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The Insolvency (Scotland) (Receivership and Winding up) Rules 2018

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This is the original version (as it was originally made).

CHAPTER 2Interpretation

[Note: the terms which are defined in rule 1.2 include some terms defined by the Act for limited purposes which are applied generally by these Rules. Such terms have the meaning given by the Act for those limited purposes.]

Defined terms

1.2.—(1) In these Rules unless the context otherwise requires—

“the Act” means the Insolvency Act 1986, and—

(a)

a reference to a numbered section without mention of another Act is to that section of the Act; and

(b)

a reference to schedule B1 is to that schedule of the Act;

“Companies Act” means the Companies Act 2006(1);

“Accountant in Bankruptcy” (or “AiB”) is to be construed in accordance with section 199 of the Bankruptcy (Scotland) Act 2016(2);

“appointed person” means a person who meets the requirements in paragraph (2) who is appointed by an office-holder;

“Article 1.2 undertaking” means one of the following within the meaning of Article 1.2 of the EU Regulation—

(a)

an insurance undertaking;

(b)

a credit institution;

(c)

an investment undertaking which provides services involving the holding of funds or securities for third parties;

(d)

a collective investment undertaking;

[Note “associate” is defined in section 435];

“attendance” and “attend”—

a person attends by being present, by attending remotely in accordance with section 246A(3) or rule 8.6, or by participating in a virtual meeting; and a person may attend a meeting in person, by proxy or by corporate representative (in accordance with section 434B of the Act(4) or section 323 of the Companies Act, as applicable);

“authenticate” means to authenticate in accordance with rule 1.6;

“authorised deposit-taker” means a person with permission under Part 4A of the Financial Services and Markets Act 2000(5) to accept deposits; this definition must be read with—

(a)

section 22 of that Act(6) and any relevant order under that section; and

(b)

schedule 2 of that Act;

“blank proxy” is to be interpreted in accordance with rule 9.3;

[Note: “business day” is defined in section 251];

“centre of main interests” has the same meaning as in the EU Regulation;

[Note: “connected” used of a person in relation to a company is defined in section 249 of the Act];

“consumer” means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession;

[Note: “contributory” is defined in section 79];

“convener” means an office-holder or other person who seeks a decision in accordance with Part 8 (decision making) of these Rules;

[Note: “the court” is defined in section 251];

“CVA” means a voluntary arrangement in relation to a company under Part 1 of the Act;

“CVA and Administration Rules” means the Insolvency (Scotland) (Company Voluntary Arrangement and Administration) Rules 2018(7);

“decision date” and “decision procedure” are to be interpreted in accordance with rule 8.2;

[Note: “deemed consent procedure” is defined in section 246ZF(8) (also see rule 8.7)];

“deliver” and “delivery” are to be interpreted in accordance with Chapter 9 of Part 1 of these Rules;

“deliver to the creditors” and similar expressions in these Rules and the Act are to be interpreted in accordance with rule 1.33;

“document” includes a written notice or statement or anything else in writing capable of being delivered to a recipient;

[Note: “EU Regulation” is defined in section 436 as “Regulation (EU) 2015/848 of the European Parliament and the Council of 20 May 2015 on insolvency proceedings(9)”];

[Note: “the Gazette” has the meaning given in section 251];

“Gazette notice” means a notice which is, has been or is to be gazetted;

“to gazette” means to advertise in the Gazette, whether electronically or otherwise;

[Note: “hire-purchase agreement” is defined by section 436(1) as having the same meaning as in the Consumer Credit Act 1974(10)];

“identification details” and similar references to information identifying persons, proceedings, etc. are to be interpreted in accordance with rule 1.7;

“insolvent estate” means the company’s assets;

“IP number” means the number assigned to an office-holder as an insolvency practitioner by the Secretary of State;

“local creditorhas the same meaning as in Article 2(11) of the EU Regulation;

“main proceedings” means proceedings opened in accordance with Article 3(1) of the EU Regulation and falling within the definition of insolvency proceedings in Article 2(4) of the EU Regulation and which—

(a)

in relation to Scotland, are set out in Annex A to that Regulation under the heading “United Kingdom”; and

(b)

in relation to another member State, are set out in Annex A under the heading relating to that member State(11);

“meeting” in relation to a company’s creditors or contributories means either a “physical meeting” or a “virtual meeting”;

“member State liquidator” means a person falling within the definition of “insolvency practitioner” in Article 2(5) of the EU Regulation appointed in proceedings to which the EU Regulation applies in a member State other than the United Kingdom;

“nominated person” means a person who has been required under section 66 or 131 to make out and submit a statement as to the affairs of a company in receivership or being wound up by the court;

“non-EU proceedings” means insolvency proceedings which are not main, secondary or territorial proceedings;

“office-holder” means a person who under the Act or these Rules holds an office in relation to insolvency proceedings and includes a nominee;

“the official rate”, in relation to interest, is defined in section 251(12);

“petitioner” includes a person who has been substituted as such;

“physical meeting” has the meaning given by rule 8.2;

“prescribed part” has the same meaning as in section 176A(2)(a)(13) and the Insolvency Act 1986 (Prescribed Part) Order 2003(14);

“progress report” means a report which complies with Chapter 1 of Part 7 (reporting, accounts, remuneration, claims and distributions);

[Note: “property” is defined in section 436(1)];

“proxy” and “proxy-holder” are to be interpreted in accordance with rule 9.2;

“qualified to act as an insolvency practitioner”, in relation to a company, is to be interpreted in accordance with Part 13 of the Act(15);

[Note: “records” is defined in section 436(1)];

“secondary proceedings” means proceedings opened in accordance with Article 3(2) and (3) of the EU Regulation and falling within the definition of insolvency proceedings in Article 2(4) of the EU Regulation and which—

(a)

in relation to Scotland, are set out in Annex A to that Regulation under the heading “United Kingdom”; and

(b)

in relation to another member State, are set out in Annex A under the heading relating to that member State(16);

“serve” and “service” are to be interpreted in respect of a particular document by reference to the Rules of Court;

“standard contents” means—

(a)

for a Gazette notice, the standard contents set out in Chapter 5 of Part 1;

(b)

for a notice to be advertised other than in the Gazette, the standard contents set out in Chapter 6 of Part 1;

(c)

for a document to be delivered to—

(i)

the registrar of companies;

(ii)

AiB;

the standard contents set out in Chapter 7 of Part 1;

(d)

for notices to be delivered to other persons, the standard contents set out in Chapter 8 of Part 1;

“standard fee for copies” means 15 pence per A4 or A5 page or 30 pence per A3 page;

“statement of claim” is to be interpreted in accordance with rule 7.16;

“temporary administrator” means a temporary administrator referred to in Article 52 of the EU Regulation;

“territorial proceedings” means proceedings opened in accordance with Article 3(2) and (4) of the EU Regulation which fall within the definition of insolvency proceedings in Article 2(4) of the EU Regulation and—

(a)

in relation to Scotland, are set out in Annex A to that Regulation under the heading “United Kingdom”; and

(b)

in relation to another member State, are set out in Annex A under the heading relating to that member State(17);

“venue” in relation to any proceedings, attendance before the court, decision procedure or meeting means the time, date and place or platform for the proceedings, attendance, decision procedure or meeting;

“virtual meeting” has the meaning given by rule 8.2;

“winding up by the court” means a winding up under section 122, 124A(18) or 221;

[Note: “writing” is to be construed in accordance with section 436B(19)];

“written resolution” in respect of a private company means a written resolution passed in accordance with Chapter 2 of Part 13 of the Companies Act.

(2) An appointed person in relation to a company must be—

(a)qualified to act as an insolvency practitioner in relation to that company; or

(b)a person experienced in insolvency matters who is—

(i)a member or employee of the office-holder’s firm, or

(ii)an employee of the office-holder.

(3) A fee or remuneration is chargeable when the work to which it relates is done.

(1)

2006 c.46; relevant amendments are noted where reference is made to specific provisions which have been amended.

(3)

Section 246A is inserted by S.I. 2010/18 and prospectively amended for Scotland by paragraph 54 of schedule 9 of the Small Business, Enterprise and Employment Act 2015 (c.26) (“the 2015 Act”) and article 5 of the Public Services Reform (Corporate Insolvency and Bankruptcy) (Scotland) Order 2017 (S.S.I. 2017/209). The 2015 Act amendments to this and other provisions of the Insolvency Act 1986 are in force for limited purposes (S.I. 2015/1329) and will be commenced for remaining purposes for the application of these Rules.

(4)

Section 434B was inserted by S.I. 2008/948, schedule 1, paragraph 105 and prospectively amended by paragraph 57 of schedule 9 of the 2015 Act.

(5)

2000 c.8. Part 4A was inserted before Part 4 by section 11(2) of the Financial Services Act 2012 (c.21).

(6)

Section 22 is amended by section 7 of the Financial Services Act 2012 (c.21).

(8)

Section 246ZF is prospectively inserted for Scotland by section 122 of the 2015 Act.

(9)

OJ L 141, 5.6.2015, p.19.

(10)

1974 c.39.

(11)

Where these Rules require reasons for a statement that proceedings are ‘main proceedings’ etc. the information required is set out in rule 1.7.

(12)

Rule 7.26 specifies a rate used in calculating the official rate in accordance with section 189(4) and (5) of the Act.

(13)

Section 176A was inserted by the Enterprise Act 2002 (c.40), section 252.

(15)

Part 13 was amended by the Deregulation Act 2015 (c.20), section 17 and the Small Business, Enterprise and Employment Act 2015 (c.26), sections 115 and 137 to 143. Other amendments not relevant to this instrument have been made to Part 13.

(16)

Where these Rules require reasons for a statement that proceedings are ‘secondary proceedings’ etc. the information required is set out in rule 1.8.

(17)

Where these Rules require reasons for a statement that proceedings are ‘territorial proceedings’ etc. the information required is set out in rule 1.8.

(18)

Section 124A was inserted by section 60 of the Companies Act 1989 (c.40) and amended by article 305 of S.I. 2001/3649 and section 25 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c.27).

(19)

Section 436B(1) of the Act provides that a reference in the Act to a thing in writing includes that thing in electronic form; subsection (2) excludes certain sections of the Act from the application of subsection (1). Section 436B was inserted by S.I. 2010/18. Section 436B(2) is prospectively amended for Scotland by S.S.I. 2016/141, article 13.

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