;

(ii) to imprisonment for a term not exceeding three months or, if the person has previously been convicted of an offence inferring dishonest appropriation of property or an attempt at such appropriation, to imprisonment for a term not exceeding six months; or

(iii) to both such a fine and such imprisonment; or

(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding two years or to both.

Evidence of Claims

4.16A.— (1) The liquidator, for the purpose of being satisfied as to the validity or amount of a claim submitted by a creditor under Rule 4.15, may require—

(a) the creditor to produce further evidence; or

(b) any other person who the liquidator believes can produce relevant evidence, to produce such evidence,

and, if the creditor or other person refuses or delays to do so, the liquidator may apply to the court for an order requiring the creditor or other person to attend for private examination before the court.

(2) Subject to paragraph (3), on an application to it under paragraph (1) above the court may make an order requiring the creditor or other person to attend for private examination before it on a date (being not earlier than 8 days nor later than 16 days after the date of the order) and at a time specified in the order.

(3) If a creditor or other person is for any good reason prevented from attending for examination, the court may grant a commission to take the examination (the commissioner being in this Rule as an “examining commissioner”).

(4) At any private examination under paragraph (2), a solicitor or counsel may act on behalf of the liquidator, or the liquidator may appear.

(5) The examination, whether before the court or an examining commissioner, shall be taken on oath.

(6) A person who fails without reasonable excuse to comply with an order made under paragraph (2) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months or to both.

(7) References in this Rule to a creditor in a case where the creditor is one of the following entities—

(a) a trust;

(b) a partnership (including a dissolved partnership);

(c) a body corporate or an unincorporated body;

(d) a limited partnership (including a dissolved partnership) within the meaning of the Limited Partnerships Act 1907(2),

shall be construed, unless the context otherwise requires, as references to a person representing the entity.

Adjudication of claims

4.16B.— (1) At the commencement of every meeting of creditors, the liquidator shall, for the purposes of Rule 4.15 so far as it relates to voting at that meeting, accept or reject the claim of each creditor.

(2) Where funds are available for payment of a dividend out of the company’s assets in respect of an accounting period, the liquidator for the purpose of determining who is entitled to such a dividend shall—

(a) not later than 4 weeks before the end of the period, accept or reject every claim submitted or deemed to have been re-submitted under Rule 4.15; and

(b) at the same time make a decision on any matter requiring to be specified under paragraph (5)(a) or (b) below.

(3) On accepting or rejecting, under paragraph (2) above, every claim submitted or deemed to have been re-submitted, the liquidator shall, as soon as is reasonably practicable, send a list of every claim so accepted or rejected (including the amount of each claim and whether it has been accepted or rejected) to every creditor known to the liquidator.

(4) Where the liquidator rejects a claim, the liquidator shall without delay notify the creditor giving reasons for the rejection.

(5) Where the liquidator accepts or rejects a claim, the liquidator shall record in the sederunt book the decision on the claim specifying—

(a) the amount of the claim accepted;

(b) the category of debt, and the value of any security, as decided by the liquidator; and

(c) if rejecting the claim, the reasons therefor.

(6) Any member or contributory of the company or any creditor may, if dissatisfied with the acceptance or rejection of any claim (or, in relation to such acceptance or rejection, with a decision in respect of any matter requiring to be specified under paragraph (5)(a) or (b) above), appeal therefrom to the court—

(a) if the acceptance or rejection is under paragraph (1) above, within 2 weeks of that acceptance or rejection;

(b) if the acceptance or rejection is under paragraph (2) above, not later than 2 weeks before the end of the accounting period,

and the liquidator shall record the court’s decision in the sederunt book.

(7) Any reference in this Rule to the acceptance or rejection of a claim shall be construed as a reference to the acceptance or rejection of the claim in whole or in part.

Entitlement to vote and draw a dividend

4.16C.— (1) A creditor who has had that creditor’s claim accepted in whole or in part by the liquidator or on appeal under Rule 4.16B(6) shall be entitled—

(a) in a case where the acceptance is under (or on appeal arising from) Rule 4.16B(1), to vote on any matter at the meeting of creditors for the purpose of voting at which the claim is accepted; and

(b) in a case where the acceptance is under (or on appeal arising from) Rule 4.16B(2), to payment out of the company’s assets of a dividend in respect of the accounting period for the purposes of which the claim is accepted; but such entitlement to payment shall arise only in so far as the company has funds available to make that payment, having regard to Rule 4.66.

(2) No vote shall be cast by virtue of a debt more than once on any resolution put to a meeting of creditors.

(3) Where a creditor—

(a) is entitled to vote under this Rule;

(b) has lodged the creditor’s claim in one or more sets of other proceedings; and

(c) votes (either in person or by proxy) on a resolution put to the meeting,

only the creditor’s vote shall be counted.

(4) Where—

(a) a creditor has lodged the creditor’s claim in more than one set of other proceedings; and

(b) more than one member State liquidator seeks to vote by virtue of that claim,

the entitlement to vote by virtue of that claim is exercisable by the member State liquidator in main proceedings, whether or not the creditor has lodged the claim in the main proceedings.

(5) For the purposes of paragraphs (3) and (4) above, “other proceedings” means main proceedings, secondary proceedings or territorial proceedings in a member State other than the United Kingdom.

Liabilities and rights of co-obligants

4.16D.— (1) Where a creditor has an obligant (the “co-obligant”) bound to the creditor along with the company for the whole or part of the debt, the co-obligant is not freed or discharged from liability for the debt by reason of the dissolution of the company or the creditor’s voting or drawing a dividend or assenting to or not opposing—

(a) the dissolution of the company; or

(b) any composition.

(2) Where—

(a) a creditor has had a claim accepted in whole or in part; and

(b) a co-obligant holds a security over any part of the company’s assets,

the co-obligant shall account to the liquidator so as to put the estate in the same position as if the co-obligant had paid the debt to the creditor and thereafter had had the co-obligant’s claim accepted in whole or in part in the liquidation after deduction of the value of the security.

(3) Without prejudice to any right under any rule of law of a co-obligant who has paid the debt, the co-obligant may require and obtain at the co-obligant’s own expense from the creditor an assignation of the debt on payment of the amount thereof, and thereafter may in respect of that debt submit a claim, and vote and draw a dividend, if otherwise legally entitled to do so.

(4) In this Rule a “co-obligant” includes a cautioner.

Amount which may be claimed generally

4.16E.— (1) Subject to the provisions of this Rule and Rules 4.16F and 4.16G, the amount in respect of which a creditor shall be entitled to claim shall be the accumulated sum of principal and any interest which is due on the debt as at the date of commencement of winding up.

(2) If a debt does not depend on a contingency but would not be payable but for the liquidation until after the date of commencement of winding up, the amount of the claim shall be calculated as if the debt were payable on the date of commencement of winding up but subject to the deduction of interest at the rate specified in paragraph (4) from that date until the date for payment of the debt.

(3) In calculating the amount of a creditor’s claim, the creditor shall deduct any discount (other than any discount for payment in cash) which is allowable by contract or course of dealing between the creditor and the company or by the usage of trade.

(4) The rate of interest referred to in paragraph (2) shall be whichever is the greater of—

(a) the prescribed rate at the date of commencement of winding up; and

(b) the rate applicable to that debt apart from the liquidation.

(5) Subject to paragraph (6), in this Rule, “date of commencement of winding up” means the date on which the winding up is deemed to commence by virtue of section 129(3).

(6) Where the winding up was immediately preceded by an administration, the reference to the date of commencement of winding up in paragraph (1) and the second reference to that date in paragraph (2) shall be construed as references to the date on which the company entered administration.

Debts depending on contingency

4.16F.— (1) Subject to paragraph (2) below, the amount which a creditor shall be entitled to claim shall not include a debt in so far as its existence or amount depends upon a contingency.

(2) On an application by the creditor—

(a) to the liquidator; or

(b) if there is no liquidator, to the court,

the liquidator or court shall put a value on the debt in so far as it is contingent, and the amount in respect of which the creditor shall then be entitled to claim shall be that value but no more; and, where the contingent debt is an annuity, a cautioner may not then be sued for more than that value.

(3) Any interested person may appeal to the court against a valuation under sub-paragraph (2) above by the liquidator, and the court may affirm or vary that valuation.

Secured debts

4.16G.— (1) In calculating the amount of a secured creditor’s claim—

(a) the secured creditor is to deduct the value of any security as estimated by the secured creditor;

(b) but if the secured creditor surrenders, or undertakes in writing to surrender, a security for the benefit of the company’s assets, the secured creditor is not required to deduct the value of that security.

(2) The liquidator may, at any time after the expiry of 12 weeks from the date of commencement of winding up within the meaning of section 129, require a secured creditor at the expense of the company’s assets to discharge the security or convey or assign it to the liquidator on payment to the creditor of the value specified by the creditor; and the amount in respect of which the creditor shall then be entitled to claim shall be any balance of the creditor’s debt remaining after receipt of such payment.

(3) In calculating the amount of the claim of a creditor whose security has been realised the creditor shall deduct the amount (less the expenses of realisation) which the creditor has received, or is entitled to receive, from the realisation.”.

(1)

Rule 4.16 was amended by S.I. 1987/1921 and S.S.I. 2008/393.

(2)

1907 c.24.

(3)

Section 129 (commencement of winding up by the court) of the 1986 Act which was amended by the Enterprise Act 2002 (c.40), Schedule 17, paragraph 16.