The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018

PART 2 S COMPANY VOLUNTARY ARRANGEMENTS

CHAPTER 1 S Preliminary

Interpretation S

2.1.  In this part—

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

• “proposal” means a proposal for a CVA.

CHAPTER 2 S The proposal for a CVA (section 1)

[Notes: — (1) Section 1 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 S

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.

[F1 (2) The proposal may be amended with the nominee’s agreement in writing where—

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

(b) the nominee’s report has not been lodged with the court under section 2(2).]

F2 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 Rule 2.2(2) substituted (1.10.2021) by The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rules 1, 13(2) (with rules 4, 5)

F2 Rule 2.2(3) omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rules 1, 13(3) (with rules 4, 5)

F3 Rule 2.2(4) omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rules 1, 13(3) (with rules 4, 5)

Proposal: contents S

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 subject to any security in favour of creditors and the extent of any such security; (c) which assets are to be excluded from the CVA; (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	(a) the nature and amount of the company's liabilities; (b) 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 M1 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 242 (gratuitous alienations) section 243 (unfair preferences), section 244 (extortionate credit transactions) or section 245 M2 (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	the amount proposed to be paid to the nominee by way of fees and expenses;
Supervisor	(a) identification and contact details for the supervisor; (b) 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; (c) how the fees and expenses of the supervisor will be determined and paid; (d) the functions to be performed by the supervisor; (e) 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;
Cautionary obligations and proposed cautionary obligations	(a) whether any, and if so what, cautionary obligations (including guarantees) have been given in respect of the company's debts, specifying which of the guarantors are persons connected with the company; (b) whether any, and if so what, cautionary obligations (including 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	(a) the proposed duration of the CVA; (b) the proposed dates of distributions to creditors, with estimates of their amounts;
Type of insolvency proceedings	[F4 whether the proceedings will be COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply with reasons;]
Conduct of the business	how the business of the company will be conducted during the CVA;
Further credit facilities	details of any further proposed credit facilities for the company, and how the debts so arising are to be paid;
Handling of funds arising	(a) 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; (b) how funds held for the purpose of payment to creditors, and not so paid on the termination of the CVA, will be dealt with; (c) how the claim of any person bound by the CVA by virtue of section 5(2)(b)(ii) F5 ... will be dealt with;
[F6 Matters relating to a moratorium	whether a moratorium is, or has been, in force under Part A1 of the Act and, if so, the day that moratorium came into force and (if applicable) the day it ended;]
Other matters	any other matters which 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, it must contain 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 in section 176A(6)) on the date that the estimate is made.

(3) Where the proposal is made by the administrator or liquidator, it must contain 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 in section 176A(6));

(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.

Textual Amendments

F4 Words in rule 2.3(1) substituted (31.12.2020) by The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(3), Sch. para. 137S (as inserted by S.I. 2019/1459, reg. 1(2), Sch. para. 6); 2020 c. 1, Sch. 5 para. 1(1)

F5 Words in rule 2.3(1) omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 Table (with rules 4, 5)

F6 Words in rule 2.3(1) substituted (1.10.2021) by The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rules 1, 14(2) (with rules 4, 5)

Marginal Citations

M1 “Connected with a company” is defined in section 249.

M2 There are amendments to sections 242, 244 and 245 but they are not relevant for the purposes of this rule.

CHAPTER 3 S Procedure for a CVA F7 ...

Textual Amendments

F7 Words in Pt. 2 Ch. 3 heading omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 Table (with rules 4, 5)

[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) S

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) M3 begins on the date the nominee received the proposal as stated in the notice.

Marginal Citations

M3 Section 2(2) was amended by paragraph 3 of Schedule 2 to the Insolvency Act 2000 (c.39) and by paragraph 2 of Schedule 9 to the 2015 Act.

Statement of affairs (section 2(3)) S

2.5.—(1) The statement of the company's affairs required by section 2(3) must contain the following information [F8 and, in addition, where paragraph (1B) applies, the information specified in that paragraph] —

(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.

[F9 (1A) Paragraph (1B) applies if a moratorium under Part A1 of the Act is, or has been, in force for the company at any time within the period of 12 weeks ending with the day on which the statement of affairs is made up.

(1B) Where this paragraph applies the statement of affairs must identify which of the debts owed by the company are—

(a) moratorium debts; or

(b) priority pre-moratorium debts

within the meaning given by section 174A.

(1C) Where paragraph 1B applies, paragraph 1(c) has effect as if the reference to preferential creditors included references to moratorium debts and priority pre-moratorium debts within the meaning given by section 174A.]

(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 report to the court on the proposal must explain why.

(5) The statement of affairs must include a declaration that the information provided in it is, to the best of the proposer's knowledge and belief, accurate and complete.

(6) Where the proposal is made by the directors, only one director need make a declaration in accordance with paragraph (5).

Textual Amendments

F8 Words in rule 2.5(1) inserted (1.10.2021) by The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rules 1, 15(2) (with rules 4, 5)

F9 Rules 2.5(1A)-(1C) inserted (1.10.2021) by The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rules 1, 15(3) (with rules 4, 5)

Application to omit information from statement of affairs delivered to creditors S

2.6.  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 nominee is not the liquidator or administrator S

2.7.—(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 referred to in paragraph (4) has—

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

(b) been made bankrupt or had his or her estate sequestrated;

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

(d) granted a trust deed [F10 for the benefit of creditors]; or

(e) entered into an arrangement with creditors.

(4) The persons referred to for the purposes of paragraph (3) are—

(a) a director or officer of the company; and

(b) a person who has been a director or officer of the company at any time in the period of two years ending with the date the nominee received the proposal.

(5) 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.

Textual Amendments

F10 Words in rule 2.7(3)(d) inserted (23.7.2019) by The Insolvency (Scotland) Rules 2018 (Miscellaneous Amendments) Rules 2019 (S.I. 2019/1059), rules 1, 7(2)

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

2.8.—(1) The nominee's report must be lodged 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 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 lodging 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)) S

2.9.—(1) A person (other than the nominee) who intends to apply to the court under section 2(4) M4 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 lodging 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 at least five business days before lodging the application with the court.

(3) The court must not appoint a replacement nominee unless a statement by the replacement nominee has been lodged 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.

Marginal Citations

M4 Section 2(4) was amended by paragraph 20 of Schedule 6 to the Deregulation Act 2015 (c.20).

CHAPTER 4 S Procedure 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) S

F11 2.10.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

Application to omit information from a statement of affairs S

F11 2.11.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

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

F11 2.12.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

Documents lodged with court to obtain moratorium (paragraph 7(1) of Schedule A1) S

F11 2.13.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

Notice and advertisement of beginning of moratorium S

F11 2.14.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

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

F11 2.15.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

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

F11 2.16.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

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

F11 2.17.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

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

F11 2.18.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

Disposal of secured property etc. during a moratorium S

F11 2.19.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

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

F11 2.20.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

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

F11 2.21.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

Notice of appointment of replacement nominee S

F11 2.22.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

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

F11 2.23.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F11 Rules 2.10-23 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 (with rules 4, 5)

CHAPTER 5 S Consideration 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) S

2.24.—(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) The nominee must examine whether there is jurisdiction to open the proceedings and must specify in the nominee's comments on the proposal required by paragraphs (4)(d)(iii) and (6)(a)(iii) whether the proceedings will be [F12 COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply] with the reasons for so stating.

(4) 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 insolvency proceedings;

(b) state the purpose of, and venue for, the meeting;

(c) state the effect of the following—

(i) rule 2.34 about members' voting rights,

(ii) rule 2.35 about the requisite majority of members for passing resolutions, and

(iii) rule 5.32 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,

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

(v) a blank proxy.

(5) In the case of the creditors, the nominee must deliver to each creditor a notice which complies with rule 5.8 so far as is relevant.

(6) The notice delivered under paragraph (5) 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.

(7) A notice delivered under paragraph (4) or (5) 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).

(8) 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 1.44(2)(a) to (c), (3) and (4) with any necessary adaptations and rule 1.44(5)(a) applies to determine the time of delivery of the results of the consideration of the proposal.

Textual Amendments

F12 Words in rule 2.24(3) substituted (31.12.2020) by The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(3), Sch. para. 137U (as inserted by S.I. 2019/1459, reg. 1(2), Sch. para. 6); 2020 c. 1, Sch. 5 para. 1(1)

Modifications etc. (not altering text)

C1 Rule 2.24 applied by 2016 asp 21, s. 14B(3) (as amended (23.7.2019) by The Insolvency (Scotland) Rules 2018 (Miscellaneous Amendments) Rules 2019 (S.I. 2019/1059), rules 1, 6)

Members' consideration at a meeting S

2.25.—(1) 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).

[F13 (2) 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 the nominee’s report is lodged with the court under rule 2.8.]

Textual Amendments

F13 Rule 2.25(2) substituted (1.10.2021) by The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rules 1, 16(2) (with rules 4, 5)

[F14 Creditors' consideration by a decision procedure S

2.26.   Where the nominee is inviting the creditors to consider the proposal by a decision procedure, the decision date must not be less than 14 days from the date of delivery of the notice and not more than 28 days from the date the nominee’s report is lodged with the court under rule 2.8.]

Textual Amendments

F14 Rule 2.26 substituted (1.10.2021) by The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rules 1, 17 (with rules 4, 5)

Timing of decisions on proposal S

2.27.—(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) 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 members are using the written resolution procedure, the deadline for receipt of members' votes.

Creditors' approval of modified proposal S

F15 2.28.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F15 Rule 2.28 omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 Table (with rules 4, 5)

Notice of members' meeting and attendance of officers S

2.29.—(1) A notice under rule 2.24(4) 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.

Modifications etc. (not altering text)

C2 Rule 2.29 applied by 2016 asp 21, s. 14B(3) (as amended (23.7.2019) by The Insolvency (Scotland) Rules 2018 (Miscellaneous Amendments) Rules 2019 (S.I. 2019/1059), rules 1, 6)

Requisition of physical meeting by creditors S

2.30.—(1) This rule applies where the creditors requisition a physical meeting to consider a proposal (with or without modifications) in accordance with section 246ZE M5 and rule 5.6.

(2) The meeting must take place within 14 days of the date on which one of the thresholds under section 246ZE(7) has been met or surpassed.

(3) A notice summoning a meeting of the creditors must be delivered to the creditors at least seven days before the day fixed for the meeting.

Marginal Citations

M5 Section 246ZE is inserted by section 122 of the 2015 Act.

Non-receipt of notice by members S

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

Proposal for alternative supervisor S

2.32.—(1) If, in response to a notice inviting the creditors to consider the proposal other than at a meeting, a creditor proposes that a person other than the nominee be appointed as supervisor, that person's consent to act and confirmation that that person is qualified to act as an insolvency practitioner in relation to the company must be delivered to the nominee by the decision date.

(2) Where the members of the company are using the written resolution procedure and a member proposes that a person other than the nominee be appointed as supervisor, that person's consent to act and confirmation that that person is qualified to act as an insolvency practitioner in relation to the company must be delivered to the nominee by the deadline for receipt of members' votes.

(3) 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 S

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

Modifications etc. (not altering text)

C3 Rule 2.33 applied by 2016 asp 21, s. 14B(3) (as amended (23.7.2019) by The Insolvency (Scotland) Rules 2018 (Miscellaneous Amendments) Rules 2019 (S.I. 2019/1059), rules 1, 6)

Members' voting rights S

2.34.—(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.

Modifications etc. (not altering text)

C4 Rule 2.34 applied by 2016 asp 21, s. 14B(3) (as amended (23.7.2019) by The Insolvency (Scotland) Rules 2018 (Miscellaneous Amendments) Rules 2019 (S.I. 2019/1059), rules 1, 6)

Requisite majorities of members S

2.35.—(1) A resolution is passed by members by the written resolution procedure 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 company's articles.

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

Notice of order made under section 4A(6) F16 ... S

2.36.—(1) This rule applies where the court makes an order under section 4A(6) F17 ...

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

(a) the proposer; and

(b) the supervisor (if different).

(3) If the directors are the proposer a single certified 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 date the order is made, deliver a copy of the certified copy to the registrar of companies.

Textual Amendments

F16 Words in rule 2.36 heading omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 Table (with rules 4, 5)

F17 Words in rule 2.36(1) omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 Table (with rules 4, 5)

Report of consideration of proposal under section 4(6) and (6A) F18 ... S

2.37.—(1) A report, or reports as the case may be, must be prepared of the consideration of a proposal under section 4(6) and (6A) F19 ... 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 met with any modifications;

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

(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 [F20 COMI proceedings, establishment proceedings or proceedings to which the EU Regulation as it has effect in the law of the United Kingdom does not apply]; 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 lodged with the court within four business days of the date of the company meeting.

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

(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 lodged with the court.

(6) Where the decision approving the CVA has effect under section 4A F21 ... 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.

Textual Amendments

F18 Words in rule 2.37 heading omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 Table (with rules 4, 5)

F19 Words in rule 2.37(1) omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 Table (with rules 4, 5)

F20 Words in rule 2.37(2) substituted (31.12.2020) by The Insolvency (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/146), reg. 1(3), Sch. para. 137V (as inserted by S.I. 2019/1459, reg. 1(2), Sch. para. 6); 2020 c. 1, Sch. 5 para. 1(1)

F21 Words in rule 2.37(6) omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 Table (with rules 4, 5)

CHAPTER 6 S

Additional matters concerning and following approval of CVA S

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

Handover of property etc. to supervisor S

2.38.—(1) Where the decision approving a CVA has effect under section 4A F22 ... 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—

(a) by way of fees or expenses properly incurred and payable under the Act or any rules made under section 411 which apply to Scotland; and

(b) on account of any advances made in respect of the company together with interest on such advances at the official rate at the date on which the company entered administration or went into liquidation.

(4) The administrator or liquidator has a security over the assets included in the CVA in respect of any sums comprising the balance referred to in paragraph (3), subject to deduction from any 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 cautionary obligations (including 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.

Textual Amendments

F22 Words in rule 2.38(1) omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 Table (with rules 4, 5)

Revocation or suspension of CVA S

2.39.—(1) This rule applies where the court makes an order of revocation or suspension under section 6 F23 ....

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

(a) the proposer; and

(b) the supervisor (if different).

(3) If the directors are the proposer, a single certified 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) F24 ... for action to be taken, 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 certified copy 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 CVA took effect.

Textual Amendments

F23 Words in rule 2.39(1) omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 Table (with rules 4, 5)

F24 Words in rule 2.39(4) omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 Table (with rules 4, 5)

Supervisor's accounts and reports S

2.40.—(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 report delivered to the registrar of companies must be accompanied by a notice which must contain the date on which the CVA 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 2.43 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 Secretary of State S

2.41.—(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 2.40.

(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 S

2.42.  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 F25 ...

(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.

Textual Amendments

F25 Words in rule 2.42(a) omitted (1.10.2021) by virtue of The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021 (S.I. 2021/1026), rule 1, Sch. 2 para. 3 Table (with rules 4, 5)

Termination or full implementation of CVA S

2.43.—(1) Not more than 28 days after the termination or full implementation of the CVA the supervisor must deliver a notice that the CVA has been terminated or fully implemented 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) states (if applicable) the amount paid to any unsecured creditors by virtue of section 176A.

(3) The supervisor must, within the period of 28 days mentioned in paragraph (1) send to the registrar of companies and lodge 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 lodged with the court.

CHAPTER 7 S Time 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 S

2.44.—(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) the 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.