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The Insolvency (England and Wales) Rules 2016

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This is the original version (as it was originally made). This item of legislation is currently only available in its original format.

Statutory Instruments

2016 No. 1024

Insolvency, England And Wales

Companies

Individuals

The Insolvency (England and Wales) Rules 2016

Made

18th October 2016

Laid before Parliament

25th October 2016

Coming into force

6th April 2017

The Lord Chancellor has consulted the committee existing for the purposes of section 413 of the Insolvency Act 1986(1) (“the Act”).

The Lord Chancellor makes the following Rules in exercise of the powers conferred by sections 411 and 412(2) of the Act, with the concurrence of the Chancellor of the High Court (by authority of the Lord Chief Justice under sections 411(7) and 412(6) of the Act) in relation to those rules which affect court procedure, and with the concurrence of the Secretary of State.

INTRODUCTORY RULES

Citation and commencement

1.  These Rules may be cited as the Insolvency (England and Wales) Rules 2016 and come into force on 6th April 2017.

Revocations

2.  The Rules listed in Schedule 1 are revoked.

Extent and application

3.—(1) These Rules extend to England and Wales only.

(2) These Rules as they relate to company voluntary arrangements under Part 1 of the Act, administration under Part 2 of the Act and winding up under Parts 4 and 5 of the Act apply in relation to companies which the courts in England and Wales have jurisdiction to wind up.

(3) These Rules do not apply to receivers appointed under section 51 (Scottish receivership).

Transitional and savings provisions

4.  The transitional and savings provisions set out in Schedule 2 have effect.

Power of the Secretary of State to regulate certain matters

5.—(1) Under paragraph 27 of Schedule 8 and paragraph 30(3) of Schedule 9 to the Act, the Secretary of State may, subject to the Act and the Rules made under it, make regulations with respect to any matter provided for in the Rules relating to the carrying out of the functions of—

(a)a liquidator, provisional liquidator, administrator or administrative receiver of a company;

(b)an interim receiver appointed under section 286(4); and

(c)a trustee of a bankrupt’s estate.

(2) The regulations that may be made may include, without prejudice to the generality of paragraph (1), provision with respect to the following matters arising in companies winding up and individual bankruptcy—

(a)the preparation and keeping by liquidators, trustees, provisional liquidators, interim receivers and the official receiver, of books, accounts and other records, and their production to such persons as may be authorised or required to inspect them;

(b)the auditing of liquidators’ and trustees’ accounts;

(c)the manner in which liquidators and trustees are to act in relation to the insolvent company’s or bankrupt’s books, papers and other records, and the manner of their disposal by the responsible office-holder or others;

(d)the supply of copies of documents relating to the insolvency and the affairs of the insolvent company or individual (on payment, in such cases as may be specified by the regulations, of the specified fee)—

(i)by the liquidator in company insolvency to creditors and members of the company, contributories in its winding up and the liquidation committee; and

(ii)by the trustee in bankruptcy to creditors and the creditors’ committee;

(e)the manner in which insolvent estates are to be distributed by liquidators and trustees, including provision with respect to unclaimed funds and dividends;

(f)the manner in which moneys coming into the hands of a liquidator or trustee in the course of the administration of the proceedings are to be handled and invested, and the payment of interest on sums which have been paid into the Insolvency Services Account under regulations made by virtue of this sub-paragraph;

(g)the amount (or the manner of determining the amount) to be paid to the official receiver as remuneration when acting as provisional liquidator, liquidator, interim receiver or trustee.

(3) Regulations made under this rule may—

(a)confer a discretion on the court;

(b)make non-compliance with any of the regulations a criminal offence;

(c)make different provision for different cases, including different provision for different areas; and

(d)contain such incidental, supplemental and transitional provisions as may appear to the Secretary of State necessary or expedient.

Punishment of offences

6.  Schedule 3 sets out the punishments for certain contraventions of these Rules.

Review

7.—(1) The Secretary of State must from time to time—

(a)carry out a review of these Rules;

(b)set out the conclusions of the review in a report; and

(c)publish the report.

(2) The report must in particular—

(a)set out the objectives intended to be achieved by the regulatory system established by these Rules;

(b)assess the extent to which those objectives are achieved; and

(c)assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(3) The first report under this rule must be published before the end of the period of five years beginning with the day on which these Rules come into force.

(4) Reports under this rule are afterwards to be published at intervals not exceeding five years.

PART 1SCOPE, INTERPRETATION, TIME AND RULES ABOUT DOCUMENTS

CHAPTER 1Scope of these Rules

Scope

1.1.—(1) These Rules are made to give effect to Parts 1 to 11 of the Insolvency Act 1986 and to the EC Regulation.

(2) Consequently references to insolvency proceedings and requirements relating to such proceedings are, unless the context requires otherwise, limited to proceedings in respect of Parts 1 to 11 of the Act and the EC Regulation (whether or not court proceedings).

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 otherwise stated, a reference to a Part or a Schedule is to a Part of, or Schedule to, these Rules.

(2) In these Rules—

“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 A1, B1, 4ZA, 4ZB or 4A is to that Schedule to the Act;

“appointed person” means a person as described in paragraph (3) who is appointed by an office-holder (other than the official receiver);

“Article 1.2 undertaking” means one of the following within the meaning of Article 1.2 of Council Regulation (EC) No. 1346/2000(5) (“the EC 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 by section 435];

“attendance” and “attend”—

(a)

a person attends a meeting who is present, or attends remotely in accordance with section 246A(6) or rule 15.6, or who participates in a virtual meeting; and whether

(b)

that person attends in person, by proxy, or by corporate representative (in accordance with section 434B or section 323 of the Companies Act, as applicable);

“authenticate” means to authenticate in accordance with rule 1.5;

“authorised deposit-taker” means a person with permission under Part 4A of the Financial Services and Markets Act 2000(7) to accept deposits; this definition must be read with—

(a)

section 22 of that Act(8) and any relevant order under that section; and

(b)

Schedule 2 to that Act;

[Note: “bankrupt’s estate” is defined in section 283];

“bankruptcy application” means the bankruptcy application submitted by the debtor to the adjudicator requesting the making of a bankruptcy order against the debtor;

“bankruptcy file” means the file opened by the adjudicator in accordance with rule 10.47;

“bankruptcy restrictions register” means the register referred to in rule 11.13(2) of matters relating to bankruptcy restrictions orders, interim bankruptcy restrictions orders and bankruptcy restrictions undertakings;

“business day” means, for the purposes of these Rules as they relate to Parts 7A to 10 of the Act (insolvency of individuals; bankruptcy), any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday in England and Wales [Note: for the purposes of these Rules as they relate to Parts 1 to 7 of the Act (company insolvency; company winding up) section 251 defines “business day” as including additionally a day which is a bank holiday in Scotland];

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

“certificate of service” means a certificate of service which complies with the requirements in Schedule 4;

“Companies Act” means the Companies Act 2006(9);

[Note: the term “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 by section 79];

“convener” means an office-holder or other person who seeks a decision in accordance with Part 15 of these Rules;

[Note: “the court” is defined by section 251 for the purposes of these Rules as they relate to Parts 1 to 7 of the Act (company insolvency; company winding up) and by section 385(1) for the purposes of these Rules as they relate to Parts 7A to 10 of the Act (insolvency of individuals; bankruptcy);

“CPR” means the Civil Procedure Rules 1998(10);

“credit reference agency” means a person authorised or permitted by the Financial Conduct Authority to carry on the regulated activity of providing credit references;

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

“debt” is defined in rule 14.1(3) for the purposes of administration and winding up and “small debt” is also defined in rule 14.1(3) for administration, winding up and bankruptcy [Note: debt is defined in section 385(1) for the purposes of these Rules as they relate to Parts 7A to 10 of the Act (insolvency of individuals; bankruptcy)];

“debt relief restrictions register” means the register referred to in rule 11.13(2) of matters relating to debt relief restrictions orders and debt relief restrictions undertakings;

“decision date” and “decision procedure” are to be interpreted in accordance with rule 15.2 and Part 15;

“decision procedure” means a decision procedure prescribed by rule 15.3;

[Note: “deemed consent procedure” is defined in section 246ZF for corporate insolvency and 379ZB for individual insolvency; rule 15.7 makes further provision about deemed consent];

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

“deliver to the creditors” and similar expressions in these Rules and the Act are to be interpreted in accordance with rule 1.37;

[Note: “distress” is defined in section 436 as including the procedure in Schedule 12 to the Tribunals, Courts and Enforcement Act 2007 (c.15), and references to levying distress, seizing goods and related expressions are to be construed accordingly];

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

[Note: EC Regulation is defined for the purposes of these Rules by section 436 of the Act as Council Regulation (EC) No1346/2000];

“enforcement agent” means a person authorised by section 63(2) of the Tribunals, Courts and Enforcement Act 2007 (11) to act as an enforcement agent;

“enforcement officer” means an individual who is authorised to act as an enforcement officer under the Courts Act 2003(12);

“fees estimate” means a written estimate that specifies—

(a)

details of the work the insolvency practitioner (“the IP”) and the IP’s staff propose to undertake;

(b)

the hourly rate or rates the IP and the IP’s staff propose to charge for each part of that work;

(c)

the time the IP anticipates each part of that work will take;

(d)

whether the IP anticipates it will be necessary to seek approval or further approval under Chapter 4 of Part 18; and

(e)

the reasons it will be necessary to seek such approval under these Rules;

“file with the court” and similar expressions in these Rules means deliver to the court for filing and such references are to be read as including “submit” and “submission” to the court in the Act (except in sections 236 and 366);

“the Gazette”, which has the meaning given in section 251 for the purposes of these Rules as they relate to Parts 1 to 7 of the Act (company insolvency; company winding up), has that meaning for the purposes of these Rules as they relate to Parts 7A to 10 of the Act;

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

“to gazette” means to advertise once in the Gazette;

“general regulations” means regulations made by the Secretary of State under introductory rule 5;

“hearing centre” means a hearing centre of the County Court;

[Note: “hire-purchase agreement” is defined by section 436(1) as having the same meaning as in the Consumer Credit Act 1974(13) for the purposes of the Act and by paragraph 1 of Schedule A1 (company voluntary arrangement) for the purposes of that Schedule and by paragraph 111(1) of Schedule B1 (administration) for the purposes of that Schedule];

“identification details” and similar references to information identifying persons, proceedings, etc. are to be interpreted in accordance with rule 1.6;

“individual insolvency register” means the register referred to in rule 11.13(1) of matters relating to bankruptcies, debt relief orders and IVAs;

“individual register” has the meaning given by rule 217(1) of the Land Registration Rules 2003(14);

“insolvent estate” means—

(a)

in relation to a company insolvency, the company’s assets;

(b)

in relation to a bankruptcy, a petition or an application for bankruptcy, the bankrupt’s estate (as defined in section 283);

(c)

or otherwise the debtor’s property;

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

“IVA” means a voluntary arrangement in relation to an individual under Part 8 of the Act;

“judge” includes a registrar in bankruptcy of the High Court unless the context otherwise requires;

“London Insolvency District” has the meaning given by section 374 of the Act and the London Insolvency District (County Court at Central London) Order 2014(15);

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

(a)

in relation to England and Wales, are set out in Annex A to the EC Regulation under the heading “United Kingdom”; and

(b)

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

“meeting” in relation to a person’s creditors or contributories means either a “physical meeting” or a “virtual meeting” as defined in rule 15.2, unless the contrary intention is given;

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

“nominated person” means a person who has been required under section 47 or 131 to make out and submit a statement as to the affairs of a company in administrative receivership or being wound up by the court;

[Note: “nominee” is defined in section 1(2) in relation to company voluntary arrangements and section 253(2) in relation to individual voluntary arrangements];

“non-EC 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;

“permission” of the court is to be read as including “leave of the court” in the Act and in the Company Directors’ Disqualification Act 1986(17);

“petitioner” or “petitioning creditor” includes a person who has been substituted as such or has been given carriage of the petition;

“physical meeting” means a meeting as described in section 246ZE(9) or 379ZA(9)(18);

“Practice Direction” means a direction as to the practice and procedure of a court within the scope of the CPR;

“prescribed order of priority” means the order of priority of payments of expenses set out in—

(a)

Chapter 10 of Part 3 for administration proceedings;

(b)

Chapter 6 of Part 6 for creditors’ voluntary winding up proceedings;

(c)

Chapter 14 of Part 7 for winding up by the court proceedings; and

(d)

Chapter 18 of Part 10 for bankruptcy proceedings;

“prescribed part” has the same meaning as in section 176A(2)(a) and the Insolvency Act 1986 (Prescribed Part) Order 2003(19);

“progress report” means a report which complies with Chapter 2 of Part 18;

[Note: “property” is defined by section 436(1) of the Act];

“prove” and “proof” have the following meaning—

(a)

a creditor who claims for a debt in writing is referred to as proving that debt;

(b)

the document by which the creditor makes the claim is referred to as that creditor’s proof; and

(c)

for the purpose of voting, or objecting to a deemed consent, in an administration, an administrative receivership, a creditors’ voluntary winding up, a CVA or an IVA, the requirements for a proof are satisfied by the convener or chair having been notified by the creditor in writing of a debt;

“proxy” and “blank proxy” are to be interpreted in accordance with Part 16;

“qualified to act as an insolvency practitioner” in relation to a company, debtor or bankrupt has the meaning given by section 390 of the Act;

[Note: “records” are defined in section 436(1) of the Act]

“registered land” has the meaning given by section 132(1) of the Land Registration Act 2002(20);

“registrar” means a registrar in bankruptcy of the High Court and unless the context requires otherwise includes a District Judge—

(a)

in a District Registry of the High Court; and

(b)

in a hearing centre with relevant insolvency jurisdiction;

“residential address” means the current residential address of an individual or, if that is not known, the last known residential address;

“secondary proceedings” means proceedings opened in accordance with Articles 3(2) and 3(3) of the EC Regulation and falling within the definition of winding-up proceedings in Article 2(c) of the EC Regulation and which—

(a)

in relation to England and Wales, are set out in Annex B to the EC Regulation under the heading “United Kingdom”; and

(b)

in relation to another member State, are set out in Annex B to the EC Regulation under the heading relating to that member State(21);

“serve” and “service” are to be interpreted in respect of a particular document by reference to Schedule 4;

“solicitor” means a solicitor of the Senior Courts and, in relation to England and Wales, includes any other person who, for the purpose of the Legal Services Act 2007(22) is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act);

“standard contents” means—

(a)

for a Gazette notice, the standard contents set out in Chapter 4 of this Part;

(b)

for a notice to be advertised other than in the Gazette, the standard contents set out in Chapter 5 of Part 1;

(c)

for a document to be delivered to the registrar of companies, the standard contents set out in Chapter 6 of Part 1;

(d)

for notices to be delivered to other persons, the standard contents set out in Chapter 7 of Part 1;

(e)

for applications to the court 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 proposals” means a statement made by an administrator under paragraph 49 of Schedule B1(23) setting out proposals for achieving the purpose of an administration;

“statement of truth” means a statement of truth made in accordance with Part 22 of the CPR(24);

“temporary administrator” means a temporary administrator referred to in Article 38 of the EC Regulation;

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

(a)

in relation to England and Wales, are set out in Annex A to the EC Regulation under the heading “United Kingdom”; and

(b)

in relation to another member State, are set out in Annex A to the EC Regulation under the heading relating to that member State(25);

“trustee” has the same meaning throughout these Rules as they relate to the insolvency of individuals as it has for bankruptcy in section 385(1)(26);

“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 15.2(2);

“winding up by the court” means a winding up under section 122(1), 124A or 221;

“witness statement” means a witness statement verified by a statement of truth made in accordance with Part 32 of the CPR;

[Note: “writing”: section 436B(1) of the Act provides that a reference to a thing in writing includes that thing in electronic form; subsection (2) excludes certain documents from the application of subsection (1); and

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

(3) An appointed person in relation to a company, debtor or bankrupt must be—

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

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

Calculation of time periods

1.3.  The rules set out in Schedule 5 apply to the calculation of the beginning and end of time periods under these Rules.

CHAPTER 3Form and content of documents

Requirement for writing and form of documents

1.4.—(1) A notice or statement must be in writing unless the Act or these Rules provide otherwise.

(2) A document in electronic form must be capable of being—

(a)read by the recipient in electronic form; and

(b)reproduced by the recipient in hard-copy form.

Authentication

1.5.—(1) A document in electronic form is sufficiently authenticated—

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

(b)where the recipient has not so specified, 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.

(2) A document in hard-copy form is sufficiently authenticated if it is signed.

(3) If a document is authenticated by the signature of an individual on behalf of—

(a)a body of persons, the document must also state the position of that individual in relation to the body;

(b)a body corporate of which the individual is the sole member, the document must also state that fact.

Information required to identify persons and proceedings etc.

1.6.—(1) Where the Act or these Rules require a document to identify, or to contain identification details in respect of, a person or proceedings, or to provide contact details for an office-holder, the information set out in the table must be given.

(2) Where a requirement relates to a proposed office-holder, the information set out in the table in respect of an office-holder must be given with any necessary adaptations.

Bankrupt
(a)

full name; and

(b)

residential address (subject to any order for limited disclosure made under Part 20).

Company where it is the subject of the proceedings

In the case of a registered company—

(c)

the registered name;

(d)

for a company incorporated in England and Wales under the Companies Act or a previous Companies Act, its registered number;

(e)

for a company incorporated outside the United Kingdom—

(i)

the country or territory in which it is incorporated,

(ii)

the number, if any, under which it is registered, and

(iii)

the number, if any, under which it is registered as an overseas company under Part 34 of the Companies Act.

In the case of an unregistered company—

(f)

its name; and

(g)

the postal address of any principal place of business.

Company other than one which is the subject of the proceedings

In the case of a registered company—

(h)

the registered name;

(i)

for a company incorporated in any part of the United Kingdom under the Companies Act or a previous Companies Act, its registered number;

(j)

for a company incorporated outside the United Kingdom—

(i)

the country or territory in which it is incorporated,

(ii)

the number, if any, under which it is registered; and

(k)

the number, if any, under which it is registered as an overseas company under Part 34 of the Companies Act;

(l)

In the case of an unregistered company—

(i)

its name, and

(ii)

the postal address of any principal place of business.

Debtor
(m)

full name; and

(n)

residential address (subject to any order for limited disclosure made under Part 20).

Office-holder
(o)

the name of the office-holder; and

(p)

the nature of the appointment held by the office-holder.

Contact details for an office-holder
(q)

a postal address for the office-holder; and

(r)

either an email address, or a telephone number, through which the office-holder may be contacted.

Proceedings
(s)

for proceedings relating to a company, the information identifying the company;

(t)

for proceedings relating to an individual, the full name of the bankrupt or debtor;

(u)

the full name of the court or hearing centre in which the proceedings are, or are to be, conducted or where documents relating to the proceedings have been or will be filed; and, if applicable,

(v)

any number assigned to those proceedings by the court, the hearing centre or the adjudicator.

Reasons for stating that proceedings are or will be main, secondary etc. under the EC Regulation

1.7.  Where these Rules require reasons to be given for a statement that proceedings are or will be main, secondary or territorial or non-EC proceedings, the reasons must include—

(a)for a company—

(i)the centre of main interests,

(ii)the place of the registered office within the meaning of Article 3(1) of the EC Regulation and where appropriate an explanation why this is not the same as the centre of main interests, or

(iii)that there is no registered office if that be the case in non-EC proceedings;

(b)for a debtor, the centre of main interests.

Prescribed format of documents

1.8.—(1) Where a rule sets out requirements as to the contents of a document any title required by the rule must appear at the beginning of the document.

(2) Any other contents required by the rule (or rules where more than one apply to a particular document) must be provided in the order listed in the rule (or rules) or in another order which the maker of the document considers would be convenient for the intended recipient.

Variations from prescribed contents

1.9.—(1) Where a rule sets out the required contents of a document, the document may depart from the required contents if—

(a)the circumstances require such a departure (including where the requirement is not applicable in the particular case); or

(b)the departure (whether or not intentional) is immaterial.

(2) However this rule does not apply to the required content of a statutory demand on a company set out in rule 7.3 and on an individual set out in rule 10.1.

CHAPTER 4Standard contents of Gazette notices and the Gazette as evidence etc.

[Note: (1) the requirements in Chapter 4 must be read with rule 1.6 which sets out the information required to identify an office-holder, a company etc.;

(2) this Chapter does not apply to the notice of a liquidator’s appointment prescribed under section 109 by SI 1987/752.]

Contents of notices to be gazetted under the Act or Rules

1.10.—(1) Where the Act or these Rules require or permit a notice to be gazetted, the notice must also contain the standard contents set out in this Chapter in addition to any content specifically required by the Act or any other provision of these Rules.

(2) Information which this Chapter requires to be included in a Gazette notice may be omitted if it is not reasonably practicable to obtain it.

Standard contents of all notices

1.11.—(1) A notice must identify the proceedings, if it is relevant to the particular notice, identify the office-holder and state—

(a)the office-holder’s contact details;

(b)the office-holder’s IP number (except for the official receiver);

(c)the name of any person other than the office-holder who may be contacted about the proceedings; and

(d)the date of the office-holder’s appointment.

(2) This rule does not apply to a notice under rule 22.4(3) (Permission to act as a director: first excepted case).

Gazette notices relating to a company

1.12.—(1) A notice relating to a registered company must also state—

(a)its registered office;

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

(c)any name under which it was registered in the period of 12 months before the date of the commencement of the proceedings which are the subject of the Gazette notice; and

(d)any other name or style (not being a registered name)—

(i)under which the company carried on business, and

(ii)in which any debt owed to a creditor was incurred.

(2) A notice relating to an unregistered company must also identify the company and specify any name or style—

(a)under which the company carried on business; and

(b)in which any debt owed to a creditor was incurred.

Gazette notices relating to a bankruptcy

1.13.  A notice relating to a bankruptcy must also identify the bankrupt and state—

(a)any other address at which the bankrupt has resided in the period of 12 months before the making of the bankruptcy order;

(b)any principal trading address if different from the bankrupt’s residential address;

(c)the bankrupt’s date of birth;

(d)the bankrupt’s occupation;

(e)any other name by which the bankrupt has been known; and

(f)any name or style (other than the bankrupt’s own name) under which—

(i)the bankrupt carried on business, and

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

The Gazette: evidence, variations and errors

1.14.—(1) A copy of the Gazette containing a notice required or permitted by the Act or these Rules to be gazetted is evidence of any facts stated in the notice.

(2) Where the Act or these Rules require an order of the court or of the adjudicator to be gazetted, a copy of the Gazette containing the notice may be produced in any proceedings as conclusive evidence that the order was made on the date specified in the notice.

(3) Where an order of the court or of the adjudicator which is gazetted has been varied, or any matter has been erroneously or inaccurately gazetted, the person whose responsibility it was to gazette the order or other matter must as soon as is reasonably practicable cause the variation to be gazetted or a further entry to be made in the Gazette for the purpose of correcting the error or inaccuracy.

CHAPTER 5Standard contents of notices advertised otherwise than in the Gazette

[Note: the requirements in Chapter 5 must be read with rule 1.6 which sets out the information required to identify an office-holder, a company etc.]

Standard contents of notices advertised otherwise than in the Gazette

1.15.—(1) Where the Act or these Rules provide that a notice may be advertised otherwise than in the Gazette the notice must contain the standard contents set out in this Chapter (in addition to any content specifically required by the Act or any other provision of these Rules).

(2) A notice must, if it is relevant to the particular notice, identify the office-holder and specify the office-holder’s contact details.

(3) Information which this Chapter requires to be included in a notice may be omitted if it is not reasonably practicable to obtain it.

Non-Gazette notices relating to a company

1.16.  A notice relating to a company must also identify the proceedings and state—

(a)the company’s principal trading address;

(b)any name under which the company was registered in the 12 months before the date of the commencement of the proceedings which are the subject of the notice; and

(c)any name or style (not being a registered name) under which—

(i)the company carried on business, and

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

Non-Gazette notices relating to a bankruptcy

1.17.  A notice relating to a bankruptcy must also identify the proceedings, identify the bankrupt and state—

(a)any other address at which the bankrupt has resided in the period of 12 months before the making of the bankruptcy order;

(b)any principal trading address if different from the bankrupt’s residential address;

(c)the bankrupt’s date of birth;

(d)the bankrupt’s occupation;

(e)any other name by which the bankrupt has been known; and

(f)any name or style (other than the bankrupt’s own name) under which—

(i)the bankrupt carried on business, and

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

Non-Gazette notices: other provisions

1.18.  Information which this Chapter requires to be stated in a notice must be included in an advertisement of that notice in a way that is clear and comprehensible.

CHAPTER 6Standard contents of documents to be delivered to the registrar of companies

[Note: the requirements in Chapter 6 must be read with rule 1.6 which sets out the information required to identify an office-holder, a company etc.]

Standard contents of documents delivered to the registrar of companies

1.19.—(1) Where the Act or these Rules require a document to be delivered to the registrar of companies the document must contain the standard contents set out in this Chapter (in addition to any content specifically required by the Act or any other provision of these Rules).

(2) A document of more than one type must satisfy the requirements which apply to each.

(3) However requirements as to the contents of a document which is to be delivered to another person at the same time as the registrar of companies may be satisfied by delivering to that other person a copy of the document delivered to the registrar.

Registrar of companies: covering notices

1.20.—(1) This rule applies where the Act or these Rules require an office-holder to deliver any of the following documents to the registrar of companies—

(a)an account (including a final report) or a summary of receipts and payments;

(b)an administrative receiver’s report under section 48(1);

(c)a court order;

(d)a declaration of solvency;

(e)a direction of the Secretary of State under section 203 or 205;

(f)a notice of disclaimer;

(g)a statement of administrator’s proposals (including a statement of revised proposals);

(h)a statement of affairs;

(i)a statement of concurrence;

(j)a notice of an administrator’s resignation under paragraph 87(2) of Schedule B1;

(k)a notice of a liquidator’s death which the official receiver is required to deliver under rule 7.68(3)(b);

(l)a notice that a liquidator has vacated office on loss of qualification to act which the official receiver is required to deliver under rule 7.69(4)(b);

(m)any report including—

(i)a final report,

(ii)a progress report (including a final progress report),

(iii)a report of a creditors’ decision under paragraph 53(2) or 54(6) of Schedule B1, and

(iv)a report of a decision approving a CVA under section 4(6) and 6A or paragraph 30(3) and (4) of Schedule A1 to the Act;

(n)a copy of the notice that a CVA has been fully implemented or terminated that the supervisor is required to deliver under rule 2.44(3).

(2) The office-holder must deliver to the registrar of companies with a document mentioned in paragraph (1) a notice containing the standard contents required by this Part.

(3) Such a notice may relate to more than one document where those documents relate to the same proceedings and are delivered together to the registrar of companies.

Standard contents of all documents

1.21.—(1) A document to be delivered to the registrar of companies must—

(a)identify the company;

(b)state—

(i)the nature of the document,

(ii)the section of the Act, the paragraph of Schedule A1 or B1 or the rule under which the document is delivered,

(iii)the date of the document,

(iv)the name and address of the person delivering the document, and

(v)the capacity in which that person is acting in relation to the company; and

(c)be authenticated by the person delivering the document.

(2) Where the person delivering the document is the office-holder, the address may be omitted if it has previously been notified to the registrar of companies in the proceedings and is unchanged.

Standard contents of documents relating to the office of office-holders

1.22.—(1) A document relating to the office of the office-holder must also identify the office-holder and state—

(a)the date of the event of which notice is delivered or of the notice (as applicable);

(b)where the document relates to an appointment, the person, body or court making the appointment;

(c)where the document relates to the termination of an appointment, the reason for that termination; and

(d)the contact details for the office-holder.

(2) Where the person delivering the document is the office-holder, the address may be omitted if it has previously been notified to the registrar of companies in the proceedings and is unchanged.

Standard contents of documents relating to other documents

1.23.  A document relating to another document must also state—

(a)the nature of the other document;

(b)the date of the other document; and

(c)where the other document relates to a period of time, the period of time to which it relates.

Standard contents of documents relating to court orders

1.24.  A document relating to a court order must also specify—

(a)the nature of the order; and

(b)the date of the order.

Standard contents of returns or reports of decisions

1.25.  A return or report of a decision procedure, deemed consent procedure or meeting must also state—

(a)the purpose of the procedure or meeting;

(b)a description of the procedure or meeting used;

(c)in the case of a decision procedure or meeting, the venue;

(d)whether, in the case of a meeting, the required quorum was in place;

(e)the outcome (including any decisions made or resolutions passed); and

(f)the date of any decision made or resolution passed.

Standard contents of returns or reports of matters considered by company members by correspondence

1.26.  A return or report of a matter, consideration of which has been sought from the members of a company by correspondence, must also state—

(a)the purpose of the consideration; and

(b)the outcome of the consideration (including any resolutions passed or deemed to be passed).

Standard contents of documents relating to other events

1.27.  A document relating to any other event must also state—

(a)the nature of the event, including the section of the Act, the paragraph of Schedule A1 or B1 or the rule under which it took place; and

(b)the date on which the event occurred.

CHAPTER 7Standard contents of notices for delivery to other persons etc.

[Note: the requirements in Chapter 7 must be read with rule 1.6 which sets out the information required to identify an office-holder, a company etc.]

Standard contents of notices to be delivered to persons other than the registrar of companies

1.28.—(1) Where the Act or these Rules require a notice to be delivered to a person other than the registrar of companies in respect of proceedings under Parts 1 to 11 of the Act or the EC Regulation, the notice must contain the standard contents set out in this Chapter (in addition to any content specifically required by the Act or another provision of these Rules).

(2) A notice of more than one type must satisfy the requirements which apply to each.

(3) However, the requirements in respect of a document which is to be delivered to another person at the same time as the registrar of companies may be satisfied by delivering to that other person a copy of the document delivered to the registrar.

Standard contents of all notices

1.29.  A notice must—

(a)state the nature of the notice;

(b)identify the proceedings;

(c)in the case of proceedings relating to an individual, identify the bankrupt or debtor;

(d)state the section of the Act, the paragraph of Schedule A1 or B1 or the rule under which the notice is given; and

(e)in the case of a notice delivered by the office-holder, state the contact details for the office-holder.

Standard contents of notices relating to the office of office-holders

1.30.  A notice relating to the office of the office-holder must also identify the office-holder and state—

(a)the date of the event of which notice is delivered;

(b)where the notice relates to an appointment, the person, body or court making the appointment; and

(c)where the notice relates to the termination of an appointment, the reason for that termination.

Standard contents of notices relating to documents

1.31.  A notice relating to a document must also state—

(a)the nature of the document;

(b)the date of the document; and

(c)where the document relates to a period of time the period of time to which the document relates.

Standard contents of notices relating to court proceedings or orders

1.32.  A notice relating to court proceedings must also identify those proceedings and if the notice relates to a court order state—

(a)the nature of the order; and

(b)the date of the order.

Standard contents of notices of the results of decisions

1.33.  A notice of the result of a decision procedure, deemed consent procedure or meeting must also state—

(a)the purpose of the procedure or meeting;

(b)a description of the procedure or meeting used;

(c)in the case of a decision procedure or meeting, the venue;

(d)whether, in the case of a meeting, the required quorum was in place; and

(e)the outcome (including any decisions made or resolutions passed).

Standard contents of returns or reports of matters considered by company members by correspondence

1.34.  A return or report of a matter, consideration of which has been sought from the members of a company by correspondence, must also specify—

(a)the purpose of the consideration; and

(b)the outcome of the consideration (including any resolutions passed or deemed to be passed).

CHAPTER 8Applications to the court

[Note: the requirements in Chapter 8 must be read with rule 1.6 which sets out the information required to identify an office-holder, a company etc.]

Standard contents and authentication of applications to the court under Parts 1 to 11 of the Act

1.35.—(1) This rule applies to applications to court under Parts 1 to 11 of the Act (other than an application for an administration order, a winding up petition or a bankruptcy petition).

(2) The application must state—

(a)that the application is made under the Act or these Rules (as applicable);

(b)the section of the Act or paragraph of a Schedule to the Act or the number of the rule under which it is made;

(c)the names of the parties;

(d)the name of the bankrupt, debtor or company which is the subject of the insolvency proceedings to which the application relates;

(e)the court (and where applicable, the division or district registry of that court) or hearing centre in which the application is made;

(f)where the court has previously allocated a number to the insolvency proceedings within which the application is made, that number;

(g)the nature of the remedy or order applied for or the directions sought from the court;

(h)the names and addresses of the persons on whom it is intended to serve the application or that no person is intended to be served;

(i)where the Act or Rules require that notice of the application is to be delivered to specified persons, the names and addresses of all those persons (so far as known to the applicant); and

(j)the applicant’s address for service.

(3) The application must be authenticated by or on behalf of the applicant or the applicant’s solicitor.

CHAPTER 9Delivery of documents and opting out (sections 246C, 248A(27), 379C and 383A(28))

Application of Chapter

[Note: the registrar’s rules include provision for the electronic delivery of documents.]

1.36.—(1) This Chapter applies where a document is required under the Act or these Rules to be delivered, filed, forwarded, furnished, given, sent, or submitted in respect of proceedings under Parts 1 to 11 of the Act or the EC Regulation unless the Act, a rule or an order of the court makes different provision including one requiring service of the document.

(2) However in respect of delivery of a document to the registrar of companies—

(a)subject to sub-paragraph (b) only the following rules in this Chapter apply: rules 1.42 (postal delivery of documents), 1.43 (delivery by document exchange), 1.44 (personal delivery) and 1.52 (proof of delivery of documents);

(b)the registrar’s rules made under sections 1068 and 1117 of the Companies Act apply to determine the date when any document is received by the registrar of companies.

Delivery to the creditors and opting out

1.37.—(1) Where the Act or a rule requires an office-holder to deliver a document to the creditors, or the creditors in a class, the requirement is satisfied by the delivery of the document to all such creditors of whose address the office-holder is aware other than opted-out creditors (where the opt out applies).

(2) Where a creditor has opted out from receiving documents, the opt out does not apply to—

(a)a notice which the Act requires to be delivered to all creditors without expressly excluding opted-out creditors;

(b)a notice of a change in the office-holder or the contact details for the office-holder;

(c)a notice as provided for by sections 246C(2) or 379C(2) (notices of distributions, intended distributions and notices required to be given by court order); or

(d)a document which these Rules requires to accompany a notice within sub-paragraphs (a) to (c).

(3) The office-holder must begin to treat a creditor as an opted-out creditor as soon as reasonably practicable after delivery of the creditor’s election to opt out.

(4) An office-holder in any consecutive insolvency proceedings of a different kind under Parts 1 to 11 of the Act in respect of the same company or individual who is aware that a creditor was an opted-out creditor in the earlier proceedings must treat the creditor as an opted out creditor in the consecutive proceedings.

Creditor’s election to opt out

1.38.—(1) A creditor may at any time elect to be an opted-out creditor.

(2) The creditor’s election to opt out must be by a notice in writing authenticated and dated by the creditor.

(3) The creditor must deliver the notice to the office-holder.

(4) A creditor becomes an opted-out creditor when the notice is delivered to the office-holder.

(5) An opted-out creditor—

(a)will remain an opted-out creditor for the duration of the proceedings unless the opt out is revoked; and

(b)is deemed to be an opted-out creditor in respect of any consecutive insolvency proceedings under Parts 1 to 11 of the Act of a different kind relating to the same company or individual.

(6) The creditor may at any time revoke the election to opt out by a further notice in writing, authenticated and dated by the creditor and delivered to the office-holder.

(7) The creditor ceases to be an opted-out creditor from the date the notice is received by the office-holder.

Office-holder to provide information to creditors on opting-out

1.39.—(1) The office-holder must, in the first communication with a creditor, inform the creditor in writing that the creditor may elect to opt out of receiving further documents relating to the proceedings.

(2) The communication must contain—

(a)identification and contact details for the office-holder;

(b)a statement that the creditor has the right to elect to opt out of receiving further documents about the proceedings unless—

(i)the Act requires a document to be delivered to all creditors without expressly excluding opted-out creditors,

(ii)it is a notice relating to a change in the office-holder or the office-holder’s contact details, or

(iii)it is a notice of a dividend or proposed dividend or a notice which the court orders to be sent to all creditors or all creditors of a particular category to which the creditor belongs;

(c)a statement that opting-out will not affect the creditor’s entitlement to receive dividends should any be paid to creditors;

(d)a statement that unless these Rules provide to the contrary opting-out will not affect any right the creditor may have to vote in a decision procedure or a participate in a deemed consent procedure in the proceedings although the creditor will not receive notice of it;

(e)a statement that a creditor who opts out will be treated as having opted out in respect of any consecutive insolvency proceedings of a different kind in respect of the same company or individual; and

(f)information about how the creditor may elect to be or cease to be an opted-out creditor.

Delivery of documents to authorised recipients

1.40.  Where under the Act or these Rules a document is to be delivered to a person (other than by being served on that person), it may be delivered instead to any other person authorised in writing to accept delivery on behalf of the first-mentioned person.

Delivery of documents to joint office-holders

1.41.  Where there are joint office-holders in insolvency proceedings, delivery of a document to one of them is to be treated as delivery to all of them.

Postal delivery of documents

1.42.—(1) A document is delivered if it is sent by post in accordance with the provisions of this rule.

(2) First class or second class post may be used to deliver a document except where these Rules require first class post to be used.

(3) Unless the contrary is shown—

(a)a document sent by first class post is treated as delivered on the second business day after the day on which it is posted;

(b)a document sent by second class post is treated as delivered on the fourth business day after the day on which it is posted;

(c)where a post-mark appears on the envelope in which a document was posted, the date of that post-mark is to be treated as the date on which the document was posted.

(4) In this rule “post-mark” means a mark applied by a postal operator which records the date on which a letter entered the postal system of the postal operator.

Delivery by document exchange

1.43.—(1) A document is delivered to a member of a document exchange if it is delivered to that document exchange.

(2) Unless the contrary is shown, a document is treated as delivered—

(a)one business day after the day it is delivered to the document exchange where the sender and the intended recipient are members of the same document exchange; or

(b)two business days after the day it is delivered to the departure facility of the sender’s document exchange where the sender and the intended recipient are members of different document exchanges.

Personal delivery of documents

1.44.  A document is delivered if it is personally delivered in accordance with the rules for personal service in CPR Part 6.

Electronic delivery of documents

1.45.—(1) A document is delivered if it is sent by electronic means and the following conditions apply.

(2) The conditions are that the intended recipient of the document has—

(a)given actual or deemed consent for the electronic delivery of the document;

(b)not revoked that consent before the document is sent; and

(c)provided an electronic address for the delivery of the document.

(3) Consent may relate to a specific case or generally.

(4) For the purposes of paragraph (2)(a) an intended recipient is deemed to have consented to the electronic delivery of a document by the office-holder where the intended recipient and the person who is the subject of the insolvency proceedings had customarily communicated with each other by electronic means before the proceedings commenced.

(5) Unless the contrary is shown, a document is to be treated as delivered by electronic means to an electronic address where the sender can produce a copy of the electronic communication which—

(a)contains the document; and

(b)shows the time and date the communication was sent and the electronic address to which it was sent.

(6) Unless the contrary is shown, a document sent electronically is treated as delivered to the electronic address to which it is sent at 9.00 am on the next business day after it was sent.

Electronic delivery of documents to the court

1.46.—(1) A document may not be delivered to a court by electronic means unless this is expressly permitted by the CPR, a Practice Direction, or these Rules.

(2) A document delivered by electronic means is to be treated as delivered to the court at the time it is recorded by the court as having been received or otherwise as the CPR, a Practice Direction or these Rules provide.

Electronic delivery of notices to enforcement officers

1.47.  Where anything in the Act or these Rules provides for the delivery of a notice to an enforcement officer or enforcement agent, it may be delivered by electronic means to a person who has been authorised to receive such a notice on behalf of a specified enforcement officer or enforcement agent or on behalf of enforcement officers or enforcement agents generally.

Electronic delivery by office-holders

1.48.—(1) Where an office-holder delivers a document by electronic means, the document must contain, or be accompanied by, a statement that the recipient may request a hard copy of the document and a telephone number, email address and postal address that may be used to make that request.

(2) An office-holder who receives such a request must deliver a hard copy of the document to the recipient free of charge within five business days of receipt of the request.

Use of website by office-holder to deliver a particular document (sections 246B and 379B)

[Note: rule 3.54(3) allows notice of an extension to an administration to be given on a website, and rules 2.25(6) and 8.22(5) do likewise in respect of notice of the result of the consideration of a proposal for a CVA and an IVA respectively.]

1.49.—(1) This rule applies for the purposes of sections 246B and 379B(29) (use of websites).

(2) An office-holder who is required to deliver a document to any person may (except where personal delivery is required) satisfy that requirement by delivering a notice to that person which contains—

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

(b)the website’s address and any password necessary to view and download the document; and

(c)a statement that the person to whom the notice is delivered may request a hard copy of the document with a telephone number, email address and postal address which may be used to make that request.

(3) An office-holder who receives such a request must deliver a hard copy of the document to the recipient free of charge within five business days of receipt of the request.

(4) A document to which a notice under paragraph (2) relates must—

(a)remain available on the website for the period required by rule 1.51; and

(b)be in a format that enables it to be downloaded within a reasonable time of an electronic request being made for it to be downloaded.

(5) A document which is delivered to a person by means of a website in accordance with this rule, is deemed to have been delivered—

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

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

General use of website to deliver documents

1.50.—(1) The office-holder may deliver a notice to each person to whom a document will be required to be delivered in the insolvency proceedings which contains—

(a)a statement that future documents in the proceedings other than those mentioned in paragraph (2) will be made available for viewing and downloading on a website without notice to the recipient and that the office-holder will not be obliged to deliver any such documents to the recipient of the notice unless it is requested by that person;

(b)a telephone number, email address and postal address which may be used to make a request for a hard copy of a document;

(c)a statement that the recipient of the notice may at any time request a hard copy of any or all of the following—

(i)all documents currently available for viewing on the website,

(ii)all future documents which may be made available there, and

(d)the address of the website, any password required to view and download a relevant document from that site.

(2) A statement under paragraph (1)(a) does not apply to the following documents—

(a)a document for which personal delivery is required;

(b)a notice under rule 14.29 of intention to declare a dividend; and

(c)a document which is not delivered generally.

(3) A document is delivered generally if it is delivered to some or all of the following classes of persons—

(a)members,

(b)contributories,

(c)creditors;

(d)any class of members, contributories or creditors.

(4) An office-holder who has delivered a notice under paragraph (1) is under no obligation—

(a)to notify a person to whom the notice has been delivered when a document to which the notice applies has been made available on the website; or

(b)to deliver a hard copy of such a document unless a request is received under paragraph (1)(c).

(5) An office-holder who receives such a request—

(a)in respect of a document which is already available on the website must deliver a hard copy of the document to the recipient free of charge within five business days of receipt of the request; and

(b)in respect of all future documents must deliver each such document in accordance with the requirements for delivery of such a document in the Act and these Rules.

(6) A document to which a statement under paragraph (1)(a) applies must—

(a)remain available on the website for the period required by rule 1.51; and

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

(7) A document which is delivered to a person by means of a website in accordance with this rule, 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.

(8) Paragraph (7) does not apply in respect of a person who has made a request under paragraph (1)(c)(ii) for hard copies of all future documents.

Retention period for documents made available on websites

1.51.—(1) This rule applies to a document which is made available on a website under rules 1.49, 1.50, 2.25(6) (notice of the result of the consideration of a proposal for a CVA), 3.54(3) (notice of an extension to an administration) and 8.22(4) (notice of the result of the consideration of a proposal for an IVA).

(2) Such a document must continue to be made available on the website until two months after the end of the particular insolvency proceedings or the release of the last person to hold office as the office-holder in those proceedings.

Proof of delivery of documents

1.52.—(1) A certificate complying with this rule is proof that a document has been duly delivered to the recipient in accordance with this Chapter unless the contrary is shown.

(2) A certificate must state the method of delivery and the date of the sending, posting or delivery (as the case may be).

(3) In the case of the official receiver or the adjudicator the certificate must be given by—

(a)the official receiver or the adjudicator; or

(b)a member of the official receiver’s or adjudicator’s staff.

(4) In the case of an office-holder other than the official receiver or the adjudicator the certificate must be given by—

(a)the office-holder;

(b)the office-holder’s solicitor; or

(c)a partner or an employee of either of them.

(5) In the case of a person other than an office-holder the certificate must be given by that person and must state—

(a)that the document was delivered by that person; or

(b)that another person (named in the certificate) was instructed to deliver it.

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

Delivery of proofs and details of claims

1.53.—(1) Once a proof has, or details of a claim have, been delivered to an office-holder in accordance with these Rules that proof or those details need not be delivered again; and accordingly, where a provision of these Rules requires delivery of a proof or details of a claim by a certain time, that requirement is satisfied if the proof has or the details have already been delivered.

(2) Paragraph (1) also applies to those cases set out in rule 14.3(2)(a) and (b) where a creditor who has proved in insolvency proceedings is deemed to have proved in an insolvency proceedings which immediately follows that proceeding.

CHAPTER 10Inspection of documents, copies and provision of information

Right to copies of documents

1.54.  Where the Act, in relation to proceedings under Parts 1 to 11 of the Act, or these Rules give a person the right to inspect documents, that person has a right to be supplied on request with copies of those documents on payment of the standard fee for copies.

Charges for copies of documents provided by the office-holder

1.55.  Except where prohibited by these Rules, an office-holder is entitled to require the payment of the standard fee for copies of documents requested by a creditor, member, contributory or member of a liquidation or creditors’ committee.

Offence in relation to inspection of documents

1.56.—(1) It is an offence for a person who does not have a right under these Rules to inspect a relevant document falsely to claim to be a creditor, a member of a company or a contributory of a company with the intention of gaining sight of the document.

(2) A relevant document is one which is on the court file, the bankruptcy file or held by the office-holder or any other person and which a creditor, a member of a company or a contributory of a company has the right to inspect under these Rules.

(3) A person guilty of an offence under this rule is liable to imprisonment or a fine, or both.

Right to list of creditors

1.57.—(1) This rule applies to—

(a)administration;

(b)creditors’ voluntary winding up;

(c)winding up by the court; and

(d)bankruptcy.

(2) A creditor has the right to require the office-holder to provide a list of the names and addresses of the creditors and the amounts of their respective debts unless—

(a)a statement of affairs has been filed with the court or delivered to the registrar of companies; or

(b)the information is available for inspection on the bankruptcy file.

(3) The office-holder on being required to provide such a list—

(a)must deliver it to the person requiring the list as soon as reasonably practicable; and

(b)may charge the standard fee for copies for a hard copy.

(4) The office-holder may omit the name and address of a creditor if the office-holder thinks its disclosure would be prejudicial to the conduct of the proceedings or might reasonably be expected to lead to violence against any person.

(5) In such a case the list must include—

(a)the amount of that creditor’s debt; and

(b)a statement that the name and address of the creditor has been omitted for that debt.

Confidentiality of documents: grounds for refusing inspection

1.58.—(1) Where an office-holder considers that a document forming part of the records of the insolvency proceedings—

(a)should be treated as confidential; or

(b)is of such a nature that its disclosure would be prejudicial to the conduct of the proceedings or might reasonably be expected to lead to violence against any person;

the office-holder may decline to allow it to be inspected by a person who would otherwise be entitled to inspect it.

(2) The persons to whom the office-holder may refuse inspection include members of a liquidation committee or a creditors’ committee.

(3) Where the office-holder refuses inspection of a document, the person wishing to inspect it may apply to the court which may reconsider the office-holder’s decision.

(4) The court’s decision may be subject to such conditions (if any) as it thinks just.

PART 2COMPANY VOLUNTARY ARRANGEMENTS (CVA)

CHAPTER 1Preliminary

Interpretation

2.1.  In this Part—

“nominee” and “supervisor” include the proposed nominee or supervisor in relation to a proposal for a CVA; and

“proposal” means a proposal for a CVA.

CHAPTER 2The proposal for a CVA (section 1)

[Note: (1) section 1 of the Act sets out who may propose a CVA;

(2) a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Proposal for a CVA: general principles and amendment

2.2.—(1) A proposal must—

(a)contain identification details for the company;

(b)explain why the proposer thinks a CVA is desirable;

(c)explain why the creditors are expected to agree to a CVA; and

(d)be authenticated and dated by the proposer.

(2) The proposal may be amended with the nominee’s agreement in writing in the following cases.

(3) The first case is where—

(a)no steps have been taken to obtain a moratorium;

(b)the nominee is not the liquidator or administrator of the company; and

(c)the nominee’s report has not been filed with the court under section 2(2).

(4) The second case is where—

(a)the proposal is made with a view to obtaining a moratorium; and

(b)the nominee’s statement under paragraph 6(2) of Schedule A1 (nominee’s opinion on prospects of CVA being approved etc.) has not yet been submitted to the directors.

Proposal: contents

2.3.—(1) The proposal must set out the following so far as known to the proposer—

Assets
(a)

the company’s assets, with an estimate of their respective values;

(b)

which assets are charged and the extent of the charge;

(c)

which assets are to be excluded from the CVA; and

(d)

particulars of any property to be included in the CVA which is not owned by the company, including details of who owns such property, and the terms on which it will be available for inclusion;

Liabilities
(e)

the nature and amount of the company’s liabilities;

(f)

how the company’s liabilities will be met, modified, postponed or otherwise dealt with by means of the CVA and in particular—

(i)

how preferential creditors and creditors who are, or claim to be, secured will be dealt with,

(ii)

how creditors who are connected with the company will be dealt with,

(iii)

if the company is not in administration or liquidation whether, if the company did go into administration or liquidation, there are circumstances which might give rise to claims under section 238 (transactions at an undervalue), section 239 (preferences), section 244 (extortionate credit transactions), or section 245 (floating charges invalid), and

(iv)

where there are circumstances that might give rise to such claims, whether, and if so what, provision will be made to indemnify the company in respect of them;

Nominee’s fees and expenses
(g)

the amount proposed to be paid to the nominee by way of fees and expenses;

Supervisor
(h)

identification and contact details for the supervisor;

(i)

confirmation that the supervisor is qualified to act as an insolvency practitioner in relation to the company and the name of the relevant recognised professional body which is the source of the supervisor’s authorisation;

(j)

how the fees and expenses of the supervisor will be determined and paid;

(k)

the functions to be performed by the supervisor;

(l)

where it is proposed that two or more supervisors be appointed a statement whether acts done in connection with the CVA may be done by any one or more of them or must be done by all of them;

Guarantees and proposed guarantees
(m)

whether any, and if so what, guarantees have been given in respect of the company’s debts, specifying which of the guarantors are persons connected with the company;

(n)

whether any, and if so what, guarantees are proposed to be offered for the purposes of the CVA and, if so, by whom and whether security is to be given or sought;

Timing
(o)

the proposed duration of the CVA;

(p)

the proposed dates of distributions to creditors, with estimates of their amounts;

Type of proceedings
(q)

whether the proceedings will be main, territorial or non-EC proceedings with reasons;

Conduct of the business
(r)

how the business of the company will be conducted during the CVA;

Further credit facilities
(s)

details of any further proposed credit facilities for the company, and how the debts so arising are to be paid;

Handling of funds arising
(t)

the manner in which funds held for the purposes of the CVA are to be banked, invested or otherwise dealt with pending distribution to creditors;

(u)

how funds held for the purpose of payment to creditors, and not so paid on the termination of the CVA, will be dealt with;

(v)

how the claim of any person bound by the CVA by virtue of section 5(2)(b)(ii) or paragraph 37(2)(b)(ii) of Schedule A1 will be dealt with;

Address (where moratorium proposed)
(w)

where the proposal is made in relation to a company that is eligible for a moratorium (in accordance with paragraphs 2 and 3 of Schedule A1) with a view to obtaining a moratorium under Schedule A1, the address to which the documents referred to in paragraph 6(1) of that Schedule must be delivered; and

Other matters
(x)

any other matters that the proposer considers appropriate to enable members and creditors to reach an informed decision on the proposal.

(2) Where the proposal is made by the directors, an estimate so far as known to them of—

(a)the value of the prescribed part if the proposal for the CVA is not accepted and the company goes into liquidation (whether or not the liquidator might be required under section 176A to make the prescribed part available for the satisfaction of unsecured debts); and

(b)the value of the company’s net property (as defined by section 176A(6)) on the date that the estimate is made.

(3) Where the proposal is made by the administrator or liquidator the following so far as known to the office-holder—

(a)an estimate of—

(i)the value of the prescribed part (whether or not the administrator or liquidator might be required under section 176A to make the prescribed part available for the satisfaction of unsecured debts), and

(ii)the value of the company’s net property (as defined by section 176A(6)); and

(b)a statement as to whether the administrator or liquidator proposes to make an application to the court under section 176A(5) and if so the reasons for the application; and

(c)details of the nature and amount of the company’s preferential creditors.

(4) Information may be excluded from an estimate under paragraph (2) or (3)(a) if the inclusion of the information could seriously prejudice the commercial interests of the company.

(5) If the exclusion of such information affects the calculation of the estimate, the proposal must include a statement to that effect.

CHAPTER 3Procedure for a CVA without a moratorium

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Procedure for proposal where the nominee is not the liquidator or the administrator (section 2)

2.4.—(1) This rule applies where the nominee is not the same person as the liquidator or the administrator.

(2) A nominee who consents to act must deliver a notice of that consent to the proposer as soon as reasonably practicable after the proposal has been submitted to the nominee under section 2(3).

(3) The notice must state the date the nominee received the proposal.

(4) The period of 28 days in which the nominee must submit a report to the court under section 2(2) begins on the date the nominee received the proposal as stated in the notice.

Information for the official receiver

2.5.  Where the company is being wound up by the court, the liquidator must deliver to the official receiver—

(a)a copy of the proposal; and

(b)the name and address of the nominee (if the nominee is not the liquidator).

Statement of affairs (section 2(3))

2.6.—(1) The statement of the company’s affairs required by section 2(3) must contain the following—

(a)a list of the company’s assets, divided into such categories as are appropriate for easy identification, and with each category given an estimated value;

(b)in the case of any property on which a claim against the company is wholly or partly secured, particulars of the claim, and of how and when the security was created;

(c)the names and addresses of the preferential creditors, with the amounts of their respective claims;

(d)the names and addresses of the unsecured creditors with the amounts of their respective claims;

(e)particulars of any debts owed by the company to persons connected with it;

(f)particulars of any debts owed to the company by persons connected with it;

(g)the names and addresses of the company’s members, with details of their respective shareholdings; and

(h)any other particulars that the nominee in writing requires to be provided for the purposes of making the nominee’s report on the proposal to the court.

(2) The statement must be made up to a date not earlier than two weeks before the date of the proposal.

(3) However the nominee may allow the statement to be made up to an earlier date (but not more than two months before the date of the proposal) where that is more practicable.

(4) Where the statement is made up to an earlier date, the nominee’s report to the court on the proposal must explain why.

(5) The statement of affairs must be verified by a statement of truth made by the proposer.

(6) Where the proposal is made by the directors, only one director need make the statement of truth.

Application to omit information from statement of affairs delivered to creditors

2.7.  The nominee, the directors or any person appearing to the court to have an interest, may apply to the court for a direction that specified information be omitted from the statement of affairs as delivered to the creditors where disclosure of that information would be likely to prejudice the conduct of the CVA or might reasonably be expected to lead to violence against any person.

Additional disclosure for assistance of nominee where the nominee is not the liquidator or administrator

2.8.—(1) This rule applies where the nominee is not the administrator or the liquidator of the company.

(2) If it appears to the nominee that the nominee’s report to the court cannot properly be prepared on the basis of information in the proposal and statement of affairs, the nominee may require the proposer to provide—

(a)more information about the circumstances in which, and the reasons why, a CVA is being proposed;

(b)particulars of any previous proposals which have been made in relation to the company under Part 1 of the Act; and

(c)any further information relating to the company’s affairs which the nominee thinks necessary for the purposes of the report.

(3) The nominee may require the proposer to inform the nominee whether, and if so in what circumstances, any person who is, or has been at any time in the two years before the date the nominee received the proposal, a director or officer of the company has—

(a)been concerned in the affairs of any other company (whether or not incorporated in England and Wales) or limited liability partnership which has been the subject of insolvency proceedings;

(b)been made bankrupt;

(c)been the subject of a debt relief order; or

(d)entered into an arrangement with creditors.

(4) The proposer must give the nominee such access to the company’s accounts and records as the nominee may require to enable the nominee to consider the proposal and prepare the nominee’s report.

Nominee’s report on proposal where the nominee is not the liquidator or administrator (section 2(2))

2.9.—(1) The nominee’s report must be filed with the court under section 2(2) accompanied by—

(a)a copy of the report;

(b)a copy of the proposal (as amended under rule 2.2(2), if that is the case); and

(c)a copy of the statement of the company’s affairs or a summary of it.

(2) The report must state—

(a)why the nominee considers the proposal does or does not have a reasonable prospect of being approved and implemented; and

(b)why the members and the creditors should or should not be invited to consider the proposal.

(3) The court must endorse the nominee’s report and the copy of it with the date of filing and deliver the copy to the nominee.

(4) The nominee must deliver a copy of the report to the company.

Replacement of nominee (section 2(4))

2.10.—(1) A person (other than the nominee) who intends to apply to the court under section 2(4) for the nominee to be replaced must deliver a notice that such an application is intended to be made to the nominee at least five business days before filing the application with the court.

(2) A nominee who intends to apply under that section to be replaced must deliver a notice that such an application is intended to be made to the person intending to make the proposal, or the proposer, at least five business days before filing the application with the court.

(3) The court must not appoint a replacement nominee unless a statement by the replacement nominee has been filed with the court confirming that person—

(a)consents to act; and

(b)is qualified to act as an insolvency practitioner, in relation to the company.

CHAPTER 4Procedure for a CVA with a moratorium

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Statement of affairs (paragraph 6(1)(b) of Schedule A1)

2.11.—(1) The statement of affairs required by paragraph 6(1)(b) of Schedule A1 must contain the same information as is required by rule 2.6.

(2) The statement must be made up to a date not earlier than two weeks before the date of the proposal.

(3) However the nominee may allow the statement to be made up to an earlier date (but not more than two months before the proposal) where that is more practicable.

(4) Where the statement is made up to an earlier date, the nominee’s statement to the directors on the proposal must explain why.

(5) The statement of affairs must be verified by a statement of truth made by at least one director.

Application to omit information from a statement of affairs

2.12.  The nominee, the directors or any person appearing to the court to have an interest, may apply to the court for a direction that specified information be omitted from the statement of affairs as delivered to the creditors where disclosure of that information would be likely to prejudice the conduct of the CVA or might reasonably be expected to lead to violence against any person.

The nominee’s statement (paragraph 6(2) of Schedule A1)

2.13.—(1) The nominee must submit to the directors the statement required by paragraph 6(2)(30) of Schedule A1 within 28 days of the submission to the nominee of the proposal.

(2) The statement must—

(a)include the name and address of the nominee; and

(b)be authenticated and dated by the nominee.

(3) A statement which contains an opinion on all the matters referred to in paragraph 6(2) must—

(a)explain why the nominee has formed that opinion; and

(b)if the nominee is willing to act, be accompanied by a statement of the nominee’s consent to act in relation to the proposed CVA.

(4) The statement of the nominee’s consent must—

(a)include the name and address of the nominee;

(b)state that the nominee is qualified to act as an insolvency practitioner in relation to the company; and

(c)be authenticated and dated by the nominee.

Documents filed with court to obtain a moratorium (paragraph 7(1) of Schedule A1)

2.14.—(1) The statement of the company’s affairs which the directors file with the court under paragraph 7(1)(b) of Schedule A1 must be the same as the statement they submit to the nominee under paragraph 6(1)(b) of that Schedule.

(2) The statement required by paragraph 7(1)(c) of that Schedule that the company is eligible for a moratorium must—

(a)be made by the directors;

(b)state that the company meets the requirements of paragraph 3 of Schedule A1 and is not a company which falls within paragraph 2(2) of that Schedule;

(c)confirm that the company is not ineligible for a moratorium under paragraph 4 of that Schedule; and

(d)be authenticated and dated by the directors.

(3) The statement required by paragraph 7(1)(d) of that Schedule that the nominee has consented to act must be in the same terms as the statement referred to in rule 2.13(3)(b) and (4).

(4) The statement of the nominee’s opinion required by paragraph 7(1)(e)(31) of that Schedule—

(a)must be the same as the statement of opinion required by paragraph 6(2) of that Schedule; and

(b)must be filed with the court not later than ten business days after it was submitted to the directors.

(5) The documents filed with the court under paragraph 7(1) of that Schedule must be accompanied by four copies of a schedule, authenticated and dated by the directors, identifying the company and listing all the documents filed.

(6) The court must endorse the copies of the schedule with the date on which the documents were filed and deliver three copies of the endorsed schedule to the directors.

Notice and advertisement of beginning of a moratorium

2.15.—(1) The directors must as soon as reasonably practicable after delivery to them of the endorsed copies of the schedule deliver two copies of the schedule to the nominee and one to the company.

(2) After delivery of the copies of the schedule, the nominee—

(a)must as soon as reasonably practicable gazette a notice of the coming into force of the moratorium; and

(b)may advertise the notice in such other manner as the nominee thinks fit.

(3) The notice must specify—

(a)the nature of the business of the company;

(b)that a moratorium under section 1A has come into force; and

(c)the date on which it came into force.

(4) The nominee must as soon as reasonably practicable deliver a notice of the coming into force of the moratorium to—

(a)the registrar of companies;

(b)the company; and

(c)any petitioning creditor of whose address the nominee is aware.

(5) The notice must specify—

(a)the date on which the moratorium came into force; and

(b)the court with which the documents to obtain the moratorium were filed.

(6) The nominee must deliver a notice of the coming into force of the moratorium and the date on which it came into force to—

(a)any enforcement agent or other officer who to the knowledge of the nominee is charged with distress or other legal process, against the company or its property; and

(b)any person who to the nominee’s knowledge has distrained against the company or its property.

Notice of continuation of a moratorium where physical meeting of creditors is summoned (paragraph 8(3B) of Schedule A1)

2.16.—(1) This rule applies where under paragraph 8(3B)(b) and (3C) of Schedule A1(32) the moratorium continues after the initial period of 28 days referred to in paragraph 8(3) of that Schedule because a physical meeting of the company’s creditors is first summoned to take place after the end of that period.

(2) The nominee must file with the court and deliver to the registrar of companies a notice of the continuation as soon as reasonably practicable after summoning such a meeting of the company’s creditors.

(3) The notice must—

(a)identify the company;

(b)give the name and address of the nominee;

(c)state the date on which the notice of the meeting was sent to the creditors under rule 15.6;

(d)state the date for which the meeting is summoned;

(e)state that under paragraph 8(3B)(b) and (3C) of Schedule A1 the moratorium will be continued to that date; and

(f)be authenticated and dated by the nominee.

Notice of decision extending or further extending a moratorium (paragraph 36 of Schedule A1)

2.17.—(1) This rule applies where the moratorium is extended, or further extended by a decision which takes effect under paragraph 36(33) of Schedule A1.

(2) The nominee must, as soon as reasonably practicable, file with the court and deliver to the registrar of companies a notice of the decision.

(3) The notice must—

(a)identify the company;

(b)give the name and address of the nominee;

(c)state the date on which the moratorium was extended or further extended;

(d)state the new expiry date of the moratorium; and

(e)be authenticated and dated by the nominee.

Notice of court order extending or further extending or continuing or renewing a moratorium (paragraph 34(2) of Schedule A1)

2.18.  Where the court makes an order extending, further extending, renewing or continuing a moratorium, the nominee must, as soon as reasonably practicable, deliver to the registrar of companies a notice stating the new expiry date of the moratorium.

Advertisement of end of a moratorium (paragraph 11(1) of Schedule A1)

2.19.—(1) After the moratorium ends, the nominee—

(a)must, as soon as reasonably practicable, gazette a notice of its coming to an end; and

(b)may advertise the notice in such other manner as the nominee thinks fit.

(2) The notice must state—

(a)the nature of the company’s business;

(b)that a moratorium under section 1A has ended; and

(c)the date on which it came to an end.

(3) The nominee must, as soon as reasonably practicable—

(a)file with the court a notice specifying the date on which the moratorium ended; and

(b)deliver such a notice to—

(i)the registrar of companies,

(ii)the company, and

(iii)the creditors.

(4) The notice to the court must—

(a)identify the company;

(b)give the name and address of the nominee; and

(c)be authenticated and dated by the nominee.

Disposal of charged property etc. during a moratorium

2.20.—(1) This rule applies where the company applies to the court under paragraph 20 of Schedule A1 for permission to dispose of—

(a)property subject to a security; or

(b)goods under a hire-purchase agreement.

(2) The court must fix a venue for hearing the application.

(3) The company must as soon as reasonably practicable deliver a notice of the venue to the holder of the security or the owner of the goods under the agreement.

(4) If an order is made, the court must deliver two sealed copies of the order to the company and the company must deliver one of them to the holder or owner as soon as reasonably practicable.

Withdrawal of nominee’s consent to act (paragraph 25(5) of Schedule A1)

2.21.—(1) A nominee who withdraws consent to act, must file with the court and otherwise deliver a notice under paragraph 25(5) of Schedule A1 as soon as reasonably practicable.

(2) The notice filed with the court must—

(a)identify the company;

(b)give the name and address of the nominee;

(c)specify the date on which the nominee withdrew consent;

(d)state, with reference to the reasons at paragraph 25(2) of that Schedule, why the nominee withdrew consent; and

(e)be authenticated and dated by the nominee.

Application to the court to replace the nominee (paragraph 28 of Schedule A1)

2.22.—(1) Directors who intend to make an application under paragraph 28(34) of Schedule A1 for the nominee to be replaced must deliver a notice of the intention to make the application to the nominee at least five business days before filing the application with the court.

(2) A nominee who intends to make an application under that paragraph to be replaced must deliver notice of the intention to make the application to the directors at least five business days before filing the application with the court.

(3) The court must not appoint a replacement nominee unless a statement by the replacement nominee has been filed with the court confirming that person—

(a)consents to act; and

(b)is qualified to act as an insolvency practitioner in relation to the company.

Notice of appointment of replacement nominee

2.23.—(1) A person appointed as a replacement nominee must as soon as reasonably practicable deliver a notice of the appointment to the registrar of companies and the former nominee and, where the appointment is not by the court, file a notice of the appointment with the court.

(2) The notice filed with the court must—

(a)identify the company;

(b)give the name and address of the replacement nominee;

(c)specify the date on which the replacement nominee was appointed to act; and

(d)be authenticated and dated by the replacement nominee.

Applications to court to challenge nominee’s actions etc. (paragraphs 26 and 27 of Schedule A1)

2.24.  A person intending to make an application to the court under paragraph 26 or 27 of Schedule A1 must deliver a notice of the intention to make the application to the nominee at least five business days before filing the application with the court.

CHAPTER 5Consideration of the proposal by the company members and creditors

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Consideration of proposal: common requirements (section 3)

2.25.—(1) The nominee must invite the members of the company to consider a proposal by summoning a meeting of the company as required by section 3.

(2) The nominee must invite the creditors to consider the proposal by way of a decision procedure.

(3) In the case of the members, the nominee must deliver to every person whom the nominee believes to be a member a notice which must—

(a)identify the proceedings;

(b)state the venue for the meeting;

(c)state the effect of the following—

(i)rule 2.35 about members’ voting rights,

(ii)rule 2.36 about the requisite majority of members for passing resolutions, and

(iii)rule 15.35 about rights of appeal; and

(d)be accompanied by—

(i)a copy of the proposal,

(ii)a copy of the statement of affairs, or if the nominee thinks fit a summary including a list of creditors with the amounts of their debts,

(iii)the nominee’s comments on the proposal, unless the nominee is the administrator or liquidator, and

(iv)details of each resolution to be voted on.

(4) In the case of the creditors, the nominee must deliver to each creditor a notice in respect of the decision procedure which complies with rule 15.8 so far as is relevant.

(5) The notice must also—

(a)be accompanied by—

(i)a copy of the proposal,

(ii)a copy of the statement of affairs, or if the nominee thinks fit a summary including a list of creditors with the amounts of their debts, and

(iii)the nominee’s comments on the proposal, unless the nominee is the administrator or liquidator; and

(b)state how a creditor may propose a modification to the proposal, and how the nominee will deal with such a proposal for a modification.

(6) The notice may also state that the results of the consideration of the proposal will be made available for viewing and downloading on a website and that no other notice will be delivered to the creditors or members (as the case may be).

(7) Where the results of the consideration of the proposal are to be made available for viewing and downloading on a website the nominee must comply with the requirements for use of a website to deliver a document set out in rule 1.49(2)(a) to (c), (3) and (4) with any necessary adaptations and rule 1.49(5)(a) applies to determine the time of delivery of the document.

Members’ consideration at a meeting

2.26.—(1) Where the nominee invites the members to consider the proposal at a meeting the notice to members under rule 2.25(3) must also—

(a)specify the purpose of and venue for the meeting; and

(b)be accompanied by a blank proxy.

(2) The nominee must have regard to the convenience of those invited to attend when fixing the venue for a meeting (including the resumption of an adjourned meeting).

(3) The date of the meeting (except where the nominee is the administrator or liquidator of the company) must not be more than 28 days from the date on which—

(a)the nominee’s report is filed with the court under rule 2.9; or

(b)the moratorium came into force.

Creditors’ consideration by a decision procedure

2.27.  Where the nominee is inviting the creditors to consider the proposal by a decision procedure, the decision date must be not less than 14 days from the date of delivery of the notice and not more than 28 days from the date—

(a)the nominee’s report is filed with the court under rule 2.9; or

(b)the moratorium came into force.

Timing of decisions on proposal

2.28.—(1) The decision date for the creditors’ decision procedure may be on the same day as, or on a different day to, the meeting of the company.

(2) But the creditors’ decision on the proposal must be made before the members’ decision.

(3) The members’ decision must be made not later than five business days after the creditors’ decision.

(4) For the purpose of this rule, the timing of the members’ decision is either the date and time of the meeting of the company or, where the nominee invites members to consider the proposal by correspondence, the deadline for receipt of members’ votes.

Creditors’ approval of modified proposal

2.29.—(1) This rule applies where a decision is sought from the creditors following notice to the nominee of proposed modifications to the proposal from the company’s directors under paragraph 31(7)(35) of Schedule A1.

(2) The decision must be sought by a decision procedure with a decision date within 14 days of the date on which the directors gave notice to the nominee of the modifications.

(3) The creditors must be given at least seven days’ notice of the decision date.

Notice of members’ meeting and attendance of officers

2.30.—(1) A notice under rule 2.25(2) summoning a meeting of the company must be delivered at least 14 days before the day fixed for the meeting to all the members and to—

(a)every officer or former officer of the company whose presence the nominee thinks is required; and

(b)all other directors of the company.

(2) Every officer or former officer who receives such a notice stating that the nominee thinks that person’s attendance is required is required to attend the meeting.

Requisition of physical meeting by creditors

2.31.—(1) This rule applies where the creditors requisition a physical meeting to consider a proposal (with or without modifications) in accordance with section 246ZE(36) and rule 15.6.

(2) The meeting must take place within 14 days of the date on which the prescribed proportion of creditors have required the meeting to take place.

(3) Notice of at least seven days is required for a physical meeting under this rule.

Non-receipt of notice by members

2.32.  Where in accordance with the Act or these Rules the members are invited to consider a proposal, the consideration is presumed to have duly taken place even if not everyone to whom the notice is to be delivered receives it.

Proposal for alternative supervisor

2.33.—(1) If in response to a notice inviting—

(a)members to consider the proposal by correspondence; or

(b)creditors to consider the proposal other than at a meeting,

a member or creditor proposes that a person other than the nominee be appointed as supervisor, that person’s consent to act and confirmation of being qualified to act as an insolvency practitioner in relation to the company must be delivered to the nominee by the deadline in the notice of the decision by correspondence or by the decision date (as the case may be).

(2) If, at either a meeting of the company or the creditors to consider the proposal, a resolution is moved for the appointment of a person other than the nominee to be supervisor, the person moving the resolution must produce to the chair at or before the meeting—

(a)confirmation that the person proposed as supervisor is qualified to act as an insolvency practitioner in relation to the company; and

(b)that person’s written consent to act (unless that person is present at the meeting and there signifies consent to act).

Chair at meetings

2.34.  The chair of a meeting under this Part must be the nominee or an appointed person.

Members’ voting rights

2.35.—(1) A member is entitled to vote according to the rights attaching to the member’s shares in accordance with the articles of the company.

(2) A member’s shares include any other interest that person may have as a member of the company.

(3) The value of a member for the purposes of voting is determined by reference to the number of votes conferred on that member by the company’s articles.

Requisite majorities of members

2.36.—(1) A resolution is passed by members by correspondence or at a meeting of the company when a majority (in value) of those voting have voted in favour of it.

(2) This is subject to any express provision to the contrary in the articles.

(3) A resolution is not passed by correspondence unless at least one member has voted in favour of it.

Notice of order made under section 4A(6) or paragraph 36(5) of Schedule A1

2.37.—(1) This rule applies where the court makes an order under section 4A(6) or paragraph 36(5)(37) of Schedule A1.

(2) The member who applied for the order must deliver a sealed copy of it to—

(a)the proposer; and

(b)the supervisor (if there is one different to the proposer).

(3) If the directors are the proposer a single copy may be delivered to the company at its registered office.

(4) The supervisor, or the proposer where there is no supervisor, must as soon as reasonably practicable deliver a notice that the order has been made to every person who had received a notice to vote on the matter or who is affected by the order.

(5) The member who applied for the order must, within five business days of the order, deliver a copy to the registrar of companies.

Report of consideration of proposal under section 4(6) and (6A) or paragraph 30(3) and (4) of Schedule A1

2.38.—(1) A report must be prepared of the consideration of a proposal under section 4(6) and (6A)(38) or paragraph 30(3)(39) and (4) of Schedule A1 by the convener or, in the case of a meeting, the chair.

(2) The report must—

(a)state whether the proposal was approved or rejected and whether by the creditors alone or by both the creditors and members and, in either case, whether any approval was with any modifications;

(b)list the creditors and members who voted or attended or who were represented at the meeting or decision procedure (as applicable) used to consider the proposal, setting out (with their respective values) how they voted on each resolution;

(c)identify which of those creditors were considered to be connected with the company;

(d)if the proposal was approved, state with reasons whether the proceedings are main, territorial or non-EC proceedings; and

(e)include such further information as the nominee or the chair thinks it appropriate to make known to the court.

(3) A copy of the report must be filed with the court, within four business days of the deadline (if the proposal was considered by the company by correspondence) or the date of the company meeting.

(4) The court must endorse the copy of the report with the date of filing.

(5) The chair (in the case of a company meeting) or otherwise the convener must give notice of the result of the consideration of the proposal to everyone who was invited to consider the proposal or to whom notice of a decision procedure or meeting was delivered as soon as reasonably practicable after a copy of the report is filed with the court.

(6) Where the decision approving the CVA has effect under section 4A or paragraph 36 of Schedule A1 with or without modifications, the supervisor must as soon as reasonably practicable deliver a copy of the convener’s report or, in the case of a meeting, the chair’s report to the registrar of companies.

CHAPTER 6Additional matters concerning and following approval of CVA

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Hand-over of property etc. to supervisor

2.39.—(1) Where the decision approving a CVA has effect under section 4A or paragraph 36 of Schedule A1, and the supervisor is not the same person as the proposer, the proposer must, as soon as reasonably practicable, do all that is required to put the supervisor in possession of the assets included in the CVA.

(2) Where the company is in administration or liquidation and the supervisor is not the same person as the administrator or liquidator, the supervisor must—

(a)before taking possession of the assets included in the CVA, deliver to the administrator or liquidator an undertaking to discharge the balance referred to in paragraph (3) out of the first realisation of assets; or

(b)upon taking possession of the assets included in the CVA, discharge such balance.

(3) The balance is any balance due to the administrator or liquidator, or to the official receiver not acting as liquidator—

(a)by way of fees or expenses properly incurred and payable under the Act or these Rules; and

(b)on account of any advances made in respect of the company together with interest on such advances at the rate specified in section 17 of the Judgments Act 1838(40) at the date on which the company entered administration or went into liquidation.

(4) The administrator or liquidator, or the official receiver not acting as liquidator, has a charge on the assets included in the CVA in respect of any sums comprising such balance, subject only to the deduction from realisations by the supervisor of the proper costs and expenses of such realisations.

(5) The supervisor must from time to time out of the realisation of assets—

(a)discharge all guarantees properly given by the administrator or liquidator for the benefit of the company; and

(b)pay all the expenses of the administrator or liquidator or of the official receiver not acting as liquidator.

(6) Sums due to the official receiver take priority over those due to any other person under this rule.

Revocation or suspension of CVA

2.40.—(1) This rule applies where the court makes an order of revocation or suspension under section 6 or paragraph 38 of Schedule A1(41).

(2) The applicant for the order must deliver a sealed copy of it to—

(a)the proposer; and

(b)the supervisor (if different).

(3) If the directors are the proposer a single copy of the order may be delivered to the company at its registered office.

(4) If the order includes a direction by the court under section 6(4)(b) or (c) or under paragraph 38(4)(b) or (c) of Schedule A1 for a matter to be considered further, the applicant for the order must deliver a notice that the order has been made to the person who is directed to take such action.

(5) The proposer must—

(a)as soon as reasonably practicable deliver a notice that the order has been made to all of those persons to whom a notice to consider the matter was delivered or who appear to be affected by the order;

(b)within five business days of delivery of a copy of the order (or within such longer period as the court may allow), deliver (if applicable) a notice to the court advising that it is intended to make a revised proposal to the company and its creditors, or to invite re-consideration of the original proposal.

(6) The applicant for the order must deliver a copy of the order to the registrar of companies within five business days of the making of the order with a notice which must contain the date on which the voluntary arrangement took effect.

Supervisor’s accounts and reports

2.41.—(1) The supervisor must keep accounts and records where the CVA authorises or requires the supervisor—

(a)to carry on the business of the company;

(b)to realise assets of the company; or

(c)otherwise to administer or dispose of any of its funds.

(2) The accounts and records which must be kept are of the supervisor’s acts and dealings in, and in connection with, the CVA, including in particular records of all receipts and payments of money.

(3) The supervisor must preserve any such accounts and records which were kept by any other person who has acted as supervisor of the CVA and are in the supervisor’s possession.

(4) The supervisor must deliver reports on the progress and prospects for the full implementation of the CVA to—

(a)the registrar of companies;

(b)the company;

(c)the creditors bound by the CVA;

(d)subject to paragraph (10) below, the members; and

(e)if the company is not in liquidation, the company’s auditors (if any) for the time being.

(5) The notice which accompanies the report when delivered to the registrar of companies must contain the date on which the voluntary arrangement took effect.

(6) The first report must cover the period of 12 months commencing on the date on which the CVA was approved and a further report must be made for each subsequent period of 12 months.

(7) Each report must be delivered within the period of two months after the end of the 12 month period.

(8) Such a report is not required if the obligation to deliver a final report under rule 2.44(2) arises in the two month period.

(9) Where the supervisor is authorised or required to do any of the things mentioned in paragraph (1), the report must—

(a)include or be accompanied by a summary of receipts and payments required to be recorded by virtue of paragraph (2); or

(b)state that there have been no such receipts and payments.

(10) The court may, on application by the supervisor, dispense with the delivery of such reports or summaries to members, either altogether or on the basis that the availability of the report to members is to be advertised by the supervisor in a specified manner.

Production of accounts and records to the Secretary of State

2.42.—(1) The Secretary of State may during the CVA, or after its full implementation or termination, require the supervisor to produce for inspection (either at the premises of the supervisor or elsewhere)—

(a)the supervisor’s accounts and records in relation to the CVA; and

(b)copies of reports and summaries prepared in compliance with rule 2.41.

(2) The Secretary of State may require the supervisor’s accounts and records to be audited and, if so, the supervisor must provide such further information and assistance as the Secretary of State requires for the purposes of audit.

Fees and expenses

2.43.  The fees and expenses that may be incurred for the purposes of the CVA are—

(a)fees for the nominee’s services agreed with the company (or, as the case may be, the administrator or liquidator) and disbursements made by the nominee before the decision approving the CVA takes effect under section 4A or paragraph 36 of Schedule A1;

(b)fees or expenses which—

(i)are sanctioned by the terms of the CVA, or

(ii)where they are not sanctioned by the terms of the CVA would be payable, or correspond to those which would be payable, in an administration or winding up.

Termination or full implementation of CVA

2.44.—(1) Not more than 28 days after the full implementation or termination of the CVA the supervisor must deliver a notice that the CVA has been fully implemented or terminated to all the members and those creditors who are bound by the arrangement.

(2) The notice must state the date the CVA took effect and must be accompanied by a copy of a report by the supervisor which—

(a)summarises all receipts and payments in relation to the CVA;

(b)explains any departure from the terms of the CVA as it originally had effect;

(c)if the CVA has terminated, sets out the reasons why; and

(d)includes (if applicable) a statement as to the amount paid to any unsecured creditors by virtue of section 176A.

(3) The supervisor must within the 28 days mentioned above send to the registrar of companies and file with the court a copy of the notice to creditors and of the supervisor’s report.

(4) The supervisor must not vacate office until after the copies of the notice and report have been delivered to the registrar of companies and filed with the court.

CHAPTER 7Time recording information

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Provision of information

2.45.—(1) This rule applies where the remuneration of the nominee or the supervisor has been fixed on the basis of the time spent.

(2) A person who is acting, or has acted within the previous two years, as—

(a)a nominee in relation to a proposal; or

(b)the supervisor in relation to a CVA;

must, within 28 days of receipt of a request from a person mentioned in paragraph (3), deliver free of charge to that person a statement complying with paragraphs (4) and (5).

(3) The persons are—

(a)any director of the company; and

(b)where the proposal has been approved, any creditor or member.

(4) The statement must cover the period which—

(a)in the case of a person who has ceased to act as nominee or supervisor in relation to a company, begins with the date of appointment as nominee or supervisor and ends with the date of ceasing to act; and

(b)in any other case, consists of one or more complete periods of six months beginning with the date of appointment and ending most nearly before the date of receiving the request.

(5) The statement must set out—

(a)the total number of hours spent on the matter during that period by the nominee or supervisor, and any staff;

(b)for each grade of staff engaged on the matter, the average hourly rate at which work carried out by staff in that grade is charged; and

(c)the number of hours spent on the matter by each grade of staff during that period.

PART 3ADMINISTRATION

CHAPTER 1Interpretation for this Part

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Interpretation for Part 3

3.1.  In this Part—

“pre-administration costs” means fees charged, and expenses incurred by the administrator, or another person qualified to act as an insolvency practitioner in relation to the company, before the company entered administration but with a view to it doing so; and

“unpaid pre-administration costs” means pre-administration costs which had not been paid when the company entered administration.

Proposed administrator’s statement and consent to act

3.2.—(1) References in this Part to a consent to act are to a statement by a proposed administrator headed “Proposed administrator’s statement and consent to act” which contains the following—

(a)identification details for the company immediately below the heading;

(b)a certificate that the proposed administrator is qualified to act as an insolvency practitioner in relation to the company;

(c)the proposed administrator’s IP number;

(d)the name of the relevant recognised professional body which is the source of the proposed administrator’s authorisation to act in relation to the company;

(e)a statement that the proposed administrator consents to act as administrator of the company;

(f)a statement whether or not the proposed administrator has had any prior professional relationship with the company and if so a short summary of the relationship;

(g)the name of the person by whom the appointment is to be made or the applicant in the case of an application to the court for an appointment; and

(h)a statement that the proposed administrator is of the opinion that the purpose of administration is reasonably likely to be achieved in the particular case.

(2) The statement and consent to act must be authenticated and dated by the proposed administrator.

(3) Where a number of persons are proposed to be appointed to act jointly or concurrently as the administrator of a company, each must make a separate statement and consent to act.

CHAPTER 2Appointment of administrator by Court

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Administration application (paragraph 12 of Schedule B1)

3.3.—(1) An administration application in relation to a company must be headed “Administration application” and must identify the company immediately below the heading.

(2) The application must contain—

(a)the name of the applicant;

(b)a statement whether the application is being made by—

(i)the company under paragraph 12(1)(a) of Schedule B1,

(ii)the directors of the company under paragraph 12(1)(b) of Schedule B1,

(iii)a single creditor under paragraph 12(1)(c) of Schedule B1,

(iv)a creditor under paragraph 12(1)(c) of Schedule B1 on behalf of that creditor and others,

(v)the holder of a qualifying floating charge under paragraph 35 or 37 of Schedule B1 (specifying which),

(vi)the liquidator of the company under paragraph 38 of Schedule B1,

(vii)the supervisor of a CVA under section 7(4)(b), or

(viii)a designated officer of a magistrates’ court under section 87A of the Magistrates’ Courts Act 1980(42);

(c)if the application is made by a creditor on behalf of that creditor and others, the names of the others;

(d)if the application is made by the holder of a qualifying floating charge, details of the charge including the date of the charge, the date on which it was registered and the maximum amount if any secured by the charge;

(e)if the company is registered under the Companies Act—

(i)any issued and called-up capital, the number of shares into which the capital is divided, the nominal value of each share and the amount of capital paid up or treated as paid up; or

(ii)that it is a company limited by guarantee;

(f)particulars of the principal business carried on by the company;

(g)a statement whether the company is an Article 1.2 undertaking;

(h)a statement whether the proceedings flowing from the appointment will be main, secondary, territorial or non-EC proceedings and that the reasons for the statement are set out in the witness statement in support of the application made under rule 3.6;

(i)except where the applicant is the holder of a qualifying floating charge and is making the application under paragraph 35 of Schedule B1, a statement that the applicant believes, for the reasons set out in the witness statement in support of the application that the company is, or is likely to become, unable to pay its debts;

(j)the name and address of the proposed administrator;

(k)the address for service of the applicant;

(l)the statement that the applicant requests the court—

(i)to make an administration order in relation to the company,

(ii)to appoint the proposed person to be administrator, and

(iii)to make such ancillary order as the applicant may request, and such other order as the court thinks appropriate.

(3) The application must be authenticated by the applicant or the applicant’s solicitor and dated.

Administration application made by the directors

3.4.  After an application by the directors for an administration order is filed it is to be treated for all purposes as an application by the company.

Administration application by the supervisor of a CVA

3.5.  After an application by the supervisor of a CVA for an administration order in respect of the company has been served on the company as required by rule 3.8(3)(d) it is to be treated for all purposes as an application by the company.

Witness statement in support of administration application

3.6.—(1) If an administration application is to be made by—

(a)the company, a witness statement must be made by one of the following stating that the person making the statement does so on behalf of the company—

(i)one of the directors,

(ii)the secretary of the company, or

(iii)the supervisor of a CVA;

(b)the company’s directors, a witness statement must be made by one of the following stating that the person making it does so on behalf of the directors—

(i)one of the directors, or

(ii)the secretary of the company;

(c)a single creditor, a witness statement must be made by—

(i)that creditor, or

(ii)a person acting under that creditor’s authority;

(d)two or more creditors, a witness statement must be made by a person acting under the authority of them all, whether or not one of their number.

(2) In a case falling within paragraph (1)(c)(ii) or (d), the witness statement must state the nature of the authority of the person making it and the means of that person’s knowledge of the matters to which the witness statement relates.

(3) The witness statement must contain—

(a)a statement of the company’s financial position, specifying (to the best of the applicant’s knowledge and belief) the company’s assets and liabilities, including contingent and prospective liabilities;

(b)details of any security known or believed to be held by creditors of the company, and whether in any case the security is such as to confer power on the holder to appoint an administrative receiver or to appoint an administrator under paragraph 14 of Schedule B1;

(c)a statement that an administrative receiver has been appointed if that is the case;

(d)details of any insolvency proceedings in relation to the company, including any petition that has been presented for the winding up of the company so far as known to the applicant;

(e)where it is intended to appoint a number of persons as administrators, a statement of the matters relating to the exercise of their functions set out in paragraph 100(2) of Schedule B1;

(f)the reasons for the statement that the proceedings will be main, secondary, territorial or non-EC proceedings; and

(g)any other matters which, in the applicant’s opinion, will assist the court in deciding whether to make such an order.

(4) Where the application is made by the holder of a qualifying floating charge under paragraph 35 or 37 of Schedule B1, the witness statement must give sufficient details to satisfy the court that the applicant is entitled to appoint an administrator under paragraph 14 of Schedule B1.

(5) Where the application is made under paragraph 37 or 38 of Schedule B1 in relation to a company in liquidation, the witness statement must also contain—

(a)details of the existing insolvency proceedings, the name and address of the liquidator, the date the liquidator was appointed and by whom;

(b)the reasons why it has subsequently been considered appropriate that an administration application should be made; and

(c)any other matters that would, in the applicant’s opinion, assist the court in deciding whether to make provision in relation to matters arising in connection with the liquidation.

Filing of application

3.7.—(1) The application must be filed with the court together with the witness statement in support and the proposed administrator’s consent to act.

(2) The court must fix a venue for the hearing of the application.

(3) There must also be filed, at the same time as the application or at any time after that, a sufficient number of copies of the application and the statement for service in accordance with rule 3.8.

(4) Each of the copies filed must—

(a)have applied to it the seal of the court;

(b)be endorsed with—

(i)the date and time of filing, and

(ii)the venue fixed by the court; and

(c)be delivered by the court to the applicant.

Service of application

3.8.—(1) In this rule, references to the application are to a copy of the application and witness statement delivered by the court under rule 3.7(4)(c).

(2) Notification for the purposes of paragraph 12(2) of Schedule B1 must be by service of the application.

(3) The applicant must serve the application on the following (in addition to serving it on the persons referred to in paragraph 12(2)(a) to (c) of Schedule B1)—

(a)any administrative receiver of the company;

(b)if there is a petition pending for the winding up of the company on—

(i)the petitioner, and

(ii)any provisional liquidator;

(c)any member State liquidator appointed in main proceedings in relation to the company;

(d)the company, if the application is made by anyone other than the company or its directors;

(e)any supervisor of a CVA in relation to the company; and

(f)the proposed administrator.

(4) The certificate of service must be filed with the court as soon as reasonably practicable after service and in any event not later than the business day before the hearing of the application.

Notice to enforcement agents charged with distress or other legal process, etc.

3.9.  The applicant must as soon as reasonably practicable after filing the application deliver a notice of its being made to—

(a)any enforcement agent or other officer who to the knowledge of the applicant is charged with distress or other legal process against the company or its property; and

(b)any person who to the knowledge of the applicant has distrained against the company or its property.

Notice of other insolvency proceedings

3.10.  After the application has been filed and until an order is made, it is the duty of the applicant to file with the court notice of the existence of any insolvency proceedings in relation to the company, as soon as the applicant becomes aware of them—

(a)anywhere in the world, in the case of a company registered under the Companies Act in England and Wales;

(b)in any EEA State (including the United Kingdom), in the case of a company incorporated in an EEA State other than the United Kingdom; or

(c)in any member State other than Denmark, in the case of a company not incorporated in an EEA State.

Intervention by holder of qualifying floating charge (paragraph 36(1)(b) of Schedule B1)

3.11.—(1) Where the holder of a qualifying floating charge applies to the court under paragraph 36(1)(b) of Schedule B1 to have a specified person appointed as administrator, the holder must produce to the court—

(a)the written consent of the holder of any prior qualifying floating charge;

(b)the proposed administrator’s consent to act; and

(c)sufficient evidence to satisfy the court that the holder is entitled to appoint an administrator under paragraph 14 of Schedule B1.

(2) If an administration order is made appointing the specified person, the costs of the person who made the administration application and of the applicant under paragraph 36(1)(b) of Schedule B1 are, unless the court orders otherwise, to be paid as an expense of the administration.

The hearing

3.12.—(1) At the hearing of the administration application, any of the following may appear or be represented—

(a)the applicant;

(b)the company;

(c)one or more of the directors;

(d)any administrative receiver;

(e)any person who has presented a petition for the winding up of the company;

(f)the proposed administrator;

(g)any member State liquidator appointed in main proceedings in relation to the company;

(h)the holder of any qualifying floating charge;

(i)any supervisor of a CVA;

(j)with the permission of the court, any other person who appears to have an interest which justifies appearance.

(2) If the court makes an administration order, the costs of the applicant, and of any other person whose costs are allowed by the court, are payable as an expense of the administration.

The order

3.13.—(1) Where the court makes an administration order the court’s order must be headed “Administration order” and must contain the following—

(a)identification details for the proceedings;

(b)the name and title of the judge making the order;

(c)the address for service of the applicant;

(d)details of any other parties (including the company) appearing and by whom represented;

(e)an order that during the period the order is in force the affairs, business and property of the company is to be managed by the administrator;

(f)the name of the person appointed as administrator;

(g)an order that that person is appointed as administrator of the company;

(h)a statement that the court is satisfied either that the EC Regulation does not apply or that it does;

(i)where the EC Regulation does apply, a statement whether the proceedings are main, secondary or territorial proceedings;

(j)the date of the order (and if the court so orders the time); and

(k)such other provisions if any as the court thinks just.

(2) Where two or more administrators are appointed the order must also specify (as required by paragraph 100(2) of Schedule B1)—

(a)which functions (if any) are to be exercised by those persons acting jointly; and

(b)which functions (if any) are to be exercised by any or all of those persons.

Order on an application under paragraph 37 or 38 of Schedule B1

3.14.  Where the court makes an administration order in relation to a company on an application under paragraph 37 or 38 of Schedule B1, the court must also include in the order—

(a)in the case of a liquidator appointed in a voluntary winding up, the removal of that liquidator from office;

(b)provision for payment of the expenses of the winding up;

(c)such provision as the court thinks just relating to—

(i)any indemnity given to the liquidator,

(ii)the release of the liquidator,

(iii)the handling or realisation of any of the company’s assets in the hands of or under the control of the liquidator, and

(iv)other matters arising in connection with the winding up; and

(d)such other provisions if any as the court thinks just.

Notice of administration order

3.15.—(1) If the court makes an administration order, it must as soon as reasonably practicable deliver two sealed copies of the order to the applicant.

(2) The applicant must as soon as reasonably practicable deliver a sealed copy of the order to the person appointed as administrator.

(3) If the court makes an order under sub-paragraph (d) or (f) of paragraph 13(1) of Schedule B1, it must give directions as to the persons to whom, and how, notice of that order is to be delivered.

CHAPTER 3Appointment of administrator by holder of floating charge

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Notice of intention to appoint

3.16.—(1) This rule applies where the holder of a qualifying floating charge (“the appointer”) gives a notice under paragraph 15(1)(a) of Schedule B1 of intention to appoint an administrator under paragraph 14 and files a copy of the notice with the court under paragraph 44(2).

(2) The notice filed with the court must be headed “Notice of intention to appoint an administrator by holder of qualifying floating charge” and must contain the following—

(a)identification details for the proceedings;

(b)the name and address of the appointer;

(c)a statement that the appointer intends to appoint an administrator of the company;

(d)the name and address of the proposed administrator;

(e)a statement that the appointer is the holder of the qualifying floating charge in question and that it is now enforceable;

(f)details of the charge, the date upon which it was registered and the maximum amount if any secured by the charge;

(g)a statement that the notice is being given in accordance with paragraph 15(1)(a) of Schedule B1 to the holder of every prior floating charge which satisfies paragraph 14(2) of that Schedule;

(h)the names and addresses of the holders of such prior floating charges and details of the charges;

(i)a statement whether the company is or is not subject to insolvency proceedings at the date of the notice, and details of the proceedings if it is;

(j)a statement whether the company is an Article 1.2 undertaking; and

(k)a statement whether the proceedings flowing from the appointment will be main, secondary, territorial or non-EC proceedings with reasons for the statement.

(3) The notice must be authenticated by the appointer or the appointer’s solicitor and dated.

(4) The filing of the copy with the court under paragraph 44(2) of Schedule B1 must be done at the same time as notice is given in accordance with paragraph 15(1)(a).

(5) The giving of notice under paragraph 15(1)(a) must be by service of the notice.

Notice of appointment

3.17.—(1) Notice of an appointment under paragraph 14 of Schedule B1 must be headed “Notice of appointment of an administrator by holder of a qualifying floating charge” and must contain—

(a)identification details for the proceedings;

(b)the name and address of the appointer;

(c)a statement that the appointer has appointed the person named as administrator of the company;

(d)the name and address of the person appointed as administrator;

(e)a statement that a copy of the administrator’s consent to act accompanies the notice;

(f)a statement that the appointer is the holder of the qualifying floating charge in question and that it is now enforceable;

(g)details of the charge including the date of the charge, the date on which it was registered and the maximum amount if any secured by the charge;

(h)one of the following statements—

(i)that notice has been given in accordance with paragraph 15(1)(a) of Schedule B1 to the holder of every prior floating charge which satisfies paragraph 14(2) of that Schedule, that two business days have elapsed from the date the last such notice was given (if more than one) and—

(aa)that a copy of every such notice was filed with the court under paragraph 44(2) of Schedule B1, and the date of that filing (or the latest date of filing if more than one), or

(bb)that a copy of every such notice accompanies the notice of appointment but was not filed with the court under paragraph 44(2) of Schedule B1,

(ii)that the holder of every such floating charge to whom notice was given has consented in writing to the making of the appointment and that a copy of every consent accompanies the notice of appointment,

(iii)that the holder of every such floating charge has consented in writing to the making of the appointment without notice having been given to all and that a copy of every consent accompanies the notice of appointment, or

(iv)that there is no such floating charge;

(i)a statement whether the company is or is not subject to insolvency proceedings at the date of the notice, and details of the proceedings if it is;

(j)a statement whether the company is an Article 1.2 undertaking;

(k)a statement whether the proceedings flowing from the appointment will be main, secondary, territorial or non-EC proceedings and the reasons for so stating; and

(l)a statement that the appointment is in accordance with Schedule B1.

(2) Where two or more administrators are appointed the notice must also specify (as required by paragraph 100(2) of Schedule B1)—

(a)which functions (if any) are to be exercised by those persons acting jointly; and

(b)which functions (if any) are to be exercised by any or all of those persons.

(3) The statutory declaration included in the notice in accordance with paragraph 18(2) of Schedule B1 must be made not more than five business days before the notice is filed with the court.

Filing of notice with the court

3.18.—(1) Three copies of the notice of appointment must be filed with the court, accompanied by—

(a)the administrator’s consent to act; and

(b)either—

(i)evidence that the appointer has given notice as required by paragraph 15(1)(a) of Schedule B1; or

(ii)copies of the written consent of all those required to give consent in accordance with paragraph 15(1)(b) of Schedule B1.

(2) The court must apply the seal of the court to the copies of the notice, endorse them with the date and time of filing and deliver two of the sealed copies to the appointer.

(3) The appointer must as soon as reasonably practicable deliver one of the sealed copies to the administrator.

(4) This rule is subject to rules 3.20 and 3.21 (appointment made out of court business hours).

Appointment by floating charge holder after administration application made

3.19.—(1) This rule applies where the holder of a qualifying floating charge, after receiving notice that an administration application has been made, appoints an administrator under paragraph 14 of Schedule B1.

(2) The holder must as soon as reasonably practicable deliver a copy of the notice of appointment to—

(a)the person making the administration application; and

(b)the court in which the application has been made.

Appointment taking place out of court business hours: procedure

3.20.—(1) When (but only when) the court is closed, the holder of a qualifying floating charge may file a notice of appointment with the court by—

(a)faxing it to a designated telephone number; or

(b)emailing it, or attaching it to an email, to a designated email address.

(2) The notice must specify the name of the court (and hearing centre if applicable) that has jurisdiction.

(3) The Lord Chancellor must designate the telephone number and email address.

(4) The Secretary of State must publish the designated telephone number and email address on the Insolvency Service webpages and deliver notice of them to any person requesting them from the Insolvency Service.

(5) The appointer must ensure that—

(a)a fax transmission report giving the time and date of the fax transmission and the telephone number to which the notice was faxed and containing a copy of the first page (in part or in full) of the document faxed is created by the fax machine that is used to fax the notice; or

(b)a hard copy of the email is created giving the time and date of the email and the address to which it was sent.

(6) The appointer must retain the fax transmission report or hard copy of the email.

(7) The appointer must deliver a notice to the administrator of the filing of the notice of appointment as soon as reasonably practicable.

(8) The copy of the faxed or emailed notice of appointment as received by the Courts Service must be delivered by the Lord Chancellor as soon as reasonably practicable to the court specified in the notice as the court having jurisdiction in the case, to be placed on the relevant court file.

(9) The appointer must take to the court on the next occasion that the court is open for business—

(a)three copies of the faxed or emailed notice of appointment;

(b)the fax transmission report or hard copy required by paragraph (5);

(c)all supporting documents referred to in the notice in accordance with rule 3.21(1) which are in the appointer’s possession; and

(d)a statement providing reasons for the out-of-hours filing of the notice of appointment, including why it would have been damaging to the company or its creditors not to have so acted.

(10) The copies of the notice must be sealed by the court and endorsed with—

(a)the date and time when, according to the appointer’s fax transmission report or hard copy of the email, the notice was faxed or sent; and

(b)the date when the notice and accompanying documents were delivered to the court.

(11) The court must deliver two of the sealed copies of the notice of appointment to the appointer.

(12) The appointer must, as soon as reasonably practicable, deliver one of the copies to the administrator.

(13) The reference—

(a)to the Insolvency Service in paragraph (4) means the Secretary of State acting by means of the Insolvency Service; and

(b)to the Courts Service in paragraph (8) means the Lord Chancellor acting by means of Her Majesty’s Courts and Tribunals Service.

Appointment taking place out of court business hours: content of notice

3.21.—(1) Notice of an appointment filed in accordance with rule 3.20 must be headed “Notice of appointment of an administrator by holder of a qualifying floating charge”, identify the company immediately below the heading and must contain—

(a)the name and address of the appointer;

(b)a statement that the appointer has appointed the person named as administrator of the company;

(c)the name and address of the person appointed as administrator;

(d)a statement that the appointer is the holder of the qualifying floating charge in question and that it is now enforceable;

(e)details of the charge, the date upon which it was registered and the maximum amount secured by the charge;

(f)one of the following statements—

(i)that notice has been given in accordance with paragraph 15(1)(a) of Schedule B1 to the holder of every prior floating charge which satisfies paragraph 14(2) of that Schedule, that a copy of every such notice was filed with the court under paragraph 44(2) of that Schedule, the date of that filing (or the latest date of filing if more than one) and that two business days have elapsed from that date,

(ii)that notice has been given in accordance with paragraph 15(1)(a) of Schedule B1 to the holder of every prior floating charge which satisfies paragraph 14(2) of that Schedule and that a copy of every such notice is in the appointer’s possession but was not filed with the court under paragraph 44(2) of that Schedule,

(iii)that the holder of every such floating charge to whom notice was given has consented to the making of the appointment and that a copy of every consent is in the appointer’s possession,

(iv)that the holder of every such floating charge has consented to the making of the appointment without notice having been given to all and that a copy of every consent is in the appointer’s possession, or

(v)that there is no such floating charge;

(g)a statement whether the company is or is not subject to insolvency proceedings at the date of the notice, and details of the proceedings if it is;

(h)a statement whether the company is an Article 1.2 undertaking and that a statement of the reasons for stating this is in the appointer’s possession;

(i)a statement whether the proceedings flowing from the appointment will be main, secondary, territorial or non-EC proceedings;

(j)an undertaking that the following will be delivered to the court on the next occasion on which the court is open—

(i)any document referred to in the notice in accordance with rule 3.20 as being in the appointer’s possession,

(ii)the fax transmission report or hard copy of the email, and

(iii)the statement of reasons for out-of-hours filing;

(k)a statement that the proposed administrator consents to act; and

(l)a statement that the appointment is in accordance with Schedule B1.

(2) Where two or more administrators are appointed the notice must also specify (as required by paragraph 100(2) of Schedule B1)—

(a)which functions (if any) are to be exercised by those persons acting jointly; and

(b)which functions (if any) are to be exercised by any or all of those persons.

(3) The statutory declaration included in the notice in accordance with paragraph 18(2) of Schedule B1 must be made not more than five business days before the notice is filed with the court.

Appointment taking place out of court business hours: legal effect

3.22.—(1) The filing of a notice in accordance with rule 3.20 has the same effect for all purposes as the filing of a notice of appointment in accordance with rule 3.18.

(2) The appointment—

(a)takes effect from the date and time of the fax transmission or sending of the email; but

(b)ceases to have effect if the requirements of rule 3.20(9) are not completed on the next occasion the court is open for business.

(3) Where any question arises in relation to the date and time that the notice of appointment was filed with the court, it is a presumption capable of rebuttal that the date and time shown on the appointer’s fax transmission report or hard copy of the email is the date and time at which the notice was filed.

CHAPTER 4Appointment of administrator by company or directors

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Notice of intention to appoint

3.23.—(1) If paragraph 26 of Schedule B1 requires a notice of intention to appoint an administrator under paragraph 22 of that Schedule then the notice must be headed “Notice of intention to appoint an administrator by company or directors” and must contain the following—

(a)identification details for the proceedings;

(b)a statement that the company or the directors, as the case may be, intend to appoint an administrator of the company;

(c)the name and address of the proposed administrator;

(d)the names and addresses of the persons to whom notice is being given in accordance with paragraph 26(1) of Schedule B1;

(e)a statement that each of those persons is or may be entitled to appoint—

(i)an administrative receiver of the company, or

(ii)an administrator of the company under paragraph 14 of Schedule B1;

(f)a statement that the company has not within the preceding 12 months been—

(i)in administration;

(ii)the subject of a moratorium under Schedule A1(43) which ended on a date when no CVA was in force; or

(iii)the subject of a CVA which was made during a moratorium under Schedule A1 and which ended prematurely within the meaning of section 7B;

(g)a statement that in relation to the company there is no—

(i)petition for winding up which has been presented but not yet disposed of,

(ii)administration application which has not yet been disposed of, or

(iii)administrative receiver in office;

(h)a statement whether the company is an Article 1.2 undertaking;

(i)a statement whether the proceedings flowing from the appointment will be main, secondary, territorial or non-EC proceedings and the reasons for so stating;

(j)a statement that the notice is accompanied (as appropriate) by either—

(i)a copy of the resolution of the company to appoint an administrator, or

(ii)a record of the decision of the directors to appoint an administrator; and

(k)a statement that if a recipient of the notice who is named in paragraph (e) wishes to consent in writing to the appointment that person may do so but that after five business days have expired from delivery of the notice the appointer may make the appointment although such a recipient has not replied.

(2) The notice must be accompanied by—

(a)a copy of the resolution of the company to appoint an administrator, where the company intends to make the appointment, or

(b)a record of the decision of the directors, where the directors intend to make the appointment.

(3) The giving of notice under paragraph 26(1) of Schedule B1 must be by service of the notice.

(4) If notice of intention to appoint is given under paragraph 26(1) of Schedule B1, a copy of the notice under paragraph 26(2)(44) must be delivered at the same time to—

(a)any enforcement agent or other officer who, to the knowledge of the person giving the notice, is charged with distress or other legal process against the company;

(b)any person who, to the knowledge of the person giving the notice, has distrained against the company or its property;

(c)any supervisor of a CVA; and

(d)the company, if the company is not intending to make the appointment.

(5) The giving of notice under paragraph 26(2) of Schedule B1 must be by service of the notice.

(6) The statutory declaration accompanying the notice in accordance with paragraph 27(2) of Schedule B1 must—

(a)if it is not made by the person making the appointment, indicate the capacity in which the person making the declaration does so; and

(b)be made not more than five business days before the notice is filed with the court.

Notice of appointment after notice of intention to appoint

3.24.—(1) Notice of an appointment under paragraph 22 of Schedule B1 (when notice of intention to appoint has been given under paragraph 26) must be headed “Notice of appointment of an administrator by a company (where a notice of intention to appoint has been given)” or “Notice of appointment of an administrator by the directors of a company (where a notice of intention to appoint has been given)” and must contain—

(a)identification details for the company immediately below the heading;

(b)a statement that the company has, or the directors have, as the case may be, appointed the person named as administrator of the company;

(c)the name and address of the person appointed as administrator;

(d)a statement that a copy of the administrator’s consent to act accompanies the notice;

(e)a statement that the company is, or the directors are, as the case may be, entitled to make an appointment under paragraph 22 of Schedule B1;

(f)a statement that the appointment is in accordance with Schedule B1;

(g)a statement whether the company is an Article 1.2 undertaking;

(h)a statement whether the proceedings flowing from the appointment will be main, secondary, territorial or non-EC proceedings and the reasons for so stating;

(i)a statement that the company has, or the directors have, as the case may be, given notice of their intention to appoint in accordance with paragraph 26(1) of Schedule B1, that a copy of the notice was filed with the court, the date of that filing and either—

(i)that five business days have elapsed from that date, or

(ii)that each person to whom the notice was given has consented to the appointment; and

(j)the date and time of the appointment.

(2) Where two or more administrators are appointed the notice must also specify (as required by paragraph 100(2) of Schedule B1)—

(a)which functions (if any) are to be exercised by those persons acting jointly; and

(b)which functions (if any) are to be exercised by any or all of those persons.

(3) The statutory declaration included in the notice in accordance with paragraph 29(2) of Schedule B1 must be made not more than five business days before the notice is filed with the court.

(4) If the statutory declaration is not made by the person making the appointment it must indicate the capacity in which the person making the declaration does so.

Notice of appointment without prior notice of intention to appoint

3.25.—(1) Notice of an appointment under paragraph 22 of Schedule B1 (when notice of intention to appoint has not been given under paragraph 26) must be headed “Notice of appointment of an administrator by a company (where a notice of intention to appoint has not been given)” or “Notice of appointment of an administrator by the directors of a company (where a notice of intention to appoint has not been given)” and must identify the company immediately below the heading.

(2) The notice must state the following—

(a)that the company has, or the directors have, as the case may be, appointed the person specified under sub-paragraph (b) as administrator of the company;

(b)the name and address of the person appointed as administrator;

(c)that a copy of the administrator’s consent to act accompanies the notice;

(d)that the company is or the directors are, as the case may be, entitled to make an appointment under paragraph 22 of Schedule B1;

(e)that the appointment is in accordance with Schedule B1;

(f)that the company has not within the preceding 12 months been—

(i)in administration,

(ii)the subject of a moratorium under Schedule A1 which ended on a date when no CVA was in force, or

(iii)the subject of a CVA which was made during a moratorium under Schedule A1 and which ended prematurely within the meaning of section 7B;

(g)that in relation to the company there is no—

(i)petition for winding up which has been presented but not yet disposed of,

(ii)administration application which has not yet been disposed of, or

(iii)administrative receiver in office;

(h)whether the company is an Article 1.2 undertaking;

(i)whether the proceedings flowing from the appointment will be main, secondary, territorial or non-EC proceedings and the reasons for so stating;

(j)that the notice is accompanied by—

(i)a copy of the resolution of the company to appoint an administrator, or

(ii)a record of the decision of the directors to appoint an administrator; and

(k)the date and time of the appointment.

(3) Where two or more administrators are appointed the notice must also specify (as required by paragraph 100(2) of Schedule B1)—

(a)which functions (if any) are to be exercised by those persons acting jointly; and

(b)which functions (if any) are to be exercised by any or all of those persons.

(4) The statutory declaration included in the notice in accordance with paragraphs 29(2) and 30 of Schedule B1 must—

(a)if the declaration is made on behalf of the person making the appointment, indicate the capacity in which the person making the declaration does so; and

(b)be made not more than five business days before the notice is filed with the court.

Notice of appointment: filing with the court

3.26.—(1) Three copies of the notice of appointment must be filed with the court, accompanied by—

(a)the administrator’s consent to act; and

(b)the written consent of all those persons to whom notice was given in accordance with paragraph 26(1) of Schedule B1 unless the period of notice set out in paragraph 26(1) has expired.

(2) Where a notice of intention to appoint an administrator has not been given, the copies of the notice of appointment must also be accompanied by—

(a)a copy of the resolution of the company to appoint an administrator, where the company is making the appointment; or

(b)a record of the decision of the directors, where the directors are making the appointment.

(3) The court must apply to the copies the seal of the court, endorse them with the date and time of filing and deliver two of the sealed copies to the appointer.

(4) The appointer must as soon as reasonably practicable deliver one of the sealed copies to the administrator.

CHAPTER 5Notice of administrator’s appointment

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Publication of administrator’s appointment

3.27.—(1) The notice of appointment, to be published by the administrator as soon as reasonably practicable after appointment under paragraph 46(2)(b) of Schedule B1, must be gazetted and may be advertised in such other manner as the administrator thinks fit.

(2) The notice of appointment must state the following—

(a)that an administrator has been appointed;

(b)the date of the appointment; and

(c)the nature of the business of the company.

(3) The administrator must, as soon as reasonably practicable after the date specified in paragraph 46(6) of Schedule B1, deliver a notice of the appointment—

(a)if a receiver or an administrative receiver has been appointed, to that person;

(b)if there is pending a petition for the winding up of the company, to the petitioner (and also to the provisional liquidator, if any);

(c)to any enforcement officer, enforcement agent or other officer who, to the administrator’s knowledge, is charged with distress or other legal process against the company or its property;

(d)to any person who, to the administrator’s knowledge, has distrained against the company or its property; and

(e)any supervisor of a CVA.

(4) Where, under Schedule B1 or these Rules, the administrator is required to deliver a notice of the appointment to the registrar of companies or any other person, it must be headed “Notice of administrator’s appointment” and must contain—

(a)the administrator’s name and address and IP number;

(b)identification details for the proceedings; and

(c)a statement that the administrator has been appointed as administrator of the company;

(5) The notice must be authenticated and dated by the administrator.

CHAPTER 6Statement of affairs

[Note: (1) “relevant person” in this Chapter is defined in paragraph 47(3) of Schedule B1;

Note a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Interpretation

3.28.  In this Chapter—

“nominated person” means a relevant person who has been required by the administrator to make out and deliver to the administrator a statement of affairs; and

“relevant person” means a person mentioned in paragraph 47(3) of Schedule B1.

Statement of affairs: notice requiring and delivery to the administrator (paragraph 47(1) of Schedule B1)

[Note: see section 234(1) and 235(1) for the application of section 235 to administrators.]

3.29.—(1) A requirement under paragraph 47(1) of Schedule B1 for one or more relevant persons to provide the administrator with a statement of the affairs of the company must be made by a notice delivered to each such person.

(2) The notice must be headed “Notice requiring statement of affairs” and must—

(a)require each nominated person to whom the notice is delivered to prepare and submit to the administrator a statement of the affairs of the company;

(b)inform each nominated person of—

(i)the names and addresses of all others (if any) to whom the same notice has been delivered,

(ii)the date by which the statement must be delivered to the administrator, and

(iii)the effect of paragraph 48(4) of Schedule B1 (penalty for non-compliance) and section 235 (duty to co-operate with the office-holder).

(3) The administrator must inform each nominated person to whom notice is delivered that a document for the preparation of the statement of affairs capable of completion in compliance with rule 3.30 will be supplied if requested.

(4) The nominated person (or one of them, if more than one) must deliver the statement of affairs to the administrator with the statement of truth required by paragraph 47(2)(a) of Schedule B1 and a copy of each statement.

Statement of affairs: content (paragraph 47 of Schedule B1)

[Note: paragraph 47(2)(a) of Schedule B1 requires the statement of affairs to be verified by a statement of truth.]

3.30.—(1) The statement of the company’s affairs must be headed “Statement of affairs” and must—

(a)identify the company immediately below the heading; and

(b)state that it is a statement of the affairs of the company on a specified date, being the date on which it entered administration.

(2) The statement of affairs must contain (in addition to the matters required by paragraph 47(2) of Schedule B1)—

(a)a summary of the assets of the company, setting out the book value and the estimated realisable value of—

(i)any assets subject to a fixed charge,

(ii)any assets subject to a floating charge,

(iii)any uncharged assets, and

(iv)the total value of all the assets available for preferential creditors;

(b)a summary of the liabilities of the company, setting out—

(i)the amount of preferential debts,

(ii)an estimate of the deficiency with respect to preferential debts or the surplus available after paying the preferential debts,

(iii)an estimate of the prescribed part, if applicable,

(iv)an estimate of the total assets available to pay debts secured by floating charges,

(v)the amount of debts secured by floating charges,

(vi)an estimate of the deficiency with respect to debts secured by floating charges or the surplus available after paying the debts secured by fixed or floating charges,

(vii)the amount of unsecured debts (excluding preferential debts),

(viii)an estimate of the deficiency with respect to unsecured debts or the surplus available after paying unsecured debts,

(ix)any issued and called-up capital, and

(x)an estimate of the deficiency with respect to, or surplus available to, members of the company;

(c)a list of the company’s creditors with the further particulars required by paragraph (3) indicating—

(i)any creditors under hire-purchase, chattel leasing or conditional sales agreements, and

(ii)any creditors claiming retention of title over property in the company’s possession; and

(d)the name and address of each member of the company and the number, nominal value and other details of the shares held by each member.

(3) The list of creditors required by paragraph 47(2) of Schedule B1 and paragraph (2)(c) of this rule must contain the details required by paragraph (4) except where paragraphs (5) and (6) apply.

(4) The particulars required by paragraph (3) are as follows—

(a)the name and postal address of the creditor;

(b)the amount of the debt owed to the creditor;

(c)details of any security held by the creditor;

(d)the date on which the security was given; and

(e)the value of any such security.

(5) Paragraph (6) applies where the particulars required by paragraph (4) relate to creditors who are either—

(a)employees or former employees of the company; or

(b)consumers claiming amounts paid in advance for the supply of goods or services.

(6) Where this paragraph applies—

(a)the statement of affairs itself must state separately for each of paragraph (5)(a) and (b) the number of such creditors and the total of the debts owed to them; and

(b)the particulars required by paragraph (4) must be set out in separate schedules to the statement of affairs for each of paragraphs (5)(a) and (b).

Statement of affairs: statement of concurrence

3.31.—(1) The administrator may require a relevant person to deliver to the administrator a statement of concurrence.

(2) A statement of concurrence is a statement, verified by a statement of truth, that that person concurs in the statement of affairs submitted by a nominated person.

(3) The administrator must inform the nominated person who has been required to submit a statement of affairs that the relevant person has been required to deliver a statement of concurrence.

(4) The nominated person must deliver a copy of the statement of affairs to every relevant person who has been required to submit a statement of concurrence.

(5) A statement of concurrence—

(a)must identify the company; and

(b)may be qualified in relation to matters dealt with in the statement of affairs where the relevant person—

(i)is not in agreement with the statement of affairs,

(ii)considers the statement of affairs to be erroneous or misleading, or

(iii)is without the direct knowledge necessary for concurring with it.

(6) The relevant person must deliver the required statement of concurrence together with a copy to the administrator before the end of the period of five business days (or such other period as the administrator may agree) beginning with the day on which the relevant person receives the statement of affairs.

Statement of affairs: filing

3.32.—(1) The administrator must as soon as reasonably practicable deliver to the registrar of companies a copy of—

(a)the statement of affairs; and

(b)any statement of concurrence.

(2) However, the administrator must not deliver to the registrar of companies with the statement of affairs any schedule required by rule 3.30(6)(b).

(3) The requirement to deliver the statement of affairs is subject to any order of the court made under rule 3.45 that the statement of affairs or a specified part must not be delivered to the registrar of companies.

Statement of affairs: release from requirement and extension of time

3.33.—(1) The power of the administrator under paragraph 48(2) of Schedule B1 to revoke a requirement to provide a statement of affairs or to extend the period within which it must be submitted may be exercised upon the administrator’s own initiative or at the request of a nominated person who has been required to provide it.

(2) The nominated person may apply to the court if the administrator refuses that person’s request for a revocation or extension.

(3) On receipt of an application, the court may, if it is satisfied that no sufficient cause is shown for it, dismiss it without giving notice to any party other than the applicant.

(4) Unless the application is dismissed, the court must fix a venue for it to be heard.

(5) The applicant must, at least 14 days before any hearing, deliver to the administrator a notice stating the venue with a copy of the application and of any evidence on which the applicant intends to rely.

(6) The administrator may do either or both of the following—

(a)file a report of any matters which the administrator thinks ought to be drawn to the court’s attention; or

(b)appear and be heard on the application.

(7) If a report is filed, the administrator must deliver a copy of it to the applicant not later than five business days before the hearing.

(8) Sealed copies of any order made on the application must be delivered by the court to the applicant and the administrator.

(9) On an application under this rule, the applicant’s costs must be paid by the applicant in any event, but the court may order that an allowance of all or part of them be payable as an expense of the administration.

Statement of affairs: expenses

3.34.—(1) The expenses of a nominated person which the administrator considers to have been reasonably incurred in making a statement of affairs or of a relevant person in making a statement of concurrence must be paid by the administrator as an expense of the administration.

(2) A decision by the administrator that expenses were not reasonably incurred (and are therefore not payable as an expense of the administration) may be appealed to the court.

CHAPTER 7Administrator’s proposals

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Administrator’s proposals: additional content

3.35.—(1) The administrator’s statement of proposals made under paragraph 49 of Schedule B1(45) (which is required by paragraph 49(4) to be delivered to the registrar of companies, creditors and members) must identify the proceedings and, in addition to the matters set out in paragraph 49, contain—

(a)any other trading names of the company;

(b)details of the administrator’s appointment, including—

(i)the date of appointment,

(ii)the person making the application or appointment, and

(iii)where a number of persons have been appointed as administrators, details of the matters set out in paragraph 100(2) of Schedule B1 relating to the exercise of their functions;

(c)the names of the directors and secretary of the company and details of any shareholdings in the company which they may have;

(d)an account of the circumstances giving rise to the appointment of the administrator;

(e)the date the proposals are delivered to the creditors;

(f)if a statement of the company’s affairs has been submitted—

(i)a copy or summary of it, except so far as an order under rule 3.45 or 3.46 limits disclosure of it, and excluding any schedule referred to in rule 3.30(6)(b), or the particulars relating to individual creditors contained in any such schedule,

(ii)details of who provided the statement of affairs, and

(iii)any comments which the administrator may have upon the statement of affairs;

(g)if an order under rule 3.45 or 3.46 has been made—

(i)a statement of that fact, and

(ii)the date of the order;

(h)if no statement of affairs has been submitted—

(i)details of the financial position of the company at the latest practicable date (which must, unless the court orders otherwise, be a date not earlier than that on which the company entered administration), and

(ii)an explanation as to why there is no statement of affairs;

(i)a full list of the company’s creditors in accordance with paragraph (2) if either—

(i)no statement of affairs has been submitted, or

(ii)a statement of affairs has been submitted but it does not include such a list, or the administrator believes the list included is less than full;

(j)a statement of—

(i)how it is envisaged the purpose of the administration will be achieved, and

(ii)how it is proposed that the administration will end, including, where it is proposed that the administration will end by the company moving to a creditors’ voluntary winding up—

(aa)details of the proposed liquidator,

(bb)where applicable, the declaration required by section 231, and

(cc)a statement that the creditors may, before the proposals are approved, nominate a different person as liquidator in accordance with paragraph 83(7)(a) of Schedule B1 and rule 3.60(6)(b);

(k)a statement of either—

(i)the method by which the administrator has decided to seek a decision from creditors as to whether they approve the proposals, or

(ii)the administrator’s reasons for not seeking a decision from creditors;

(l)the manner in which the affairs and business of the company—

(i)have, since the date of the administrator’s appointment, been managed and financed, including, where any assets have been disposed of, the reasons for the disposals and the terms upon which the disposals were made, and

(ii)will, if the administrator’s proposals are approved, continue to be managed and financed;

(m)a statement whether the proceedings are main, secondary, territorial or non-EC proceedings; and

(n)any other information that the administrator thinks necessary to enable creditors to decide whether or not to approve the proposals.

(2) The list of creditors required by paragraph (1)(i) must contain the details required by sub-paragraph (3) except where paragraphs (4) and (5) apply;

(3) The particulars required by paragraph (2) are as follows and must be given in this order—

(a)the name and postal address of the creditor;

(b)the amount of the debt owed to the creditor;

(c)details of any security held by the creditor;

(d)the date on which any such security was given; and

(e)the value of any such security;

(4) This paragraph applies where the particulars required by paragraph (3) relate to creditors who are either—

(a)employees or former employees of the company; or

(b)consumers claiming amounts paid in advance for the supply of goods and services.

(5) Where paragraph (4) applies—

(a)the list of creditors required by paragraph (1)(i) must state separately for each of paragraphs (4)(a) and (b) the number of the creditors and the total of the debts owed to them; and

(b)the particulars required by paragraph (3) in respect of such creditors must be set out in separate schedules to the list of creditors for each of sub-paragraphs (4)(a) and (b); and

(c)the administrator must not deliver any such schedule to the registrar of companies with the statement of proposals.

(6) Except where the administrator proposes a CVA in relation to the company, the statement made by the administrator under paragraph 49 of Schedule B1 must also include—

(a)to the best of the administrator’s knowledge and belief, an estimate of the value of—

(i)the prescribed part (whether or not the administrator might be required under section 176A to make the prescribed part available for the satisfaction of unsecured debts), and

(ii)the company’s net property (as defined by section 176A(6)); and

(b)a statement whether the administrator proposes to make an application to the court under section 176A(5) and if so the reason for the application.

(7) The administrator may exclude from an estimate under paragraph (6)(a) information the disclosure of which could seriously prejudice the commercial interests of the company.

(8) If the exclusion of such information affects the calculation of an estimate, the report must say so.

(9) The document containing the statement of proposals must include a statement of the basis on which it is proposed that the administrator’s remuneration should be fixed by a decision in accordance with Chapter 4 of Part 18 of these Rules.

(10) Where applicable the document containing the statement of proposals must include—

(a)a statement of any pre-administration costs charged or incurred by the administrator or, to the administrator’s knowledge, by any other person qualified to act as an insolvency practitioner in relation to the company;

(b)a statement that the payment of any unpaid pre-administration costs as an expense of the administration is—

(i)subject to approval under rule 3.52, and

(ii)not part of the proposals subject to approval under paragraph 53(46) of Schedule B1.

Administrator’s proposals: statement of pre-administration costs

3.36.  A statement of pre-administration costs under rule 3.35(10)(a) must include—

(a)details of any agreement under which the fees were charged and expenses incurred, including the parties to the agreement and the date on which the agreement was made;

(b)details of the work done for which the fees were charged and expenses incurred;

(c)an explanation of why the work was done before the company entered administration and how it had been intended to further the achievement of an objective in paragraph 3(1) of Schedule B1 in accordance with sub-paragraphs (2) to (4) of that paragraph;

(d)a statement of the amount of the pre-administration costs, setting out separately—

(i)the fees charged by the administrator,

(ii)the expenses incurred by the administrator,

(iii)the fees charged (to the administrator’s knowledge) by any other person qualified to act as an insolvency practitioner in relation to the company (and, if more than one, by each separately), and

(iv)the expenses incurred (to the administrator’s knowledge) by any other person qualified to act as an insolvency practitioner in relation to the company (and, if more than one, by each separately);

(e)a statement of the amounts of pre-administration costs which have already been paid (set out separately as under sub-paragraph (d));

(f)the identity of the person who made the payment or, if more than one person made the payment, the identity of each such person and of the amounts paid by each such person set out separately as under sub-paragraph (d); and

(g)a statement of the amounts of unpaid pre-administration costs (set out separately as under sub-paragraph (d)).

Advertising administrator’s proposals and notices of extension of time for delivery of proposals (paragraph 49 of Schedule B1)

3.37.—(1) A notice published by the administrator under paragraph 49(6) of Schedule B1 must—

(a)identify the proceedings and contain the registered office of the company;

(b)be advertised in such manner as the administrator thinks fit; and

(c)be published as soon as reasonably practicable after the administrator has delivered the statement of proposals to the company’s creditors but no later than eight weeks (or such other period as may be agreed by the creditors or as the court may order) from the date on which the company entered administration.

(2) Where the court orders, on an application by the administrator under paragraph 107 of Schedule B1, an extension of the period in paragraph 49(5) of Schedule B1 for delivering copies of the statement of proposals, the administrator must as soon as reasonably practicable after the making of the order deliver a notice of the extension to—

(a)the creditors of the company;

(b)the members of the company of whose address the administrator is aware; and

(c)the registrar of companies.

(3) The notice must—

(a)identify the proceedings;

(b)state the date to which the court has ordered an extension; and

(c)contain the registered office of the company.

(4) The administrator is taken to comply with paragraph (1)(b) if the administrator publishes a notice complying with paragraph (5).

(5) The notice must—

(a)contain the information required by paragraph (3);

(b)be advertised in such manner as the administrator thinks fit;

(c)state that members may request in writing a copy of the notice of the extension, and state the address to which to write; and

(d)be published as soon as reasonably practicable after the administrator has delivered the notice of the extension to the company’s creditors.

Seeking approval of the administrator’s proposals

3.38.—(1) This rule applies where the administrator is required by paragraph 51 of Schedule B1(47) to seek approval from the company’s creditors of the statement of proposals made under paragraph 49 of that Schedule.

(2) The statement of proposals delivered under paragraph 49(4) of Schedule B1(48) must be accompanied by a notice to the creditors of the decision procedure in accordance with rule 15.8.

(3) The administrator may seek a decision using deemed consent in which case the requirements in rule 15.7 also apply to the notice.

(4) Where the administrator has made a statement under paragraph 52(1) of Schedule B1 and has not sought a decision on approval from creditors, the proposal will be deemed to have been approved unless a decision has been requested under paragraph 52(2) of Schedule B1(49).

(5) Where under paragraph (4) the proposal is deemed to have been approved the administrator must, as soon as reasonably practicable after the expiry of the period for requisitioning a decision set out in rule 15.18(2), deliver a notice of the date of deemed approval to the registrar of companies, the court and any creditor to whom the administrator has not previously delivered the proposal.

(6) The notice must contain—

(a)identification details for the proceedings;

(b)the name of the administrator;

(c)the date the administrator was appointed; and

(d)the date on which the statement of proposals was delivered to the creditors.

(7) A copy of the statement of proposals, with the statements required by rule 3.35(5), must accompany the notice given to the court and to any creditors to whom a copy of the statement of proposals has not previously been delivered.

Invitation to creditors to form a creditors’ committee

3.39.—(1) Where the administrator is required to seek a decision from the company’s creditors under rule 3.38, the administrator must at the same time deliver to the creditors a notice inviting them to decide whether a creditors’ committee should be established if sufficient creditors are willing to be members of the committee.

(2) The notice must also invite nominations for membership of the committee, such nominations to be received by the administrator by a date to be specified in the notice.

(3) The notice must state that any nominations—

(a)must be delivered to the administrator by the specified date; and

(b)can only be accepted if the administrator is satisfied as to the creditor’s eligibility under rule 17.4.

(4) A notice under this rule must also be delivered to the creditors at any other time when the administrator seeks a decision from creditors and a creditors’ committee has not already been established at that time.

Notice of extension of time to seek approval

3.40.—(1) Where the court orders an extension to the period set out in paragraph 51(2) of Schedule B1, the administrator must deliver a notice of the extension as soon as reasonably practicable to each person mentioned in paragraph 49(4) of Schedule B1.

(2) The notice must contain identification details for the proceedings and the date to which the court has ordered an extension.

(3) The administrator is taken to have complied with paragraph (1) as regards members of the company if the administrator publishes a notice complying with paragraph (4).

(4) The notice must—

(a)be advertised in such manner as the administrator thinks fit;

(b)state that members may request in writing a copy of the notice of the extension, and state the address to which to write; and

(c)be published as soon as reasonably practicable after the administrator has delivered the notice of the extension to the company’s creditors.

Notice of the creditors’ decision on the administrator’s proposals (paragraph 53(2))

3.41.—(1) In addition to delivering a report to the court and the registrar of companies (in accordance with paragraph 53(2) of Schedule B1) the administrator must deliver a report to—

(a)the company’s creditors (accompanied by a copy of the statement of proposals, with the statement required by rule 3.35(10)(a) and (b), if it has not previously been delivered to the creditor); and

(b)every other person to whom a copy of the statement of proposals was delivered.

(2) A report mentioned in paragraph (1) must contain—

(a)identification details for the proceedings;

(b)details of decisions taken by the creditors including details of any modifications to the proposals which were approved by the creditors; and

(c)the date such decisions were made.

(3) A copy of the statement of proposals, with any statements required by rule 3.35(9) and (10), must accompany the report to the court.

Administrator’s proposals: revision

3.42.—(1) Where paragraph 54(1) of Schedule B1(50) applies, the statement of the proposed revision which is required to be delivered to the creditors must be delivered with a notice of the decision procedure in accordance with rule 15.8.

(2) The statement must identify the proceedings and include—

(a)any other trading names of the company;

(b)details of the administrator’s appointment, including—

(i)the date of appointment, and

(ii)the person making the application or appointment;

(c)the names of the directors and secretary of the company and details of any shareholdings in the company which they may have;

(d)a summary of the original proposals and the reason or reasons for proposing a revision;

(e)details of the proposed revision, including details of the administrator’s assessment of the likely impact of the proposed revision upon creditors generally or upon each class of creditors;

(f)where the proposed revision relates to the ending of the administration by a creditors’ voluntary winding up and the nomination of a person to be the proposed liquidator of the company—

(i)details of the proposed liquidator,

(ii)where applicable, the declaration required by section 231, and

(iii)a statement that the creditors may, before the proposals are approved, nominate a different person as liquidator in accordance with paragraph 83(7)(a) of Schedule B1 and rule 3.60(6)(b); and

(g)any other information that the administrator thinks necessary to enable creditors to decide whether or not to vote for the proposed revisions.

(3) The administrator may seek a decision using deemed consent in which case the requirements in rule 15.7 also apply to the notice.

(4) The period within which, subject to paragraph 54(3) of Schedule B1, the administrator must send a copy of the statement to every member of the company of whose address the administrator is aware is five business days after sending the statement of the proposed revision to the creditors.

(5) Notice under paragraph 54(3) and (4) of Schedule B1 must—

(a)be advertised in such manner as the administrator thinks fit as soon as reasonably practicable after the administrator has sent the statement to the creditors; and

(b)state that members may request in writing a copy of the proposed revision, and state the address to which to write.

Notice of result of creditors’ decision on revised proposals (paragraph 54(6))

3.43.—(1) In addition to delivering a report to the court and the registrar of companies (in accordance with paragraph 54(6) of Schedule B1) the administrator must deliver a report to—

(a)the company’s creditors (accompanied by a copy of the original statement of proposals and the revised statement of proposals if the administrator had not delivered notice of the decision procedure or deemed consent procedure to the creditor); and

(b)every other person to whom a copy of the original statement of proposals was delivered.

(2) A report mentioned in paragraph (1) must contain—

(a)identification details for the proceedings;

(b)the date of the revised proposals;

(c)details of decisions taken by the creditors including details of any modifications to the revised proposals which were approved by the creditors; and

(d)the date such decisions were made.

(3) A copy of the statement of revised proposals must accompany the notice to the court.

CHAPTER 8Limited disclosure of statements of affairs and proposals

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application of Chapter

3.44.  This Chapter applies to the disclosure of information which would be likely to prejudice the conduct of the administration or might reasonably be expected to lead to violence against any person.

Orders limiting disclosure of statement of affairs etc.

3.45.—(1) If the administrator thinks that the circumstances in rule 3.44 apply in relation to the disclosure of—

(a)the whole or part of the statement of the company’s affairs;

(b)any of the matters specified in rule 3.35(1)(h) and (i) (administrator’s proposals); or

(c)a statement of concurrence,

the administrator may apply to the court for an order in relation to the particular document or a specified part of it.

(2) The court may order that the whole of or a specified part of a document referred to in paragraph (1)(a) to (c) must not be delivered to the registrar of companies or, in the case of the statement of proposals, to creditors or members of the company.

(3) The administrator must as soon as reasonably practicable deliver to the registrar of companies—

(a)a copy of the order;

(b)the statement of affairs, statement of proposals and any statement of concurrence to the extent provided by the order; and

(c)if the order relates to the statement of proposals, an indication of the nature of the matter in relation to which the order was made.

(4) If the order relates to the statement of proposals, the administrator must as soon as reasonably practicable also deliver to the creditors and members of the company—

(a)the statement of proposals to the extent provided by the order; and

(b)an indication of the nature of the matter in relation to which the order was made.

Order for disclosure by administrator

3.46.—(1) A creditor may apply to the court for an order that the administrator disclose any of the following in relation to which an order has been made under rule 3.45(2)—

(a)a statement of affairs;

(b)a specified part of it;

(c)a part of a statement of proposals; or

(d)statement of concurrence.

(2) The application must be supported by a witness statement.

(3) The applicant must deliver to the administrator notice of the application at least three business days before the hearing.

(4) In an order for disclosure, the court may include conditions as to confidentiality, duration, the scope of the order in the event of any change of circumstances or such other matters as it thinks just.

Rescission or amendment of order for limited disclosure

3.47.—(1) If there is a material change in circumstances rendering an order for limited disclosure under rule 3.45(2) wholly or partially unnecessary, the administrator must, as soon as reasonably practicable after the change, apply to the court for the order to be rescinded or amended.

(2) If the court makes such an order, the administrator must as soon as reasonably practicable deliver to the registrar of companies—

(a)a copy of the order; and

(b)the statement of affairs, the statement of proposals and any statement of concurrence to the extent provided by the order.

(3) If the order relates to the statement of proposals, the administrator must as soon as reasonably practicable also deliver to the creditors and members the statement of proposals to the extent allowed by the order.

Publication etc. of statement of affairs or statement of proposals

3.48.—(1) CPR Part 31 does not apply to an application under rule 3.45, 3.46 or 3.47.

(2) If, after the administrator has sent a statement of proposals under paragraph 49(4) of Schedule B1, a statement of affairs is delivered to the registrar of companies in accordance with rule 3.47(2) as the result of the rescission or amendment of an order, the administrator must deliver to the creditors a copy or summary of the statement of affairs as delivered to the registrar of companies.

(3) The administrator is taken to comply with the requirements for delivery to members of the company in rule 3.45(4) or 3.47(3) if the administrator publishes the required notice.

(4) The required notice must—

(a)be advertised in such manner as the administrator thinks fit;

(b)state that members can request in writing—

(i)a copy of the statement of proposals to the extent provided by the order, and

(ii)an indication of the nature of the matter in relation to which the order was made;

(c)state the address to which to such a written request is to be made; and

(d)be published as soon as reasonably practicable after the administrator has delivered the statement of proposals to the extent provided by the order to the company’s creditors.

CHAPTER 9Disposal of charged property

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Disposal of charged property

3.49.—(1) This rule applies where the administrator applies to the court under paragraph 71 or 72 of Schedule B1 for authority to dispose of—

(a)property which is subject to a security other than a floating charge; or

(b)goods in the possession of the company under a hire-purchase agreement.

(2) The court must fix a venue for the hearing of the application.

(3) As soon as reasonably practicable after the court has done so, the administrator must deliver notice of the venue to the holder of the security or the owner of the goods.

(4) If an order is made under paragraph 71 or 72 of Schedule B1, the court must deliver two sealed copies to the administrator.

(5) The administrator must deliver—

(a)one of the sealed copies to the holder of the security or the owner of the goods; and

(b)a copy of the sealed order to the registrar of companies.

CHAPTER 10Expenses of the Administration

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Expenses

3.50.—(1) All fees, costs, charges and other expenses incurred in the course of the administration are to be treated as expenses of the administration.

(2) The expenses associated with the prescribed part must be paid out of the prescribed part.

(3) The cost of the security required by section 390(3) for the proper performance of the administrator’s functions is an expense of the administration.

(4) For the purposes of paragraph 99 of Schedule B1, a former administrator’s remuneration and expenses comprise all the items in rule 3.51(2).

Order of priority

3.51.—(1) Where there is a former administrator, the items in paragraph 99 of Schedule B1 are payable in priority to the expenses in this rule.

(2) Subject to paragraph (1) and to any court order under paragraph (3) the expenses of the administration are payable in the following order of priority—

(a)expenses properly incurred by the administrator in performing the administrator’s functions;

(b)the cost of any security provided by the administrator in accordance with the Act or these Rules;

(c)where an administration order was made, the costs of the applicant and any person appearing on the hearing of the application whose costs were allowed by the court;

(d)where the administrator was appointed otherwise than by order of the court—

(i)the costs and expenses of the appointer in connection with the making of the appointment, and

(ii)the costs and expenses incurred by any other person in giving notice of intention to appoint an administrator;

(e)any amount payable to a person in respect of assistance in the preparation of a statement of affairs or statement of concurrence;

(f)any allowance made by order of the court in respect of the costs on an application for release from the obligation to submit a statement of affairs or deliver a statement of concurrence;

(g)any necessary disbursements by the administrator in the course of the administration (including any expenses incurred by members of the creditors’ committee or their representatives and allowed for by the administrator under rule 17.24, but not including any payment of corporation tax in circumstances referred to in sub-paragraph (j) below);

(h)the remuneration or emoluments of any person who has been employed by the administrator to perform any services for the company, as required or authorised under the Act or these Rules;

(i)the administrator’s remuneration the basis of which has been fixed under Part 18 and unpaid pre-administration costs approved under rule 3.52; and

(j)the amount of any corporation tax on chargeable gains accruing on the realisation of any asset of the company (irrespective of the person by whom the realisation is effected).

(3) If the assets are insufficient to satisfy the liabilities, the court may make an order as to the payment out of the assets of the expenses incurred in the administration in such order of priority as the court thinks just.

Pre-administration costs

3.52.—(1) Where the administrator has made a statement of pre-administration costs under rule 3.35(10)(a), the creditors’ committee may determine whether and to what extent the unpaid pre-administration costs set out in the statement are approved for payment.

(2) Paragraph (3) applies where—

(a)there is no creditors’ committee;

(b)there is a creditors’ committee but it does not make the necessary determination; or

(c)the creditors’ committee does make the necessary determination but the administrator or other insolvency practitioner who has charged fees or incurred expenses as pre-administration costs considers the amount determined to be insufficient.

(3) When this paragraph applies, determination of whether and to what extent the unpaid pre-administration costs are approved for payment must be—

(a)by a decision of the creditors through a decision procedure; or

(b)in a case where the administrator has made a statement under paragraph 52(1)(b) of Schedule B1, by—

(i)the consent of each of the secured creditors, or

(ii)if the administrator has made, or intends to make, a distribution to preferential creditors, by—

(aa)the consent of each of the secured creditors, and

(bb)a decision of the preferential creditors in a decision procedure.

(4) The administrator must call a meeting of the creditors’ committee or seek a decision of creditors by a decision procedure if so requested for the purposes of paragraphs (1) to (3) by another insolvency practitioner who has charged fees or incurred expenses as pre-administration costs; and the administrator must deliver notice of the meeting or decision procedure within 28 days of receipt of the request.

(5) The administrator (where the fees were charged or expenses incurred by the administrator) or other insolvency practitioner (where the fees were charged or expenses incurred by that practitioner) may apply to the court for a determination of whether and to what extent the unpaid pre-administration costs are approved for payment if either—

(a)there is no determination under paragraph (1) or (3); or

(b)there is such a determination but the administrator or other insolvency practitioner who has charged fees or incurred expenses as pre-administration costs considers the amount determined to be insufficient.

(6) Where there is a creditors’ committee the administrator or other insolvency practitioner must deliver at least 14 days’ notice of the hearing to the members of the committee; and the committee may nominate one or more of its members to appear, or be represented, and to be heard on the application.

(7) If there is no creditors’ committee, notice of the application must be delivered to such one or more of the company’s creditors as the court may direct, and those creditors may nominate one or more of their number to appear or be represented, and to be heard on the application.

(8) The court may, if it appears to be a proper case, order the costs of the application, including the costs of any member of the creditors’ committee appearing or being represented on it, or of any creditor so appearing or being represented, to be paid as an expense of the administration.

(9) Where the administrator fails to call a meeting of the creditors’ committee or seek a decision from creditors in accordance with paragraph (4), the other insolvency practitioner may apply to the court for an order requiring the administrator to do so.

CHAPTER 11Extension and ending of administration

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Interpretation

3.53.  “Final progress report” means in this Chapter, and in Part 18 in so far as it relates to final progress reports in an administration, a progress report which includes a summary of—

(a)the administrator’s proposals;

(b)any major amendments to, or deviations from, those proposals;

(c)the steps taken during the administration; and

(d)the outcome.

Application to extend an administration and extension by consent (paragraph 76(2) of Schedule B1)

3.54.—(1) This rule applies where an administrator makes an application to the court for an order, or delivers a notice to the creditors requesting their consent, to extend the administrator’s term of office under paragraph 76(2)(51) of Schedule B1.

(2) The application or the notice must state the reasons why the administrator is seeking an extension.

(3) A request to the creditors may contain or be accompanied by a notice that if the extension is granted a notice of the extension will be made available for viewing and downloading on a website and that no other notice will be delivered to the creditors.

(4) Where the result of a request to the creditors is to be made available for viewing and downloading on a website, the notice must comply with the requirements for use of a website to deliver documents set out in rule 1.49(2)(a) to (c), (3) and (4) with any necessary modifications and rule 1.49(5)(a) applies to determine the time of delivery of the document.

(5) Where the court makes an order extending the administrator’s term of office, the administrator must as soon as reasonably practicable deliver to the creditors a notice of the order together with the reasons for seeking the extension given in the application to the court.

(6) Where the administrator’s term of office has been extended with the consent of creditors, the administrator must as soon as reasonably practicable deliver a notice of the extension to the creditors except where paragraph (3) applies.

(7) The notices which paragraph 78(5)(b) of Schedule B1 require to be delivered to the registrar of companies must also identify the proceedings.

Notice of automatic end of administration (paragraph 76 of Schedule B1)

3.55.—(1) This rule applies where—

(a)the appointment of an administrator has ceased to have effect; and

(b)the administrator is not required by any other rule to give notice of that fact.

(2) The former administrator must, as soon as reasonably practicable, and in any event within five business days of the date on which the appointment has ceased, deliver to the registrar of companies and file with the court a notice accompanied by a final progress report.

(3) The notice must be headed “Notice of automatic end of administration” and identify the company immediately below the heading.

(4) The notice must contain—

(a)identification details for the proceedings;

(b)the former administrator’s name and address;

(c)a statement that that person had been appointed administrator of the company;

(d)the date of the appointment;

(e)the name of the person who made the appointment or the administration application, as the case may be;

(f)a statement that the appointment has ceased to have effect;

(g)the date on which the appointment ceased to have effect; and

(h)a statement that a copy of the final progress report accompanies the notice.

(5) The notice must be authenticated by the administrator and dated.

(6) A copy of the notice and accompanying final progress report must be delivered as soon as reasonably practicable to—

(a)the directors of the company; and

(b)all other persons to whom notice of the administrator’s appointment was delivered.

(7) A former administrator who makes default in complying with this rule is guilty of an offence and liable to a fine and, for continued contravention, to a daily default fine.

Notice of end of administration when purposes achieved (paragraph 80(2) of Schedule B1)

3.56.—(1) Where an administrator who was appointed under paragraph 14 or 22 of Schedule B1 thinks that the purpose of administration has been sufficiently achieved, the notice (“notice of end of administration”) which the administrator may file with the court and deliver to the registrar of companies under paragraph 80(2) of Schedule B1 must be headed “Notice of end of administration” and identify the company immediately below the heading.

(2) The notice must contain—

(a)identification details for the proceedings;

(b)the administrator’s name and address;

(c)a statement that that person has been appointed administrator of the company;

(d)the date of the appointment;

(e)the name of the person who made the appointment or the administration application, as the case may be;

(f)a statement that the administrator thinks that the purpose of the administration has been sufficiently achieved;

(g)a statement that a copy of the final progress report accompanies the notice; and

(h)a statement that the administrator is filing the notice with the court and delivering a copy to the registrar of companies.

(3) The notice must be authenticated by the administrator and dated.

(4) The notice must be accompanied by a final progress report.

(5) The notice filed with the court must also be accompanied by a copy of the notice.

(6) The court must endorse the notice and the copy with the date and time of filing, seal the copy and deliver it to the administrator.

(7) The prescribed period within which the administrator, under paragraph 80(4)(52) of Schedule B1, must send a copy of the notice to the creditors is five business days from the filing of the notice.

(8) The copy notice sent to creditors must be accompanied by the final progress report.

(9) The administrator must within the same period deliver a copy of the notice and the final progress report to all other persons (other than the creditors and the registrar of companies) to whom notice of the administrator’s appointment was delivered.

(10) The administrator is taken to have complied with the requirement in paragraph 80(4) of Schedule B1 to give notice to the creditors if, within five business days of filing the notice with the court, the administrator gazettes a notice which—

(a)states that the administration has ended, and the date on which it ended;

(b)undertakes that the administrator will provide a copy of the notice of end of administration to any creditor of the company who applies in writing; and

(c)specifies the address to which to write.

(11) The Gazette notice may be advertised in such other manner as the administrator thinks fit.

Administrator’s application for order ending administration (paragraph 79 of Schedule B1)

3.57.—(1) An application to court by the administrator under paragraph 79 of Schedule B1(53) for an order ending an administration must be accompanied by—

(a)a progress report for the period since—

(i)the last progress report (if any), or

(ii)if there has been no previous progress report, the date on which the company entered administration;

(b)a statement indicating what the administrator thinks should be the next steps for the company (if applicable); and

(c)where the administrator makes the application because of a requirement decided by the creditors, a statement indicating with reasons whether or not the administrator agrees with the requirement.

(2) Where the application is made other than because of a requirement by a decision of the creditors—

(a)the administrator must, at least five business days before the application is made, deliver notice of the administrator’s intention to apply to court to—

(i)the person who made the administration application or appointment, and

(ii)the creditors; and

(b)the application must be accompanied by—

(i)a statement that notice has been delivered to the creditors, and

(ii)copies of any response from creditors to that notice.

(3) Where the application is in conjunction with a petition under section 124 for an order to wind up the company, the administrator must, at least five business days before the application is filed, deliver notice to the creditors as to whether the administrator intends to seek appointment as liquidator.

Creditor’s application for order ending administration (paragraph 81 of Schedule B1)

3.58.—(1) Where a creditor applies to the court under paragraph 81 of Schedule B1 for an order ending an administration, a copy of the application must be delivered, not less than five business days before the date fixed for the hearing, to—

(a)the administrator;

(b)the person who made the administration application or appointment; and

(c)where the appointment was made under paragraph 14 of Schedule B1, the holder of the floating charge by virtue of which the appointment was made (if different to (b)).

(2) Any of those persons may appear at the hearing of the application.

(3) Where the court makes an order under paragraph 81 ending the administration, the court must deliver a copy of the order to the administrator.

Notice by administrator of court order

3.59.  Where the court makes an order ending the administration, the administrator must as soon as reasonably practicable deliver a copy of the order and of the final progress report to—

(a)the registrar of companies;

(b)the directors of the company; and

(c)all other persons to whom notice of the administrator’s appointment was delivered.

Moving from administration to creditors’ voluntary winding up (paragraph 83 of Schedule B1)

[Note: the information referred to in paragraph (5) is required to be included in the first progress report of the liquidator. See rule 18.3(5).]

3.60.—(1) This rule applies where the administrator delivers to the registrar of companies a notice under paragraph 83(3) of Schedule B1(54) of moving from administration to creditors’ voluntary winding up.

(2) The notice must contain—

(a)identification details for the proceedings;

(b)the name of the person who made the appointment or the administration application, as the case may be; and

(c)the name and IP number of the proposed liquidator.

(3) The notice to the registrar of companies must be accompanied by a copy of the administrator’s final progress report.

(4) A copy of the notice and the final progress report must be sent as soon as reasonably practicable after delivery of the notice to all those persons to whom notice of the administrator’s appointment was delivered in addition to the creditors (as required by paragraph 83(5)(b)).

(5) The person who ceases to be administrator on the registration of the notice must inform the person who becomes liquidator of anything which happens after the date of the final progress report and before the registration of the notice which the administrator would have included in the final report had it happened before the date of the report.

(6) For the purposes of paragraph 83(7)(a) of Schedule B1, a person is nominated by the creditors as liquidator by—

(a)their approval of the statement of the proposed liquidator in the administrator’s proposals or revised proposals; or

(b)their nomination of a different person, through a decision procedure, before their approval of the proposals or revised proposals.

(7) Where the creditors nominate a different person, the nomination must, where applicable, include the declaration required by section 231.

Moving from administration to dissolution (paragraph 84 of Schedule B1)

3.61.—(1) This rule applies where the administrator delivers to the registrar of companies a notice under paragraph 84(1) of Schedule B1 of moving from administration to dissolution.

(2) The notice must identify the proceedings.

(3) As soon as reasonably practicable after sending the notice, the administrator must deliver a copy of the notice to all persons to whom notice of the administrator’s appointment was delivered (in addition to the creditors mentioned in paragraph 84(5)(b))(55).

(4) A final progress report must accompany the notice to the registrar of companies and every copy filed or otherwise delivered.

(5) Where a court makes an order under paragraph 84(7) of Schedule B1 it must, where the applicant is not the administrator, deliver a copy of the order to the administrator.

(6) The administrator must deliver a copy of the order to the registrar of companies with the notice required by paragraph 84(8).

CHAPTER 12Replacing the administrator

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Grounds for resignation

3.62.—(1) The administrator may resign—

(a)on grounds of ill health;

(b)because of the intention to cease to practise as an insolvency practitioner; or

(c)because the further discharge of the duties of administrator is prevented or made impractical by—

(i)a conflict of interest, or

(ii)a change of personal circumstances.

(2) The administrator may, with the permission of the court, resign on other grounds.

Notice of intention to resign

3.63.—(1) The administrator must give at least five business days’ notice of intention—

(a)to resign in a case falling within rule 3.62(1); or

(b)to apply for the court’s permission to resign in a case falling within rule 3.62(2).

(2) The notice must contain—

(a)identification details for the proceedings;

(b)the date of the appointment of the administrator;

(c)the name of the person who made the appointment or the administration application, as the case may be.

(3) The notice must also contain—

(a)the date with effect from which the administrator intends to resign; or

(b)where the administrator was appointed by an administration order, the date on which the administrator intends to file with the court an application for permission to resign.

(4) The notice must be delivered—

(a)to any continuing administrator of the company;

(b)to the creditors’ committee (if any);

(c)if there is neither a continuing administrator nor a creditors’ committee, to—

(i)the company, and

(ii)the company’s creditors;

(d)to the member State liquidator appointed in relation to the company (if there is one);

(e)where the administrator was appointed by the holder of a qualifying floating charge under paragraph 14 of Schedule B1, to—

(i)the person who appointed the administrator, and

(ii)all holders of prior qualifying floating charges;

(f)where the administrator was appointed by the company or the directors of the company under paragraph 22 of Schedule B1, to—

(i)the appointer, and

(ii)all holders of qualifying floating charges.

(5) The notice must be accompanied by a summary of the administrator’s receipts and payments.

Notice of resignation (paragraph 87 of Schedule B1)

3.64.—(1) A resigning administrator must, within five business days of delivering the notice under paragraph 87(2) of Schedule B1, deliver a copy of the notice to—

(a)the registrar of companies;

(b)all persons, other than the person who made the appointment, to whom notice of intention to resign was delivered under rule 3.63; and

(c)except where the appointment was by administration order, file a copy of the notice with the court.

(2) The notice must contain—

(a)identification details for the proceedings;

(b)the date of the appointment of the administrator; and

(c)the name of the person who made the appointment or the administration application, as the case may be.

(3) The notice must state—

(a)the date from which the resignation is to have effect; and

(b)where the resignation is with the permission of the court, the date on which permission was given.

(4) Where an administrator was appointed by an administration order, notice of resignation under paragraph 87(2)(a) of Schedule B1 must be given by filing the notice with the court.

Application to court to remove administrator from office

3.65.—(1) An application for an order under paragraph 88 of Schedule B1 that the administrator be removed from office must state the grounds on which the order is requested.

(2) A copy of the application must be delivered, not less than five business days before the date fixed for the hearing—

(a)to the administrator;

(b)to the person who—

(i)made the application for the administration order, or

(ii)appointed the administrator;

(c)to the creditors’ committee (if any);

(d)to any continuing administrator appointed to act jointly or concurrently; and

(e)where there is neither a creditors’ committee nor a continuing administrator appointed, to the company and the creditors, including any floating charge holders.

(3) The court must deliver to the applicant a copy of any order removing the administrator.

(4) The applicant must deliver a copy—

(a)as soon as reasonably practicable, and in any event within five business days of the copy order being delivered, to the administrator; and

(b)within five business days of the copy order being delivered, to—

(i)all other persons to whom notice of the application was delivered, and

(ii)the registrar of companies.

Notice of vacation of office when administrator ceases to be qualified to act

3.66.  An administrator who has ceased to be qualified to act as an insolvency practitioner in relation to the company and gives notice in accordance with paragraph 89 of Schedule B1 must also deliver notice to the registrar of companies.

Deceased administrator

3.67.—(1) If the administrator dies a notice of the fact and date of death must be filed with the court.

(2) The notice must be filed as soon as reasonably practicable by one of the following—

(a)a surviving administrator;

(b)a member of the deceased administrator’s firm (if the deceased was a member or employee of a firm);

(c)an officer of the deceased administrator’s company (if the deceased was an officer or employee of a company); or

(d)a personal representative of the deceased administrator.

(3) If such a notice has not been filed within the 21 days following the administrator’s death then any other person may file the notice.

(4) The person who files the notice must also deliver a notice to the registrar of companies which contains—

(a)identification details for the proceedings;

(b)the name of the person who made the appointment or the administration application, as the case may be;

(c)the date of the appointment of the administrator; and

(d)the fact and date of death.

Application to replace

3.68.—(1) Where an application to court is made under paragraph 91(1) or 95 of Schedule B1 to appoint a replacement administrator, the application must be accompanied by the proposed replacement administrator’s consent to act.

(2) Where the application is made under paragraph 91(1), a copy of the application must be delivered—

(a)to the person who made the application for the administration order;

(b)to any person who has appointed an administrative receiver of the company;

(c)to any person who is or may be entitled to appoint an administrative receiver of the company;

(d)to any person who is or may be entitled to appoint an administrator of the company under paragraph 14 of Schedule B1;

(e)to any administrative receiver of the company;

(f)if there is pending a petition for the winding up of the company, to —

(i)the petitioner, and

(ii)any provisional liquidator;

(g)to any member State liquidator appointed in main proceedings in relation to the company;

(h)to the company, if the application is made by anyone other than the company;

(i)to any supervisor of any CVA in relation to the company; and

(j)to the proposed administrator.

(3) Where the application is made under paragraph 95, the application must be accompanied by a witness statement setting out the applicant’s belief as to the matters set out in that paragraph.

(4) Rules 3.12, 3.13, and 3.15(1) and (2) apply to applications made under paragraph 91(1) and 95 of Schedule B1, with any necessary modifications.

Appointment of replacement or additional administrator

3.69.  Where a replacement administrator is appointed or an additional administrator is appointed to act—

(a)the following apply—

(i)rule 3.17 (notice of appointment) the requirement as to the heading in paragraph (1) and paragraphs (1)(a) to (f), and (2),

(ii)rule 3.18 (filing of notice with court) paragraphs (1)(a) and (b)(ii), (2) and (3),

(iii)rule 3.24 (notice of appointment after notice of intention to appoint) paragraphs (1)(a) to (d) and (2),

(iv)rule 3.25 (notice of appointment without prior notice of intention to appoint) paragraphs (1), (2)(a) to (c) and (3),

(v)rule 3.26 (notice of appointment: filing with the court) paragraphs (1)(a), (3) and (4), and

(vi)rule 3.27 (publication of administrator’s appointment) paragraphs (1), (2)(a) and (b), (3) and (4);

(b)the replacement or additional administrator must deliver notice of the appointment to the registrar of companies; and

(c)all documents must clearly identify the appointment as of a replacement administrator or an additional administrator.

Administrator’s duties on vacating office

3.70.—(1) An administrator who ceases to be in office as a result of removal, resignation or ceasing to be qualified to act as an insolvency practitioner in relation to the company must as soon as reasonably practicable deliver to the person succeeding as administrator—

(a)the assets (after deduction of any expenses properly incurred and distributions made by the departing administrator);

(b)the records of the administration, including correspondence, proofs and other documents relating to the administration while it was within the responsibility of the departing administrator; and

(c)the company’s records.

(2) An administrator who makes default in complying with this rule is guilty of an offence and liable to a fine and, for continued contravention, to a daily default fine.

PART 4RECEIVERSHIP

[Note: for the application of this Part see introductory rule 3.]

CHAPTER 1Appointment of joint receivers or managers to whom Part 3 of the Act applies (other than those appointed under section 51 (Scottish receiverships))

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Receivers or managers appointed under an instrument: acceptance of appointment (section 33)

4.1.—(1) This Chapter applies to all receivers to whom Part 3(56) of the Act applies.

(2) Where two or more persons are appointed as joint receivers or managers of a company’s property under powers contained in an instrument—

(a)each of them must accept the appointment in accordance with section 33 as if each were a sole appointee;

(b)the joint appointment takes effect only when all of them have accepted; and

(c)the joint appointment is deemed to have been made at the time at which the instrument of appointment was received by or on behalf of all of them.

(3) A person who is appointed as the sole or joint receiver or manager of a company’s property under powers contained in an instrument and accepts the appointment in accordance with section 33(1)(a), but not in writing, must confirm the acceptance in writing to the person making the appointment within five business days.

(4) The written acceptance or confirmation of acceptance must contain—

(a)the name and address of the appointer;

(b)the name and address of the appointee;

(c)the name of the company concerned;

(d)the time and date of receipt of the instrument of appointment; and

(e)the time and date of acceptance.

(5) Acceptance or confirmation of acceptance of appointment as a receiver or manager of a company’s property, whether under the Act or these Rules, may be given by any person (including, in the case of a joint appointment, any joint appointee) duly authorised for that purpose on behalf of the receiver or manager.

CHAPTER 2Administrative receivers (other than in Scottish receiverships)

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application of Chapter 2

4.2.  This Chapter applies to administrative receivers (other than those appointed under section 51 (Scottish receiverships)).

Interpretation

4.3.  In this Chapter—

“nominated person” means a relevant person who has been required by the administrative receiver to make out and deliver to the administrative receiver a statement of affairs; and

“relevant person” means a person mentioned in section 47(3).

Administrative receiver’s security

4.4.  The cost of the administrative receiver’s security required by section 390(3) for the proper performance of the administrative receiver’s functions is an expense of the administrative receivership.

Publication of appointment of administrative receiver (section 46(1))

4.5.—(1) The notice which an administrative receiver is required by section 46(1) to send to the company and the creditors on being appointed must contain—

(a)identification details for the company;

(b)any other registered name of the company in the 12 months before the date of the appointment;

(c)any name under which the company has traded at any time in those 12 months, if substantially different from its then registered name;

(d)the name and address of the person appointed;

(e)the date of the appointment;

(f)the name of the person who made the appointment;

(g)the date of the instrument conferring the power under which the appointment was made;

(h)a brief description of the instrument; and

(i)a brief description of any assets of the company in relation to which the appointment is not made.

(2) The notice which an administrative receiver is required by section 46(1) to publish—

(a)must be gazetted;

(b)may be advertised in such other manner as the administrative receiver thinks fit; and

(c)must state—

(i)that an administrative receiver has been appointed,

(ii)the date of the appointment,

(iii)the name of the person who made the appointment, and

(iv)the nature of the business of the company.

Requirement to provide a statement of affairs (section 47(1))

[Note: see sections 234(1) and 235(1) for the application of section 235 to administrative receivers.]

4.6.—(1) A requirement under section 47(1) for a nominated person to make out and submit to the administrative receiver a statement of the affairs of the company must be made by a notice delivered to such a person.

(2) The notice must be headed “Notice requiring statement of affairs” and must—

(a)identify the company immediately below the heading;

(b)require the recipient to prepare and submit to the administrative receiver a statement of the affairs of the company; and

(c)inform each recipient of—

(i)the name and address of any other nominated person to whom a notice has been delivered,

(ii)the date by which the statement must be delivered to the administrative receiver, and

(iii)the effect of sections 47(6) (penalty for non-compliance) and 235 (duty to co-operate with the office-holder).

(3) The administrative receiver must inform each nominated person that a document for the preparation of the statement of affairs capable of completion in compliance with rule 4.7 can be supplied if requested.

Statement of affairs: contents and delivery of copy (section 47(2))

[Note: section 47(2) requires the statement of affairs to be verified by a statement of truth.]

4.7.—(1) The statement of affairs must be headed “Statement of affairs” and must state that it is a statement of the affairs of the company on a specified date, being the date on which the administrative receiver was appointed.

(2) The statement of affairs must contain, in addition to the matters required by section 47(2)—

(a)a summary of the assets of the company, setting out the book value and the estimated realisable value of—

(i)any assets subject to a fixed charge,

(ii)any assets subject to a floating charge,

(iii)any uncharged assets, and

(iv)the total assets available for preferential creditors;

(b)a summary of the liabilities of the company, setting out—

(i)the amount of preferential debts,

(ii)an estimate of the deficiency with respect to preferential debts or the surplus available after paying the preferential debts,

(iii)an estimate of the prescribed part, if applicable,

(iv)an estimate of the total assets available to pay debts secured by floating charges,

(v)the amount of debts secured by floating charges,

(vi)an estimate of the deficiency with respect to debts secured by floating charges or the surplus available after paying the debts secured by floating charges,

(vii)the amount of unsecured debts (excluding preferential debts and any deficiency with respect to debts secured by floating charges),

(viii)an estimate of the deficiency with respect to unsecured debts or the surplus available after paying unsecured debts (excluding preferential debts and any deficiency with respect to debts secured by fixed and floating charges),

(ix)any issued and called-up capital, and

(x)an estimate of the deficiency with respect to, or surplus available to, members of the company;

(c)a list of the company’s creditors with the further particulars required by paragraph (3) indicating—

(i)any creditors under hire-purchase, chattel leasing or conditional sale agreements,

(ii)any creditors who are consumers claiming amounts paid in advance for the supply of goods or services, and

(iii)any creditors claiming retention of title over property in the company’s possession.

(3) The particulars required by section 47(2) and paragraph (2)(c) of this rule to be included in the statement of affairs relating to each creditor are as follows—

(a)the name and postal address;

(b)the amount of the debt owed to the creditor;

(c)details of any security held by the creditor;

(d)the date the security was given; and

(e)the value of any such security.

(4) Paragraph (5) applies where the particulars required by paragraph (3) relate to creditors who are either—

(a)employees or former employees of the company; or

(b)consumers claiming amounts paid in advance for the supply of goods or services.

(5) Where this paragraph applies—

(a)the statement of affairs must state separately for each of paragraphs (4)(a) and (b) the number of such creditors and the total of the debts owed to them; and

(b)the particulars required by paragraph (3) must be set out in separate schedules to the statement of affairs for each of paragraphs (4)(a) and (b).

(6) The nominated person who makes the statement of truth required by section 47(2) (or, if more than one, by one of them) must deliver the statement of affairs together with a copy to the administrative receiver.

Statement of affairs: statement of concurrence

4.8.—(1) The administrative receiver may require a relevant person to deliver to the administrative receiver a statement of concurrence.

(2) A statement of concurrence is a statement, verified by a statement of truth, that that person concurs in the statement of affairs submitted by a nominated person.

(3) The administrative receiver must inform the nominated person who has been required to submit a statement of affairs that the relevant person has been required to deliver a statement of concurrence.

(4) The nominated person must deliver a copy of the statement of affairs to every relevant person who has been required to deliver a statement of concurrence.

(5) A statement of concurrence—

(a)must identify the company; and

(b)may be qualified in relation to matters dealt with in the statement of affairs where the relevant person—

(i)is not in agreement with the statement of affairs,

(ii)considers the statement to be erroneous or misleading, or

(iii)is without the direct knowledge necessary for concurring in it.

(6) The relevant person must deliver the required statement of concurrence together with a copy to the administrative receiver before the end of the period of five business days (or such other period as the administrative receiver may agree) beginning with the day on which the relevant person receives the statement of affairs.

Statement of affairs: retention by administrative receiver

4.9.  The administrative receiver must retain the verified statement of affairs and each statement of concurrence as part of the records of the receivership.

Statement of affairs: release from requirement and extension of time (section 47(5))

4.10.—(1) The administrative receiver may exercise the power in section 47(5) to release a person from an obligation to submit a statement of affairs imposed under section 47(1) or (2), or to grant an extension of time, either on the administrative receiver’s own discretion or at the request of a nominated person.

(2) A nominated person may apply to the court if the administrative receiver refuses that person’s request.

(3) On receipt of an application, the court may, if it is satisfied that no sufficient cause is shown for it, dismiss it without giving notice to any party other than the applicant.

(4) The applicant must, at least 14 days before any hearing, deliver to the administrative receiver a notice stating the venue with a copy of the application and of any evidence on which the applicant intends to rely.

(5) The administrative receiver may do either or both of the following—

(a)file a report of any matters which the administrative receiver thinks ought to be drawn to the court’s attention; or

(b)appear and be heard on the application.

(6) If a report is filed, the administrative receiver must deliver a copy of it to the applicant not later than five business days before the hearing.

(7) Sealed copies of any order made on the application must be delivered by the court to the applicant and the administrative receiver.

(8) On any application under this rule, the applicant’s costs must be paid by the applicant in any event; but the court may order that an allowance of all or part of them be payable out of the assets under the administrative receiver’s control.

Statement of affairs: expenses

4.11.—(1) The administrative receiver must pay, out of the assets under the administrative receiver’s control, the expenses which the administrative receiver considers to have been reasonably incurred by—

(a)a nominated person in making a statement of affairs and statement of truth; or

(b)a relevant person in making a statement of concurrence.

(2) Any decision by the administrative receiver under this rule is subject to appeal to the court.

Limited disclosure

4.12.—(1) This rule applies where the administrative receiver thinks that disclosure of the whole or part of a statement of the company’s affairs or a statement of concurrence would be likely to prejudice the conduct of the receivership or might reasonably be expected to lead to violence against any person.

(2) The administrative receiver may apply to the court for an order in respect of—

(a)the statement of affairs; or

(b)a statement of concurrence;

and the court may order that the whole or any specified part of the statement of affairs or a statement of concurrence must not be open to inspection except with permission of the court.

(3) The court’s order may include directions regarding the delivery of documents to the registrar of companies and the disclosure of relevant information to other persons.

Administrative receiver’s report to the registrar of companies and secured creditors (section 48(1))

4.13.—(1) The report which under section 48(1)(57) an administrative receiver is to send to the registrar of companies must be accompanied by a copy of any statement of affairs under section 47 and any statement of concurrence under rule 4.8.

(2) However the administrative receiver must not deliver to the registrar of companies with the statement of affairs any schedule required by rule 4.7(5)(b).

(3) The duty to send a copy of the report to the registrar of companies is subject to any order for limited disclosure made under rule 4.12.

(4) If a statement of affairs or statement of concurrence is submitted to the administrative receiver after the report is sent to the registrar of companies, the administrative receiver must deliver a copy of it to the registrar of companies as soon as reasonably practicable after its receipt by the administrative receiver.

(5) The report must contain (in addition to the matters required by section 48(1)) estimates to the best of the administrative receiver’s knowledge and belief of —

(a)the value of the prescribed part (whether or not the administrative receiver might be required under section 176A to make the prescribed part available for the satisfaction of unsecured debts); and

(b)the value of the company’s net property (as defined by section 176A(6)).

(6) The administrative receiver may exclude from an estimate under paragraph (5) information the disclosure of which could seriously prejudice the commercial interests of the company.

(7) If the exclusion of such information affects the calculation of an estimate, the report must say so.

(8) If the administrative receiver proposes to make an application to court under section 176A(5) the report must say so and give the reason for the application.

Copy of report for unsecured creditors (section 48(2))

4.14.  A notice under section 48(2)(b)(58) stating an address to which unsecured creditors should write for copies of an administrative receiver’s report under that section—

(a)must be gazetted;

(b)may be advertised in such other manner as the administrative receiver thinks fit; and

(c)must be accompanied by a notice under rule 4.15.

Invitation to creditors to form a creditors’ committee

4.15.—(1) An administrative receiver must deliver to the creditors with the report under section 48(1) a notice inviting the creditors to decide whether a creditors’ committee should be established if sufficient creditors are willing to be members of the committee.

(2) The notice must also invite nominations for membership of the committee, such nominations to be received by the administrative receiver by a date to be specified in the notice.

(3) The notice must state that any nominations—

(a)must be delivered to the administrative receiver by the specified date; and

(b)can only be accepted if the administrative receiver is satisfied as to the creditor’s eligibility under rule 17.4.

Disposal of charged property (section 43(1))

4.16.—(1) This rule applies where an administrative receiver applies to the court under section 43(1) for authority to dispose of property of the company which is subject to a security.

(2) The court must fix a venue for the hearing of the application.

(3) As soon as reasonably practicable after the court has fixed the venue, the administrative receiver must deliver notice of the venue to the person who is the holder of the security.

(4) If an order is made under section 43(1), the court must deliver two sealed copies to the administrative receiver and the administrative receiver must deliver one of them to the holder of the security.

Summary of receipts and payments

4.17.—(1) The administrative receiver must deliver a summary of receipts and payments as receiver to the registrar of companies, the company and to the person who made the appointment, and to each member of the creditors’ committee.

(2) The notice delivered to the registrar of companies under rule 1.20 must contain the date of the appointment of the administrative receiver.

(3) The summary must be delivered to those persons within two months after—

(a)the end of the period of 12 months from the date of being appointed;

(b)the end of every subsequent period of 12 months; and

(c)ceasing to act as administrative receiver (unless there is a joint administrative receiver who continues in office).

(4) The summary must show receipts and payments—

(a)during the relevant period of 12 months; or

(b)where the administrative receiver has ceased to act, during the period—

(i)from the end of the last 12-month period to the time when the administrative receiver so ceased, or

(ii)if there has been no previous summary, since being appointed.

(5) This rule is without prejudice to the administrative receiver’s duty to produce proper accounts otherwise than as above.

(6) An administrative receiver who makes default in complying with this rule is guilty of an offence and liable to a fine and, for continued contravention, to a daily default fine.

Resignation

4.18.—(1) An administrative receiver must deliver notice of intention to resign at least five business days before the date the resignation is intended to take effect to—

(a)the person by whom the appointment was made;

(b)the company or, if it is then in liquidation, the liquidator; and

(c)the members of the creditors’ committee.

(2) The notice must specify the date on which the administrative receiver intends the resignation to take effect.

Deceased administrative receiver

4.19.—(1) If the administrative receiver dies a notice of the fact and date of death must be delivered as soon as reasonably practicable to—

(a)the person by whom the appointment was made;

(b)the registrar of companies;

(c)the company or, if it is in liquidation, the liquidator; and

(d)the members of the creditors’ committee.

(2) The notice must be delivered by one of the following—

(a)a surviving joint administrative receiver;

(b)a member of the deceased administrative receiver’s firm (if the deceased was a member or employee of a firm);

(c)an officer of the deceased administrative receiver’s company (if the deceased was an officer or employee of a company); or

(d)a personal representative of the deceased administrative receiver.

(3) If such a notice has not been delivered within 21 days following the administrative receiver’s death then any other person may deliver the notice.

Other vacation of office

4.20.  An administrative receiver, on vacating office on completion of the administrative receivership, or in consequence of ceasing to be qualified to act as an insolvency practitioner in relation to the company, must as soon as reasonably practicable deliver a notice of doing so to—

(a)the person by whom the appointment was made;

(b)the company or, if it is then in liquidation, the liquidator; and

(c)the members of the creditors’ committee.

Notice to registrar of companies (section 45(4))

4.21.  Where an administrative receiver’s office is vacated other than by death, the notice to the registrar of companies required by section 45(4) may be given by delivering to the registrar of companies the notice required by section 859K(3)(59) of the Companies Act.

CHAPTER 3Non-administrative receivers and the prescribed part

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application of Chapter 3

4.22.  This Chapter applies where a receiver (other than an administrative receiver) is appointed by the court or otherwise under a charge which was created as a floating charge; and section 176A applies.

Report to creditors

4.23.—(1) Within three months (or such longer period as the court may allow) of the date of the appointment, the receiver must deliver to the creditors—

(a)a notice of the appointment; and

(b)a report.

(2) The report must contain estimates to the best of the receiver’s knowledge and belief of—

(a)the value of the prescribed part (whether or not the receiver might be required under section 176A to make the prescribed part available for the satisfaction of unsecured debts); and

(b)the value of company’s net property (as defined by section 176A(6)).

(3) The receiver may exclude from an estimate under paragraph (2) information the disclosure of which could seriously prejudice the commercial interests of the company.

(4) If the exclusion of such information affects the calculation of an estimate, the report must say so.

(5) If the receiver proposes to make an application to court under section 176A(5) the report must say so and give the reason for the application.

(6) The report must also state whether, and if so why, the receiver proposes to present a petition for the winding up of the company.

(7) The receiver may, instead of delivering the report under paragraph (1), cause a notice to be gazetted and may advertise that notice in such other manner as the receiver thinks fit where—

(a)full details of the unsecured creditors of the company are not available to the receiver; or

(b)the receiver thinks it is otherwise impracticable to deliver such a report.

(8) A notice under paragraph (7) must contain the matters required to be included in the receiver’s report.

Receiver to deal with prescribed part

4.24.—(1) The receiver—

(a)may present a petition for the winding up of the company if the ground of the petition is that in section 122(1)(f); and

(b)must deliver to any administrator or liquidator the sums representing the prescribed part.

(2) If there is no administrator or liquidator the receiver must—

(a)apply to the court for directions as to the manner in which to discharge the duty under section 176A(2)(a); and

(b)act in accordance with any directions given.

PART 5MEMBERS’ VOLUNTARY WINDING UP

CHAPTER 1Statutory declaration of solvency (section 89)

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Statutory declaration of solvency: requirements additional to those in section 89

[Note: the “official rate” referred to in paragraph (1)(b) is defined in section 251 as being the rate referred to in section 189(4).]

5.1.—(1) The statutory declaration of solvency required by section 89 must identify the company and state—

(a)the name and a postal address for each director making the declaration (which may be the director’s service address provided for by section 163 of the Companies Act);

(b)either—

(i)that all of the directors, or

(ii)that a majority of the directors,

have made a full inquiry into the company’s affairs and that, having done so, they have formed the opinion that the company will be able to pay its debts in full together with interest at the official rate within a specified period (which must not exceed 12 months) from the commencement of the winding up; and

(c)that the declaration is accompanied by a statement of the company’s assets and liabilities as at a date which is stated (being the latest practicable date before the making of the declaration as required by section 89(2)(b)).

(2) The statement of the company’s assets and liabilities must contain—

(a)the date of the statement;

(b)a statement that the statement shows the assets of the company at estimated realisable values and liabilities of the company expected to rank as at the date referred to in sub-paragraph (1)(c);

(c)a summary of the assets of the company, setting out the estimated realisable value of—

(i)any assets subject to a fixed charge,

(ii)any assets subject to a floating charge,

(iii)any uncharged assets; and

(iv)the total value of all the assets available to preferential creditors;

(d)the value of each of the following secured liabilities of the company expected to rank for payment—

(i)liabilities secured on specific assets, and

(ii)liabilities secured by floating charges;

(e)a summary of the unsecured liabilities of the company expected to rank for payment;

(f)the estimated costs of the winding up and other expenses;

(g)the estimated amount of interest accruing until payment of debts in full; and

(h)the estimated value of any surplus after paying debts in full together with interest at the official rate.

CHAPTER 2The liquidator

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Appointment by the company

5.2.—(1) This rule applies where the liquidator is appointed by the company.

(2) The chair of the meeting, or a director or the secretary of the company in the case of a written resolution of a private company, must certify the appointment when the appointee has provided to the person certifying the appointment a statement to the effect that the appointee is an insolvency practitioner qualified under the Act to be the liquidator and consents to act.

(3) The certificate must be authenticated and dated by the person who certifies the appointment and must contain—

(a)identification details for the company;

(b)identification and contact details for the person appointed as liquidator;

(c)the date the liquidator was appointed; and

(d)a statement that the appointee—

(i)provided a statement of being qualified to act as an insolvency practitioner in relation to the company,

(ii)has consented to act, and

(iii)was appointed liquidator of the company.

(4) Where two or more liquidators are appointed the certificate must also specify (as required by section 231) whether any act required or authorised under any enactment to be done by the liquidator is to be done by all or any one or more of them.

(5) The person who certifies the appointment must deliver the certificate as soon as reasonably practicable to the liquidator, who must keep it as part of the records of the winding up.

(6) Not later than 28 days from the liquidator’s appointment, the liquidator must deliver notice of the appointment to the creditors of the company.

Meetings in members’ voluntary winding up of authorised deposit-takers

5.3.—(1) This rule applies to a meeting of the members of an authorised deposit-taker at which it is intended to propose a resolution for its winding up.

(2) Notice of such a meeting of the company must be delivered by the directors to the Financial Conduct Authority and to the scheme manager established under section 212(1) of the Financial Services and Markets Act 2000(60).

(3) The notice to the Financial Conduct Authority and the scheme manager must be the same as delivered to members of the company.

(4) The scheme manager is entitled to be represented at any meeting of which it is required by this rule to be given notice.

Appointment by the court (section 108)

5.4.—(1) This rule applies where the liquidator is appointed by the court under section 108.

(2) The order of the court must contain—

(a)the name of the court (and hearing centre if applicable) in which the order is made;

(b)the name and title of the judge making the order;

(c)identification details for the company;

(d)the name and address of the applicant;

(e)the capacity in which the applicant made the application;

(f)identification details for the proposed liquidator;

(g)a statement that the appointee has filed with the court a statement to the effect that the appointee is an insolvency practitioner qualified to act as the liquidator and consents to act;

(h)an order that the proposed liquidator, having filed a statement of being qualified to act as an insolvency practitioner in relation to the company and having consented to act, is appointed liquidator of the company from the date of the order, or such other date as the court orders; and

(i)the date of the order.

(3) Where two or more liquidators are appointed the order must also specify (as required by section 231) whether any act required or authorised under any enactment to be done by the liquidator is to be done by all or any one or more of them.

(4) The court must deliver a sealed copy of the order to the liquidator, whose appointment takes effect from the date of the order or from such other date as the court orders.

(5) Not later than 28 days from the liquidator’s appointment, the liquidator must deliver notice of the appointment to the creditors of the company.

Cost of liquidator’s security (section 390(3))

5.5.  The cost of the liquidator’s security required by section 390(3) for the proper performance of the liquidator’s functions is an expense of the winding up.

Liquidator’s resignation

5.6.—(1) A liquidator may resign only—

(a)on grounds of ill health;

(b)because of the intention to cease to practise as an insolvency practitioner;

(c)because the further discharge of the duties of liquidator is prevented or made impractical by—

(i)a conflict of interest, or

(ii)a change of personal circumstances;

(d)where two or more persons are acting as liquidator jointly and it is the opinion of both or all of them that it is no longer expedient that there should continue to be that number of joint liquidators.

(2) Before resigning, the liquidator must deliver a notice to the members of the company—

(a)stating the liquidator’s intention to resign; and

(b)calling a meeting for the members to consider whether a replacement should be appointed;

except where the resignation is under sub-paragraph (1)(d).

(3) The notice must be accompanied by a summary of the liquidator’s receipts and payments.

(4) The notice may suggest the name of a replacement liquidator.

(5) The date of the meeting must be not more than five business days before the date on which the liquidator intends to give notice of resignation to the registrar of companies under section 171(5).

(6) The resigning liquidator’s release is effective 21 days after the date of delivery of the notice of resignation to the registrar of companies under section 171(5), unless the court orders otherwise.

Removal of liquidator by the court

5.7.—(1) This rule applies where an application is made to the court for the removal of the liquidator, or for an order directing the liquidator to summon a company meeting for the purpose of removing the liquidator.

(2) On receipt of an application, the court may, if it is satisfied that no sufficient cause is shown for it, dismiss it without giving notice to any party other than the applicant.

(3) Unless the application is dismissed, the court must fix a venue for it to be heard.

(4) The applicant must, at least 14 days before any hearing, deliver to the liquidator a notice stating the venue with a copy of the application and of any evidence on which the applicant intends to rely.

(5) A respondent may apply for security for the costs of the application and the court may make such an order if it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order.

(6) The liquidator may do either or both of the following at such a hearing—

(a)file a report of any matters which the liquidator thinks ought to be drawn to the court’s attention; or

(b)appear and be heard on the application.

(7) On a successful application the court’s order must contain the following—

(a)the name of the court (and hearing centre if applicable) in which the order is made;

(b)the name and title of the judge making the order;

(c)identification details for the company;

(d)the name and address of the applicant;

(e)the capacity in which the applicant made the application;

(f)identification and contact details for the liquidator (or former liquidator);

(g)an order either—

(i)that the liquidator is removed from office, or

(ii)that the liquidator must summon a meeting of the company’s creditors on or before a date which is stated in the order for the purpose of considering the liquidator’s removal from office; and

(h)the date of the order.

(8) The order of the court may include such provision as the court thinks just relating to matters arising in connection with the removal.

(9) The costs of the application are not payable as an expense of the winding up unless the court orders otherwise.

(10) Where the court removes the liquidator—

(a)it must deliver the sealed order of removal to the former liquidator; and

(b)the former liquidator must deliver a copy of the order to the registrar of companies as soon as reasonably practicable.

(11) If the court appoints a new liquidator, rule 5.4 applies.

Removal of liquidator by company meeting

5.8.  A liquidator removed by a meeting of the company must as soon as reasonably practicable deliver notice of the removal to the registrar of companies.

Delivery of proposed final account to members (section 94)

5.9.—(1) The liquidator must deliver a notice to the members accompanied by the proposed final account required by section 94(1)(61) and rule 18.14 giving them a minimum of eight weeks’ notice of a specified date on which the liquidator intends to deliver the final account as required by section 94(2).

(2) The notice must inform the members that when the company’s affairs are fully wound up—

(a)the liquidator will make up the final account and deliver it to the members; and

(b)when the final account is delivered to the registrar of companies the liquidator will be released under section 171(6)(62).

(3) The affairs of the company are not fully wound up until the latest of—

(a)the period referred to in paragraph (1) having expired without the liquidator receiving any request for information under rule 18.9 or the filing of any application to court under that rule or under rule 18.34 (application to court on the grounds that the liquidator’s remuneration or expenses are excessive);

(b)any request for information under rule 18.9 having been finally determined (including any applications to court under that rule); or

(c)any application to the court under rule 18.34 having been finally determined.

(4) However the liquidator may conclude that the company’s affairs are fully wound up before the period referred to in paragraph (1) has expired if every member confirms in writing to the liquidator that they do not intend to make any such request or application.

Final account prior to dissolution (section 94)

5.10.—(1) The contents of the final account which the liquidator is required to make up under section 94 must comply with the requirements of rule 18.14.

(2) When the account is delivered to the members under section 94(2) it must be accompanied by a notice which states that—

(a)the company’s affairs are fully wound up;

(b)the liquidator having delivered copies of the account to the members must, within 14 days of the date on which the account is made up, deliver a copy of the account to the registrar of companies; and

(c)the liquidator will vacate office and be released under section 171 on delivering the final account to the registrar of companies.

(3) The copy of the account which the liquidator must deliver to the registrar of companies under section 94(3) must be accompanied by a notice stating that the liquidator has delivered the final account of the winding up to the members in accordance with section 94(2).

Deceased liquidator

5.11.—(1) If the liquidator dies a notice of the fact and date of death must be delivered as soon as reasonably practicable to—

(a)one of the company’s directors; and

(b)the registrar of companies.

(2) One of the following must deliver the notice—

(a)a surviving joint liquidator;

(b)a member of the deceased liquidator’s firm (if the deceased was a member or employee of a firm);

(c)an officer of the deceased liquidator’s company (if the deceased was an officer or employee of a company); or

(d)a personal representative of the deceased liquidator.

(3) If such notice has not been delivered within the 21 days following the liquidator’s death then any other person may deliver the notice.

Loss of qualification as insolvency practitioner

5.12.—(1) This rule applies where the liquidator vacates office on ceasing to be qualified to act as an insolvency practitioner in relation to the company.

(2) A notice of the fact must be delivered as soon as reasonably practicable to the registrar of companies and the Secretary of State by one of the following—

(a)the liquidator who has vacated office;

(b)a continuing joint liquidator; or

(c)the recognised professional body which was the source of the vacating liquidator’s authorisation to act in relation to the company.

(3) Each notice must be authenticated and dated by the person delivering the notice.

Liquidator’s duties on vacating office

5.13.  A liquidator who ceases to be in office as a result of removal, resignation or ceasing to be qualified to act as an insolvency practitioner in relation to the company, must as soon as reasonably practicable deliver to the succeeding liquidator—

(a)the assets (after deduction of any expenses properly incurred, and distributions made, by the former liquidator);

(b)the records of the winding up, including correspondence, proofs and other documents relating to the winding up; and

(c)the company’s documents and other records.

Application by former liquidator to the Secretary of State for release (section 173(2)(b)) (63)

5.14.—(1) This rule applies to a liquidator who—

(a)is removed by the court;

(b)vacates office on ceasing to be qualified to act as an insolvency practitioner in relation to the company; or

(c)vacates office in consequence of the court making a winding-up order against the company.

(2) Where the former liquidator applies to the Secretary of State for release the application must contain—

(a)identification details for the former liquidator;

(b)identification details for the company;

(c)the circumstances under which the former liquidator ceased to act as liquidator; and

(d)a statement that the former liquidator is applying to the Secretary of State for release.

(3) The application must be authenticated and dated by the former liquidator.

(4) When the Secretary of State gives a release, the Secretary of State must deliver—

(a)a certificate of the release to the former liquidator; and

(b)a notice of the release to the registrar of companies.

(5) Release is effective from the date of the certificate or such other date as the certificate specifies.

Power of court to set aside certain transactions entered into by liquidator

5.15.—(1) If in dealing with the estate the liquidator enters into any transaction with a person who is an associate of the liquidator, the court may, on the application of any interested person , set the transaction aside and order the liquidator to compensate the company for any loss suffered in consequence of it.

(2) This does not apply if either—

(a)the transaction was entered into with the prior consent of the court; or

(b)it is shown to the court’s satisfaction that the transaction was for value, and that it was entered into by the liquidator without knowing, or having any reason to suppose, that the person concerned was an associate.

(3) Nothing in this rule is to be taken as prejudicing the operation of any rule of law or equity relating to a liquidator’s dealings with trust property, or the fiduciary obligations of any person.

Rule against improper solicitation by or on behalf of the liquidator

5.16.—(1) Where the court is satisfied that any improper solicitation has been used by or on behalf of the liquidator in obtaining proxies or procuring the liquidator’s appointment, it may order that no remuneration be allowed as an expense of the winding up to any person by whom, or on whose behalf, the solicitation was exercised.

(2) An order of the court under this Rule overrides any resolution of the members, or any other provision of these Rules relating to the liquidator’s remuneration.

CHAPTER 3Special manager

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application for and appointment of special manager (section 177)

5.17.—(1) An application by the liquidator under section 177 for the appointment of a special manager must be supported by a report setting out the reasons for the application.

(2) The report must include the applicant’s estimate of the value of the business or property in relation to which the special manager is to be appointed.

(3) The court’s order appointing a special manager must have the title “Order of Appointment of Special Manager” and must contain—

(a)the name of the court (and hearing centre if applicable) in which the order is made;

(b)the name and title of the judge making the order;

(c)identification details for the proceedings;

(d)the name and address of the applicant;

(e)the name and address of the proposed special manager;

(f)an order that the proposed special manager is appointed as special manager of the company;

(g)details of the special manager’s responsibility over the company’s business or property;

(h)the powers to be entrusted to the special manager under section 177(4);

(i)the time allowed for the special manager to give the required security for the appointment;

(j)the duration of the special manager’s appointment, being one of the following—

(i)for a fixed period stated in the order;

(ii)until the occurrence of a specified event; or

(iii)until the court makes a further order;

(k)the order that the special manager’s remuneration will be fixed from time to time by the court; and

(l)the date of the order and the date on which it takes effect if different.

(4) The appointment of the special manager may be renewed by order of the court.

(5) The acts of the special manager are valid notwithstanding any defect in the special manager’s appointment or qualifications.

Security

5.18.—(1) The appointment of the special manager does not take effect until the person appointed has given (or, if the court allows, undertaken to give) security to the liquidator for the appointment.

(2) A person appointed as special manager may give security either specifically for a particular winding up, or generally for any winding up in relation to which that person may be appointed as special manager.

(3) The amount of the security must be not less than the value of the business or property in relation to which the special manager is appointed, as estimated in the liquidator’s report which accompanied the application for appointment.

(4) When the special manager has given security to the liquidator, the liquidator must file with the court a certificate as to the adequacy of the security.

(5) The cost of providing the security must be paid in the first instance by the special manager, but the special manager is entitled to be reimbursed as an expense of the winding up.

Failure to give or keep up security

5.19.—(1) If the special manager fails to give the required security within the time stated in the order of appointment, or any extension of that time that may be allowed, the liquidator must report the failure to the court, which may discharge the order appointing the special manager.

(2) If the special manager fails to keep up the security, the liquidator must report the failure to the court, which may remove the special manager, and make such order as it thinks just as to costs.

(3) If the court discharges the order appointing the special manager, or makes an order removing the special manager, the court must give directions as to whether any, and if so what, steps should be taken for the appointment of another special manager.

Accounting

5.20.—(1) The special manager must produce accounts, containing details of the special manager’s receipts and payments, for the approval of the liquidator.

(2) The accounts must be for—

(a)each three month period for the duration of the special manager’s appointment; and

(b)any shorter period ending with the termination of the special manager’s appointment.

(3) When the accounts have been approved, the special manager’s receipts and payments must be added to those of the liquidator.

Termination of appointment

5.21.—(1) If the liquidator thinks that the appointment of the special manager is no longer necessary or beneficial for the company, the liquidator must apply to the court for directions, and the court may order the special manager’s appointment to be terminated.

(2) The liquidator must also make such an application if the members pass a resolution requesting that the appointment be terminated.

CHAPTER 4Conversion to creditors’ voluntary winding up

Statement of affairs (section 95(3))

5.22.  The rules in Chapter 2 of Part 6 apply to the statement of affairs made out by the liquidator under section 95(1A)(64) where the liquidator is of the opinion that the company will be unable to pay its debts in full (together with interest at the official rate) within the period stated in the directors’ declaration under section 89.

PART 6CREDITORS’ VOLUNTARY WINDING UP

CHAPTER 1Application of Part 6

Application of Part 6

6.1.—(1) This Part applies to a creditors’ voluntary winding up.

(2) However where a company moves from administration to creditors’ voluntary winding up by the registration of a notice under paragraph 83(3) of Schedule B1 the following rules do not apply—

  • 6.2 to 6.7 (statement of affairs etc.);

  • 6.11 to 6.15 (information to creditors and contributories and appointment of liquidator);

  • 6.17 (report by directors etc.);

  • 6.18 (decisions on nomination);

  • 6.20 (appointment by creditors or by the company);

  • 6.22 (appointment by the court (section 100(3) or 108), other than in respect of appointments under section 108); and

  • 6.23 (advertisement of appointment).

CHAPTER 2Statement of affairs and other information

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Statement of affairs made out by the liquidator under section 95(1A)

[Note: (1) section 95(4A) requires the statement of affairs to be verified by a statement of truth;

(2) the “official rate” referred to in paragraph (2)(c) is defined in section 251 as being the rate referred to in section 189(4)).]

6.2.—(1) This rule applies to the statement of affairs made out by the liquidator under section 95(1A) (effect of company’s insolvency in members’ voluntary winding up).

(2) The statement of affairs must be headed “Statement of affairs” and must contain—

(a)identification details for the company;

(b)a statement that it is a statement of the affairs of the company on a date which is specified, being the date of the opinion formed by the liquidator under section 95(1);

(c)a statement that as at that date, the liquidator formed the opinion that the company would be unable to pay its debts in full (together with interest at the official rate) within the period stated in the directors’ declaration of solvency made under section 89; and

(d)the date it is made.

(3) The statement of affairs must be delivered by the liquidator to the registrar of companies within five business days after the completion of the decision procedure or deemed consent procedure referred to in rule 6.11 in respect of the appointment of the liquidator.

(4) However the liquidator must not deliver to the registrar of companies with the statement of affairs any schedule required by rule 6.4(4)(b).

Statement of affairs made out by the directors under section 99(1)

[Note: section 99(2A) requires the statement of affairs to be verified by a statement of truth.]

6.3.—(1) This rule applies to the statement of affairs made out by the directors under section 99(1)(65).

(2) The statement of affairs must be headed “Statement of affairs” and must contain—

(a)identification details for the company;

(b)a statement that it is a statement of the affairs of the company on a date which is specified, being a date not more than 14 days before the date of the resolution for winding up; and

(c)the date it is made.

(3) If a creditor requests a copy of the statement of affairs at a time when no liquidator is appointed the directors must deliver a copy to the creditor.

(4) The directors must deliver the statement of affairs to the liquidator as soon as reasonably practicable after the liquidator is appointed.

(5) The liquidator must deliver the statement of affairs to the registrar of companies within five business days after the completion of the decision procedure or deemed consent procedure referred to in rule 6.14 in respect of the appointment of the liquidator.

(6) However the liquidator must not deliver to the registrar of companies with the statement of affairs any schedule required by rule 6.4(4)(b).

Additional requirements as to statements of affairs

6.4.—(1) A statement of affairs under section 95(1A) or 99(1) must also contain—

(a)a list of the company’s shareholders, with the following details about each shareholder—

(i)name and postal address,

(ii)the type of shares held,

(iii)the nominal amount of the shares held,

(iv)the number of shares held,

(v)the amount per share called up, and

(vi)the total amount called up;

(b)the total amount of shares called up held by all shareholders;

(c)a summary of the assets of the company, setting out the book value and estimated realisable value of—

(i)any assets subject to a fixed charge,

(ii)any assets subject to a floating charge,

(iii)any uncharged assets, and

(iv)the total value of all the assets available for preferential creditors;

(d)a summary of the liabilities of the company, setting out—

(i)the amount of preferential debts,

(ii)an estimate of the deficiency with respect to preferential debts or the surplus available after paying the preferential debts,

(iii)an estimate of the prescribed part, if applicable,

(iv)an estimate of the total assets available to pay debts secured by floating charges,

(v)the amount of debts secured by floating charges,

(vi)an estimate of the deficiency with respect to debts secured by floating charges or the surplus available after paying the debts secured by fixed or floating charges,

(vii)the amount of unsecured debts (excluding preferential debts),

(viii)an estimate of the deficiency with respect to unsecured debts or the surplus available after paying unsecured debts,

(ix)any issued and called-up capital, and

(x)an estimate of the deficiency with respect to, or surplus available to, members of the company;

(e)a list of the company’s creditors with the further particulars required by paragraph (2) indicating—

(i)any creditors under hire-purchase, chattel leasing or conditional sale agreements,

(ii)any creditors who are consumers claiming amounts paid in advance of the supply of goods or services, and

(iii)any creditors claiming retention of title over property in the company’s possession.

(2) The further particulars required by this paragraph relating to each creditor are as follows—

(i)the name and postal address,

(ii)amount of the debt owed to the creditor, (as required by section 95(4) or 99(2)),

(iii)details of any security held by the creditor,

(iv)the date the security was given, and

(v)the value of any such security.

(3) Paragraph (4) applies where the particulars required by paragraph (2) relate to creditors who are either—

(a)employees or former employees of the company; or

(b)consumers claiming amounts paid in advance for the supply of goods or services.

(4) Where this paragraph applies—

(a)the statement of affairs must state separately for each of paragraphs (3)(a) and (b) the number of such creditors and the total of the debts owed to them; and

(b)the particulars required by paragraph (2) must be set out in separate schedules to the statement of affairs for each of paragraphs (3)(a) and (b).

Statement of affairs: statement of concurrence

6.5.—(1) The liquidator may require a director (“the relevant person”) to deliver to the liquidator a statement of concurrence.

(2) A statement of concurrence is a statement that the relevant person concurs in the statement of affairs submitted by another director.

(3) The liquidator must inform the director who has been required to submit a statement of affairs that the relevant person has been required to deliver a statement of concurrence.

(4) The director who has been required to submit the statement of affairs must deliver a copy to every relevant person who has been required to submit a statement of concurrence.

(5) A statement of concurrence—

(a)must identify the company; and

(b)may be qualified in relation to matters dealt with in the statement of affairs, where the maker of the statement of concurrence—

(i)is not in agreement with the statement of affairs,

(ii)considers the statement of affairs to be erroneous or misleading, or

(iii)is without the direct knowledge necessary for concurring with it.

(6) The relevant person must deliver the required statement of concurrence, verified by a statement of truth, to the liquidator together with a copy before the end of the period of five business days (or such other period as the liquidator may agree) beginning with the day on which the relevant person receives the statement of affairs.

(7) The liquidator must deliver the verified statement of concurrence to the registrar of companies.

Order limiting disclosure of statement of affairs etc.

6.6.—(1) Where the liquidator thinks that disclosure of the whole or part of the statement of affairs or of any statement of concurrence would be likely to prejudice the conduct of the winding up or might reasonably be expected to lead to violence against any person, the liquidator may apply to the court for an order that the statement of affairs, statement of concurrence or any specified part of them must not be delivered to the registrar of companies.

(2) The court may order that the whole or a specified part of the statement of affairs or a statement of concurrence must not be delivered to the registrar of companies.

(3) The liquidator must as soon as reasonably practicable deliver to the registrar of companies a copy of the order, the statement of affairs and any statement of concurrence to the extent allowed by the order.

Expenses of statement of affairs and decisions sought from creditors

6.7.—(1) Any reasonable and necessary expenses of preparing the statement of affairs under section 99 may be paid out of the company’s assets, either before or after the commencement of the winding up, as an expense of the winding up.

(2) Any reasonable and necessary expenses of the decision procedure or deemed consent procedure to seek a decision from the creditors on the nomination of a liquidator under rule 6.14 may be paid out of the company’s assets, either before or after the commencement of the winding up, as an expense of the winding up.

(3) Where payment under paragraph (1) or (2) is made before the commencement of the winding up, the directors must deliver to the creditors with the statement of affairs a statement of the amount of the payment and the identity of the person to whom it was made.

(4) The liquidator appointed under section 100(66) may make such a payment, but if there is a liquidation committee, the liquidator must deliver to the committee at least five business days’ notice of the intention to make it.

(5) However such a payment may not be made to the liquidator, or to any associate of the liquidator, otherwise than with the approval of the liquidation committee, the creditors, or the court.

(6) This is without prejudice to the court’s powers under rule 7.109 (voluntary winding up superseded by winding up by the court).

Delivery of accounts to liquidator (section 235)

6.8.—(1) A person who is specified in section 235(3) must deliver to the liquidator accounts of the company of such nature, as at such date, and for such period, as the liquidator requires.

(2) The period for which the liquidator may require accounts may begin from a date up to three years before the date of the resolution for winding up, or from an earlier date to which audited accounts of the company were last prepared.

(3) The accounts must, if the liquidator so requires, be verified by a statement of truth.

(4) The accounts (verified by a statement of truth if so required) must be delivered to the liquidator within 21 days from the liquidator’s request, or such longer period as the liquidator may allow.

Expenses of assistance in preparing accounts

6.9.—(1) Where the liquidator requires a person to deliver accounts under rule 6.8 the liquidator may, with the approval of the liquidation committee (if there is one) and as an expense of the winding up, employ a person or firm to assist that person in the preparation of the accounts.

(2) The person who is required to deliver accounts may request an allowance of all or part of the expenses to be incurred in employing a person or firm to assist in preparing the accounts.

(3) A request for an allowance must be accompanied by an estimate of the expenses involved.

(4) The liquidator must only authorise the employment of a named person or a named firm approved by the liquidator.

(5) The liquidator may, with the approval of the liquidation committee (if there is one), authorise such an allowance, payable as an expense of the winding up.

CHAPTER 3Nomination and appointment of liquidators and information to creditors

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application of the rules in this Chapter

6.10.—(1) The rules in this Chapter apply as follows.

(2) Rules 6.11 to 6.13 only apply to a conversion from a members’ voluntary winding up to a creditors’ voluntary winding up.

(3) Rule 6.16 only applies where the administrator becomes the liquidator in a voluntary winding up which follows an administration.

(4) Rules 6.14, 6.15 and 6.17 only apply to a creditors’ voluntary winding up which has not been commenced by a conversion from a members’ voluntary winding up or an administration.

(5) Rules 6.18 and 6.19 apply to all creditors’ voluntary windings up.

Nomination of liquidator and information to creditors on conversion from members’ voluntary winding up (section 96)

6.11.—(1) This rule applies in respect of the conversion of a members’ voluntary winding up to a creditors’ voluntary winding up under section 96(67).

(2) The liquidator must seek a nomination from the creditors for a liquidator in the creditors’ voluntary winding up by—

(a)a decision procedure; or

(b)the deemed consent procedure.

(3) The liquidator must deliver to the creditors a copy of the statement of affairs required by section 95(1A) and Chapter 2 of this Part together with a notice which complies with rules 15.7 or 15.8 so far as are relevant.

(4) The notice must also contain—

(a)identification and contact details for the existing liquidator; and

(b)a statement that if no person is nominated by the creditors then the existing liquidator will be the liquidator in the creditors’ voluntary winding up.

(5) The decision date in the notice must be not later than 28 days from the date under section 95(1) that the liquidator formed the opinion that the company will be unable to pay its debts in full.

(6) Subject to paragraph (9), the creditors must be given at least 14 days’ notice of the decision date.

(7) Paragraph (8) applies where—

(a)the liquidator has sought a decision from creditors on the nomination of a liquidator by the deemed consent procedure; but

(b)the level of objections to the proposed nomination have meant, under section 246ZF, that no nomination is deemed to have been made.

(8) Where this paragraph applies, the liquidator must seek a nomination from creditors by way of a decision procedure in accordance with this rule, the decision date to be as soon as reasonably practicable, but no more than 28 days from the date that the level of objections had the effect that no nomination was deemed to have been made.

(9) Where paragraph (8) applies, the creditors must be given at least seven days’ notice of the decision date.

(10) Where the liquidator is required by rule 15.6 to summon a physical meeting as a result of requests from creditors received in response to a notice delivered under this rule, the physical meeting must be summoned to take place—

(a)within 28 days of the date on which the threshold for requiring a physical meeting was met; and

(b)with at least 14 days’ notice.

Creditors’ decision on appointment other than at a meeting (conversion from members’ voluntary winding up)

6.12.—(1) This rule applies where the creditors’ decision on the nomination of a liquidator in a conversion of a members’ into a creditors’ voluntary winding up is intended to be sought otherwise than through a meeting or through the deemed consent procedure, including where the conditions in rule 6.11(7) are met and the liquidator, under rule 6.11(8), goes on to seek a nomination from creditors by way of a decision procedure other than a meeting.

(2) Instead of delivering a notice of the decision procedure or deemed consent procedure under rule 6.11, the liquidator must deliver a notice to creditors inviting them to make proposals for the nomination of a liquidator.

(3) Such a notice must—

(a)identify any liquidator for whom a proposal which is in compliance with paragraph 4 has already been received;

(b)explain that the liquidator is not obliged to seek the creditors’ views on any proposal that does not meet the requirements of paragraphs (4) and (5); and

(c)be accompanied by the statement of affairs unless that has previously been delivered to the creditor.

(4) Any proposal must state the name and contact details of the proposed liquidator, and contain a statement that the proposed liquidator is qualified to act as an insolvency practitioner in relation to the company and has consented to act as liquidator of the company.

(5) Any proposal must be received by the liquidator within five business days of the date of the notice under paragraph (2).

(6) Within two business days of the end of the period referred to in paragraph (5), the liquidator must deliver a notice to creditors of a decision procedure under rule 6.11.

Information to creditors and contributories (conversion of members’ voluntary winding up into creditors’ voluntary winding up)

6.13.—(1) The liquidator must deliver to the creditors and contributories within 28 days of the conversion of a members’ voluntary winding up into a creditors’ voluntary winding up under section 96 a notice which must contain—

(a)the date the winding up became a creditors’ voluntary winding up;

(b)a report of the decision procedure or deemed consent procedure which took place under rule 6.10; and

(c)the information required by paragraph (3).

(2) The notice must be accompanied by a copy of the statement of affairs or a summary except where the notice is being delivered to a creditor to whom a copy of the statement of affairs has previously been delivered under section 95(1A)(68).

(3) The required information is an estimate to the best of the liquidator’s knowledge and belief of—

(a)the value of the prescribed part (whether or not the liquidator might be required under section 176A to make the prescribed part available for the satisfaction of unsecured debts); and

(b)the value of the company’s net property (as defined by section 176A(6)).

(4) The liquidator may exclude from an estimate under paragraph (3) information the disclosure of which could seriously prejudice the commercial interests of the company.

(5) If the exclusion of such information affects the calculation of an estimate, the report must say so.

(6) If the liquidator proposes to make an application to court under section 176A(5) the report must say so and give the reason for the application.

Information to creditors and appointment of liquidator

6.14.—(1) This rule applies in respect of the appointment of a liquidator under section 100.

(2) The directors of the company must deliver to the creditors a notice seeking their decision on the nomination of a liquidator by—

(a)the deemed consent procedure; or

(b)a virtual meeting.

(3) The decision date for the decision of the creditors on the nomination of a liquidator must be not earlier than three business days after the notice under paragraph (2) is delivered but not later than 14 days after the resolution is passed to wind up the company.

(4) Where the directors have sought a decision from the creditors through the deemed consent procedure under paragraph (2)(a) but, pursuant to section 246ZF(5)(a) (deemed consent procedure), more than the specified number of creditors object so that the decision cannot be treated as having been made, the directors must then seek a decision from the creditors on the nomination of a liquidator by holding a physical meeting under rule 15.6 (physical meetings) as if a physical meeting had been required under section 246ZE(4) (decisions by creditors and contributories: general).

(5) Where paragraph (4) applies, the meeting must not be held earlier than three business days after the notice under rule 15.6(3) is delivered or later than 14 days after the level of objections reach that described in paragraph (4).

(6) A request for a physical meeting under section 246ZE must be made in accordance with rule 15.6 except that—

(a)such a request may be made at any time between the delivery of the notice under paragraph (2) and the decision date under paragraph (3); and

(b)the decision date where this paragraph applies must be not earlier than three business days after the notice under rule 15.6(3) is delivered and not later than 14 days after the level of requests reach that described in section 246ZE.

(7) The directors must deliver to the creditors a copy of the statement of affairs required under section 99 of the Act not later than on the business day before the decision date.

(8) A notice delivered under paragraph (2), in addition to the information required by rules 15.7 (deemed consent) and 15.8 (notices to creditors of decision procedure), must contain—

(a)the date the resolution to wind up is to be considered or was passed;

(b)identification and contact details of any liquidator nominated by the company;

(c)a statement of either—

(i)the name and address of a person qualified to act as an insolvency practitioner in relation to the company who during the period before the decision date, will furnish creditors free of charge with such information concerning the company’s affairs as they may reasonably require, or

(ii)a place in the relevant locality where, on the two business days falling next before the decision date, a list of the names and addresses of the company’s creditors will be available for inspection free of charge; and

(d)where the notice is sent to creditors in advance of the copy of the statement of affairs, a statement that the directors, before the decision date and before the end of the period of seven days beginning with the day after the day on which the company passed a resolution for winding up, are required by section 99 of the Insolvency Act 1986—

(i)to make out a statement in the prescribed form as to the affairs of the company, and

(ii)send the statement to the company’s creditors.

(9) Where the company’s principal place of business in England or Wales was situated in different localities at different times during the relevant period, the duty imposed by sub-paragraph (8)(c)(ii) above applies separately in relation to each of those localities.

(10) Where the company had no place of business in England or Wales during the relevant period, the reference in paragraph (9) to the company’s principal place of business in England or Wales are replaced by references to its registered office.

(11) In paragraph (9), “the relevant period” means the period of six months immediately preceding the day on which the notices referred to in paragraph (2) were delivered.

(12) Where a virtual or physical meeting is held under this rule and a liquidator has already been nominated by the company, the liquidator or an appointed person must attend any meeting held under this rule and report on any exercise of the liquidator’s powers under section 112, 165 or 166 of the Act(69).

(13) A director who is in default in seeking a decision on the nomination of a liquidator in accordance with this rule is guilty of an offence and is liable to a fine.

Information to creditors and contributories

6.15.—(1) The liquidator must deliver to the creditors and contributories within 28 days of the appointment of the liquidator under section 100 a notice which must—

(a)be accompanied by a statement of affairs or a summary where the notice is delivered to any contributory or creditor to whom the notice under rule 6.14 was not delivered;

(b)a report on the decision procedure or deemed consent procedure under rule 6.14; and

(c)be accompanied by the information required by paragraph (2).

(2) The required information is an estimate to the best of the liquidator’s knowledge and belief of—

(a)the value of the prescribed part (whether or not the liquidator might be required under section 176A to make the prescribed part available for the satisfaction of unsecured debts); and

(b)the value of the company’s net property (as defined by section 176A(6)).

(3) The liquidator may exclude from an estimate under paragraph (2) information the disclosure of which could seriously prejudice the commercial interests of the company.

(4) If the exclusion of such information affects the calculation of an estimate, the report must say so.

(5) If the liquidator proposes to make an application to court under section 176A(5) the report must say so and give the reason for the application.

Further information where administrator becomes liquidator (paragraph 83(3) of Schedule B1)

6.16.—(1) This rule applies where an administrator becomes liquidator on the registration of a notice under paragraph 83(3) of Schedule B1, and becomes aware of creditors not formerly known to that person as administrator.

(2) The liquidator must deliver to those creditors a copy of any statement delivered by the administrator to creditors in accordance with paragraph 49(4)(70) of Schedule B1 and rule 3.35.

Report by director etc.

6.17.—(1) Where the statement of affairs sent to creditors under section 99(1) does not, or will not, state the company’s affairs at the decision date for the creditors’ nomination of a liquidator, the directors of the company must cause a report (written or oral) to be made to the creditors in accordance with this rule on any material transactions relating to the company occurring between the date of the making of the statement and the decision date.

(2) In the case of a decision being taken through a meeting, the report must be made at the meeting by the director chairing the meeting or by another person with knowledge of the relevant matters.

(3) Where the deemed consent procedure is used, the report must be delivered to creditors as soon as reasonably practicable after the material transaction takes place in the same manner as the deemed consent procedure.

(4) Where the decision date is within the period of three business days from the delivery of a report under paragraph (3), this rule extends the decision date until the end of that period notwithstanding the requirement in rule 6.14(3) relating to the timing of the decision date.

(5) On delivery of a report under paragraph (3), the directors must notify the creditors of the effects of paragraph (4).

(6) A report under this rule must be recorded in the record of the decision under rule 15.40.

Decisions on nomination

6.18.—(1) In the case of a decision on the nomination of a liquidator—

(a)if on any vote there are two nominees, the person who obtains the most support is appointed;

(b)if there are three or more nominees, and one of them has a clear majority over both or all the others together, that one is appointed; and

(c)in any other case, the convener or chair must continue to take votes (disregarding at each vote any nominee who has withdrawn and, if no nominee has withdrawn, the nominee who obtained the least support last time) until a clear majority is obtained for any one nominee.

(2) In the case of a decision being made at a meeting, the chair may at any time put to the meeting a resolution for the joint nomination of any two or more nominees.

Invitation to creditors to form a liquidation committee

6.19.—(1) Where any decision is sought from the company’s creditors—

(a)in a creditors’ voluntary winding up; or

(b)where a members’ voluntary winding up is converting in a creditors’ voluntary winding up;

the convener of the decision must at the same time deliver to the creditors a notice inviting them to decide whether a liquidation committee should be established if sufficient creditors are willing to be members of the committee.

(2) The notice must also invite nominations for membership of the committee, such nominations to be received by a date specified in the notice.

(3) The notice must state that nominations—

(a)must be delivered to the convener by the specified date; and

(b)can only be accepted if the convener is satisfied as to the creditor’s eligibility under rule 17.4.

CHAPTER 4The liquidator

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Appointment by creditors or by the company

6.20.—(1) This rule applies where a person is appointed as liquidator by creditors or the company.

(2) The liquidator’s appointment takes effect from the date of the passing of the resolution for the appointment.

(3) Their appointment must be certified by—

(a)the convener or chair of the decision procedure or deemed consent procedure; or

(b)in respect of an appointment by the company the chair of the company meeting or a director or the secretary of the company (in the case of a written resolution).

(4) The person who certifies the appointment must not do so unless and until the proposed liquidator (“the appointee”) has provided that person with a statement of being an insolvency practitioner qualified under the Act to be the liquidator and of consenting to act.

(5) The certificate must be authenticated and dated by the person who certifies the appointment and must contain—

(a)identification details for the company;

(b)identification and contact details for the person appointed as liquidator;

(c)the date of the meeting of the company or conclusion of the decision procedure or deemed consent procedure when the liquidator was appointed;

(d)a statement that the appointee—

(i)has provided a statement of being qualified to act as an insolvency practitioner in relation to the company,

(ii)has consented to act, and

(iii)was appointed liquidator of the company.

(6) Where two or more liquidators are appointed the certificate must also specify (as required by section 231) whether any act required or authorised under any enactment to be done by the liquidator is to be done by all or any one or more of them.

(7) The person who certifies the appointment must deliver the certificate as soon as reasonably practicable to the liquidator, who must keep it as part of the records of the winding up.

Power to fill vacancy in office of liquidator

6.21.  Where a vacancy in the office of liquidator occurs in the manner mentioned in section 104 a decision procedure to fill the vacancy may be initiated by any creditor or, if there was more than one liquidator, by the continuing liquidator or liquidators.

Appointment by the court (section 100(3) or 108)

6.22.—(1) This rule applies where the liquidator is appointed by the court under section 100(3) or 108.

(2) The court’s order must not be made unless and until the proposed liquidator has filed with the court a statement of being qualified under the Act to act as an insolvency practitioner in relation to the company and of consenting to act.

(3) The order of the court must contain—

(a)the name of the court (and hearing centre if applicable) in which the order is made;

(b)the name and title of the judge making the order;

(c)the date on which it is made;

(d)identification details for the company;

(e)the name and postal address of the applicant;

(f)the capacity in which the applicant made the application;

(g)identification details for the proposed liquidator; and

(h)an order that the proposed liquidator, having filed a statement of being qualified to act as an insolvency practitioner in relation to the company and having consented to act, is appointed liquidator of the company from the date of the order, or such other date as the court orders.

(4) Where two or more liquidators are appointed the order must also specify (as required by section 231) whether any act required or authorised under any enactment to be done by the liquidator is to be done by all or any one or more of them.

(5) The court must deliver a sealed copy of the order to the liquidator.

(6) Within 28 days from appointment, the liquidator must—

(a)deliver a notice of the appointment to creditors of the company; or

(b)advertise the appointment in accordance with any directions given by the court.

Advertisement of appointment

6.23.—(1) A liquidator appointed in a voluntary winding up in addition to delivering a notice of the appointment in accordance with section 109(1)(71) may advertise the notice in such other manner as the liquidator thinks fit.

(2) The notice must state—

(a)that a liquidator has been appointed; and

(b)the date of the appointment.

(3) The liquidator must initially bear the expense of giving notice under this rule but is entitled to be reimbursed for the expenditure as an expense of the winding up.

Cost of liquidator’s security (section 390(3))

6.24.  The cost of the liquidator’s security required by section 390(3) for the proper performance of the liquidator’s functions is an expense of the winding up.

Liquidator’s resignation and replacement

6.25.—(1) A liquidator may resign only—

(a)on grounds of ill health;

(b)because of the intention to cease to practise as an insolvency practitioner;

(c)because the further discharge of the duties of liquidator is prevented or made impractical by—

(i)a conflict of interest, or

(ii)or a change of personal circumstances; or

(d)where two or more persons are acting as liquidator jointly and it is the opinion of both or all of them that it is no longer expedient that there should continue to be that number of joint liquidators.

(2) Before resigning the liquidator must invite the creditors by a decision procedure, or by deemed consent, to consider whether a replacement should be appointed except where the resignation is under paragraph (1)(d).

(3) The notice of the decision procedure or of deemed consent must—

(a)state the liquidator’s intention to resign;

(b)state that under rule 6.25(7) of these Rules the liquidator will be released 21 days after the date of delivery of the notice of resignation to the registrar of companies under section 171(5), unless the court orders otherwise; and

(c)comply with rules 15.7 and 15.8 so far as are relevant.

(4) The notice may suggest the name of a replacement liquidator.

(5) The notice must be accompanied by a summary of the liquidator’s receipts and payments.

(6) The decision date must be not more than five business days before the date on which the liquidator intends to give notice of resignation to the registrar of companies under section 171(5).

(7) The resigning liquidator’s release is effective 21 days after the date of delivery of the notice of resignation to the registrar of companies under section 171(5), unless the court orders otherwise.

Removal of liquidator by creditors

6.26.—(1) Where the creditors decide that the liquidator be removed, the convener of the decision procedure or the chair of the meeting (as the case may be) must as soon as reasonably practicable deliver the certificate of the liquidator’s removal to the removed liquidator.

(2) The removed liquidator must deliver a notice of the removal to the registrar of companies as soon as reasonably practicable.

Removal of liquidator by the court

6.27.—(1) This rule applies where an application is made to the court for the removal of the liquidator, or for an order directing the liquidator to initiate a decision procedure of creditors for the purpose of removing the liquidator.

(2) On receipt of an application, the court may, if it is satisfied that no sufficient cause is shown for it, dismiss it without giving notice to any party other than the applicant.

(3) Unless the application is dismissed, the court must fix a venue for it to be heard.

(4) The applicant must, at least 14 days before any hearing, deliver to the liquidator a notice stating the venue with a copy of the application and of any evidence on which the applicant intends to rely.

(5) A respondent may apply for security for the costs of the application and the court may make such an order if it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order.

(6) The liquidator may do either or both of the following—

(a)file a report of any matters which the liquidator thinks ought to be drawn to the court’s attention; or

(b)appear and be heard on the application.

(7) The costs of the application are not payable as an expense of the winding up unless the court orders otherwise.

(8) On a successful application the court’s order must contain the following—

(a)the name of the court (and hearing centre if applicable) in which the order is made;

(b)the name and title of the judge making the order;

(c)identification details for the company;

(d)the name and postal address of the applicant;

(e)the capacity in which the applicant made the application;

(f)identification and contact details for the liquidator;

(g)an order either—

(i)that the liquidator is removed from office from the date of the order (unless the order specifies otherwise), or

(ii)that the liquidator must initiate a decision procedure of the company’s creditors (specifying which procedure is to be used) on or before a date stated in the order for the purpose of considering the liquidator’s removal from office; and

(h)the date of the order.

(9) Where the court removes the liquidator—

(a)it must deliver the sealed order of removal to the former liquidator; and

(b)the former liquidator must deliver a copy of the order to the registrar of companies as soon as reasonably practicable.

(10) If the court appoints a new liquidator rule 6.22 applies.

Final account prior to dissolution (section 106)

6.28.—(1) The final account which the liquidator is required to make up under section 106(1)(72) and deliver to members and creditors must comply with the requirements of rule 18.14.

(2) When the account is delivered to the creditors it must be accompanied by a notice which states—

(a)that the company’s affairs are fully wound up;

(b)that the creditors have the right to request information from the liquidator under rule 18.9;

(c)that the creditors have the right to challenge the liquidator’s remuneration and expenses under rule 18.34;

(d)that a creditor may object to the release of the liquidator by giving notice in writing to the liquidator before the end of the prescribed period;

(e)that the prescribed period is the period ending at the later of—

(i)eight weeks after delivery of the notice, or

(ii)if any request for information under rule 18.9 or any application to court under that rule or rule 18.34 is made, when that request or application is finally determined;

(f)that the liquidator will vacate office under section 171 on delivering to the registrar of companies the final account and notice saying whether any creditor has objected to release; and

(g)that the liquidator will be released under section 173(73) at the same time as vacating office unless any of the company’s creditors objected to the liquidator’s release.

(3) The copy of the account which the liquidator delivers to the registrar of companies under section 106(3) must be accompanied by a notice containing the statement required by section 106(3)(a) of whether any creditors have objected to the liquidator’s release.

(4) Where a creditor has objected to the liquidator’s release rule 6.33 applies to an application by the liquidator to the Secretary of State for release.

(5) The liquidator is not obliged to prepare or deliver any progress report which may become due under these Rules in the period between the date to which the final account is made up and the date when the account is delivered to the registrar of companies under section 106(3)(a).

Deceased liquidator

6.29.—(1) If the liquidator dies a notice of the fact and date of death must be delivered as soon as reasonably practicable—

(a)where there is a liquidation committee, to the members of that committee; and

(b)to the registrar of companies.

(2) The notice must be delivered by one of the following—

(a)a surviving joint liquidator;

(b)a member of the deceased liquidator’s firm (if the deceased was a member or employee of a firm);

(c)an officer of the deceased liquidator’s company (if the deceased was an officer or employee of a company); or

(d)a personal representative of the deceased liquidator.

(3) If such a notice has not been delivered within the 21 days following the liquidator’s death then any other person may deliver the notice.

Loss of qualification as insolvency practitioner

6.30.—(1) This rule applies where the liquidator vacates office on ceasing to be qualified to act as an insolvency practitioner in relation to the company.

(2) A notice of the fact must be delivered as soon as reasonably practicable to the registrar of companies and the Secretary of State by one of the following—

(a)the liquidator who has vacated office;

(b)a continuing joint liquidator;

(c)the recognised professional body which was the source of the vacating liquidator’s authorisation to act in relation to the company.

(3) Each notice must be authenticated and dated by the person delivering the notice.

Vacation of office on making of winding-up order

6.31.  Where the liquidator vacates office in consequence of the court making a winding-up order against the company, rule 6.33 applies in relation to the application to the Secretary of State for release of the liquidator.

Liquidator’s duties on vacating office

6.32.  A liquidator who ceases to be in office in consequence of removal, resignation or ceasing to be qualified as an insolvency practitioner in relation to the company, must as soon as reasonably practicable deliver to the succeeding liquidator—

(a)the assets (after deduction of any expenses properly incurred, and distributions made, by the former liquidator);

(b)the records of the winding up, including correspondence, proofs and other documents; and

(c)the company’s records.

Application by former liquidator for release (section 173(2)(b))

6.33.—(1) An application to the Secretary of State by a former liquidator for release under section 173(2)(b) must contain—

(a)identification and contact details for the former liquidator;

(b)identification details for the company;

(c)details of the circumstances under which the liquidator has ceased to act as liquidator;

(d)a statement that the former liquidator of the company is applying to the Secretary of State for a certificate of release as liquidator as a result of the circumstances specified in the application.

(2) The application must be authenticated and dated by the former liquidator.

(3) When the Secretary of State releases the former liquidator, the Secretary of State must certify the release and deliver the certificate to the former liquidator whose release is effective from the date of the certificate or such other date as the certificate specifies.

(4) The Secretary of State must deliver a notice of the release to the registrar of companies.

Power of court to set aside certain transactions

6.34.—(1) If in dealing with the insolvent estate the liquidator enters into any transaction with a person who is an associate of the liquidator, the court may, on the application of any interested person, set the transaction aside and order the liquidator to compensate the company for any loss suffered in consequence of it.

(2) This does not apply if either—

(a)the transaction was entered into with the prior consent of the court; or

(b)it is shown to the court’s satisfaction that the transaction was for value, and that it was entered into by the liquidator without knowing, or having any reason to suppose, that the person concerned was an associate.

(3) Nothing in this rule is to be taken as prejudicing the operation of any rule of law or equity relating to a liquidator’s dealings with trust property or the fiduciary obligations of any person.

Rule against improper solicitation

6.35.—(1) Where the court is satisfied that any improper solicitation has been used by or on behalf of the liquidator in obtaining proxies or procuring the liquidator’s appointment, it may order that no remuneration be allowed as an expense of the winding up to any person by whom, or on whose behalf, the solicitation was exercised.

(2) An order of the court under this rule overrides any resolution of the liquidation committee or the creditors, or any other provision of these Rules relating to the liquidator’s remuneration.

Permission for exercise of powers by liquidator

6.36.—(1) Where these Rules require permission for the liquidator to exercise a power any permission given must not be a general permission but must relate to a particular proposed exercise of the liquidator’s power.

(2) A person dealing with the liquidator in good faith and for value is not concerned to enquire whether any such permission has been given.

(3) Where the liquidator has done anything without such permission, the court or the liquidation committee may, for the purpose of enabling the liquidator to meet the liquidator’s expenses out of the assets, ratify what the liquidator has done; but neither may do so unless satisfied that the liquidator has acted in a case of urgency and has sought ratification without undue delay.

(4) In this rule “permission” includes “sanction”.

CHAPTER 5Special Manager

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application for and appointment of special manager (section 177)

6.37.—(1) An application by the liquidator under section 177 for the appointment of a special manager must be supported by a report setting out the reasons for the application.

(2) The report must include the applicant’s estimate of the value of the business or property in relation to which the special manager is to be appointed.

(3) The court’s order appointing a special manager must have the title “Order of Appointment of Special Manager” and must contain—

(a)the name of the court (and hearing centre if applicable) in which the order is made;

(b)the name and title of the judge making the order;

(c)identification details for the proceedings;

(d)the name and address of the applicant;

(e)the name and address of the proposed special manager;

(f)the order that that the proposed special manager is appointed as special manager of the company from the date of the order (or otherwise as the order provides);

(g)details of the special manager’s responsibility over the company’s business or property;

(h)the powers entrusted to the special manager under section 177(4);

(i)the time allowed for the special manager to give the required security for the appointment;

(j)the duration of the special manager’s appointment, being one of the following—

(i)for a fixed period stated in the order,

(ii)until the occurrence of a specified event, or

(iii)until the court makes a further order;

(k)the order that the special manager’s remuneration will be fixed from time to time by the court; and

(l)the date of the order.

(4) The appointment of the special manager may be renewed by order of the court.

(5) The acts of the special manager are valid notwithstanding any defect in the special manager’s appointment or qualifications.

Security

6.38.—(1) The appointment of the special manager does not take effect until the person appointed has given (or, if the court allows, undertaken to give) security to the applicant for the appointment.

(2) A person appointed as special manager may give security either specifically for a particular winding up, or generally for any winding up in relation to which that person may be appointed as special manager.

(3) The amount of the security must be not less than the value of the business or property in relation to which the special manager is appointed, as estimated in the applicant’s report which accompanied the application for appointment.

(4) When the special manager has given security to the applicant, the applicant must file with the court a certificate as to the adequacy of the security.

(5) The cost of providing the security must be paid in the first instance by the special manager; but the special manager is entitled to be reimbursed as an expense of the winding up, in the prescribed order of priority.

Failure to give or keep up security

6.39.—(1) If the special manager fails to give the required security within the time stated in the order of appointment, or any extension of that time that may be allowed, the liquidator must report the failure to the court which may discharge the order appointing the special manager.

(2) If the special manager fails to keep up the security, the liquidator must report the failure to the court, which may remove the special manager, and make such order as it thinks just as to costs.

(3) If the court discharges the order appointing the special manager or makes an order removing the special manager, the court must give directions as to whether any, and if so what, steps should be taken for the appointment of another special manager.

Accounting

6.40.—(1) The special manager must produce accounts, containing details of the special manager’s receipts and payments, for the approval of the liquidator.

(2) The account must be for—

(a)each three month period for the duration of the special manager’s appointment;

(b)any shorter period ending with the termination of the special manager’s appointment.

(3) When the accounts have been approved, the special manager’s receipts and payments must be added to those of the liquidator.

Termination of appointment

6.41.—(1) If the liquidator thinks that the employment of the special manager is no longer necessary or beneficial for the company, the liquidator must apply to the court for directions, and the court may order the special manager’s appointment to be terminated.

(2) The liquidator must also make such an application if the creditors decide that the appointment should be terminated.

CHAPTER 6Priority of payment of costs and expenses, etc.

General rule as to priority

6.42.—(1) All fees, costs, charges and other expenses incurred in the course of the winding up are to be treated as expenses of the winding up.

(2) The expenses of the winding up are payable out of—

(a)assets of the company available for the payment of general creditors, including—

(i)proceeds of any legal action which the liquidator has power to bring in the liquidator’s own name or in the name of the company,

(ii)proceeds arising from any award made under any arbitration or other dispute resolution procedure which the liquidator has power to bring in the liquidator’s own name or in the name of the company,

(iii)any payments made under any compromise or other agreement intended to avoid legal action or recourse to arbitration or to any other dispute resolution procedure, and

(iv)payments made as a result of an assignment or a settlement of any such action, arbitration or other dispute resolution procedure in lieu of or before any judgment being given or award being made; and

(b)subject as provided in rules 6.44 to 6.48, property comprised in or subject to a floating charge created by the company.

(3) The expenses associated with the prescribed part must be paid out of the prescribed part.

(4) Subject as provided in rules 6.44 to 6.48, the expenses are payable in the following order of priority—

(a)expenses which are properly chargeable or incurred by the liquidator in preserving, realising or getting in any of the assets of the company or otherwise in the preparation, conduct or assignment of any legal proceedings, arbitration or other dispute resolution procedures, which the liquidator has power to bring in the liquidator’s own name or bring or defend in the name of the company or in the preparation or conduct of any negotiations intended to lead or leading to a settlement or compromise of any legal action or dispute to which the proceedings or procedures relate;

(b)the cost of any security provided by the liquidator or special manager under the Act or these Rules;

(c)the remuneration of the special manager (if any);

(d)any amount payable to a person employed or authorised, under Chapter 2 of this Part, to assist in the preparation of a statement of affairs or of accounts;

(e)the costs of employing a shorthand writer on the application of the liquidator;

(f)any necessary disbursements by the liquidator in the course of the administration of the winding up (including any expenses incurred by members of the liquidation committee or their representatives and allowed by the liquidator under rule 17.24, but not including any payment of corporation tax in circumstances referred to in sub-paragraph (i));

(g)the remuneration or emoluments of any person who has been employed by the liquidator to perform any services for the company, as required or authorised by or under the Act or these Rules;

(h)the remuneration of the liquidator, up to an amount not exceeding that which is payable under Schedule 11 (determination of insolvency office-holder’s remuneration);

(i)the amount of any corporation tax on chargeable gains accruing on the realisation of any asset of the company (irrespective of the person by whom the realisation is effected);

(j)the balance, after payment of any sums due under sub-paragraph (h) above, of any remuneration due to the liquidator; and

(k)any other expenses properly chargeable by the liquidator in carrying out the liquidator’s functions in the winding up.

Saving for powers of the court

6.43.  Nothing in these Rules—

(a)applies to or affects the powers of any court, in proceedings by or against the company, to order costs to be paid by the company, or the liquidator; or

(b)affects the rights of any person to whom such costs are ordered to be paid.

CHAPTER 7Litigation expenses and property subject to a floating charge

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Interpretation

6.44.—(1) In this Chapter—

“approval” and “authorisation” respectively mean—

(a)

where yet to be incurred, the approval; and

(b)

where already incurred, the authorisation;

of expenses specified in section 176ZA(3)(74);

“the creditor” means—

(a)

a preferential creditor of the company; or

(b)

a holder of a debenture secured by, or a holder of, a floating charge created by the company;

“legal proceedings” means—

(a)

proceedings under sections 212, 213, 214(75), 238, 239, 244 and 423 and any arbitration or other dispute resolution proceedings invoked for purposes corresponding to those to which the sections relate and any other proceedings, including arbitration or other dispute resolution procedures, which a liquidator has power to bring in the liquidator’s own name for the purpose of preserving, realising, or getting in any of the assets of the company;

(b)

legal actions and proceedings, arbitration or any other dispute resolution procedures which a liquidator has power to bring or defend in the name of the company; and

(c)

negotiations intended to lead or leading to a settlement or compromise of any action, proceeding or procedure to which sub-paragraphs (a) or (b) relate;

“litigation expenses” means expenses of a winding up which—

(a)

are properly chargeable or incurred in the preparation or conduct of any legal proceedings; and

(b)

as expenses in the winding up, exceed, or in the opinion of the liquidator are likely to exceed (and only in so far as they exceed or are likely to exceed), in the aggregate £5,000; and

“specified creditor” means a creditor identified under rule 6.45(2).

(2) Litigation expenses will not have the priority provided by section 176ZA over any claims to property comprised in or subject to a floating charge created by the company and must not be paid out of any such property unless and until approved or authorised in accordance with rules 6.45 to 6.48.

Requirement for approval or authorisation

6.45.—(1) Subject to rules 6.46 to 6.48, either paragraphs (3) and (4) apply or paragraph (5) applies where, in the course of winding up a company, the liquidator—

(a)ascertains that property is comprised in or subject to a floating charge;

(b)has personally instituted or proposes to institute or continue legal proceedings or is in the process of defending or proposes to defend any legal proceeding brought or likely to be brought against the company; and

(c)before or at any stage in those proceedings, is of the opinion that—

(i)the assets of the company available for payment of general creditors are or will be insufficient to pay litigation expenses; and

(ii)in order to pay litigation expenses the liquidator will have to have recourse to property comprised in or subject to a floating charge created by the company.

(2) As soon as reasonably practicable after the date on which the liquidator forms the opinion referred to in paragraph (1), the liquidator must identify the creditor who, in the liquidator’s opinion at that time—

(a)has a claim to property comprised in or subject to a floating charge created by the company; and

(b)taking into account the value of that claim and any subsisting property then comprised in or secured by such a charge, appears to the liquidator to be the creditor most immediately likely of any persons having such claims to receive some payment in respect of a claim but whose claim would not be paid in full.

(3) The liquidator must request from the specified creditor the approval or authorisation of such amount for litigation expenses as the liquidator thinks fit.

(4) Where the liquidator identifies two or more specified creditors, the liquidator must seek from each of them approval or authorisation of such amount of litigation expenses as the liquidator thinks fit, apportioned between them (“the apportioned amount”) according to the value of the property to the extent covered by their charges.

(5) For so long as the conditions specified in paragraph (1) subsist, the liquidator may, in the course of a winding up, make such further requests to the specified creditor or creditors for approval or authorisation of such further amount for litigation expenses as the liquidator thinks fit to be paid out of property comprised in or subject to a floating charge created by the company, taking into account any amount for litigation expenses previously approved or authorised and the value of the property comprised in or subject to the floating charge.

Request for approval or authorisation

6.46.—(1) All requests made by the liquidator for approval or authorisation must include the following—

(a)a statement describing the nature of the legal proceedings, including, where relevant, the statutory provision under which proceedings are or are to be brought and the grounds upon which the liquidator relies;

(b)a statement specifying the amount or apportioned amount of litigation expenses for which approval or authorisation is sought (“the specified amount”);

(c)notice that approval or authorisation or other reply to the request must be made in writing within 28 days from the date of its being received (“the specified time limit”); and

(d)a statement explaining the consequences of a failure to reply within the specified time limit.

(2) Where anything in paragraph (1) requires the inclusion of any information, the disclosure of which could be seriously prejudicial to the winding up of the company, the liquidator may—

(a)exclude such information from any of the above statements or notices if accompanied by a statement to that effect; or

(b)include it on terms—

(i)that bind the creditor to keep the information confidential; and

(ii)that include an undertaking on the part of the liquidator to apply to the court for an order that so much of the information as may be kept in the files of the court is not to be open to public inspection.

(3) The creditor may within the specified time limit apply to the liquidator in writing for such further particulars as is reasonable and in such a case, the time limit specified in paragraph (1)(c) will apply from the date of the creditor’s receipt of the liquidator’s response to any such request.

(4) Where the liquidator requires the approval or authorisation of two or more creditors, the liquidator must deliver a request to each creditor, containing the matters listed in paragraph (1) and also giving—

(a)the number of creditors concerned;

(b)the total value of their claims, or if not known, as it is estimated to be by the liquidator immediately before delivering any such request; and

(c)to each preferential creditor, notice that approval or authorisation of the specified amount will be taken to be given where a majority in value of those preferential creditors who respond within the specified time limit are in favour of it; or

(d)where rule 6.45 applies, notice to the specified creditors that the amount of litigation expenses will be apportioned between them in accordance with that rule and notice of the value of the portion allocated to, and the identity of, the specified creditors affected by that apportionment.

Grant of approval or authorisation

6.47.—(1) Where the liquidator fails to include in the liquidator’s request any one of the matters, statements or notices required to be specified by paragraph (1) or paragraphs (1) and (4), of rule 6.46, the request for approval or authorisation will be treated as not having been made.

(2) Subject to paragraphs (3), (4) and (5), approval or authorisation will be taken to have been given where the specified amount has been requested by the liquidator, and—

(a)that amount is approved or authorised within the specified time limit; or

(b)a different amount is approved or authorised within the specified time limit and the liquidator considers it sufficient.

(3) Where the liquidator requires the approval or authorisation of two or more preferential creditors, approval or authorisation will be taken to be given where a majority in value of those who respond within the specified time limit approve or authorise—

(a)the specified amount; or

(b)a different amount which the liquidator considers sufficient.

(4) Where a majority in value of two or more preferential creditors propose an amount other than that specified by the liquidator, they will be taken to have approved or authorised an amount equal to the lowest of the amounts so proposed.

(5) In any case in which there is no response in writing within the specified time limit to the liquidator’s request—

(a)at all, or

(b)at any time following the liquidator’s provision of further particulars under rule 6.46(3),

the liquidator’s request will be taken to have been approved or authorised from the date of the expiry of that time limit.

Application to the court by the liquidator

6.48.—(1) In the circumstances specified below the court may, on the application of the liquidator, approve or authorise such amount of litigation expenses as it thinks just.

(2) Except where paragraph (3) applies, the liquidator may apply to the court for an order approving or authorising an amount for litigation expenses only where the specified creditor (or, if more than one, any one of them)—

(a)is or is intended to be a defendant in the legal proceedings in relation to which the litigation expenses have been or are to be incurred; or

(b)has been requested to approve or authorise the amount specified under rule 6.46(1)(b) and has—

(i)declined to approve or authorise, as the case may be, the specified amount;

(ii)approved or authorised an amount which is less than the specified amount and which lesser amount the liquidator considers insufficient; or

(iii)made such application for further particulars or other response to the liquidator’s request as is, in the liquidator’s opinion, unreasonable.

(3) Where the liquidator thinks that circumstances are such that the liquidator requires urgent approval or authorisation of litigation expenses, the liquidator may apply to the court for approval or authorisation either—

(a)without seeking approval or authorisation from the specified creditor; or

(b)if sought, before the expiry of the specified time limit.

(4) The court may grant such application for approval or authorisation—

(a)if the liquidator satisfies the court of the urgency of the case; and

(b)subject to such terms and conditions as the court thinks just.

(5) The liquidator must, at the same time as making any application to the court under this rule, deliver copies of it to the specified creditor, unless the court orders otherwise.

(6) The specified creditor (or, if more than one, any one of them) is entitled to be heard on any such application unless the court orders otherwise.

(7) The court may grant approval or authorisation subject to such terms and conditions as it may think just, including terms and conditions relating to the amount or nature of the litigation expenses and as to any obligation to make further applications to the court under this rule.

(8) The costs of the liquidator’s application under this rule, including the costs of any specified creditor appearing or represented on it, are an expense of the winding up unless the court orders otherwise.

PART 7WINDING UP BY THE COURT

CHAPTER 1Application of Part

Application of Part 7

7.1.  This Part applies to winding up by the court.

CHAPTER 2The statutory demand (sections 123(1)(a) and 222(1)(a))

Interpretation

7.2.  A demand served by a creditor on a company under section 123(1)(a) (registered companies) or 222(1)(a) (unregistered companies) is referred to in this Part as “a statutory demand”.

The statutory demand

7.3.—(1) A statutory demand must be headed either “Statutory Demand under section 123(1)(a) of the Insolvency Act 1986” or “Statutory Demand under section 222(1)(a) of the Insolvency Act 1986” (as applicable) and must contain—

(a)identification details for the company;

(b)the registered office of the company (if any);

(c)the name and address of the creditor;

(d)either a statement that the demand is made under section 123(1)(a) or a statement that it is made under section 222(1)(a);

(e)the amount of the debt and the consideration for it (or, if there is no consideration, the way in which it arises);

(f)if the demand is founded on a judgment or order of a court, details of the judgment or order;

(g)if the creditor is entitled to the debt by way of assignment, details of the original creditor and any intermediary assignees;

(h)a statement that the company must pay the debt claimed in the demand within 21 days of service of the demand on the company after which the creditor may present a winding-up petition unless the company offers security for the debt and the creditor agrees to accept security or the company compounds the debt with the creditor’s agreement;

(i)the name of an individual with whom an officer or representative of the company may communicate with a view to securing or compounding the debt to the creditor’s satisfaction;

(j)the named individual’s address, electronic address and telephone number (if any);

(k)a statement that the company has the right to apply to the court for an injunction restraining the creditor from presenting or advertising a petition for the winding up of the company; and

(l)the name of the court (and hearing centre if applicable) to which, according to the present information, the company must make the application (i.e. the High Court, the County Court at Central London or a named hearing centre of the County Court, as the case may be).

(2) The following must be separately identified in the demand (if claimed) with the amount or rate of the charge and the grounds on which payment is claimed—

(a)any charge by way of interest of which notice had not previously been delivered to the company as included in its liability; and

(b)any other charge accruing from time to time.

(3) The amount claimed for such charges must be limited to that which has accrued due at the date of the demand.

(4) The demand must be dated, and authenticated either by the creditor, or a person authorised to make the demand on the creditor’s behalf.

(5) A demand which is authenticated by a person other than the creditor must state that the person is authorised to make the demand on the creditor’s behalf and state the person’s relationship to the creditor.

CHAPTER 3Petition for winding-up order

[Notes: (1) for petitions by a contributory or relevant office-holder (an administrator, administrative receiver or supervisor of a CVA) see Chapter 4;

(2) a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application of this Chapter

7.4.—(1) This Chapter applies subject to rule 7.25 to—

(a)a petition for winding up presented by a contributory; or

(b)a petition for winding up presented by a relevant office-holder of the company.

(2) “Relevant office-holder” in this Part means an administrator, administrative receiver and supervisor of a CVA.

Contents of petition

7.5.—(1) The petition must contain—

(a)the name of the court (and hearing centre if applicable);

(b)the name and address of the petitioner;

(c)identification details for the company subject to the petition;

(d)the company’s registered office (if any);

(e)the date the company was incorporated and the enactment under which it was incorporated;

(f)the total number of issued shares of the company and the manner in which they are divided up;

(g)the aggregate nominal value of those shares;

(h)the amount of capital paid up or credited as paid up;

(i)a statement of the nature of the company’s business if known;

(j)the grounds on which the winding-up order is sought;

(k)where the ground for the winding-up order is section 122(1)(a), a statement that the company has by special resolution resolved that the company be wound up by the court and the date of such resolution;

(l)where the ground for the winding-up order is section 122(1)(f) or 221(5)(b) and a statutory demand has been served on the company, a statement that such a demand has been served and the date of service and that the company is insolvent and unable to pay its debts;

(m)a statement whether the company is an Article 1.2 undertaking;

(n)a statement whether the proceedings will be main, secondary, territorial or non-EC proceedings and that the reasons for so stating are given in a witness statement;

(o)a statement that in the circumstances it is just and equitable that the company should be wound up;

(p)a statement that the petitioner therefore applies for an order that the company may be wound up by the court under the Act, or that such other order may be made as the court thinks just;

(q)the name and address of any person on whom the petitioner intends to serve the petition; and

(r)the contact details of the petitioner’s solicitor (if any).

(2) The petition must also contain a blank box for the court to complete with the details of the venue for hearing the petition.

Verification of petition

7.6.—(1) The petition must be verified by a statement of truth.

(2) Where the petition is in respect of debts due to different creditors then the debt to each creditor must be verified separately.

(3) A statement of truth which is not contained in or endorsed upon the petition must identify the petition and must contain—

(a)identification details for the company;

(b)the name of the petitioner; and

(c)the name of the court (and hearing centre if applicable) in which the petition is to be presented.

(4) The statement of truth must be authenticated and dated by or on behalf of the petitioner.

(5) Where the person authenticating the statement of truth is not the petitioner, or one of the petitioners, the statement of truth must state—

(a)the name and postal address of the person making the statement;

(b)the capacity in which, and the authority by which, the person authenticates the statement; and

(c)the means of that person’s knowledge of the matters verified in the statement of truth.

(6) If the petition is based on a statutory demand, and more than four months have elapsed between the service of the demand and the presentation of the petition, a witness statement must explain the reasons for the delay.

(7) A statement of truth verifying more than one petition must include in its title the names of the companies to which it relates and must set out, in relation to each company, the statements relied on by the petitioner; and a clear and legible photocopy of the statement of truth must be filed with each petition which it verifies.

(8) The witness statement must give the reasons for the statement that the proceedings will be main, secondary, territorial or non-EC proceedings.

Petition: presentation and filing

7.7.—(1) The petition must be filed with the court.

(2) A petition may not be filed unless—

(a)a receipt for the deposit payable to the official receiver is produced on presentation of the petition; or

(b)the Secretary of State has given notice to the court that the petitioner has made suitable alternative arrangements for the payment of the deposit and that notice has not been revoked.

(3) A notice of alternative arrangements for the deposit may be revoked by a further notice filed with the court.

(4) The court must fix a venue for hearing the petition, and this must be endorsed on the petition and the copies.

(5) Each copy of the petition must have the seal of the court applied to it, and must be delivered to the petitioner.

Court to which petition is to be presented where the company is subject to a CVA or is in administration

7.8.—(1) A petition which is filed in relation to a company for which there is in force a CVA must be presented to the court or hearing centre to which the nominee’s report under section 2 was submitted or where the documents for a moratorium under section 1A were filed.

(2) A petition which is filed in relation to a company which is in administration must be presented to the court or hearing centre of the court having jurisdiction for the administration.

Copies of petition to be served on company or delivered to other persons

7.9.—(1) Where this rule requires the petitioner to serve a copy of the petition on the company or deliver a copy to another person the petitioner must, when filing the petition with the court, file an additional copy with the court for each such person.

(2) Where the petitioner is not the company the petitioner must serve a sealed copy of the petition on the company in accordance with Schedule 4.

(3) If, to the petitioner’s knowledge—

(a)the company is in the course of being wound up voluntarily, the petitioner must deliver a copy of the petition to the liquidator;

(b)an administrative receiver has been appointed in relation to the company, or the company is in administration, the petitioner must deliver a copy of the petition to the receiver or the administrator;

(c)there is in force for the company a CVA, the petitioner must deliver a copy of the petition to the supervisor of the CVA; or

(d)there is a member State liquidator appointed in main proceedings in relation to the company, the petitioner must deliver a copy to that person.

(4) If either the Financial Conduct Authority or Prudential Regulation Authority is entitled to be heard at the hearing of the petition in accordance with section 371 of the Financial Services and Markets Act 2000, the petitioner must deliver a copy of the petition to the Financial Conduct Authority or Prudential Regulation Authority (as appropriate).

(5) Where this rule requires the petitioner to deliver a copy of the petition to any other person that copy must be delivered within three business days after the day on which the petition is served on the company or where the petitioner is the company within three business days of the company receiving the sealed petition.

Notice of petition

7.10.—(1) Unless the court otherwise directs, the petitioner must give notice of the petition.

(2) The notice must state—

(a)that a petition has been presented for the winding up of the company;

(b)in the case of an overseas company, the address at which service of the petition was effected;

(c)the name and address of the petitioner;

(d)the date on which the petition was presented;

(e)the venue fixed for the hearing of the petition;

(f)the name and address of the petitioner’s solicitor (if any); and

(g)that any person intending to appear at the hearing (whether to support or oppose the petition) must give notice of that intention in accordance with rule 7.14.

(3) The notice must be gazetted.

(4) The notice must be made to appear—

(a)if the petitioner is the company itself, not less than seven business days before the day appointed for the hearing; and

(b)otherwise, not less than seven business days after service of the petition on the company, nor less than seven business days before the day appointed for the hearing.

(5) The court may dismiss the petition if notice of it is not given in accordance with this rule.

Persons entitled to request a copy of petition

7.11.  If a director, contributory or creditor requests a hard copy of the petition from the solicitor for the petitioner, or the petitioner, if acting in person, and pays the standard fee for copies the solicitor or petitioner must deliver the copy within two business days.

Certificate of compliance

7.12.—(1) The petitioner or the petitioner’s solicitor must, at least five business days before the hearing of the petition, file with the court a certificate of compliance with rules 7.9 and 7.10 relating to service and notice of the petition.

(2) The certificate must be authenticated and dated by the petitioner or the petitioner’s solicitor and must state—

(a)the date of presentation of the petition;

(b)the date fixed for the hearing; and

(c)the date or dates on which the petition was served and notice of it was given in compliance with rules 7.9 and 7.10.

(3) A copy of or, where that is not reasonably practicable, a statement of the content of, any notice given must be filed with the court with the certificate.

(4) The court may, if it thinks just, dismiss the petition if this rule is not complied with.

Permission for the petitioner to withdraw

7.13.—(1) The court may order that the petitioner has permission to withdraw the petition on such terms as to costs as the parties may agree if at least five business days before the first hearing the petitioner, on an application without notice to any other party, satisfies the court that—

(a)notice of the petition has not been given under rule 7.10;

(b)no notices in support or in opposition to the petition have been received by the petitioner; and

(c)the company consents to an order being made under this rule.

(2) The order must contain—

(a)identification details for the company;

(b)the date the winding-up petition was presented;

(c)the name and postal address of the applicant;

(d)a statement that upon the application made without notice to any other party by the applicant named in the order the court is satisfied that notice of the petition has not been given, that no notices in support of or in opposition to the petition have been received by the petitioner and that the company consents to this order; and

(e)an order that, with the permission of the court, the petition is withdrawn.

Notice by persons intending to appear

7.14.—(1) A creditor or contributory who intends to appear on the hearing of the petition must deliver a notice of intention to appear to the petitioner.

(2) The notice must contain—

(a)the name and address of the creditor or contributory, and any telephone number and reference which may be required for communication with that person or with any other person (also to be specified in the notice) authorised to speak or act on the creditor’s or contributory’s behalf;

(b)the date of the presentation of the petition and a statement that the notice relates to the matter of that petition;

(c)the date of the hearing of the petition;

(d)for a creditor, the amount and nature of the debt due from the company to the creditor;

(e)for a contributory, the number of shares held in the company;

(f)a statement whether the creditor or contributory intends to support or oppose the petition;

(g)where the creditor or contributory is represented by a solicitor or other agent, the name, postal address, telephone number and any reference number of that person and details of that person’s position with or relationship to the creditor or contributory; and

(h)the name and postal address of the petitioner.

(3) The notice must be authenticated and dated by or on behalf of the creditor or contributory delivering it.

(4) Where the person authenticating the notice is not the creditor or contributory the notice must state the name and postal address of the person making the statement and the capacity in which, and the authority by which, the person authenticates the notice.

(5) The notice must be delivered to the petitioner or the petitioner’s solicitor at the address shown in the court records, or in the notice of the petition required by rule 7.10.

(6) The notice must be delivered so as to reach the petitioner (or the petitioner’s solicitor) not later than 4pm on the business day before that which is appointed for the hearing (or, where the hearing has been adjourned, for the adjourned hearing).

(7) A person who fails to comply with this rule may appear on the hearing of the petition only with the permission of the court.

List of appearances

7.15.—(1) The petitioner must prepare for the court a list of the creditors and contributories who have given notice under rule 7.14.

(2) The list must contain—

(a)the date of the presentation of the petition;

(b)the date of the hearing of the petition;

(c)a statement that the creditors and contributories listed have delivered notice that they intend to appear at the hearing of the petition;

(d)their names and addresses;

(e)the amount each creditor claims to be owed;

(f)the number of shares claimed to be held by each contributory;

(g)the name and postal address of any solicitor for a person listed; and

(h)whether each person listed intends to support the petition, or to oppose it.

(3) On the day appointed for the hearing of the petition, a copy of the list must be handed to the court before the hearing commences.

(4) If the court gives a person permission to appear under rule 7.14(7), then the petitioner must add that person to the list with the same particulars.

Witness statement in opposition

7.16.—(1) If the company intends to oppose the petition, it must not later than five business days before the date fixed for the hearing—

(a)file with the court a witness statement in opposition; and

(b)deliver a copy of the witness statement to the petitioner or the petitioner’s solicitor.

(2) The witness statement must contain—

(a)identification details for the proceedings;

(b)a statement that the company intends to oppose the making of a winding-up order; and

(c)a statement of the grounds on which the company opposes the making of the order.

Substitution of creditor or contributory for petitioner

7.17.—(1) This rule applies where the petitioner—

(a)is subsequently found not to have been entitled to present the petition;

(b)fails to give notice of the petition in accordance with rule 7.10;

(c)consents to withdraw the petition, or to allow it to be dismissed, consents to an adjournment, or fails to appear in support of the petition when it is called on in court on the day originally fixed for the hearing, or on a day to which it is adjourned; or

(d)appears, but does not apply for an order in the terms requested in the petition.

(2) The court may, on such terms as it thinks just, substitute as petitioner—

(a)a creditor or contributory who in its opinion would have a right to present a petition and who wishes to prosecute it; or

(b)a member State liquidator who has been appointed in main proceedings in relation to the company, and who wishes to prosecute the petition.

Order for substitution of petitioner

7.18.  An order for substitution of a petitioner must contain—

(a)identification details for the proceedings;

(b)the name of the original petitioner;

(c)the name of the creditor, contributory or member State liquidator (“the named person”) who is substituted as petitioner;

(d)a statement that the named person has requested to be substituted as petitioner under rule 7.17;

(e)the following orders—

(i)either—

(aa)that the named person must pay the statutory deposit to the court and that, upon such payment being made, the statutory deposit paid by the original petitioner is to be repaid to the original petitioner by the official receiver, or

(bb)where the named person is the subject of a notice to the court by the Secretary of State under rule 7.7(2)(b) (notice of alternative arrangements for the payment of deposit) that the statutory deposit paid by the original petitioner is to be repaid to the original petitioner by the official receiver;

(ii)that the named person be substituted as petitioner in place of the original petitioner and that the named person may amend the petition accordingly,

(iii)that the named person must within a period specified in the order file a statement of truth of the statements in the amended petition,

(iv)that not later than before the adjourned hearing of the petition, by a date specified in the order, the named person must serve a sealed copy of the amended petition on the company and deliver a copy to any other person to whom the original petition was delivered,

(v)that the hearing of the amended petition be adjourned to the venue specified in the order, and

(vi)that the question of the costs of the original petitioner and of the statutory deposit (if appropriate) be reserved until the final determination of the amended petition;

(f)the venue of the adjourned hearing; and

(g)the date of the order.

Notice of adjournment

7.19.—(1) If the court adjourns the hearing of the petition the petitioner must as soon as reasonably practicable deliver a notice of the making of the order of adjournment and of the venue for the adjourned hearing to—

(a)the company; and

(b)any creditor or contributory who has given notice under rule 7.14 but was not present at the hearing.

(2) The notice must identify the proceedings.

Order for winding up by the court

7.20.—(1) An order for winding-up by the court must contain—

(a)identification details for the proceedings;

(b)the name and title of the judge making the order;

(c)the name and postal address of the petitioner;

(d)the nature of the petitioner which entitles that person to present the petition (e.g. the company, a creditor, or a regulator);

(e)the date of presentation of the petition;

(f)an order that the company be wound up by the court under the Act;

(g)a statement whether the proceedings are main, secondary, territorial or non-EC proceedings;

(h)an order that the petitioner’s costs of the petition be paid out of the assets of the company (unless the court determines otherwise);

(i)if applicable, an order that the costs of other persons as specified in the order be paid out of the assets of the company;

(j)the date of the order; and

(k)a statement that an official receiver attached to the court is by virtue of the order liquidator of the company, or

(2) The order may contain such additional terms concerning costs as the court thinks just.

Notice to official receiver of winding-up order

7.21.—(1) When a winding-up order has been made, the court must deliver notice of the fact to the official receiver as soon as reasonably practicable.

(2) The notice must have the title “Notice to Official Receiver of Winding-up Order” and must contain—

(a)identification details for the proceedings;

(b)the company’s registered office;

(c)the date of presentation of the petition;

(d)the date of the winding-up order; and

(e)the name and postal address of the petitioner or the petitioner’s solicitor.

Delivery and notice of the order

7.22.—(1) As soon as reasonably practicable after making a winding-up order, the court must deliver to the official receiver two copies of the order sealed with the seal of the court.

(2) The official receiver must deliver—

(a)a sealed copy of the order to the company; and

(b)a copy of the order to the registrar of companies (in compliance with section 130(1)).

(3) As an alternative to delivering a sealed copy of the order to the company, the court may direct that the sealed copy be delivered to such other person or persons, as the court directs.

(4) The official receiver—

(a)must cause a notice of the order to be gazetted as soon as reasonably practicable; and

(b)may advertise a notice of the order in such other manner as the official receiver thinks fit.

(5) The notice must state—

(a)that a winding-up order has been made in relation to the company; and

(b)the date of the order.

Petition dismissed

7.23.—(1) Unless the court otherwise directs, when a petition is dismissed the petitioner must give a notice of the dismissal as soon as reasonably practicable.

(2) The notice must be—

(a)gazetted; or

(b)advertised in accordance with any directions of the court.

(3) The notice must contain—

(a)a statement that a petition for the winding up of the company has been dismissed;

(b)in the case of an overseas company, the address at which service of the petition was effected;

(c)the name and address of the petitioner;

(d)the date on which the petition was presented;

(e)the date on which the petition was gazetted or otherwise advertised; and

(f)the date of the hearing at which the petition was dismissed.

(4) The company may itself gazette notice of the dismissal where—

(a)the petitioner is not the company; and

(b)the petitioner has not given notice in accordance with paragraphs (1) to (3) within 21 days of the date of the hearing at which the petition was dismissed.

Injunction to restrain presentation or notice of petition

7.24.—(1) An application by a company for an injunction restraining a creditor from presenting a petition for the winding up of the company must be made to a court having jurisdiction to wind up the company.

(2) An application by a company for an injunction restraining a creditor from giving notice of a petition for the winding up of a company must be made to the court or hearing centre in which the petition is pending.

CHAPTER 4Petition by a contributory or a relevant office-holder

[Note: (1) “relevant office-holder” is defined in rule 7.4(2);

(2) a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Interpretation and application of rules in Chapter 3

7.25.—(1) The following rules in Chapter 3 apply subject to paragraph (2), with the necessary modifications, to a petition under this Chapter by a contributory or a relevant office-holder—

  • rule 7.8 (court to which petition is to be presented where the company is subject to a CVA or is in administration);

  • rule 7.9(1), (4) and (5) (copies of petition to be served on other persons);

  • rule 7.11 (persons entitled to request a copy of petition);

  • rule 7.14 (notice by persons intending to appear);

  • rule 7.15 (list of appearances);

  • rule 7.19 (notice of adjournment);

  • rule 7.20 (order for winding up by the court) except where rule 7.32 applies (petition by administrator or where there is a supervisor);

  • rule 7.21 (notice to official receiver of winding-up order); and

  • rule 7.22 (delivery and notice of the order).

(2) The following rules apply to petitions under this Chapter presented by a relevant office-holder—

  • rule 7.23 (petition dismissed); and

  • rule 7.24 (injunction to restrain presentation or notice of petition).

Contents of petition for winding-up order by a contributory

7.26.—(1) A petition presented by a contributory must contain—

(a)the name of the court (and hearing centre if applicable);

(b)the name and postal address of the petitioner;

(c)identification details for the company subject to the petition;

(d)the company’s registered office (if any);

(e)the date the company was incorporated and the enactment under which it was incorporated;

(f)the total number of issued shares of the company and the manner in which they are divided up;

(g)the aggregate nominal value of those shares;

(h)the amount of capital paid up or credited as paid up;

(i)a statement of the nature of the company’s business if known;

(j)the number and total value of the shares held by the petitioner;

(k)a statement whether the shares held by the petitioner—

(i)were allotted to the petitioner on the incorporation of the company,

(ii)have been registered in the name of the petitioner for more than six months in the last 18 months, or

(iii)devolved upon the petitioner through the death of the former holder of the shares;

(l)the grounds on which the winding-up order is sought;

(m)a statement whether the company is an Article 1.2 undertaking;

(n)a statement whether the proceedings will be main, secondary, territorial or non-EC proceedings and that the reasons for so stating are given in the form of a witness statement;

(o)a statement that in the circumstances it is just and equitable that the company should be wound up;

(p)a statement that the petitioner therefore applies for an order that the company may be wound up by the court under the Act, or that such other order may be made as the court thinks just;

(q)the name and postal address of any person on whom the petitioner intends to serve the petition; and

(r)the contact details of the petitioner’s solicitor (if any).

(2) The petition must also contain a blank box for the court to complete with the details of the venue for hearing the petition.

Petition presented by a relevant office-holder

7.27.—(1) A petition by a relevant office-holder must be expressed to be the petition of the company by the office-holder.

(2) The petition must contain the particulars required by rule 7.26 (other than paragraph (1)(j) and (k) and the following (as applicable)—

(a)identification details for the office-holder;

(b)the full name of the court or hearing centre in which the proceedings are being conducted or where documents relating to the proceedings are filed;

(c)the court case number;

(d)the date the insolvency proceedings in respect of which the office-holder holds office commenced; and

(e)where the office-holder is an administrator, an application under paragraph 79(76) of Schedule B1, requesting that the appointment of the administrator should cease to have effect.

Verification of petition

7.28.—(1) The petition must be verified by a statement of truth.

(2) A statement of truth which is not contained in or endorsed upon the petition must identify the petition and must contain—

(a)identification details for the company;

(b)the name of the petitioner; and

(c)the name of the court (and hearing centre if applicable) in which the petition is to be presented.

(3) The statement of truth must be authenticated and dated by or on behalf of the petitioner.

(4) Where the person authenticating the statement of truth is not the petitioner, or one of the petitioners, the statement of truth must state—

(a)the name and postal address of the person making the statement;

(b)the capacity in which, and the authority by which, the person authenticates the statement; and

(c)the means of the person’s knowledge of the matters verified in the statement of truth.

(5) A statement of truth verifying more than one petition must include in its title the names of the companies to which it relates and must set out, in relation to each company, the statements relied on by the petitioner; and a clear and legible photocopy of the statement of truth must be filed with each petition which it verifies.

(6) The reasons for the statement that the proceedings will be main, secondary, territorial or non-EC proceedings must be given in a witness statement.

Presentation and service of petition

7.29.—(1) The petition with one copy must be filed with the court.

(2) The petition may not be filed unless a receipt for the deposit payable to the official receiver is produced on presentation of the petition.

(3) The court must fix a hearing for a return day on which, unless the court otherwise directs, the petitioner and the company must attend before the court for—

(a)directions to be given in relation to the procedure on the petition; or

(b)the hearing of the petition where—

(i)it is presented by a relevant office-holder, and

(ii)the court considers it just in all the circumstances.

(4) On fixing the return day, the court must deliver to the petitioner a sealed copy of the petition endorsed with the return day and time of hearing.

(5) The petitioner must serve a sealed copy of the petition on the company at least 14 days before the return day.

(6) Where a member State liquidator has been appointed in main proceedings in relation to the company, the petitioner must deliver a copy of the petition to the member State liquidator.

Request to appoint former administrator or supervisor as liquidator (section 140)

7.30.—(1) This rule applies where a petition requests under section 140(77) the appointment of a former administrator or supervisor as liquidator.

(2) The person whose appointment is sought (“the appointee”) must, not less than two business days before the return day fixed under rule 7.29(3), file with the court a report including particulars of—

(a)the date on which the appointee delivered notice to creditors of the company, of the appointee’s intention to seek appointment as liquidator, such date to be at least seven business days before the day on which the report is filed; and

(b)details of any response from creditors to that notice, including any objections to the proposed appointment.

Hearing of petition

7.31.—(1) On the return day, or at any time after it, the court—

(a)must, where the petition is presented by a person who is not a relevant office-holder, give directions;

(b)may, in any other case, give directions; or

(c)may, in either case, make any such order as it sees fit.

(2) In particular, the court may give directions relating to the following matters—

(a)service or delivery of the petition, whether in connection with the venue for a further hearing, or for any other purpose;

(b)whether particulars of claim and defence are to be delivered, and generally as to the procedure on the petition;

(c)whether and if so by what means, notice of the petition is to be given;

(d)the manner in which any evidence is to be provided at any hearing before the judge and in particular (but without prejudice to the generality of the above) as to—

(i)the taking of evidence wholly or in part by witness statement or orally,

(ii)the cross-examination of any person who has made a witness statement, and

(iii)the matters to be dealt with in evidence; and

(e)any other matter affecting the procedure on the petition or in connection with the hearing and disposal of the petition.

(3) In giving directions the court must consider whether a copy of the petition should be served on or delivered to any of the persons specified in rule 7.9.

Order for winding up by the court of a company in administration or where there is a supervisor of a CVA in relation to the company

7.32.—(1) An order for winding-up by the court of a company in administration or where there is a supervisor of a CVA in relation to the company must contain—

(a)identification details for the proceedings;

(b)the name and title of the judge making the order;

(c)the name and postal address of the administrator or supervisor of the company;

(d)the date of the administrator’s or supervisor’s appointment;

(e)the date of presentation of the petition;

(f)where there is an administrator, an order that the administrator’s appointment ceases to have effect;

(g)an order that the company be wound up by the court under the Act;

(h)a statement whether the proceedings are main, secondary, territorial or non-EC proceedings; and

(i)the name and address of the person appointed as liquidator of the company (if applicable);

(j)an order that—

(i)an official receiver attached to the court is by virtue of the order liquidator of the company, or

(ii)that the administrator or the supervisor (as the case may be) specified in the order is appointed liquidator of the company; and

(k)the date of the order.

(2) The order may contain such additional terms as to the costs as the court thinks just.

(3) Where the court appoints the former administrator or the supervisor as liquidator paragraphs (3)(c), (4), (7), (8) and (9) of rule 7.56 apply.

CHAPTER 5Provisional liquidator

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application for appointment of provisional liquidator (section 135)

7.33.—(1) An application to the court for the appointment of a provisional liquidator under section 135 may be made by—

(a)the petitioner;

(b)a creditor of the company;

(c)a contributory;

(d)the company;

(e)the Secretary of State;

(f)a temporary administrator;

(g)a member State liquidator appointed in main proceedings (including in accordance with Article 29 of the EC Regulation); or

(h)any person who under any enactment would be entitled to present a petition for the winding up of the company.

(2) The application must be supported by a witness statement stating—

(a)the grounds on which it is proposed that a provisional liquidator should be appointed;

(b)if some person other than the official receiver is proposed to be appointed, that that person has consented to act and, to the best of the applicant’s belief, is qualified to act as an insolvency practitioner in relation to the company;

(c)whether or not the official receiver has been informed of the application and, if so, whether a copy of it has been delivered to the official receiver;

(d)whether to the applicant’s knowledge—

(i)there has been proposed or is in force for the company a CVA;

(ii)an administrator or administrative receiver is acting in relation to the company; or

(iii)a liquidator has been appointed for its voluntary winding up; and

(e)the applicant’s estimate of the value of the assets in relation to which the provisional liquidator is to be appointed.

(3) The applicant must deliver copies of the application and the witness statement in support to the official receiver, who may attend the hearing and make any representations which the official receiver thinks appropriate.

(4) If for any reason it is not practicable to deliver copies of the application and statement to the official receiver before the hearing, the applicant must inform the official receiver of the application in sufficient time for the official receiver to be able to attend.

(5) If satisfied that sufficient grounds are shown for the appointment the court may appoint a provisional liquidator on such terms as it thinks just.

Deposit by applicant

7.34.—(1) An applicant for an order appointing the official receiver as provisional liquidator must, before the order is made, deposit with the official receiver, or otherwise secure to the official receiver’s satisfaction, such sum as the court directs to cover the official receiver’s remuneration and expenses.

(2) If the sum deposited or secured proves to be insufficient, the court may, on the application of the official receiver, order the applicant for the appointment to deposit or secure an additional sum.

(3) If such additional sum is not deposited or secured within two business days after service of the order on the applicant then the court may discharge the order appointing the official receiver as provisional liquidator.

(4) If a winding-up order is made after a provisional liquidator has been appointed, any money deposited under this rule must (unless it is required because the assets are insufficient to pay the remuneration and expenses of the provisional liquidator) be repaid to the person depositing it (or as that person may direct) as an expense of the winding up, in the prescribed order of priority.

Order of appointment of provisional liquidator

7.35.—(1) The order appointing the provisional liquidator must have the title “Order of appointment of Provisional Liquidator” and contain—

(a)the name of the court (and hearing centre if applicable) in which the order is made;

(b)the name and title of the judge making the order;

(c)the name and postal address of the applicant;

(d)identification details for the company;

(e)the statement that the court is satisfied—

(i)that the company is unable to pay its debts (if applicable), and

(ii)that the proceedings are main, secondary, territorial or non-EC proceedings, as the case may be;

(f)an order either that—

(i)upon the sum, which is specified in the order, being deposited by the applicant with the official receiver, the official receiver is appointed provisional liquidator of the company, or

(ii)the person specified in the order is appointed provisional liquidator of the company;

(g)identification and contact details for the provisional liquidator, where the provisional liquidator is not the official receiver;

(h)details of the functions to be carried out by the provisional liquidator in relation to the company’s affairs;

(i)a notice to the officers of the company that they are required by section 235 to give the provisional liquidator all the information the provisional liquidator may reasonably require relating to the company’s property and affairs and to attend upon the provisional liquidator at such times as the provisional liquidator may reasonably require; and

(j)the date of the order.

(2) Where two or more provisional liquidators are appointed the order must also specify (as required by section 231) whether any act required or authorised under any enactment to be done by the provisional liquidator is to be done by all or any one or more of them.

(3) The court must, as soon as reasonably practicable after the order is made, deliver copies of the order as follows—

(a)if the official receiver is the provisional liquidator, two sealed copies to the official receiver;

(b)if another person is appointed as provisional liquidator—

(i)two sealed copies to that person, and

(ii)one copy to the official receiver;

(c)if there is an administrative receiver acting in relation to the company, one sealed copy to the administrative receiver.

(4) The official receiver or other person appointed as provisional liquidator must as soon as reasonably practicable deliver a sealed copy of the order to either—

(a)the company, or

(b)the liquidator, if a liquidator was appointed for the company’s voluntary winding-up.

(5) The official receiver or other person appointed as provisional liquidator must as soon as reasonably practicable deliver a copy of the order to the registrar of companies.

Notice of appointment of provisional liquidator

7.36.—(1) The provisional liquidator must as soon as reasonably practicable after receipt of the copy of the order of appointment give notice of appointment unless the court directs otherwise.

(2) The notice—

(a)must be gazetted; and

(b)may be advertised in such other manner as the provisional liquidator thinks fit.

(3) The notice must state—

(a)that a provisional liquidator has been appointed; and

(b)the date of the appointment.

Security

7.37.—(1) This rule applies where an insolvency practitioner is appointed as provisional liquidator.

(2) The cost of providing the security required under the Act must be paid in the first instance by the provisional liquidator, however—

(a)if a winding-up order is not made, the person appointed is entitled to be reimbursed out of the property of the company, and the court may make an order on the company accordingly; and

(b)if a winding-up order is made, the person appointed is entitled to be reimbursed as an expense of the winding up in the prescribed order of priority.

(3) If the provisional liquidator fails to give or keep up the required security, the court may remove the provisional liquidator, and make such order as it thinks just as to costs.

(4) If an order is made under this rule removing the provisional liquidator, or discharging the order appointing the provisional liquidator, the court must give directions as to whether any, and if so what, steps should be taken for the appointment of another person in the place of the removed or discharged provisional liquidator.

Remuneration

7.38.—(1) The remuneration of the provisional liquidator (other than the official receiver) is to be fixed by the court from time to time on the application of the provisional liquidator.

(2) In fixing the remuneration of the provisional liquidator, the court must take into account—

(a)the time properly given by the provisional liquidator and the staff of the provisional liquidator in attending to the company’s affairs;

(b)the complexity of the case;

(c)any respects in which, in connection with the company’s affairs, there falls on the provisional liquidator any responsibility of an exceptional kind or degree;

(d)the effectiveness with which the provisional liquidator appears to be carrying out, or to have carried out, the duties of the provisional liquidator; and

(e)the value and nature of the property with which the provisional liquidator has to deal.

(3) Without prejudice to any order the court may make as to costs, the remuneration of the provisional liquidator (whether the official receiver or another) must be paid to the provisional liquidator, and the amount of any expenses incurred by the provisional liquidator (including the remuneration and expenses of any special manager appointed under section 177) reimbursed—

(a)if a winding-up order is not made, out of the property of the company;

(b)if a winding-up order is made, as an expense of the winding up, in the prescribed order of priority; and

(c)in either case (if the relevant funds are insufficient), out of the deposit under rule 7.34.

(4) Unless the court otherwise directs, where a winding up order is not made, the provisional liquidator may retain out of the company’s property such sums or property as are or may be required for meeting the remuneration and expenses of the provisional liquidator.

(5) Where a person other than the official receiver has been appointed provisional liquidator, and the official receiver has taken any steps for the purpose of obtaining a statement of affairs or has performed any other duty under these Rules, the provisional liquidator must pay the official receiver such sum (if any) as the court may direct.

Termination of appointment

7.39.—(1) The appointment of the provisional liquidator may be terminated by the court on the application of the provisional liquidator, or a person specified in rule 7.33(1).

(2) If the provisional liquidator’s appointment terminates, in consequence of the dismissal of the winding-up petition or otherwise, the court may give such directions as it thinks just relating to the accounts of the provisional liquidator’s administration or any other matters which it thinks appropriate.

(3) The provisional liquidator must give notice of termination of the appointment as provisional liquidator, unless the termination is on the making of a winding-up order or the court directs otherwise.

(4) The notice referred to in paragraph (3)—

(a)must be delivered to the registrar of companies as soon as reasonably practicable;

(b)must be gazetted as soon as reasonably practicable; and

(c)may be advertised in such other manner as the provisional liquidator thinks fit.

(5) The notice under paragraph (3) must state—

(a)that the appointment as provisional liquidator has been terminated;

(b)the date of that termination; and

(c)that the appointment terminated otherwise than on the making of a winding-up order.

CHAPTER 6Statement of affairs and other information

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Notice requiring statement of affairs (section 131)

7.40.—(1) Where, under section 131, the official receiver requires a nominated person to provide the official receiver with a statement of the affairs of the company, the official receiver must deliver a notice to that person.

(2) The notice must be headed “Notice requiring statement of affairs” and must—

(a)identify the company immediately below the heading;

(b)require a nominated person to prepare and submit to the official receiver a statement of affairs of the company;

(c)inform the nominated person—

(i)of the names and addresses of any other nominated person to whom such a notice has been delivered, and

(ii)of the date by which the statement must be delivered; and

(d)state the effect of section 131(7) (penalty for non-compliance) and section 235 (duty to co-operate) as it applies to the official receiver.

(3) The official receiver must inform the nominated person that a document for the preparation of the statement of affairs capable of completion in compliance with rule 7.41 can be supplied by the official receiver if requested.

Statement of affairs

7.41.—(1) The statement of affairs must be headed “Statement of affairs” and must contain—

(a)identification details for the company;

(b)a statement that it is a statement of the affairs of the company on a date which is specified, being—

(i)the date of the winding-up order, or

(ii)the date directed by the official receiver;

(c)a list of the company’s shareholders with the following information about each one—

(i)name and postal address,

(ii)the type of shares held,

(iii)the nominal amount of the shares held,

(iv)the number of shares held,

(v)the amount per share called up, and

(vi)the total amount of shares called up;

(d)the total amount of shares called up held by all shareholders;

(e)a summary of the assets of the company, setting out the book value and estimated realisable value of—

(i)any assets subject to a fixed charge,

(ii)any assets subject to a floating charge,

(iii)any uncharged assets, and

(iv)the total value of all the assets available for preferential creditors;

(f)a summary of the liabilities of the company, setting out—

(i)the amount of preferential debts,

(ii)an estimate of the deficiency with respect to preferential debts or the surplus available after paying the preferential debts,

(iii)an estimate of the prescribed part, if applicable,

(iv)an estimate of the total assets available to pay debts secured by floating charges,

(v)the amount of debts secured by floating charges,

(vi)an estimate of the deficiency with respect to debts secured by floating charges or the surplus available after paying the debts secured by fixed or floating charges,

(vii)the amount of unsecured debts (excluding preferential debts),

(viii)an estimate of the deficiency with respect to unsecured debts or the surplus available after paying unsecured debts,

(ix)any issued and called-up capital, and

(x)an estimate of the deficiency with respect to, or surplus available to, members of the company;

(g)a list of the company’s creditors (as required by section 131(2)) with the following particulars required by paragraph (2) indicating—

(i)any creditors under hire-purchase, chattel leasing or conditional sale agreements,

(ii)any creditors who are consumers claiming amounts paid in advance of the supply of goods or services, and

(iii)any creditors claiming retention of title over property in the company’s possession.

(2) The particulars required by this paragraph are as follows—

(i)the name and postal address,

(ii)the amount of the debt owed to the creditor,

(iii)details of any security held by the creditor,

(iv)the date the security was given, and

(v)the value of any such security.

(3) Paragraph (4) applies where the particulars required by paragraph (2) relate to creditors who are either—

(a)employees or former employees of the company; or

(b)consumers claiming amounts paid in advance for the supply of goods or services.

(4) Where this paragraph applies—

(a)the statement of affairs itself must state separately for each of paragraph (3)(a) and (b) the number of such creditors and the total of the debts owed to them; and

(b)the particulars required by paragraph (2) in respect of those creditors must be set out in separate schedules to the statement of affairs for each of paragraph (3)(a) and (b).

(5) The statement of affairs must be verified by a statement of truth by the nominated person, or all of them if more than one, making the statement of affairs.

(6) The nominated person (or one of them, if more than one) must deliver the statement of affairs verified as required by paragraph (5) to the official receiver together with a copy.

(7) The official receiver must deliver the verified copy of the statement of affairs and any statements of concurrence delivered under rule 7.42 to the registrar of companies.

(8) However the official receiver must not deliver to the registrar of companies with the statement of affairs any schedule required by paragraph (4)(b).

Statement of affairs: statement of concurrence

7.42.—(1) The official receiver may require a person mentioned in section 131(3) (“a relevant person”) to deliver to the official receiver a statement of concurrence.

(2) A statement of concurrence is a statement, verified by a statement of truth, that that person concurs in the statement of affairs submitted by a nominated person.

(3) The official receiver must inform the nominated person who has been required to submit a statement of affairs that the relevant person has been required to deliver a statement of concurrence.

(4) The nominated person must deliver a copy of the statement of affairs to every relevant person who has been required to submit a statement of concurrence.

(5) A statement of concurrence—

(a)must identify the company; and

(b)may be qualified in relation to matters dealt with in the statement of affairs, where the relevant person—

(i)is not in agreement with the statement of affairs,

(ii)considers the statement of affairs to be erroneous or misleading, or

(iii)is without the direct knowledge necessary for concurring in it.

(6) The relevant person must deliver the required statement of concurrence (with a copy) to the official receiver before the end of the period of five business days (or such other period as the official receiver may agree) beginning with the day on which the relevant person receives the statement of affairs.

Order limiting disclosure of statement of affairs etc.

7.43.—(1) Where the official receiver thinks that disclosure of the whole or part of the statement of affairs or of any statement of concurrence would be likely to prejudice the conduct of the winding up or might reasonably be expected to lead to violence against any person, the official receiver may apply to the court for an order that the statement of affairs, statement of concurrence or any specified part of them must not be filed with the registrar of companies.

(2) The court may order that the whole or a specified part of the statement of affairs or of a statement of concurrence must not be delivered to the registrar of companies.

(3) The official receiver must as soon as reasonably practicable deliver to the registrar of companies a copy of the order, and the statement of affairs and any statement of concurrence to the extent allowed by the order.

Release from duty to submit statement of affairs: extension of time (section 131)

7.44.—(1) The official receiver may exercise the power in section 131(5) to release a person from an obligation to submit a statement of affairs imposed under section 131(1) or (2), or to grant an extension of time, either at the official receiver’s own discretion, or at the request of a nominated person.

(2) A nominated person may apply to the court for a release or an extension of time if the official receiver refuses that person’s request.

(3) On receipt of an application, the court may, if it is satisfied that no sufficient cause is shown for it, dismiss it without giving notice to any party other than the applicant.

(4) Unless the application is dismissed, the court must fix a venue for it to be heard.

(5) The applicant must, at least 14 days before any hearing, deliver to the official receiver a notice stating the venue with a copy of the application and of any evidence on which the applicant intends to rely.

(6) The official receiver may do either or both of the following—

(a)file a report of any matters which the official receiver thinks ought to be drawn to the court’s attention; or

(b)appear and be heard on the application.

(7) If a report is filed, the official receiver must deliver a copy of it to the applicant not later than five business days before the hearing.

(8) The court must deliver sealed copies of any order made on the application to the nominated person and the official receiver.

(9) The applicant must pay the applicant’s own costs in any event and, unless and to the extent that the court orders otherwise those costs will not be an expense of the winding up.

Statement of affairs: expenses

7.45.—(1) If a nominated person cannot personally prepare a proper statement of affairs, the official receiver may, as an expense of the winding up, employ a person or firm to assist in the preparation of the statement.

(2) At the request of a nominated person, made on the grounds that the nominated person cannot personally prepare a proper statement, the official receiver may authorise an allowance, payable as an expense of the winding up, of all or part of the expenses to be incurred by the nominated person in employing a person or firm to assist the nominated person in preparing it.

(3) Any such request by the nominated person must be accompanied by an estimate of the expenses involved; and the official receiver must only authorise the employment of a named person or a named firm, approved by the official receiver.

(4) An authorisation given by the official receiver under this rule must be subject to such conditions (if any) as the official receiver thinks fit to impose relating to the manner in which any person may obtain access to relevant documents and other records.

(5) Nothing in this rule relieves a nominated person from any obligation relating to the preparation, verification and submission of the statement of affairs, or to the provision of information to the official receiver or the liquidator.

(6) Any payment made as an expense of the winding up under this rule must be made in the prescribed order of priority.

(7) Paragraphs (2) to (6) of this rule may be applied, on application to the official receiver by any nominated person, in relation to the making of a statement of concurrence.

Delivery of accounts to official receiver

7.46.—(1) Any of the persons specified in section 235(3) must, at the request of the official receiver, deliver to the official receiver accounts of the company of such nature, as at such date, and for such period, as the official receiver may specify.

(2) The period specified may begin from a date up to three years before the date of the presentation of the winding-up petition, or from an earlier date to which audited accounts of the company were last prepared.

(3) The court may, on the official receiver’s application, require accounts for any earlier period.

(4) Rule 7.45 applies (with the necessary modifications) in relation to accounts to be delivered under this rule as it applies in relation to the statement of affairs.

(5) The accounts must, if the official receiver so requires, be verified by a statement of truth and (whether or not so verified) be delivered to the official receiver within 21 days of the request under paragraph (1), or such longer period as the official receiver may allow.

Further disclosure

7.47.—(1) The official receiver may at any time require a nominated person to deliver (in writing) further information amplifying, modifying or explaining any matter contained in the statement of affairs, or in accounts delivered under the Act or these Rules.

(2) The information must, if the official receiver so directs, be verified by a statement of truth, and (whether or not so verified) be delivered to the official receiver within 21 days of the requirement under paragraph (1), or such longer period as the official receiver may allow.

CHAPTER 7Reports and information to creditors and contributories

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Reports by official receiver

7.48.—(1) The official receiver must deliver a report on the winding up and the state of the company’s affairs to the creditors and contributories at least once after the making of the winding-up order.

(2) The report must contain—

(a)identification details for the proceedings;

(b)contact details for the official receiver;

(c)a summary of the assets and liabilities of the company as known to the official receiver at the date of the report;

(d)such comments on the summary and the company’s affairs as the official receiver thinks fit; and

(e)any other information of relevance to the creditors or contributories.

(3) The official receiver may apply to the court to be relieved of any duty imposed by this rule or to be authorised to carry out the duty in another way.

(4) On such an application the court must have regard to the cost of carrying out the duty, to the amount of the assets available, and to the extent of the interest of creditors or contributories, or any particular class of them.

(5) If proceedings in a winding-up are stayed by order of the court any duty of the official receiver to deliver a report under this rule ceases.

Reports by official receiver: estimate of prescribed part

7.49.—(1) The official receiver must include in a report under rule 7.48(1) estimates to the best of the official receiver’s knowledge and belief of the value of—

(a)the prescribed part (whether or not the official receiver might be required under section 176A to make the prescribed part available for the satisfaction of unsecured debts); and

(b)the company’s net property (as defined by section 176A(6)).

(2) If the official receiver (as liquidator) proposes to make an application to court under section 176A(5) the report must say so and give the reason for the application.

(3) The official receiver may exclude from an estimate under paragraph (1) information the disclosure of which could seriously prejudice the commercial interests of the company.

(4) If the exclusion of such information affects the calculation of the estimate, the report must say so.

Further information where winding up follows administration

7.50.—(1) This rule applies where an administrator is appointed by the court under section 140 as the company’s liquidator and becomes aware of creditors not formerly known to that person as administrator.

(2) The liquidator must deliver to those creditors a copy of any statement previously sent by the administrator to creditors in accordance with paragraph 49(4)(78) of Schedule B1 and rule 3.35.

Notice of stay of winding up

7.51.  Where the court grants a stay in a winding up it may include in its order such requirements on the company as it thinks just with a view to bringing the stay to the notice of creditors and contributories.

CHAPTER 8The liquidator

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Choosing a person to be liquidator

7.52.—(1) This rule applies where nominations are sought by the official receiver from the company’s creditors and contributories under section 136 for the purpose of choosing a person to be liquidator of the company in place of the official receiver(79).

(2) The official receiver must deliver to the creditors and contributories a notice inviting proposals for a liquidator.

(3) The notice must explain that the official receiver is not obliged to seek the creditors’ views on any proposals that do not meet the requirements of paragraphs (4) and (5).

(4) A proposal must state the name and contact details of the proposed liquidator, and contain a statement that the proposed liquidator is qualified to act as an insolvency practitioner in relation to the company and has consented to act as liquidator of the company.

(5) A proposal must be received by the official receiver within five business days of the date of the notice under paragraph (2).

(6) Following the end of the period for inviting proposals under paragraph (2), where any proposals are received the official receiver must seek a decision on the nomination of a liquidator from the creditors (on any proposals received from creditors) and from the contributories (on any proposals received from contributories) by—

(a)a decision procedure; or

(b)the deemed consent procedure.

(7) Where a decision is sought under paragraph (6) following the official receiver’s decision under section 136(5)(a) to seek a nomination, the decision date must be not more than four months from the date of the winding-up order.

(8) Where the official receiver is required under section 136(5)(c) to seek such a decision, the official receiver must send a notice to the creditors and contributories which complies with rule 15.7 or 15.8 so far as relevant.

(9) The notice must also—

(a)identify any liquidator proposed to be nominated by a creditor (in the case of a notice to creditors) or by a contributory (in the case of a notice to contributories) in accordance with this rule; and

(b)contain a statement explaining the effect of section 137(2)(80) (duty of official receiver to consider referral of need for appointment of liquidator to the Secretary of State where no person is chosen to be liquidator).

(10) The decision date in the notice must be no later than 21 days after the date for receiving proposals has passed.

(11) The creditors and contributories must be given at least 14 days’ notice of the decision date.

(12) Where no proposal is received by the official receiver under paragraph (2), the official receiver has no obligation to seek a decision from creditors or contributories on a liquidator.

(13) Nothing in this rule affects the official receiver’s ability under section 137(1), at any time when liquidator of the company, to apply to the Secretary of State to appoint a liquidator in place of the official receiver.

Appointment of liquidator by creditors or contributories

7.53.—(1) This rule applies where a person is appointed as liquidator by the creditors or contributories.

(2) The convener of the decision procedure or deemed consent procedure, or the chair in the case of a meeting must certify the appointment, but not unless and until the appointee has provided to the convener or the chair a statement to the effect that the appointee is an insolvency practitioner qualified under the Act to be the liquidator and consents to act.

(3) The certificate must be authenticated and dated by the convener or chair and must—

(a)identify the company;

(b)identify and provide contact details for the person appointed as liquidator;

(c)state the date on which the liquidator was appointed;

(d)state that the appointee—

(i)has provided a statement of being qualified to act as an insolvency practitioner in relation to the company,

(ii)has consented to act, and

(iii)was appointed as liquidator of the company.

(4) Where two or more liquidators are appointed the certificate must also specify (as required by section 231) whether any act required or authorised under any enactment to be done by the liquidator is to be done by all or any one or more of them.

(5) The liquidator’s appointment is effective from the date on which the appointment is certified, that date to be endorsed on the certificate.

(6) The convener or chair (if that person is not the official receiver) must deliver the certificate to the official receiver.

(7) The official receiver must in any case deliver the certificate to the liquidator.

Decision on nomination

7.54.—(1) In the case of a decision on the nomination of a liquidator—

(a)if on any vote there are two nominees, the person who obtains the most support is appointed;

(b)if there are three or more nominees, and one of them has a clear majority over both or all the others together, that one is appointed; and

(c)in any other case, the convener or chair must continue to take votes (disregarding at each vote any nominee who has withdrawn and, if no nominee has withdrawn, the nominee who obtained the least support last time) until a clear majority is obtained for any one nominee.

(2) In the case of a decision being made at a meeting, the chair may at any time put to the meeting a resolution for the joint nomination of any two or more nominees.

Invitation to creditors and contributories to form a liquidation committee

7.55.—(1) Where a decision is sought from the company’s creditors and contributories on the appointment of a liquidator, the convener of the decision must at the same time deliver to the creditors and contributories a notice inviting them to decide whether a liquidation committee should be established if sufficient creditors are willing to be members of the committee.

(2) The notice must also invite nominations for membership of the committee, such nominations to be received by a date specified in the notice.

(3) The notice must—

(a)state that nominations must be delivered to the convener by the specified date;

(b)state, in the case of creditors, that nominations can only be accepted if the convener is satisfied as to the creditors’ eligibility under rule 17.4; and

(c)explain the effect of section 141(2) and (3)(81) on whether a committee is to be established under Part 17.

Appointment by the court

7.56.—(1) This rule applies where the liquidator is appointed by the court under section 139(4) (different persons nominated by creditors and contributories) or section 140(82) (winding up following administration or CVA).

(2) The court must not make the order unless and until the person being appointed has filed with the court a statement to the effect that that person is an insolvency practitioner, duly qualified under the Act to be the liquidator, and consents to act.

(3) The order of the court must contain—

(a)identification details for the proceedings;

(b)the name and title of the judge making the order;

(c)the name and postal address of the applicant;

(d)the capacity in which the applicant made the application;

(e)identification and contact details for the proposed liquidator;

(f)a statement that the proposed liquidator has filed—

(i)a statement of qualification to act as an insolvency practitioner in relation to the company, and

(ii)a consent to act;

(g)the order that the proposed liquidator is appointed liquidator of the company; and

(h)the date on which the order is made.

(4) Where two or more liquidators are appointed the order must also specify (as required by section 231) whether any act required or authorised under any enactment to be done by the liquidator is to be done by all or any one or more of them.

(5) The court must deliver two copies of the order to the official receiver one of which must be sealed.

(6) The official receiver must deliver the sealed copy of the order to the person appointed as liquidator.

(7) The liquidator’s appointment takes effect from the date of the order or such other date as the court orders.

(8) Within 28 days from appointment, the liquidator must—

(a)deliver notice of the appointment to the creditors and to the contributories of the company of whom the liquidator is aware; or

(b)advertise the appointment in accordance with any directions given by the court.

(9) In the notice under this rule the liquidator must—

(a)state whether the liquidator proposes to seek decisions from creditors and contributories for the purpose of establishing a liquidation committee, or proposes only to seek a decision from creditors for that purpose; and

(b)if the liquidator does not propose to seek any such decision, set out the powers of the creditors under the Act to require the liquidator to seek one.

Appointment by the Secretary of State

7.57.—(1) This rule applies where the official receiver applies to the Secretary of State to appoint a liquidator in place of the official receiver, or refers to the Secretary of State the need for an appointment.

(2) If the Secretary of State makes an appointment, the Secretary of State must deliver a copy of the certificate of appointment to the official receiver, who must deliver it to the person appointed.

(3) The certificate must specify the date from which the liquidator’s appointment is to be effective.

Cost of liquidator’s security (section 390(3))

7.58.  The cost of the liquidator’s security required by section 390(3) for the proper performance of the liquidator’s functions is an expense of the winding up.

Appointment to be gazetted and notice given to registrar of companies

7.59.—(1) The liquidator—

(a)must gazette a notice of the appointment as soon as reasonably practicable after appointment; and

(b)may advertise the notice in such other manner as the liquidator thinks fit.

(2) The notice must state—

(a)that a liquidator has been appointed; and

(b)the date of the appointment.

(3) As soon as reasonably practicable the liquidator must deliver notice of the appointment to the registrar of companies.

Hand-over of assets by official receiver to liquidator

7.60.—(1) This rule only applies where the liquidator is appointed in succession to the official receiver acting as liquidator.

(2) When the liquidator’s appointment takes effect, the official receiver must as soon as reasonably practicable do all that is required for putting the liquidator into possession of the assets.

(3) On taking possession of the assets, the liquidator must discharge any balance due to the official receiver on account of—

(a)expenses properly incurred by the official receiver and payable under the Act or these Rules; and

(b)any advances made by the official receiver in respect of the assets, together with interest on such advances at the rate specified in section 17 of the Judgments Act 1838(83) at the date of the winding-up order.

(4) Alternatively, the liquidator may (before taking office) give to the official receiver a written undertaking to discharge any such balance out of the first realisation of assets.

(5) The official receiver has a charge on the assets in respect of any sums due to the official receiver under paragraph (3) until they have been discharged, subject only to the deduction from realisations by the liquidator of the proper costs and expenses of such realisations.

(6) The liquidator must from time to time out of the realisation of assets discharge all guarantees properly given by the official receiver for the benefit of the insolvent estate, and must pay all the official receiver’s expenses.

(7) The official receiver must give to the liquidator all such information relating to the affairs of the company and the course of the winding up as the official receiver considers to be reasonably required for the effective discharge by the liquidator of the liquidator’s duties.

(8) The official receiver must also deliver to the liquidator a copy of any report made by the official receiver under Chapter 7 of Part 7.

Liquidator’s resignation

7.61.—(1) A liquidator may resign only—

(a)on grounds of ill health;

(b)because of the intention to cease to practise as an insolvency practitioner;

(c)because the further discharge of the duties of liquidator is prevented or made impracticable by—

(i)a conflict of interest, or

(ii)a change of personal circumstances;

(d)where two or more persons are acting as liquidator jointly, and it is the opinion of both or all of them that it is no longer expedient that there should continue to be that number of joint liquidators.

(2) Before resigning, the liquidator must deliver a notice to creditors, and invite the creditors by a decision procedure, or by deemed consent procedure, to consider whether a replacement should be appointed, except where the resignation is under sub-paragraph (1)(d).

(3) The notice must—

(a)state the liquidator’s intention to resign;

(b)state that under rule 7.61(7) of these Rules the liquidator will be released 21 days after the date of delivery of the notice of resignation to the court under section 172(6), unless the court orders otherwise; and

(c)comply with rule 15.7 or 15.8 so far as applicable.

(4) The notice may suggest the name of a replacement liquidator.

(5) The notice must be accompanied by a summary of the liquidator’s receipts and payments.

(6) The decision date must be not more than five business days before the date on which the liquidator intends to give notice under section 172(6).

(7) The resigning liquidator’s release is effective 21 days after the date on which the notice of resignation under section 172(6) is filed with the court.

Notice to official receiver of intention to vacate office

7.62.—(1) This rule applies where the liquidator intends to vacate office, whether by resignation or otherwise, and as a result there will be a vacancy in the office of liquidator (so that by virtue of section 136(3) the official receiver is liquidator until the vacancy is filled).

(2) The liquidator must deliver notice of that intention to the official receiver at least 21 days before the liquidator intends to vacate office.

(3) The liquidator must include in the notice to the official receiver the following details of any property of the company which has not been realised, applied, distributed or otherwise fully dealt with in the winding up—

(a)the nature of the property;

(b)its value (or the fact that it has no value);

(c)its location;

(d)any action taken by the liquidator to deal with the property or any reason for the liquidator not dealing with it; and

(e)the current position in relation to it.

Decision of creditors to remove liquidator

7.63.—(1) This rule applies where the convener of the decision procedure or chair of the meeting (as the case may be) is other than the official receiver, and a decision is made, using a decision procedure, to remove the liquidator

(2) The convener or chair must within three business days of the decision to remove the liquidator deliver a certificate to that effect to the official receiver.

(3) If the creditors decided to appoint a new liquidator, the certificate of the new liquidator’s appointment must also be delivered to the official receiver within that time; and the certificate must comply with the requirements in rule 7.53.

(4) The certificate of the liquidator’s removal must—

(a)identify the company;

(b)identify and provide contact details for the removed liquidator;

(c)state that the creditors of the company decided on the date specified in the certificate that the liquidator specified in the certificate be removed from office as liquidator of the company;

(d)state the decision procedure used, and the decision date;

(e)state that the creditors either—

(i)did not decide against the liquidator being released, or

(ii)decided that the liquidator should not be released; and

(f)be authenticated and dated by the convener or chair.

(5) The liquidator’s removal is effective from the date of the certificate of removal.

Procedure on removal by creditors

7.64.—(1) Where the creditors have decided that the liquidator be removed, the official receiver must file the certificate of removal with the court.

(2) The official receiver must deliver a copy of the certificate as soon as reasonably practicable to the removed liquidator and deliver a notice of the removal to the registrar of companies.

Removal of liquidator by the court (section 172(2))

7.65.—(1) This rule applies where an application is made to the court under section 172(2)(84) for the removal of the liquidator, or for an order directing the liquidator to initiate a decision procedure of creditors for the purpose of removing the liquidator.

(2) On receipt of an application, the court may, if it is satisfied that no sufficient cause is shown for it, dismiss it without giving notice to any party other than the applicant.

(3) Unless the application is dismissed, the court must fix a venue for it to be heard.

(4) The applicant must, at least 14 days before any hearing, deliver to the liquidator and the official receiver a notice stating the venue with a copy of the application and of any evidence on which the applicant intends to rely.

(5) A respondent may apply for security for costs of the application and the court may make such an order if it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order.

(6) The liquidator and the official receiver may do either or both of the following—

(a)file a report of any matters which the liquidator or the official receiver thinks ought to be drawn to the court’s attention; or

(b)appear and be heard on the application.

(7) On a successful application the court’s order must contain—

(a)the name of the court (and hearing centre if applicable) in which the order is made;

(b)the name and title of the judge making the order;

(c)the name and postal address of the applicant;

(d)the capacity in which the applicant made the application;

(e)identification and contact details for the liquidator;

(f)identification details for the company;

(g)an order either—

(i)that that the liquidator is removed from office; or

(ii)that the liquidator must initiate a decision procedure of the company’s creditors (specifying which procedure is to be used) on or before the date specified in the order for the purpose of considering the liquidator’s removal from office; and

(h)the date the order is made.

(8) The costs of the application are not payable as an expense of the winding up unless the court orders otherwise.

(9) Where the court removes the liquidator—

(a)it must deliver the sealed order of removal to the former liquidator and a copy of the order to the official receiver; and

(b)the former liquidator must deliver a copy of the order to the registrar of companies as soon as reasonably practicable.

(10) If the court appoints a new liquidator, rule 7.56 applies.

Removal of liquidator by the Secretary of State (section 172(4))

7.66.—(1) This rule applies where the Secretary of State decides to direct under section 172(4) the removal of a liquidator appointed by the Secretary of State.

(2) Before doing so the Secretary of State must deliver to the liquidator and the official receiver a notice of the Secretary of State’s decision and the grounds for the decision.

(3) The notice must specify a period within which the liquidator may make representations against implementation of the decision.

(4) If the Secretary of State directs the removal of the liquidator, the Secretary of State must as soon as reasonably practicable—

(a)deliver notice of the Secretary of State’s decision to the registrar of companies, the liquidator and the official receiver; and

(b)file notice of the decision with the court.

(5) Where the Secretary of State directs the liquidator be removed the court may make any order that it could have made if the liquidator had been removed by the court.

Deceased liquidator

7.67.—(1) If the liquidator (not being the official receiver) dies a notice of the fact and date of death must be delivered to the official receiver by one of the following—

(a)a surviving joint liquidator;

(b)a member of the deceased liquidator’s firm (if the deceased was a member or employee of a firm);

(c)an officer of the deceased liquidator’s company (if the deceased was an officer or employee of a company);

(d)a personal representative of the deceased liquidator.

(2) If no such notice has been delivered within the 21 days following the liquidator’s death then any other person may deliver the notice.

(3) The official receiver must—

(a)file notice of the death with the court, for the purpose of fixing the date of the deceased liquidator’s release under section 174(4)(a)(85); and

(b)deliver a copy of the notice to the registrar of companies.

Loss of qualification as insolvency practitioner

7.68.—(1) This rule applies where the liquidator vacates office on ceasing to be qualified to act as an insolvency practitioner in relation to the company.

(2) A notice of the fact must be delivered as soon as reasonably practicable to the official receiver by one of the following—

(a)the liquidator who has vacated office;

(b)a continuing joint liquidator;

(c)the recognised professional body which was the source of the vacating liquidator’s authorisation to act in relation to the company.

(3) The notice must be authenticated and dated by the person delivering the notice.

(4) The official receiver must—

(a)deliver a notice of receiving such a notice to the Secretary of State; and

(b)deliver a copy to the registrar of companies.

Application by liquidator for release (section 174(4)(b) or (d))

7.69.—(1) An application by a liquidator to the Secretary of State for release under section 174(4)(b) or (d) must contain—

(a)identification details for the proceedings;

(b)identification and contact details for the liquidator;

(c)a statement that the liquidator of the company is applying to the Secretary of State to grant the liquidator with a certificate of the liquidator’s release as liquidator as a result of the circumstances specified in the application;

(d)details of the circumstances referred to in sub-paragraph (c) under which the liquidator has ceased to act as liquidator.

(2) The application must be authenticated and dated by the liquidator.

(3) When the Secretary of State releases the former liquidator, the Secretary of State must certify the release and deliver the certificate to the former liquidator whose release is effective from the date of the certificate or such other date as the certificate specifies.

(4) The Secretary of State must deliver notice of the release to the registrar of companies.

Release of official receiver

7.70.—(1) The official receiver must, before giving notice to the Secretary of State under section 174(3) (that the winding up is for practical purposes complete), deliver notice of intention to do so to the creditors.

(2) The notice must be accompanied by a summary of the official receiver’s receipts and payments as liquidator.

(3) The summary of receipts and payments must also include a statement as to the amount paid to unsecured creditors under section 176A (prescribed part).

(4) When the Secretary of State has determined the date from which the official receiver’s release is to be effective, the Secretary of State must—

(a)notify the official receiver of the release; and

(b)deliver a notice of the release to the registrar of companies accompanied by the summary of the official receiver’s receipts and payments.

Final account prior to dissolution (section 146)

7.71.—(1) The final account which the liquidator is required to make up under section 146(2)(86) and deliver to creditors must comply with the requirements of rule 18.14.

(2) When the account is delivered to the creditors it must be accompanied by a notice which states—

(a)that the company’s affairs are fully wound up;

(b)that the creditor has the right to request information from the liquidator under rule 18.9;

(c)that a creditor has the right to challenge the liquidator’s remuneration and expenses under rule 18.34;

(d)that a creditor may object to the release of the liquidator by giving notice in writing to the liquidator before the end of the prescribed period;

(e)that the prescribed period is the period ending at the later of —

(i)eight weeks after delivery of the notice, or

(ii)if any request for information under rule 18.9 or any application to court under that rule or rule 18.34 is made when that request or application is finally determined;

(f)that the liquidator will vacate office under section 172(8)(87) as soon as the liquidator has complied with section 146(4) by filing with the court and delivering to the registrar of companies the final account and notice containing the statement required by section 146(4)(b) of whether any creditors have objected to the liquidator’s release; and

(g)that the liquidator will be released under section 174(4)(d)(ii)(88) at the same time as vacating office unless any of the creditors objected to the release.

(3) The liquidator must deliver a copy of the notice under section 146(4) to the Secretary of State.

(4) Rule 7.69 applies to an application by the liquidator to the Secretary of State for release.

Relief from, or variation of, duty to report

7.72.—(1) The court may, on the application of the liquidator or the official receiver, relieve the liquidator or official receiver of any duty imposed on the liquidator or official receiver by rule 7.70 or rule 7.71, or authorise the liquidator or official receiver to carry out the duty in a way other than required by either of those rules.

(2) In considering whether to act under this rule, the court must have regard to the cost of carrying out the duty, to the amount of the assets available, and to the extent of the interest of creditors or contributories, or any particular class of them.

Liquidator’s duties on vacating office

7.73.—(1) A liquidator who ceases to be in office in consequence of removal, resignation or ceasing to be qualified to act as an insolvency practitioner in relation to the company, must as soon as reasonably practicable deliver to the successor as liquidator—

(a)the assets (after deduction of any expenses properly incurred, and distributions made, by the previous liquidator);

(b)the records of the winding up, including correspondence, proofs and other documents relating to the winding up while it was within the former liquidator’s responsibility; and

(c)the company’s documents and other records.

(2) Where the liquidator vacates office under section 172(8) (final report to creditors), the liquidator must deliver to the official receiver the company’s documents and other records which have not already been disposed of in accordance with general regulations in the course of the winding up.

Power of court to set aside certain transactions

7.74.—(1) If in dealing with the insolvent estate the liquidator enters into any transaction with a person who is an associate of the liquidator, the court may, on the application of any interested person, set the transaction aside and order the liquidator to compensate the company for any loss suffered in consequence of it.

(2) This does not apply if either—

(a)the transaction was entered into with the prior consent of the court; or

(b)it is shown to the court’s satisfaction that the transaction was for value, and that it was entered into by the liquidator without knowing, or having any reason to suppose, that the person concerned was an associate.

(3) Nothing in this rule is to be taken as prejudicing the operation of any rule of law or equity relating to a liquidator’s dealings with trust property, or the fiduciary obligations of any person.

Rule against improper solicitation

7.75.—(1) Where the court is satisfied that any improper solicitation has been used by or on behalf of the liquidator in obtaining proxies or procuring the liquidator’s appointment, it may order that no remuneration be allowed as an expense of the winding up to any person by whom, or on whose behalf, the solicitation was exercised.

(2) An order of the court under this rule overrides any resolution of the liquidation committee or the creditors, or any other provision of these Rules relating to the liquidator’s remuneration.

CHAPTER 9Duties and powers of liquidator

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

General duties of liquidator

7.76.—(1) The duties which the Act imposes on the court relating to the collection of the company’s assets and their application in discharge of the company’s liabilities are discharged by the liquidator as an officer of the court subject to its control.

(2) In the discharge of the liquidator’s duties, the liquidator, for the purposes of acquiring and retaining possession of the company’s property, has the same powers as a receiver appointed by the High Court, and the court may on the application of the liquidator enforce such acquisition or retention accordingly.

Permission for exercise of powers by liquidator

7.77.—(1) Where the Act or these Rules require permission for the liquidator to exercise a power any permission given must not be a general permission but must relate to a particular proposed exercise of the liquidator’s power.

(2) A person dealing with the liquidator in good faith and for value is not concerned to enquire whether any such permission has been given.

(3) Where the liquidator has done anything without such permission, the court or the liquidation committee may, for the purpose of enabling the liquidator to meet the liquidator’s expenses out of the assets, ratify what the liquidator has done; but neither must do so unless satisfied that the liquidator has acted in a case of urgency and has sought ratification without undue delay.

(4) In this rule “permission” includes “sanction”.

Enforced delivery up of company’s property (section 234)

7.78.—(1) The powers conferred on the court by section 234 (enforced delivery of company property) are exercisable by the liquidator or, where a provisional liquidator has been appointed, by the provisional liquidator.

(2) Any person on whom a requirement under section 234(2) is imposed by the liquidator or provisional liquidator must, without avoidable delay, comply with it.

CHAPTER 10Settlement of list of contributories

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Delegation to liquidator of power to settle list of contributories

7.79.—(1) The duties of the court under section 148 in relation to settling the list of contributories are, by virtue of these Rules and in accordance with section 160(89), delegated to the liquidator.

(2) The liquidator’s duties in settling the list of contributories are performed as an officer of the court subject to the court’s control.

Duty of liquidator to settle list (section 148)

7.80.  The liquidator must, as soon as reasonably possible after the liquidator’s appointment, exercise the court’s power to settle a list of the company’s contributories for the purposes of section 148 and, with the court’s approval, rectify the register of members.

Contents of list

7.81.—(1) The list must identify—

(a)the several classes of the company’s shares (if more than one); and

(b)the several classes of contributories, distinguishing between those who are contributories in their own right and those who are so as representatives of, or liable for the debts of, others.

(2) In the case of each contributory the list must state—

(a)the address of the contributory;

(b)the number and class of shares, or the extent of any other interest to be attributed to the contributory; and

(c)if the shares are not fully paid up, the amounts which have been called up and paid in respect of them (and the equivalent, if any, where the interest of the contributory is other than shares).

Procedure for settling list

7.82.—(1) Having settled the list, the liquidator must as soon as reasonably practicable deliver a notice, to each person included in the list, that this has been done.

(2) The notice given to each person must state—

(a)in what character, and for what number of shares or what interest, that person is included in the list;

(b)what amounts have been called up and paid up in respect of the shares or interest; and

(c)that in relation to any shares or interest not fully paid up, that person’s inclusion in the list may result in the unpaid capital being called.

(3) The notice must inform a person to whom it is given that, if that person objects to any entry in, or omission from, the list, that person should so inform the liquidator in writing within 21 days from the date of the notice.

(4) On receipt of an objection, the liquidator must within 14 days deliver a notice to the objector either—

(a)that the liquidator has amended the list (specifying the amendment); or

(b)that the liquidator considers the objection to be not well-founded and declines to amend the list.

(5) The notice must in either case inform the objector of the effect of rule 7.83.

Application to court for variation of the list

7.83.—(1) If a person (“the objector”) objects to any entry in, or exclusion from, the list of contributories as settled by the liquidator and, notwithstanding notice by the liquidator declining to amend the list, the objector maintains the objection, the objector may apply to the court for an order removing the entry objected to or (as the case may be) otherwise amending the list.

(2) The application must be made within 21 days of the delivery to the applicant of the liquidator’s notice under rule 7.82(4).

Variation of, or addition to, the list

7.84.  The liquidator may from time to time vary or add to the list of contributories as previously settled by the liquidator, but subject in all respects to the preceding rules in this Chapter.

Costs of applications to vary etc. the list of contributories

7.85.  Where a person applies to set aside or vary any act or decision of the liquidator in settling the list of contributories then—

(a)the liquidator (if other than the official receiver) is not liable for any costs incurred by that person in relation to the application unless the court makes an order to that effect; and

(b)the official receiver is not personally liable for such costs.

CHAPTER 11Calls on contributories

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Making of calls by the liquidator (sections 150 and 160)

7.86.—(1) Subject as follows the powers relating to the making of calls on contributories are exercisable by the liquidator as an officer of the court.

(2) However as provided by section 160(2) the making of a call requires either the sanction of the liquidation committee or the court’s special permission.

Sanction of the liquidation committee for making a call

7.87.—(1) Where the liquidator proposes to make a call, and there is a liquidation committee, the liquidator may summon a meeting of the committee for the purpose of obtaining its sanction.

(2) The liquidator must deliver a notice of the meeting to each member of the committee giving at least five business days’ notice of the meeting.

(3) The notice must state the purpose of making the call and the proposed amount of the call.

Application to court for permission to make a call (sections 150 and 160)

7.88.—(1) Where the liquidator proposes to make a call the liquidator may apply to the court without notice to any other party for permission to make a call on any contributories of the company.

(2) The application must state the amount of the proposed call, and the contributories on whom it is to be made.

(3) The application must be supported by a witness statement accompanied by a schedule.

(4) The witness statement must have the title “Witness statement of liquidator in support of application for call” and must contain—

(a)identification and contact details for the liquidator;

(b)identification details for the company;

(c)the number of persons on the list of contributories settled by the liquidator;

(d)the total number of shares to which the proposed call relates;

(e)the statement that in addition to the amount of the assets of the company mentioned in the schedule the liquidator believes a further sum will be required to satisfy the debts and liabilities of the company, and pay the expenses of and incidental to the winding up;

(f)the additional sum required;

(g)a statement that in order to provide the additional sum it is necessary to make a call upon the persons on the settled list of contributories, and that as it is probable that some of those contributories will partly or wholly fail to pay the amount of the call, the liquidator believes that it is necessary that a call of a specified amount per share be made in order to realise the amount required;

(h)the specified amount per share.

(5) The accompanying schedule must show—

(a)the amount due in respect of debts already proved;

(b)the estimated amount of—

(i)further liabilities of the company, and

(ii)the expenses of the winding up;

(c)the total of the amounts referred to in sub-paragraphs (a) and (b); and

(d)a list of the assets in hand belonging to the company with their total value.

(6) The schedule must be verified by a statement of truth made by the liquidator.

Order giving permission to make a call

7.89.—(1) The court’s order giving permission to make a call must have the title “Order giving permission to make a call” and must contain—

(a)the name of the court (and hearing centre if applicable) in which the order is made;

(b)the name and title of the judge making the order;

(c)identification and contact details for the liquidator;

(d)identification details for the company;

(e)an order that the liquidator may make a call of the amount per share specified in the order on the contributories who are specified in the order;

(f)the amount per share of the call;

(g)the names of the contributories of the company on whom the liquidator is to make the call;

(h)an order that each such contributory must on or before the date specified in the order pay to the liquidator of the company the amount due from that contributory in respect of the call; and

(i)the date of the order.

(2) The court may direct that notice of the order be delivered to the contributories concerned, or to other contributories, or may direct that the notice be publicly advertised.

Making and enforcement of the call

7.90.—(1) The liquidator must deliver a notice of the call to each of the contributories concerned.

(2) The notice must contain—

(a)identification details for the company;

(b)identification and contact details for the liquidator;

(c)a statement that a call on the contributories specified in the notice of the amount per share stated in the notice was sanctioned by—

(i)a resolution of the liquidation committee of the company passed on the date which is stated in the notice, or

(ii)an order of the court named in the notice on the date which is stated in the notice;

(d)the amount per share of the call;

(e)the amount or balance due from the contributory to whom the notice is addressed in respect of the call;

(f)the date by which the sum must be paid;

(g)a warning to the contributory that, if the required sum is not paid by the date specified in the notice, interest at the rate specified in the notice will be charged on the unpaid amount from that date until payment; and

(h)the specified annual interest rate.

(3) The notice must be accompanied by a copy of the resolution of the liquidation committee sanctioning the call or of the court’s order giving permission as the case may be.

Court order to enforce payment of call by a contributory

7.91.—(1) The court may make an order to enforce payment of the amount due from a contributory.

(2) The order must have the title “Order for payment of call due from contributory” and must contain—

(a)the name of the court (and hearing centre if applicable) in which the order is made;

(b)identification and contact details for the liquidator who made the application;

(c)the name and title of the judge making the order;

(d)identification details for the company;

(e)the name and postal address of the contributory who is the subject of the order;

(f)the amount per share of the call;

(g)an order that the contributory pay the liquidator the sum stated in the order in respect of the call on or before the date stated in the order or within four business days after service of the order whichever is the later;

(h)an order that the contributory pay the liquidator interest at the rate stated in the order for the period commencing from the date specified in the order to the date of payment;

(i)an order that the contributory pay the liquidator a stated sum in respect of the liquidator’s costs of the application within the same period as the amount of the call must be paid;

(j)a warning to the contributory that if the required sums are not paid within the time specified in the order further steps will be taken to compel the contributory to comply with the order; and

(k)the date of the order.

CHAPTER 12Special manager

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application of this Chapter and interpretation

7.92.  This Chapter applies to applications for the appointment of a special manager by a liquidator and by a provisional liquidator (where one has been appointed), and so references to the liquidator are to be read as including a provisional liquidator.

Appointment and remuneration of special manager (section 177)

7.93.—(1) An application made by the liquidator under section 177 for the appointment of a special manager must be supported by a report setting out the reasons for the application.

(2) The report must include the applicant’s estimate of the value of the business or property in relation to which the special manager is to be appointed.

(3) The court’s order appointing the special manager must have the title “Order of appointment of special manager” and must contain—

(a)identification details for the proceedings;

(b)the name and address of the person who made the application;

(c)the name and title of the judge making the order;

(d)the name and address of the proposed special manager;

(e)the order that the proposed special manager is appointed as special manager of the company;

(f)details of the special manager’s responsibility over the company’s business or property;

(g)the powers to be entrusted to the special manager under section 177(4);

(h)the time allowed for the special manager to give the required security for the appointment;

(i)the duration of the special manager’s appointment being one of the following—

(i)for a fixed period stated in the order,

(ii)until the occurrence of a specified event, or

(iii)until the court makes a further order;

(j)an order that the special manager’s remuneration will be fixed from time to time by the court; and

(k)the date of the order.

(4) The appointment of a special manager may be renewed by order of the court.

(5) The special manager’s remuneration will be fixed from time to time by the court.

(6) The acts of the special manager are valid notwithstanding any defect in the special manager’s appointment or qualifications.

Security

7.94.—(1) The appointment of the special manager does not take effect until the person appointed has given (or, if the court allows, undertaken to give) security to the applicant for the appointment.

(2) A person appointed as a special manager may give security either specifically for a particular winding up, or generally for any winding up in relation to which that person may be employed as special manager.

(3) The amount of the security must be not less than the value of the business or property in relation to which the special manager is appointed, as estimated in the applicant’s report which accompanied the application for appointment.

(4) When the special manager has given security to the applicant that person must file with the court a certificate as to the adequacy of the security.

(5) The cost of providing the security must be paid in the first instance by the special manager; but—

(a)where a winding-up order is not made, the special manager is entitled to be reimbursed out of the property of the company, and the court may order accordingly; and

(b)where a winding-up order is made, the special manager is entitled to be reimbursed as an expense of the winding up in the prescribed order of priority.

Failure to give or keep up security

7.95.—(1) If the special manager fails to give the required security within the time allowed for that purpose by the order of appointment, or any extension of that time that may be allowed, the liquidator must report the failure to the court, which may discharge the order appointing the special manager.

(2) If the special manager fails to keep up the security, the liquidator must report the failure to the court, which may remove the special manager, and make such order as it thinks just as to costs.

(3) If the court discharges the order appointing the special manager or makes an order removing the special manager, the court must give directions as to whether any, and if so what, steps should be taken for the appointment of another special manager.

Accounting

7.96.—(1) The special manager must produce accounts, containing details of the special manager’s receipts and payments, for the approval of the liquidator.

(2) The accounts must be for—

(a)each three month period for the duration of the special manager’s appointment; or

(b)any shorter period ending with the termination of the special manager’s appointment.

(3) When the accounts have been approved, the special manager’s receipts and payments must be added to those of the liquidator.

Termination of appointment

7.97.—(1) The special manager’s appointment terminates—

(a)if the winding-up petition is dismissed; or

(b)in a case where a provisional liquidator was appointed under section 135, if the appointment is discharged without a winding-up order having been made.

(2) If the liquidator is of the opinion that the employment of the special manager is no longer necessary or beneficial for the company, the liquidator must apply to the court for directions, and the court may order the special manager’s appointment to be terminated.

(3) The liquidator must make the same application if the creditors decide that the appointment should be terminated.

CHAPTER 13Public examination of company officers and others (section 133)

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Applications relating to promoters, past managers etc. (section 133(1)(c))

7.98.—(1) An application under section 133(1) for the public examination of a person falling within paragraph (c) of subsection (1) (promoters, past managers, etc.) must be accompanied by a report by the official receiver indicating—

(a)the grounds on which the official receiver thinks the person is within that paragraph; and

(b)whether the official receiver thinks it is likely that the order can be served on the person at a known address and, if so, by what means.

(2) If the official receiver thinks that there is no reasonable certainty that service at a known address will be effective, the court may direct that the order be served by some means other than, or in addition to, service in such manner.

Request by a creditor for a public examination (section 133(2))

7.99.—(1) A request made under section 133(2) by a creditor to the official receiver for the public examination of a person must contain—

(a)identification details for the company;

(b)the name and postal address of the creditor;

(c)the name and postal address of the proposed examinee;

(d)a description of the relationship which the proposed examinee has, or has had, with the company;

(e)a request by the creditor to the official receiver to apply to the court for a public examination of the proposed examinee under section 133(2);

(f)the amount of the creditor’s claim in the winding up;

(g)a statement that the total amount of the creditor’s and any concurring creditors’ claims is believed to represent not less than one-half in value of the debts of the company;

(h)a statement that the creditor understands the requirement to deposit with the official receiver such sum as the official receiver may determine to be appropriate by way of security for the expenses of holding a public examination; and

(i)a statement that the creditor believes that a public examination is required for the reason stated in the request.

(2) The request must be authenticated and dated by the creditor.

(3) The request must be accompanied by—

(a)a list of the creditors concurring with the request and the amounts of their respective claims in the winding up, with their respective values; and

(b)from each concurring creditor, confirmation of the creditor’s concurrence.

Request by a contributory for a public examination

7.100.—(1) A request made under section 133(2) by a contributory to the official receiver for the public examination of a person must contain—

(a)identification details for the company;

(b)the name and postal address of the contributory;

(c)the name and postal address of the proposed examinee;

(d)a description of the relationship which the proposed examinee has, or has had, with the company;

(e)a request by the contributory to the official receiver to apply to the court for a public examination of the proposed examinee under section 133(2);

(f)the number of shares held in the company by the contributory;

(g)the number of votes to which the contributory is entitled;

(h)a statement that the total amount of the contributory’s and any concurring contributories’ shares and votes is believed to represent not less than three-quarters in value of the company’s contributories;

(i)a statement that the contributory understands the requirement to deposit with the official receiver such sum as the official receiver may determine to be appropriate by way of security for the expenses of holding a public examination; and

(j)a statement that the contributory believes that a public examination is required for the reason specified in the request.

(2) The request must be authenticated and dated by the contributory.

(3) The request must be accompanied by—

(a)a list of the contributories concurring with the request and the number of shares and votes each holds in the company; and

(b)from each concurring contributory, confirmation of the concurrence and of the number of shares and votes held in the company.

Further provisions about requests by a creditor or contributory for a public examination

7.101.—(1) A request by a creditor or contributory for a public examination does not require the support of concurring creditors or contributories if the requisitioning creditor’s debt or, as the case may be, requisitioning contributory’s shares, is sufficient alone under section 133(2).

(2) Before the official receiver makes the requested application, the creditor or contributory requesting the examination must deposit with the official receiver such sum (if any) as the official receiver determines is appropriate as security for the expenses of the public examination (if ordered).

(3) The official receiver must make the application for the examination—

(a)within 28 days of receiving the creditor’s or contributory’s request (if no security is required under paragraph (2); or

(b)within 28 days of the creditor or contributory (as the case may be) depositing the required security.

(4) However if the official receiver thinks the request is unreasonable, the official receiver may apply to the court for an order to be relieved from making the application.

(5) If the application for an order under paragraph (4) is made without notice to any other party and the court makes such an order then the official receiver must deliver a notice of the order as soon as reasonably practicable to the creditors or contributories who requested the examination.

(6) If the court dismisses the official receiver’s application under paragraph (4), the official receiver must make the application under section 133(2) as soon as reasonably practicable.

Order for public examination

7.102.—(1) An order for a public examination must have the title “Order for Public Examination” and must contain the following—

(a)identification details for the proceedings;

(b)the name and title of the judge making the order;

(c)the name and postal address of the person to be examined;

(d)the venue for the public examination;

(e)the order that the person named in the order must attend the specified venue for the purpose of being publicly examined;

(f)the date of the order; and

(g)a warning to the person to be examined that failure without reasonable excuse to attend the public examination at the time and place specified in the order will make the person liable to be arrested without further notice under section 134(2); and that the person will also be guilty of contempt of court under section 134(1) and be liable to be committed to prison or fined.

(2) The official receiver must serve a copy of the order on the person to be examined as soon as reasonably practicable after the order is made.

(3) The court must rescind an order for the public examination of a person who was said to fall within section 133(1)(c) if that person satisfies the court that it is not so.

[Note: rule 81.9 (as amended) of the CPR requires a warning as mentioned in paragraph (1)(g) to be displayed prominently on the front of the order.]

Notice of the public examination

7.103.—(1) The official receiver must give at least 14 days’ notice of the public examination to—

(a)the liquidator (if a liquidator has been nominated or appointed);

(b)the special manager (if a special manager has been appointed); and

(c)the creditors and all the contributories of the company who are known to the official receiver (subject to any contrary direction of the court).

(2) Where the official receiver thinks fit additional notice of the order may be given by gazetting the notice.

(3) The official receiver may in addition to gazetting the notice advertise it in such other manner as the official receiver thinks fit;

(4) The notice must state—

(a)the purpose of the public examination; and

(b)the venue.

(5) Unless the court directs otherwise, the official receiver must not give notice under paragraph (2) of an order relating to a person falling within section 133(1)(c) until at least five business days have elapsed since the examinee was served with the order.

Examinee unfit for examination

7.104.—(1) Where the examinee is a person who lacks capacity within the meaning of the Mental Capacity Act 2005(90) or is unfit to undergo or attend for public examination, the court may—

(a)stay the order for the examinee’s public examination; or

(b)order that it is to be conducted in such manner and at such place as it thinks just.

(2) The applicant for an order under paragraph (1) must be—

(a)a person who has been appointed by a court in the United Kingdom or elsewhere to manage the affairs of, or to represent, the examinee;

(b)a person who appears to the court to be a suitable person to make the application; or

(c)the official receiver.

(3) Where the application is made by a person other than the official receiver, then—

(a)the application must, unless the examinee is a person who lacks capacity within the meaning of the Mental Capacity Act 2005, be supported by the witness statement of a registered medical practitioner as to the examinee’s mental and physical condition;

(b)at least five business days’ notice of the application must be given to the official receiver and the liquidator (if other than the official receiver); and

(c)before any order is made on the application, the applicant must deposit with the official receiver such sum as the latter certifies to be necessary for the additional expenses of an examination.

(4) An order must contain—

(a)identification details for the proceedings;

(b)the name and postal address of the applicant;

(c)the name and title of the judge making the order;