The Energy Administration (Scotland) Rules 2006

Order of priority in distribution

39.—(1) If the funds of the protected energy company’s assets are to be distributed then they shall be distributed by the energy administrator to meet the following expenses and debts in the order in which they are mentioned–

(a) the expenses of the energy administration;

(b) any preferential debts within the meaning of section 386 of the 1986 Act (excluding any interest which has been accrued thereon to the date on which the protected energy company entered energy administration);

(c) ordinary debt, that is to say a debt which is neither a secured debt nor a debt mentioned in any other sub-paragraph of this paragraph;

(d) interest at the official rate on–

(i) the preferential debts, and

(ii) the ordinary debts,

between the said date on which the protected energy company entered energy administration and the date of payment of the debt; and

(e) any postponed debt.

(2) In the above paragraph–

(a) “postponed debt” means a creditor’s right to any alienation which has been reduced or restored to the protected energy company’s assets under section 242 of the 1986 Act or to the proceeds of sale of such an alienation; and

(b) “official rate” shall be construed in accordance with subsection (4) of section 189 of the 1986 Act and, for the purposes of paragraph (a) of that subsection, as applied to Scotland by subsection (5), the rate specified in the Rules shall be 15 per centum per annum.

(3) The expenses of the energy administration mentioned in sub-paragraph (a) of paragraph (1) above are payable in the order of priority mentioned in Rule 40.

(4) Subject to the provisions of paragraph (5), any debt falling within any of sub-paragraphs (b) to (e) of paragraph (1) shall have the same priority as any other debt falling within the same sub paragraph and, where the funds of the protected energy company’s assets are inadequate to enable the debts mentioned in this paragraph to be paid in full, they shall abate in equal proportions.

(5) So far as the assets of the protected energy company available for payment of general creditors are insufficient to meet them, preferential debts have priority over the claims of holders of debentures secured by, or holders of, any floating charge created by the protected energy company, and shall be paid accordingly out of any property comprised in or subject to that charge.

(6) Any surplus remaining, after all expenses and debts mentioned in paragraph (1) have been paid in full, shall (unless the articles of the protected energy company otherwise provide) be distributed among the members according to their rights and interests in the company.

(7) Nothing in this Rule shall affect–

(a) the right of a secured creditor which is preferable to the rights of the energy administrator; or

(b) any preference of the holder of a lien over a title deed or other document which has been delivered to the energy administrator.