The Insurers (Winding Up) (Scotland) Rules 2001

Citation, commencement and revocation

1.—(1) These Rules may be cited as the Insurers (Winding Up) (Scotland) Rules 2001 and shall come into force on 18th January 2002.

(2) The Insurance Companies (Winding Up) (Scotland) Rules 1986(1) are revoked.

Interpretation

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

“the 1923 Act” means the Industrial Assurance Act 1923(2);

“the 1985 Act” means the Companies Act 1985(3);

“the 1986 Act” means the Insolvency Act 1986;

“the 2000 Act” means the Financial Services and Markets Act 2000;

“the Authority” means the Financial Services Authority;

“company” means an insurer which is being wound up;

“contract of general insurance” and “contract of long-term insurance” have the meaning given by article 3(1) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001(4);

“excess of the long-term business assets” means the amount, if any, by which the value of the assets representing the fund or funds maintained by the company in respect of its long-term business as at the liquidation date exceeds the value as at that date of the liabilities of the company attributable to that business;

“excess of the other business assets” means the amount, if any, by which the value of the assets of the company which do not represent the fund or funds maintained by the company in respect of its long-term business as at the liquidation date exceeds the value as at that date of the liabilities of the company (other than liabilities in respect of share capital) which are not attributable to that business;

“Financial Services Compensation Scheme” means the scheme established under section 213 of the 2000 Act;

“general business” means the business of effecting or carrying out a contract of general insurance;

“the Industrial Assurance Acts” means the 1923 Act and the Industrial Assurance and Friendly Societies Act 1948(5);

“insurer” has the meaning given by article 2 of the Financial Services and Markets Act 2000 (Insolvency) (Definition of “Insurer”) Order 2001(6);

“linked liability” means any liability under a policy the effecting of which constitutes the carrying on of long-term business the amount of which is determined by reference to—

(a)

the value of property of any description (whether or not specified in the policy),

(b)

fluctuations in the value of such property,

(c)

income from any such property, or

(d)

fluctuations in an index of the value of such property;

“linked policy” means a policy which provides for linked liabilities, and a policy which when made provided for linked liabilities is deemed to be a linked policy even if the policy holder has elected to convert his rights under the policy so that at the liquidation date there are no longer linked liabilities under the policy;

“liquidation date” means the date of the winding-up order or the date on which a resolution for the winding up of the company is passed by the members of the company (or the policyholders in the case of a mutual insurance company) and, if both a winding-up order and a winding-up resolution have been made, the earlier date;

“long-term business” means the business of effecting or carrying out any contract of long-term insurance;

“non-linked policy” means a policy which is not a linked policy;

“other business”, in relation to a company carrying on long-term business, means such of the business of the company as is not long-term business;

“the principal rules” means the Insolvency (Scotland) Rules 1986(7);

“stop order”, in relation to a company, means an order of the court, made under section 376(2) of the 2000 Act, ordering the liquidator to stop carrying on the long-term business of the company;

“unit” in relation to a policy means any unit (whether or not described as a unit in the policy) by reference to the numbers and the value of which the amount of the liabilities under the policy at any time is measured.

(2) Unless the context otherwise requires, words or expressions contained in these Rules bear the same meaning as in the principal rules, the 1986 Act, the 2000 Act or any statutory modification thereof respectively.

Application

3.—(1) These Rules apply in relation to an insurer which the courts in Scotland have jurisdiction to wind up.

(2) These Rules apply to proceedings for the winding up of such an insurer which commence on or after the date on which these Rules come into force.

(3) These Rules supplement the principal rules which also apply to the proceedings in the winding up of such an insurer under the 1986 Act as they apply to proceedings in the winding up of any company under that Act; but in the event of a conflict between these Rules and the principal rules these Rules prevail.

Financial Services Compensation Scheme

4.  In any proceedings for the appointment of a liquidator by the court under—

(a) section 139(4) of the 1986 Act (appointment of liquidator where conflict between creditors and contributories), or

(b) section 140 of that Act (appointment of liquidator following administration or voluntary arrangement),

the manager of the Financial Services Compensation Scheme shall be entitled to appear and make representations as to the person to be appointed.

Separation of long-term and other business in winding up

5.—(1) This rule applies in the case of a company carrying on long-term business.

(2) The assets of the company which, in accordance with regulation 3 of the Financial Services and Markets Act 2000 (Treatment of Assets of Insurers on Winding Up) Regulations 2001(8), are available for meeting the liabilities of the company attributable to its long-term business shall be applied in discharge of those liabilities as though those assets and those liabilities were the assets and liabilities of a separate company.

(3) The assets of the company which, in accordance with the aforementioned Regulations, are available for meeting the liabilities of the company attributable to its other business shall be applied in discharge of those liabilities as though those assets and those liabilities were the assets and liabilities of a separate company.

Valuation of general business policies

6.  Except in relation to amounts which have fallen due for payment before the liquidation date and liabilities referred to in paragraph 2(1)(b) of Schedule 1, the holder of a general business policy shall be accepted as a creditor in relation to his policy, without submitting or lodging a claim, for an amount equal to the value of the policy and for this purpose the value of a policy shall be determined in accordance with Schedule 1.

Valuation of long-term policies

7.—(1) This rule applies in relation to a company’s long-term business where no stop order has been made.

(2) In relation to a claim under a policy which has fallen due for payment before the liquidation date, a policy holder shall be accepted as a creditor, without submitting or lodging a claim, for such amount as appears from the records of the company to be due in respect of that claim.

(3) In all other respects a policy holder shall be accepted as a creditor in relation to his policy, without submitting or lodging a claim, for an amount equal to the value of the policy and for this purpose the value of a policy of any class shall be determined in the manner applicable to policies of that class provided by Schedules 2, 3 and 4.

(4) This rule applies in relation to a person entitled to apply for a free paid-up policy under section 24 of the 1923 Act (provisions as to forfeited policies) and to whom no such policy has been issued before the liquidation date (whether or not it was applied for) as if such a policy had been issued immediately before the liquidation date—

(a) for the minimum amount determined in accordance with section 24(2) of the 1923 Act, or

(b) if the liquidator is satisfied that it was the practice of the company during the five years immediately before the liquidation date to issue policies under that section in excess of the minimum amounts so determined, for the amount determined in accordance with that practice.

Valuation of long-term policies: stop order made

8.—(1) This rule applies in relation to a company’s long-term business where a stop order has been made.

(2) In relation to a claim under a policy which has fallen due for payment on or after the liquidation date and before the date of the stop order, a policy holder shall be accepted as a creditor, without submitting or lodging a claim, for such amount as appears from the records of the company and of the liquidator to be due in respect of that claim.

(3) In all other respects a policy holder shall be accepted as a creditor in relation to his policy, without submitting or lodging a claim, for an amount equal to the value of the policy and for this purpose the value of a policy of any class shall be determined in the manner applicable to the policies of that class provided by Schedule 5.

(4) Paragraph (4) of rule 7 applies for the purposes of this rule as if references to the liquidation date (other than that in sub-paragraph (b) of that paragraph) were references to the date of the stop order.

Attribution of liabilities to company’s long-term business

9.—(1) This rule applies in the case of a company carrying on long-term business if at the liquidation date there are liabilities of the company in respect of which it is not clear from the accounting and other records of the company whether they are or are not attributable to the company’s long-term business.

(2) The liquidator shall, in such manner and according to such accounting principles as he shall determine, identify the liabilities referred to in paragraph (1) as attributable or not attributable to a company’s long-term business and those liabilities shall for the purposes of the winding up be deemed as at the liquidation date to be so attributable or not as the case may be.

(3) For the purposes of paragraph (2) the liquidator may—

(a) determine that some liabilities are attributable to the company’s long-term business and that others are not (the first method); or

(b) determine that a part of a liability shall be attributable to the company’s long-term business and that the remainder of the liability is not (the second method),

and he may use the first method for some of the liabilities and the second method for the remainder of them.

(4) Notwithstanding anything in the preceding paragraphs of this rule, the court may order that the determination of which (if any) of the liabilities referred to in paragraph (1) are attributable to the company’s long-term business and which (if any) are not shall be made in such manner and by such methods as the court may direct or the court may itself make the determination.

Attribution of assets to company’s long-term business

10.—(1) This rule applies in the case of a company carrying on long-term business if at the liquidation date there are assets of the company in respect of which—

(a) it is not clear from the accounting and other records of the company whether they do or do not represent the fund or funds maintained by the company in respect of its long-term business, and

(b) it cannot be inferred from the source of the income out of which those assets were provided whether they do or do not represent those funds.

(2) Subject to paragraph (6) the liquidator shall determine which (if any) of the assets referred to in paragraph (1) are attributable to those funds and which (if any) are not and those assets shall, for the purposes of the winding up, be deemed as at the liquidation date to represent those funds or not in accordance with the liquidator’s determination.

(3) For the purposes of paragraph (2) the liquidator may—

(a) determine that some of those assets shall be attributable to those funds and that others of them shall not (the first method); or

(b) determine that a part of the value of one of those assets shall be attributable to those funds and that the remainder of that value shall not (the second method),

and he may use the first method for some of those assets and the second method for others of them.

(4) (a) In making the attribution the liquidator’s objective shall in the first instance be so far as possible to reduce any deficit that may exist, at the liquidation date and before any attribution is made, either in the company’s long-term business or in its other business.

(b) If there is a deficit in both the company’s long-term business and its other business the attribution shall be in the ratio that the amount of the one deficit bears to the amount of the other until the deficits are eliminated.

(c) Thereafter the attribution shall be in the ratio which the aggregate amount of the liabilities attributable to the company’s long-term business bears to the aggregate amount of the liabilities not so attributable.

(5) For the purposes of paragraph (4) the value of a liability of the company shall, if it falls to be valued under rule 6 or 7, have the same value as it has under that rule but otherwise it shall have such value as would have been included in relation to it in a balance sheet of the company prepared in accordance with the 1985 Act as at the liquidation date; and, for the purpose of determining the ratio referred to in paragraph (4) but not for the purpose of determining the amount of any deficit therein referred to, the net balance of the shareholders' funds shall be included in the liabilities not attributable to the company’s long-term business.

(6) Notwithstanding anything in the preceding paragraphs of this rule, the court may order that the determination of which (if any) of the assets referred to in paragraph (1) are attributable to the fund or funds maintained by the company in respect of its long-term business and which (if any) are not shall be made in such manner and by such methods as the court may direct or the court may itself make the determination.

Excess of long-term business assets

11.—(1) Where the company is one carrying on long-term business, for the purpose of determining the amount, if any, of the excess of the long-term business assets, there shall be included amongst the liabilities of the company attributable to its long-term business an amount determined by the liquidator in respect of liabilities and expenses likely to be incurred in connection with the transfer of the company’s long-term business as a going concern to another insurance company being liabilities not included in the valuation of the long-term policies made in pursuance of rule 7.

(2) Where the liquidator is carrying on the long-term business of an insurer with a view to that business being transferred as a going concern to a person or persons (“the transferee”) who may lawfully carry out those contracts (or substitute policies being issued by another insurer), the liquidator may, in addition to any amounts paid by the Financial Services Compensation Scheme for the benefit of the transferee to secure such a transfer or to procure substitute policies being issued, pay to the transferee or other insurer all or part of such funds or assets as are attributable to the long-term business being transferred or substituted.

Actuarial advice

12.—(1) Before—

(a) determining the value of a policy in accordance with Schedules 1 to 5 (other than paragraph 3 of Schedule 1);

(b) identifying long-term liabilities and assets in accordance with rules 9 and 10;

(c) determining the amount (if any) of the excess of the long-term business assets in accordance with rule 11;

(d) determining the terms on which he will accept payment of overdue premiums under rule 20(1) or the amount and nature of any recompense under rule 20(2);

the liquidator shall obtain and consider advice thereon (including an estimate of any value or amount required to be determined) from an actuary.

(2) Before seeking, for the purpose of valuing a policy, the direction of the court as to the assumption of a particular rate of interest or the employment of any rates of mortality or disability, the liquidator shall obtain and consider advice thereon from an actuary.

Utilisation of excess of assets

13.—(1) Except at the direction of the court, no distribution may be made out of and no transfer to another insurer may be made of—

(a) any part of the excess of the long-term business assets which has been transferred to the other business; or

(b) any part of the excess of the other business assets, which has been transferred to the long-term business.

(2) Before giving a direction under paragraph (1) the court may require the liquidator to advertise the proposal to make a distribution or a transfer in such manner as the court shall direct.

Custody of assets

14.—(1) The Secretary of State may, in the case of a company carrying on long-term business in whose case no stop order has been made, require that the whole or a specified proportion of the assets representing the fund or funds maintained by the company in respect of its long-term business shall be held by a person approved by him for the purpose as trustee for the company.

(2) No assets held by a person as trustee for a company in compliance with a requirement imposed under this rule shall, so long as the requirement is in force, be released except with the consent of the Secretary of State but they may be transposed by the trustee into other assets by any transaction or series of transactions on the written instructions of the liquidator.

(3) The liquidator may not, except with the consent of the Secretary of State, grant any security over assets which are held by a person as trustee for the company in compliance with a requirement imposed under this rule.

Maintenance of accounting, valuation and other records

15.  The liquidator of a company carrying on long-term business in whose case no stop order has been made shall, with a view to the long-term business of the company being transferred to another insurance company, maintain such accounting, valuation and other records as will enable such other insurer upon the transfer being effected to comply with the requirements of any rules made by the Authority under Part X of the 2000 Act relating to accounts and statements of insurers.

Additional powers in relation to long-term business

16.  The liquidator of a company carrying on long-term business shall, so long as no stop order has been made, have power to do all such things as may be necessary to the performance of his duties under section 376(2) of the 2000 Act (continuation of contracts of long-term insurance where insurer in liquidation) but the Secretary of State may require him—

(a) not to make investments of a specified class or description,

(b) to realise, before the expiration of a specified period, the whole or a specified proportion of investments of a specified class or description held by the liquidator.

Accounts and audit

17.—(1) The liquidator of a company carrying on long-term business in whose case no stop order has been made shall supply the Secretary of State, at such times or intervals as he may specify, with such accounts as he may specify and audited in such manner as he may require and with such information about specified matters and verified in such specified manner as he may require.

(2) The liquidator of such a company shall, if required to do so by the Secretary of State, instruct an actuary to investigate the financial condition of the company’s long-term business and to report thereon in such manner as the Secretary of State may specify.

Caution for long-term and other business

18.  Where a company carries on long-term business and—

(a) no stop order has been made; and

(b) a special manager has been appointed,

rule 4.70 of the principal rules (caution) applies separately to the company’s long-term business and to its other business.

Claims

19.—(1) This rule applies to a company carrying on long-term business.

(2) The liquidator may, in relation to the long-term business of the company and to its other business, fix different days on or before which the creditors of the company, who are required to submit or lodge claims, are to do so and he may fix one of those days without at the same time fixing the other.

(3) In submitting or lodging a claim, a creditor may claim the whole or part of such claim as attributable to the long-term business of the company or to its other business or he may make no such attribution.

(4) When he accepts any claim, in whole or in part, the liquidator shall state in writing how much of what he accepts is attributable to the long-term business of the company and how much to the other business of the company.

Failure to pay premiums

20.—(1) The liquidator may in the course of carrying on the company’s long-term business and on such terms as he thinks fit accept payment of a premium even though the payment is tendered after the date on which under the terms of the policy it was finally due to be paid.

(2) The liquidator may in the course of carrying on the company’s long-term business, and having regard to the general practice of insurers, compensate a policy holder whose policy has lapsed in consequence of a failure to pay any premium by issuing a free paid-up policy for reduced benefits or otherwise as the liquidator thinks fit.

Notice of valuation of policy

21.—(1) Before paying a dividend in respect of claims other than under contracts of long-term insurance, the liquidator shall give notice of the value of each general business policy, as determined by him in accordance with rule 6, to the persons appearing from the records of the company or otherwise to be entitled to an interest in that policy and he shall do so in such manner as the court may direct.

(2) Before paying a dividend in respect of claims under contracts of long-term insurance and where a stop order has not been made in relation to the company, the liquidator shall give notice to the persons appearing from the records of the company or otherwise to be entitled to a payment under or to an interest in a long-term policy of the amount of that payment or the value of that policy as determined by him in accordance with rule 7(2) or (3), as the case may be.

(3) If a stop order is made in relation to the company, the liquidator shall give notice to all the persons appearing from the records of the company or otherwise to be entitled to a payment under or to an interest in a long-term policy of the amount of that payment or the value of that policy as determined by him in accordance with rule 8(2) or (3), as the case may be, and he shall give that notice in such manner as the court may direct.

(4) Any person to whom notice is so given shall be bound by the value so determined unless and until the court otherwise orders.

(5) Paragraphs (2) and (3) of this rule have effect as though references therein to persons appearing to be entitled to an interest in a long-term policy and to the value of that policy included, respectively, references to persons appearing to be entitled to apply for a free paid-up policy under section 24 of the 1923 Act and to the value of that entitlement under rule 7 (in the case of paragraph (2) of this rule) or under rule 8 (in the case of paragraph (3) of this rule).

(6) Where the liquidator summons a meeting of creditors in respect of liabilities of the company attributable either to its long-term business or other business, he may adopt any valuation carried out in accordance with rules 6, 7 or 8 as the case may be or, if no such valuation has been carried out by the time of the meeting, he may conduct the meeting using such estimates of the value of policies as he thinks fit.

Dividends to creditors

22.—(1) This rule applies in the case of a company carrying on long-term business.

(2) The procedure for payment of dividends to creditors under Chapter 9 of Part 4 of the principal rules (distribution of company’s assets by liquidator) applies separately in relation to the two separate companies assumed for the purposes of rule 5 above.

(3) The court may, at any time before the making of a stop order, permit a dividend to be declared and paid on such terms as it thinks fit in respect only of debts which fell due for payment before the liquidation date or, in the case of claims under long-term policies, which have fallen due for payment on or after the liquidation date.

Meetings of creditors

23.—(1) In the case of a company carrying on long-term business, Chapter 4 (meetings of creditors) and rule 4.31 (final meeting) of Part 4 and Chapters 1 and 2 of Part 7 (meetings and proxies and company representation) of the principal rules apply to each separate general meeting of the creditors summoned under the 1986 Act or the principal rules.

(2) In relation to any such separate meeting—

(a) rule 7.6(6) of the principal rules (meetings requisitioned) has effect as if the reference therein to assets of the company was a reference to the assets available under the above-mentioned Regulations for meeting the liabilities of the company owed to the creditors summoned to the meeting, and

(b) rule 7.12 of the principal rules (resolutions) applies as if the reference therein to value in relation to a creditor who is not, by virtue of rule 6, 7 or 8, required to submit or lodge a claim, was a reference to the value most recently notified to him under rule 21 above or, if the court has determined a different value in accordance with rule 21(4), as if it were a reference to that different value.

Apportionment of expenses of liquidation

24.—(1) Rule 4.67 of the principal rules (appointment and remuneration) applies separately to the assets of the long-term business of the company and to the assets of the other business of the company.

(2) Where any fee, expense, cost, charge, outlay or remuneration does not relate exclusively to the assets of the company’s long-term business or to the assets of the company’s other business, the liquidator shall apportion it amongst those assets in such manner as he shall determine.

Notice of stop order

25.—(1) When a stop order has been made in relation to the company, the clerk of court shall, on the same day, send—

(a) to the liquidator,

(b) to the registrar of companies for Scotland, and

(c) to such other person as the court may direct,

a certified copy of the stop order.

(2) The liquidator shall forthwith after receiving a certified copy give notice of the order in the Form in Schedule 6—

(a) in the Edinburgh Gazette, and

(b) in the newspaper in which the winding-up order was advertised.

Patricia Hewitt

Secretary of State for Trade and Industry

20th December 2001