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The Investment Bank Special Administration (Scotland) Rules 2011

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CHAPTER 2Giving of notice and supply of documents

Application of Chapter 2

164.—(1) Subject to paragraph (2), this Chapter applies where a notice or other document is required to be given, delivered or sent under the Regulations or these Rules by any person, including the administrator.

(2) This Chapter does not apply to—

(a)the lodging of any application, or other document, with the court;

(b)the service of any application, or other document, lodged with the court;

(c)the service of any order of the court; or

(d)the submission of documents to the registrar of companies.

Giving of notices

165.—(1) All notices required or authorised by or under the Regulations or these Rules to be given, sent or delivered must be in writing, unless it is otherwise provided, or the court allows the notice to be sent or given in some other way.

(2) Where electronic delivery is permitted, a notice or other document in electronic form is treated as being in writing if a copy of it is capable of being produced in a legible form.

(3) Any reference in the Regulations or these Rules to giving, sending or delivering a notice or any other document means, without prejudice to any other way and unless it is otherwise provided, that the notice or document may be sent by post, and that, subject to rule 166, any form of post may be used.

(4) Personal service of the notice or document is permissible in all cases.

(5) Where under the Regulations or these Rules a notice or other document is required or authorised to be given, sent or delivered by a person (“the sender”) to another (“the recipient”), it may be given, sent or delivered by any person duly authorised by the sender to do so to any person duly authorised by the recipient to receive or accept it.

(6) Where two or more persons are acting jointly as administrators, the giving, sending or delivering of a notice or document to one of them is to be treated as the giving, sending or delivering of a notice or document to each or all.

Sending by post

166.—(1) For a document to be properly sent by post, it must be contained in an envelope addressed to the person to whom it is to be sent, and pre-paid for either first or second class post.

(2) Any document to be sent by post may be sent to the last known address of the person to whom the document is to be sent.

(3) Where first class post is used, the document is to be deemed to be received on the second business day after the date of posting, unless the contrary is shown.

(4) Where second class post is used, the document is to be deemed to be received on the fourth business day after the date of posting, unless the contrary is shown.

Certificate of giving notice

167.—(1) Where in any proceedings a notice or document is required to be given, sent or delivered by the administrator, the date of giving, sending or delivery of it may be proved by means of a certificate signed by that person or on their behalf by a solicitor, or a partner or an employee of either of them, that the notice or document was duly given, posted or otherwise sent, or delivered on the date stated in the certificate.

(2) In the case of a notice or document to be given, sent or delivered by a person other than the administrator, the date of giving, sending or delivery of it may be proved by means of a certificate by that person that the notice or document was given, posted or otherwise delivered by that person on the date stated in the certificate, or that that person instructed another (named) person to do so.

(3) A certificate under this rule may be endorsed on a copy of the notice to which it relates.

(4) A certificate purporting to be signed by or on behalf of the administrator or by the person mentioned in paragraph (2), shall be deemed, unless the contrary is shown, to be sufficient evidence of the matters stated in the certificate.

Authentication

168.—(1) A document or information given, delivered or sent in hard copy form under these Rules is sufficiently authenticated if it is signed by the person sending or supplying it.

(2) A document or information given, delivered or sent in electronic form under these Rules is sufficiently authenticated—

(a)if the identity of the sender is confirmed in a manner specified by the recipient, or

(b)where no such manner has been specified by the recipient, if the communication contains or is accompanied by a statement of the identity of the sender and the recipient has no reason to doubt the truth of that statement.

Electronic delivery

169.—(1) Unless in any particular case some other form of delivery is required by the Regulations or these Rules or any order of the court, a notice or other document may be given, delivered or sent by electronic means provided that the intended recipient of the notice or other document has—

(a)consented (whether in the specific case or generally) to electronic delivery (and has not revoked that consent); and

(b)provided an electronic address for delivery.

(2) Where an administrator gives, sends or delivers a notice or other document to any person by electronic means, it must contain or be accompanied by a statement that the recipient may request a hard copy of the notice or document, and specify a telephone number, email address and postal address which may be used to make such a request.

(3) Where a hard copy of the notice or other document is requested it must be sent within 5 business days of receipt of the request by the administrator, who may not make a charge for sending it in that form.

(4) In the absence of evidence to the contrary, a notice or other document shall be presumed to have been delivered where—

(a)the sender can produce a copy of the electronic message which—

(i)contained the notice or other document, or to which the notice or other document was attached, and

(ii)shows the time and date the message was sent; and

(b)that electronic message was sent to the address supplied under paragraph (1)(b).

(5) A message delivered electronically shall be deemed to have been delivered to the recipient at 9.00 am on the next business day after it was sent.

(6) Paragraph (5) does not apply in respect of documents sent electronically under Part 2.

Use of websites by administrator

170.—(1) This rule applies for the purpose of section 246B of the 1986 Act(1) (use of websites).

(2) An administrator required to give, deliver or send a document to any person may (other than in a case where personal service is required) satisfy that requirement by sending that person a notice—

(a)stating that the document is available for viewing and downloading on a website;

(b)specifying the address of that website together with any password necessary to view and download the document from that website; and

(c)containing a statement that the recipient of the notice may request a hard copy of the document, and specifying a telephone number, email address and postal address which may be used to make such a request.

(3) Where a notice to which this rule applies is sent, the document to which it relates must—

(a)be available on the website for a period of not less than 3 months after the date on which the notice is sent; and

(b)be in such a format as to enable it to be downloaded from the website within a reasonable time of an electronic request being made for it to be downloaded.

(4) Where a hard copy of the document is requested it must be sent within 5 business days of the receipt of the request by the administrator, who may not make a charge for sending it in that form.

(5) Where a document is given, delivered or sent to a person by means of a website in accordance with this rule, it is deemed to have been delivered—

(a)when the document was first made available on the website; or

(b)if later, when the notice under paragraph (2) was delivered to that person.

Special provision on account of expense as to website use

171.—(1) Where the court is satisfied that the expense of sending notices in accordance with rule 165 would, on account of the number of persons entitled to receive them, be disproportionate to the benefit of sending notices in accordance with that rule, it may order that the requirement to give, deliver or send a relevant document to any person may (other than in a case where personal service is required) be satisfied by the administrator sending each of those persons a notice—

(a)stating that all relevant documents will be made available for viewing and downloading on a website;

(b)specifying the address of that website together with any password necessary to view and download the document from that site; and

(c)containing a statement that the person to whom the notice is given, delivered or sent may at any time request that hard copies of all, or specific, relevant documents are sent to that person, and specifying a telephone number, email address and postal address which may be used to make that request.

(2) A document to which this rule relates must—

(a)be available on the website for a period of not less than 12 months from the date when it was first made available on the website or, if later, from the date upon which the notice was sent; and

(b)be in such a format as to enable it to be downloaded from the website within a reasonable time of an electronic request being made for it to be downloaded.

(3) Where hard copies of relevant documents have been requested, they must be sent by the administrator—

(a)within 5 business days of the receipt by the administrator of the request to be sent hard copies, in the case of relevant documents first appearing on the website before the request was received; or

(b)within 5 business days from the date a relevant document first appears on the website, in all other cases.

(4) An administrator must not require a person making a request under paragraph (3) to pay a fee for the supply of the document.

(5) Where a relevant document is given, delivered or sent to a person by means of a website in accordance with this rule, it is deemed to have been delivered—

(a)when the relevant document was first made available on the website; or

(b)if later, when the notice under paragraph (1) was delivered to that person.

(6) In this rule a “relevant document” means any document which the administrator is first required to give, deliver or send to any person after the court has made an order under paragraph (1).

Electronic submission of information

172.—(1) This rule applies in any case where information is required by these Rules to be sent by any person to the Secretary of State or the administrator.

(2) A requirement of the kind mentioned in paragraph (1) is treated as having been satisfied where—

(a)the information is submitted electronically with the agreement of the person to whom the information is sent;

(b)the form in which the electronic submission is made satisfies the requirements of the person to whom the information is sent;

(c)all the information required is provided in the electronic submission; and

(d)the person to whom the information is sent can produce in legible form the information so submitted.

(3) Where information is permitted to be sent electronically under paragraph (2), any requirement that the information be accompanied by a signature is taken to be satisfied—

(a)if the identity of the person who is supplying the information and whose signature is required is confirmed in a manner specified by the recipient; or

(b)where no such manner has been specified by the recipient, if the communication contains or is accompanied by a statement of the identity of the person who is providing the information, and the recipient has no reason to doubt the truth of that statement.

(4) Where information has been supplied to a person, whether or not it has been supplied electronically in accordance with paragraph (2), and a copy of that information is required to be supplied to another person falling within paragraph (1), the requirements contained in paragraph (2) apply in respect of the supply of the copy to that other person as they apply in respect of the original.

Electronic submission of information where rule 172 does not apply

173.—(1) This rule applies in any case where rule 172 does not apply, where information is required by these Rules to be sent by any person.

(2) A requirement of the kind mentioned in paragraph (1) is treated as having been satisfied where—

(a)the person to whom the information is sent has agreed—

(i)to receiving the information electronically and to the form in which it is to be sent, and

(ii)to the specified manner in which paragraph (3) is to be satisfied;

(b)all the information required to be given is provided in the electronic submission; and

(c)the person to whom the information is sent can produce in legible form the information so sent.

(3) Any requirement that the information be accompanied by a signature is taken to be satisfied if the identity of the person who is supplying the information and whose signature is required is confirmed in the specified manner.

(4) Where information has been supplied to a person, whether or not it has been supplied electronically in accordance with paragraph (2), and a copy of that information is required to be supplied to another person falling within paragraph (1), the requirements contained in paragraph (2) apply in respect of the supply of the copy to that other person, as they apply in respect of the original.

Contents of notices to be advertised in the Edinburgh Gazette

174.—(1) Where under the Regulations or these Rules a notice must be published or advertised in the Edinburgh Gazette, in addition to any content specifically required by the Regulations or any other provision of these Rules, the content of such a notice must be as set out in this rule.

(2) All notices published must specify insofar as it is applicable in relation to the particular notice—

(a)the name and postal address of the administrator acting in the special administration to which the notice relates and the date of the appointment of that person;

(b)either an email address, or a telephone number, through which the administrator may be contacted;

(c)the name of any person other than the administrator (if any) who may be contacted regarding the special administration;

(d)the number assigned to the administrator by the Secretary of State; and

(e)the court name and any number assigned to the special administration by the court.

(3) All notices published must specify as regards the investment bank to which the notice relates—

(a)the registered name of the investment bank;

(b)its registered number;

(c)its registered office;

(d)any principal trading address if this is different from its registered office;

(e)any name under which it was registered in the 12 months prior to the date of the commencement of the special administration; and

(f)any name or style (other than its registered name) under which—

(i)the investment bank carried on business;

(ii)the investment bank undertook to hold an asset on behalf of a client; or

(iii)any debt owed to a creditor was incurred.

Notices otherwise advertised under the Regulations or these Rules

175.—(1) Where under the Regulations or these Rules a notice may be advertised otherwise than in the Edinburgh Gazette, in addition to any content specifically required by the Regulations or any other provision of these Rules, the content of such a notice must be as set out in this rule.

(2) All notices published must specify insofar as it is applicable in relation to the particular notice—

(a)the name and postal address of the administrator acting in the proceedings to which the notice relates; and

(b)either an email address, or a telephone number, through which the administrator may be contacted.

(3) All notices published must specify as regards the investment bank to which the notice relates—

(a)the registered name of the investment bank;

(b)its registered number;

(c)any name under which it was registered in the 12 months prior to the date of the commencement of the special administration; and

(d)any name or style (other than its registered name) under which—

(i)the investment bank carried on business;

(ii)the investment bank undertook to hold an asset on behalf of a client; or

(iii)any debt owed to a creditor was incurred.

Notices otherwise advertised

176.  The information required to be contained in a notice to which rule 175 applies must be included in the advertisement of that notice in a manner that is reasonably likely to ensure, in relation to the form of the advertising used, that a person reading, hearing or seeing the advertisement, will be able to read, hear or see that information.

Omission of unobtainable information

177.  Information required by rules 174 and 175 to be included in a notice may be omitted if it is not reasonably practicable to obtain it.

(1)

Section 246B was inserted by S.I. 2010/18.

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