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The Insolvency (England and Wales) Rules 2016

Type Statutory-Instrument

Publication 2016-10-18

Last updated 2025-11-19

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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(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

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(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))

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(1) This rule applies where an application is made to the court under section 172(2) 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;

(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))

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(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

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(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);

(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) ; and

(b) deliver a copy of the notice to the registrar of companies.

Loss of qualification as insolvency practitioner

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(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))

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(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

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(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)

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(1) The final account which the liquidator is required to make up under section 146(2) 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;

(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) 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) 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

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(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

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(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

(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

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(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

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(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 9 — Duties 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

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(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

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(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)

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(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 10 — Settlement 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

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(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 , 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)

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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

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(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

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(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

(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

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

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 11 — Calls 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)

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(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

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(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)

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(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;

(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;

(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

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(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;

(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

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(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

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(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;

(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 12 — Special 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

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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)

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(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;

(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(3);

(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

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(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

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(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

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(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

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(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 13 — Public 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))

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(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))

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(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;

(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

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(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;

(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

(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

(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;

(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

(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

(1) Where the examinee is a person who lacks capacity within the meaning of the Mental Capacity Act 2005 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

(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;

(d) the capacity in which the applicant (other than the official receiver) made the application;

(e) the name and postal address of the examinee;

(f) the date of the order for the examinee's public examination (“the original order”);

(g) a statement that the court is satisfied that the examinee specified in the order lacks capacity within the meaning of the Mental Capacity Act 2005 to manage and administer the examinee's property and affairs or is unfit to undergo a public examination;

(h) an order that—

(i) the original order is to be stayed on the grounds that the examinee is unfit to undergo a public examination, or

(ii) the original order is varied (as specified in this order) on the grounds that the examinee is unfit to attend the public examination fixed by the original order; and

(i) the date of the order.

(5) Where a person other than the official receiver makes the application, the court may order that some or all of the expenses of the examination are to be payable out of the deposit under paragraph (3)(c), instead of as an expense of the winding up.

(6) Where the application is made by the official receiver it may be made without notice to any other party, and may be supported by evidence set out in a report by the official receiver to the court.

Procedure at public examination

7

(1) At the public examination the examinee must—

(a) be examined on oath; and

(b) answer all the questions which the court puts, or allows to be put.

(2) A person allowed by section 133(4) to question the examinee may—

(a) with the approval of the court appear by an appropriately qualified legal representative; or

(b) in writing authorise another person to question the examinee on that person's behalf.

(3) The examinee may at the examinee's own expense employ an appropriately qualified legal representative, who may put to the examinee such questions as the court may allow for the purpose of enabling the examinee to explain or qualify any answers given by the examinee, and may make representations on behalf of the examinee.

(4) The court must have such record made of the examination as the court thinks proper.

(5) The record may, in any proceedings (whether under the Act or otherwise) be used as evidence of any statement made by the examinee in the course of the public examination.

(6) If criminal proceedings have been instituted against the examinee, and the court is of the opinion that continuing the hearing might prejudice a fair trial of those proceedings, the hearing may be adjourned.

Adjournment

[Note: rule 81.9 (as amended) of the CPR requires a warning as mentioned in paragraph (3) to be displayed prominently on the front of the order.]

7

(1) The court may adjourn the public examination from time to time, either to a fixed date or generally.

(2) Where the examination has been adjourned generally, the court may at any time on the application of the official receiver or of the examinee—

(a) fix a venue for the resumption of the examination; and

(b) give directions as to the manner in which, and the time within which, notice of the resumed public examination is to be given to persons entitled to take part in it.

(3) An order adjourning the public examination to a fixed date must contain a warning to the examinee that failure without reasonable excuse to attend the public examination at the time and place specified in the order will make the examinee liable to be arrested without further notice under section 134(2); and that the examinee will also be guilty of contempt of court under section 134(1) and be liable to be committed to prison or fined.

(4) Where an application to resume an examination is made by the examinee, the court may grant it on terms that the examinee must pay the expenses of giving the notices required by paragraph (2) and that, before a venue for the resumed public examination is fixed, the examinee must deposit with the official receiver such sum as the official receiver considers necessary to cover those expenses.

Expenses of examination

7

(1) Where a public examination of the examinee has been ordered by the court on a request by a creditor under rule 7.99 or by a contributory under rule 7.100, the court may order that some or all of the expenses of the examination are to be paid out of the deposit required under those rules, instead of as an expense of the winding up.

(2) The costs and expenses of a public examination do not fall on the official receiver personally.

CHAPTER 14 — Priority of payment of costs and expenses, etc.

General rule as to priority

7

(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.

(1A) The costs of an application by the liquidator under rule 1A.27 are to be treated as an expense of the winding up unless the court orders otherwise.

(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;

(iv) payments made as a result of an assignment or a settlement of any such action, arrangement or procedure in lieu of or before any judgment being given or award being made; and

(b) subject as provided in rules 7.111 to 7.116, 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 paragraphs (5) and (6), rule 7.108A, and rules 7.112 to 7.116, the expenses are payable in the following order of priority—

(a) the following expenses, which rank equally in order of priority—

(i) expenses that are properly chargeable or incurred by the provisional liquidator in carrying out the functions conferred on the provisional liquidator by the court,

(ii) expenses that are properly chargeable or incurred by the official receiver or 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 official receiver or liquidator has power to bring in the official receiver's or 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,

(iii) expenses that relate to the employment of a shorthand writer, if appointed by an order of the court made at the instance of the official receiver in connection with an examination, and

(iv) expenses that are incurred in holding a hearing under rule 7.104 (examinee unfit) where the application for it was made by the official receiver;

(b) any other expenses incurred or disbursements made by the official receiver or under the official receiver's authority, including those incurred or made in carrying on the business of the company;

(c) the fees payable under any order made under section 414 or section 415A , including those payable to the official receiver (other than the fee referred to in sub-paragraph (d)), and any remuneration payable to the official receiver under general regulations;

(d) the fee payable under any order made under section 414 for the performance by the official receiver of the general duties of the official receiver and any repayable sum deposited under any such order as security for the fee;

(e) the cost of any security provided by a provisional liquidator, liquidator or special manager in accordance with the Act or these Rules;

(f) the remuneration of the provisional liquidator (if any);

(g) any sum deposited on an application for the appointment of a provisional liquidator;

(h) the costs of the petitioner, and of any person appearing on the petition whose costs are allowed by the court;

(i) the remuneration of the special manager (if any);

(j) any amount payable to a person employed or authorised, under Chapter 6 of this Part, to assist in the preparation of a statement of affairs or of accounts;

(k) any allowance made, by order of the court, in respect of costs on an application for release from the obligation to submit a statement of affairs, or for an extension of time for submitting such a statement;

(l) the costs of employing a shorthand writer in any case other than one appointed by an order of the court at the instance of the official receiver in connection with an examination;

(m) 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 (p));

(n) 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;

(o) 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);

(p) 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);

(q) the balance, after payment of any sums due under sub-paragraph (o) above, of any remuneration due to the liquidator; and

(r) any other expenses properly chargeable by the liquidator in carrying out the liquidator's functions in the winding up.

(5) This paragraph applies where—

(a) a moratorium has been in force for a company under Part A1 of the Act,

(b) proceedings for the winding up of the company are begun before the end of the period of 12 weeks beginning with the day after the end of the moratorium, and

(c) there are claims in respect of any prescribed fees or expenses of the official receiver which, in accordance with section 174A(2), fall to be paid in preference to all other claims.

(6) Where paragraph (5) applies, then, in consequence of those claims of the official receiver falling to be paid in preference to all other claims by virtue of section 174A(2), the order of priority referred to in paragraph (4) is modified as follows—

(a) sub-paragraph (a)(ii) is omitted in relation to any expenses chargeable or incurred by the official receiver,

(b) sub-paragraph (a)(iii) and (iv) are omitted, and

(c) sub-paragraphs (b) to (d) are omitted in relation to any expenses incurred by, or fee payable to, the official receiver.

Winding up commencing as voluntary

7

Where the winding up by the court immediately follows a voluntary winding up (whether members' voluntary or creditors' voluntary), such remuneration of the voluntary liquidator and costs and expenses of the voluntary winding up as the court may allow are to rank in priority with the expenses specified in rule 7.108(4)(a).

Saving for powers of the court (section 156)

7

(1) The priorities laid down by rules 7.108 and 7.109 are subject to the power of the court to make orders under section 156, where the assets are insufficient to satisfy the liabilities.

(2) Nothing in those rules—

(a) applies to or affects the power 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 15 — Litigation 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

7

In this Chapter—

“approval” and “authorisation” respectively mean—where yet to be incurred, the approval, andwhere already incurred, the authorisation,of expenses specified in section 176ZA(3) ;

“the creditor” means— a creditor in respect of a debt which is a moratorium debt or a priority pre-moratorium debt within the meaning given by section 174A; a preferential creditor of the company; ora holder of a debenture secured by, or a holder of, a floating charge created by the company;

“legal proceedings” means—proceedings under sections 212, 213, 214 , 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;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; andnegotiations 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—are properly chargeable or incurred in the preparation or conduct of any legal proceedings; andas 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 7.113(2).

Priority of litigation expenses

7

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 7.113 to 7.116.

Requirement for approval or authorisation of litigation expenses

7

(1) Subject to rules 7.114 to 7.116 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

(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.

Requests for approval or authorisation

7

(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 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

(i) each preferential creditor, and

(ii) each creditor of the kind described in rule 7.111(za),

that approval or authorisation of the specified amount will be taken to be given where a majority in value of those creditors referred to in sub-paragraphs (i) and (ii) who respond within the specified time limit are in favour of it; or

(d) where rule 7.113 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

7

(1) Where the liquidator fails to include in the liquidator's request any one of the matters, statements or notices required by paragraph (1) or paragraphs (1) and (4), of rule 7.114, 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) Paragraph (3A) applies where the liquidator requires the approval or authorisation of—

(a) two or more—

(i) preferential creditors, or

(ii) creditors of the kind described in rule 7.111(za); or

(b) one or more preferential creditors together with one or more creditors of the kind described in rule 7.111(za).

(3A) Where this paragraph applies approval or authorisation will be taken to be given where a majority in value of those creditors referred to in sub-paragraphs (3)(a)(i) or (ii) or (3)(b) (as the case may be) 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—

(a) two or more—

(i) preferential creditors, or

(ii) creditors of the kind described in rule 7.111(za); or

(b) one or more preferential creditors together with one or more creditors of the kind described in rule 7.111(za),

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 7.114(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

7

(1) In the circumstances specified below the court may, upon 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 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 7.114(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 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, will be an expense of the winding up unless the court orders otherwise.

CHAPTER 16 — MISCELLANEOUS RULES

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

Sub-division A: Return of capital

Application to court for order authorising return of capital

7

(1) This rule applies where the liquidator intends to apply to the court for an order authorising a return of capital.

(2) The application must be accompanied by a list of the persons to whom the return is to be made.

(3) The list must include the same details of those persons as appears in the settled list of contributories, with any necessary alterations to take account of matters after settlement of the list, and the amount to be paid to each person.

(4) Where the court makes an order authorising the return, it must deliver a sealed copy of the order to the liquidator.

Procedure for return

7

(1) The liquidator must inform each person to whom a return is made of the rate of return per share, and whether it is expected that any further return will be made.

(2) Any payments made by the liquidator by way of the return may be delivered by post, unless for any reason another method of making the payment has been agreed with the payee.

Sub-division B: Dissolution after winding up

Secretary of State's directions under sections 203 and 205 and appeal

7

(1) This rule applies where the Secretary of State gives a direction under—

(a) section 203 (where official receiver applies to the registrar of companies for a company's early dissolution); or

(b) section 205 (application by interested person for postponement of dissolution).

(2) The Secretary of State must deliver the direction to the applicant for it.

(3) The applicant must deliver a copy of the direction to the registrar of companies, to comply with section 203(5) or, as the case may be, section 205(6).

(4) Following an appeal under section 203(4) or 205(4) (against a decision of the Secretary of State under the applicable section) the court must deliver a sealed copy of its order to the person in whose favour the appeal was determined.

(5) That person must deliver a copy to the registrar of companies to comply with section 203(5) or, as the case may be, section 205(6).

PART 8 — INDIVIDUAL VOLUNTARY ARRANGEMENTS (IVA)

CHAPTER 1 — Preliminary

Interpretation

8

In this Part—

“authorised person” means the official receiver where the official receiver is authorised to act as nominee or supervisor under section 389B(1) of the Act ;

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

“proposal” means a proposal for an IVA.

CHAPTER 2 — Preparation of the debtor's proposal for an IVA

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

Proposal for an IVA: general principles and amendment

8

(1) A proposal must—

(a) identify the debtor;

(b) explain why the debtor thinks an IVA is desirable;

(d) be authenticated and dated by the debtor.

(2) The proposal may be amended with the nominee's agreement in writing at any time up to the filing of the nominee's report with the court under section 256, or the submission of the nominee's report to the creditors under section 256A .

Proposal: contents

8

The proposal must set out the following so far as known to the debtor—

8

(1) A nominee who consents to act must deliver a notice of that consent to the debtor as soon as reasonably practicable after the proposal has been submitted to the nominee under section 256(2) or 256A(2).

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

Statement of affairs (section 256 and 256A)

8

(1) The statement of affairs which the debtor is required to submit to the nominee under either section 256(2) or 256A(2) must contain—

(a) a list of the debtor'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 debtor is wholly or partly secured, particulars of the claim and of how and when the security was created;

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

(e) particulars of any debts owed by the debtor to persons who are associates of the debtor;

(f) particulars of any debts owed to the debtor by persons who are associates of the debtor; and

(g) 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 or to the creditors (as the case may be).

(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 a date that is earlier than two weeks (but no earlier than two months) before the date of the proposal where that is more practicable.

(4) If the statement is made up to an earlier date the nominee's report must explain why an earlier date was allowed.

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

(6) Where the debtor is an undischarged bankrupt and has already delivered a statement of affairs under section 288 the debtor need not submit a statement of affairs to the nominee under section 256(2) or 256A(2) unless the nominee requires a further statement of affairs to supplement or amplify the earlier one.

Application to omit information from statement of affairs delivered to creditors

8

The nominee, the debtor or any person appearing to the court to have an interest may, if any information in the statement of affairs would be likely to prejudice the conduct of the IVA or might reasonably be expected to lead to violence against any person, apply to the court for an order that specified information be omitted from any statement of affairs required to be delivered to the creditors.

Additional disclosure for assistance of nominee

8

(1) If it appears to the nominee that the report to the court under section 256(1) or to the creditors under section 256A(3) cannot properly be prepared on the basis of information in the proposal and statement of affairs, the nominee may require the debtor to provide—

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

(b) more information about any proposals of the kind referred to in rule 8.3(w);

(d) any further information relating to the debtor's affairs which the nominee thinks necessary for the purposes of the report.

(2) The nominee may require the debtor to inform the nominee whether and in what circumstances the debtor has at any time—

(a) been concerned in the affairs of a company wherever incorporated or limited liability partnership which has become the subject of insolvency proceedings;

(b) been made bankrupt;

(d) entered into an arrangement with creditors.

(3) The debtor must give the nominee such access to the debtor's accounts and records as the nominee requires to enable the nominee to consider the debtor's proposal and prepare the report on it.

CHAPTER 3 — Cases in which an application for an interim order is made

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

Application for interim order

8

(1) An application to the court for an interim order under Part 8 of the Act must be accompanied by a witness statement containing—

(a) the reasons for making the application;

(b) information about any action, execution, other legal process or the levying of any distress which, to the debtor's knowledge, has been commenced against the debtor or the debtor's property;

(d) a statement that no previous application for an interim order has been made by or in relation to the debtor in the period of 12 months ending with the date of the witness statement; and

(e) a statement that a person named in the witness statement is willing to act as nominee in relation to the proposal and is qualified to act as an insolvency practitioner (or is an authorised person) in relation to the debtor.

(2) The witness statement must be accompanied by a copy of—

(a) the proposal; and

(b) the notice of the nominee's consent to act.

(3) When the application and the witness statement have been filed, the court must fix a venue for the hearing of the application.

(4) The applicant must deliver a notice of the hearing and the venue at least two business days before the hearing to—

(a) the nominee;

(b) the debtor, the official receiver or the trustee (whichever is not the applicant) where the debtor is an undischarged bankrupt; and

(c) any creditor who (to the debtor's knowledge) has presented a bankruptcy petition against the debtor where the debtor is not an undischarged bankrupt.

(5) A notice under section 253(4) must contain the name and address of the nominee.

Court in which application is to be made

8

(1) An application must be made—

(a) to the court (and hearing centre if applicable), if any, which has the conduct of the bankruptcy, where the debtor is an undischarged bankrupt; or

(b) to the court (and hearing centre if applicable) determined in accordance with rule 10.48.

(2) The application must contain sufficient information to establish that it is made to the appropriate court or hearing centre.

Order granting a stay

8

A court order under section 254(1)(b) granting a stay pending hearing of an application must identify the proceedings and contain—

(a) the section number of the Act under which it is made;

(b) details of the action, execution or other legal process which is stayed;

(d) the date that the order granting the stay is made.

Hearing of the application

8

(1) A person to whom a notice of the hearing of the application for an interim order was (or should have been) delivered under rule 8.8(4) may appear or be represented at the hearing.

(2) The court must take into account any representations made by or on behalf of such a person (in particular, as to whether an order should contain such provision as is referred to in section 255(3) (provisions as to the conduct of the bankruptcy etc.) and (4) (provisions staying proceedings in bankruptcy etc.).

(3) If the court makes an interim order, it must fix a venue for consideration of the nominee's report for a date no later than the date on which the order ceases to have effect.

The interim order

8

An interim order must contain—

(a) identification details for the proceedings;

(b) the section number of the Act under which it is made;

(c) a statement that the order has effect from its making until the end of the period of 14 days beginning on the day after the date on which it is made;

(d) particulars of the effect of the order (as set out in section 252(2));

(e) an order that the report of the nominee be delivered to the court no later than two business days before the date fixed for the court's consideration of the report;

(f) particulars of any orders made under section 255(3) and (4);

(g) where the debtor is an undischarged bankrupt and the applicant is not the official receiver, an order that the applicant delivers, as soon as reasonably practicable, a copy of the interim order to the official receiver;

(h) the venue for the court's consideration of the nominee's report; and

(i) the date of the order.

Action to follow making of an interim order

8

(1) The court must deliver at least two sealed copies of the interim order to the applicant.

(2) As soon as reasonably practicable, the applicant must deliver—

(a) one copy to the nominee and, where the debtor is an undischarged bankrupt, another copy to the official receiver (unless the official receiver was the applicant); and

(b) a notice that the order has been made to any other person to whom a notice of the hearing of the application for an interim order was (or should have been) delivered under rule 8.8(4) and who was not in attendance or represented at the hearing.

Order extending period of an interim order (section 256(4))

8

An order under section 256(4) extending the period for which an interim order has effect must contain—

(a) identification details for the proceedings;

(b) a statement that the application is that of the nominee for an extension of the period under section 256(4) for which an interim order is to have effect;

(d) particulars of the effect (as set out in section 252(2)) of the interim order;

(e) an order that the report of the nominee be delivered to the court no later two business days before the date fixed for the court's consideration of the nominee's report;

(f) particulars of any orders made under section 255(3) or (4);

(g) where the debtor is an undischarged bankrupt and the applicant is not the official receiver, an order that the applicant deliver, as soon as reasonably practicable, a copy of the order to the official receiver;

(h) the venue for the court's consideration of the report; and

(i) the date of the order.

Nominee's report on the proposal

8

(1) The nominee's report under section 256 must be filed with the court not less than two business days before the interim order ceases to have effect, accompanied by—

(a) a copy of the report;

(b) a copy of the proposal (as amended, if applicable, under rule 8.2(2); and

(2) The nominee must also deliver a copy of the report to the debtor.

(3) The nominee's report must explain whether or not the nominee considers that the proposal has a reasonable prospect of being approved and implemented and whether or not creditors should be invited to consider the proposal.

(4) The court must endorse the nominee's report and the copy of it with the date on which they were filed and return the copy to the nominee.

(5) Where the debtor is an undischarged bankrupt, the nominee must deliver to the official receiver and any trustee, a copy of—

(a) the proposal;

(b) the nominee's report; and

(6) Where the debtor is not an undischarged bankrupt, the nominee must deliver a copy of each of those documents to any person who has presented a bankruptcy petition against the debtor.

Order extending period of interim order to enable the creditors to consider the proposal (section 256(5))

8

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