2.1 Where it is proposed to apply to the court by petition for a railway administration order to be made in relation to a protected railway company, an affidavit complying with Rule 2.3 below must be prepared and sworn, with a view to its being filed in court in support of the petition.
2.2—(1) There may be prepared, with a view to its being exhibited to the affidavit in support of the petition, a report by an independent person to the effect that the appointment of a special railway administrator for the protected railway company is expedient.
(2) The report may be by the person proposed as special railway administrator, or by any other person having adequate knowledge of the affairs of the protected railway company, not being a director, secretary, manager, member, or employee of the company.
2.3—(1) The affidavit shall state that the company is a protected railway company within the meaning of Part I of the 1993 Act.
(2) The affidavit shall state one or more of the following—
(a)the deponent’s belief that the protected railway company is, or is likely to become, unable to pay its debts and the grounds of that belief;
(b)that the Secretary of State has certified that it would be appropriate for him to petition for the winding up of the protected railway company under section 124A of the 1986 Act (petition for winding up on grounds of public interest) and that it would be just and equitable, as mentioned in that section, for the company to be wound up;
(c)that an agreement between the Secretary of State and a relevant rail link undertaker has been determined.
(3) There shall in the affidavit be provided a statement of the protected railway company’s financial position, specifying (to the best of the deponent’s knowledge and belief) assets and liabilities of the company, including contingent and prospective liabilities.
(4) Details shall be given of any security known or believed to be held by creditors of the protected railway company, and whether in any case the security is such as to confer power on the holder to appoint an administrative receiver. If an administrative receiver has been appointed, that fact shall be stated.
(5) So far as within the immediate knowledge of the deponent, the affidavit shall contain details of—
(a)any petition which has been presented for the winding up of the protected railway company;
(b)any application for leave of the court to pass a resolution for the voluntary winding up of the protected railway company;
(c)any application for an administration order under Part II of the 1986 Act in relation to the protected railway company;
(d)any notice served in accordance with section 62(7) of the 1993 Act by any person intending to enforce any security over a protected railway company’s property; and
(e)any step taken to enforce any such security.
(6) If there are other matters which, in the opinion of the person intending to present the petition for a railway administration order, will assist the court in deciding whether to make such an order, those matters (so far as lying within the knowledge or belief of the deponent) shall also be stated.
(7) If a report has been prepared for the protected railway company under Rule 2.2, that fact shall be stated.
2.4—(1) The petition shall state by whom it is presented and the address for service.
[Form 1]
(2) Where it is presented by the Authority, the petition shall contain a statement that it relates to a protected railway company which is the holder of a passenger licence and is presented with the consent of the Secretary of State.
(3) The petition shall specify the name and address of the person proposed to be appointed as special railway administrator; and it shall be stated that, to the best of the petitioner’s knowledge and belief, the person proposed to be appointed as special railway administrator is qualified to act as an insolvency practitioner in relation to the protected railway company.
[Form 1]
(5) There shall be exhibited to the affidavit in support of the petition—
(a)a copy of the petition;
(b)a written consent by the proposed special railway administrator to accept appointment, if a railway administration order is made; and
(c)if a report has been prepared under Rule 2.2, a copy of it.
[Form 2]
2.5—(1) The petition and affidavit shall be filed in court, with a sufficient number of copies for service and use as provided by Rule 2.6.
(2) Each of the copies delivered shall have applied to it the seal of the court and be issued to the petitioner; and on each copy there shall be endorsed the date and time of filing.
(3) The court shall fix a venue for the hearing of the petition and this also shall be endorsed on each copy of the petition issued under paragraph (2).
(4) After the petition is filed, it is the duty of the petitioner to notify the court in writing of any winding-up petition presented against the protected railway company, as soon as he becomes aware of it.
2.6—(1) In the following paragraphs of this Rule, references to the petition are to a copy of the petition issued by the court under Rule 2.5(2) together with the affidavit in support of it and the documents (other than the copy petition) exhibited to the affidavit.
(2) The petition shall be served—
(a)on any person who has appointed an administrative receiver of, or who has applied to the court for an administration order under Part II of the 1986 Act in relation to, the protected railway company;
(b)if an administrative receiver has been appointed, on him;
(c)if there is pending a petition for the winding up of the protected railway company, on the petitioner (and also on the provisional liquidator, if any);
(d)on the person proposed as special railway administrator;
(e)on the protected railway company;
(f)where the petitioner is the Secretary of State, on the Authority; and
(g)where the petitioner is the Authority, on the Secretary of State.
2.7—(1) The petitioner shall forthwith after filing the petition give notice of its presentation to—
(a)any sheriff or other officer who to his knowledge is charged with an execution or other legal process against the protected railway company or its property, and
(b)any person who to his knowledge has distrained against the protected railway company or its property.
(2) In the application of paragraph (1) of this Rule in a case where the protected railway company is a foreign company, within the meaning of Part II of Schedule 6 to the 1993 Act, the reference to property shall be taken as a reference to property situated within England and Wales.
2.8—(1) Service of the petition in accordance with Rule 2.6 shall be effected by the petitioner, or his solicitor, or by a person instructed by him or his solicitor, not less than two days before the date fixed for the hearing.
(2) Service shall be effected as follows—
(a)on the protected railway company (subject to paragraph (3) below), by delivering the documents to its registered office;
(b)on any other person (subject to paragraph (4)), by delivering the documents to his proper address;
(c)in either case, in such manner as the court may direct.
(3) If delivery to the protected railway company’s registered office is not practicable or if the protected railway company is an unregistered company, service may be effected by delivery to the company’s last known principal place of business in England and Wales.
(4) Subject to paragraph (5), for the purposes of paragraph (2)(b), a person’s proper address is any which he has previously notified as his address for service; but if he has not notified any such address, service may be effected by delivery to his usual or last known address.
(5) In the case of a person who—
(a)is an authorised institution or a former authorised institution within the meaning of the Banking Act 1987(1),
(b)has appointed, or is or may be entitled to appoint, an administrative receiver of the protected railway company, and
(c)has not notified an address for service,
the proper address is the address of an office of that person where, to the knowledge of the petitioner, the protected railway company maintains a bank account or, where no such office is known to the petitioner, the registered office of that person, or, if there is no such office, his usual or last known address.
(6) Delivery of the documents to any place or address may be made by leaving them there, or sending them by first class post.
2.9—(1) Service of the petition shall be verified by affidavit, specifying the date on which, and the manner in which, service was effected.
[Form 3]
(2) The affidavit, with a sealed copy of the petition exhibited to it, shall be filed in court forthwith after service, and in any event not less than one day before the hearing of the petition.
2.10—(1) At the hearing of the petition, any of the following may appear or be represented—
(a)the Secretary of State;
(b)the Authority;
(c)the protected railway company;
(d)any person who has appointed, or is or may be entitled to appoint, an administrative receiver of the protected railway company;
(e)if an administrative receiver has been appointed, that administrative receiver;
(f)any person who has presented a petition for the winding up of the protected railway company;
(g)any person who has applied to the court for an administration order under Part II of the 1986 Act in relation to the protected railway company;
(h)the person proposed for appointment as special railway administrator; and
(i)with the leave of the court, any other person who appears to have an interest justifying his appearance.
(2) If the court makes a railway administration order, the costs of the petitioner, and of any person appearing whose costs are allowed by the court, are payable as an expense of the administration.
[Form 4]
2.11—(1) If the court makes a railway administration order, it shall forthwith give notice to the person appointed as special railway administrator.
[Form 5]
(2) Forthwith after the order is made, the special railway administrator shall advertise its making once in the Gazette, and once in such newspaper as he thinks most appropriate for ensuring that the order comes to the notice of the protected railway company’s creditors.
[Form 6]
(3) The special railway administrator shall also forthwith give notice of the making of the order—
(a)to the Secretary of State;
(b)to the Rail Regulator;
(c)to the Authority;
(d)to any person who has appointed, or is or may be entitled to appoint, an administrative receiver of the protected railway company;
(e)if an administrative receiver has been appointed, to him;
(f)if there is pending a petition for the winding up of the protected railway company, to the petitioner (and to the provisional liquidator, if any);
(g)to any person who has applied to the court for an administration order under Part II of the 1986 Act in relation to the protected railway company; and
(h)to the registrar of companies.
[Form 7]
(4) Two sealed copies of the order shall be sent by the court to the special railway administrator, one of which shall be sent by him to the registrar of companies in accordance with section 21(2) of the 1986 Act.
[Form 8]
(5) Paragraphs 3(h) and (4) shall not apply where the protected railway company is an unregistered company which is not subject to a requirement imposed under or by virtue of section 691(1) or 718 of the Companies Act to deliver any documents to the registrar of companies.
(6) If under section 9(4) of the 1986 Act the court makes any other order, it shall give directions as to the persons to whom, and how, notice of it is to be given.