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

Type Statutory-Instrument

Publication 2018-10-11

Last updated 2021-10-01

State In force

Department King's Printer of Acts of Parliament

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Made: 11th October 2018

Laid before Parliament: 15th October 2018

Coming into force: 6th April 2019

The Secretary of State makes the following Rules in exercise of the power conferred by section 411(1)(b), (2) and (2A) of the Insolvency Act 1986 .

The Scottish Ministers have consented to these Rules in accordance with Article 5(2) of the Scotland Act 1998 (Insolvency Functions) Order 2018 .

INTRODUCTORY RULES

Citation and Commencement

1

These Rules may be cited as the Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018 and come into force on 6th April 2019.

Revocations

2

The enactments listed in the first column of the table in Schedule 1 are revoked to the extent specified in the third column of that table.

Extent and application

3

(1) These Rules extend to Scotland only.

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

Transitional and savings provisions

4

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

Punishment of offences

5

Schedule 3 sets out the maximum penalties for offences under these Rules.

Review

6

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

(a) carry out a review of the regulatory provision contained in these Rules; and

(b) publish a report setting out the conclusions of the review.

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

(3) Subsequent reports must be published at intervals not exceeding five years.

(4) Section 30(4) of the Small Business, Enterprise and Employment Act 2015[^f00003] requires that a report published under this rule must, in particular—

(a) set out the objectives intended to be achieved by the regulatory provision referred to in paragraph (1)(a);

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

(d) if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(5) In this rule, “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).

PART 1 — SCOPE, INTERPRETATION, TIME AND RULES ABOUT DOCUMENTS

CHAPTER 1 — Scope of these Rules

Scope

1.1

(1) These Rules are made to give effect, in Scotland, in relation to company voluntary arrangements and administration, to—

(a) Parts 1 and 2 of the Insolvency Act 1986; and

(b) the EU Regulation.

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

CHAPTER 2 — Interpretation

[Note: the terms which are defined in rule 1.2 include some terms defined in the Act for limited purposes which are applied generally by these Rules. Such terms have the meaning given by the Act for those limited purposes.]

Defined terms

1.2

(1) In these Rules, unless the context otherwise requires—

“the Act” means the Insolvency Act 1986, and— a reference to a numbered section without mention of another Act is to that section of the Act; and a reference to Schedule A1[^f00004] or B1[^f00005] is to that Schedule to the Act;

“the Companies Act” means the Companies Act 2006[^f00006];

“appointed person” means a person who meets the requirements in paragraph (2) and who is appointed by an office-holder;

“Article 1.2 undertaking” means one of the following within the meaning of Article 1.2 of the EU Regulation— an insurance undertaking; a credit institution; an investment undertaking which provides services involving the holding of funds or securities for third parties; a collective investment undertaking;

[Note: “associate” is defined in section 435];

“attendance” and “attend”— a person attends a meeting by being present, by attending remotely in accordance with section 246A[^f00007] or rule 5.6, or by participating in a virtual meeting; and a person may attend a meeting in person, by proxy or by corporate representative (in accordance with section 434B[^f00008] of the Act or section 323 of the Companies Act, as applicable);

“authenticate” means to authenticate in accordance with rule 1.6;

“blank proxy” is to be interpreted in accordance with rule 6.3

[Note: “business day” is defined in section 251]

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

[Note: “connected” used of a person in relation to a company is defined in section 249 of the Act];

“consumer” means an individual acting for purposes that are wholly or mainly outside that individual’s trade, business, craft or profession;

“convener” means an office-holder or other person who seeks a decision in accordance with Part 5 of these Rules;

[Note: “the court” is defined in section 251];

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

“debt” as it relates to administration, means any of the following— any debt or liability to which the company is subject at the relevant date; any debt or liability to which the company may become subject after the relevant date by reason of any obligation incurred before that date; any interest provable as mentioned in rule 3.111; and for the purposes of the definition of debt, “relevant date” means— in the case of an administration which was not immediately preceded by a winding up, the date on which the company entered administration; and in the case of an administration which was immediately preceded by a winding up, the date on which the company went into liquidation.

“decision date” and “decision procedure” are to be interpreted in accordance with rule 5.2;

[Note: “deemed consent procedure” is defined in section 246ZF[^f00009]];

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

“deliver to the creditors” and similar expressions in these Rules and the Act are to be interpreted in accordance with rule 1.33;

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

[Note: “the EU Regulation” is defined in section 436[^f00010] as “Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings[^f00011]”];

[Note: “the Gazette” has the meaning given in section 251];

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

“to gazette” means to advertise in the Gazette, whether electronically or otherwise;

[Note: “hire-purchase agreement” is defined in section 436(1); and is supplemented by paragraph 1 of Schedule A1 (company voluntary arrangements) for the purposes of that Schedule and by paragraph 111(1) of Schedule B1 (administration) for the purposes of that Schedule];

“identification details” and similar references to information identifying persons, insolvency proceedings etc. are to be interpreted in accordance with rule 1.7;

“insolvent estate” means the company’s assets;

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

“local creditor” has the same meaning as in Article 2 of the EU Regulation;

“main proceedings” means proceedings opened in accordance with Article 3(1) of the EU Regulation and falling within the definition of insolvency proceedings in Article 2(4) of the EU Regulation and which— in relation to Scotland, are set out in Annex A to that Regulation under the heading “United Kingdom”; and in relation to another member State, are set out in Annex A under the heading relating to that member State;

“meeting” in relation to a company’s creditors means either a “physical meeting” or a “virtual meeting”;

“member State liquidator” means a person falling within the definition of “insolvency practitioner” in Article 2(5) of the EU Regulation appointed in proceedings to which the EU Regulation applies in a member State other than the United Kingdom;

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

“non-EU proceedings” means insolvency proceedings which are not main, secondary or territorial proceedings;

“office-holder” means a person who under the Act or these Rules holds an office in relation to insolvency proceedings and includes a nominee;

“official rate” is the rate of interest on a sheriff court decree or extract under section 9 of the Sheriff Courts (Scotland) Extracts Act 1892[^f00012] (as it may be amended by section 4 of the Administration of Justice (Scotland) Act 1972)[^f00013];

“physical meeting” has the meaning given by rule 5.2;

“prescribed part” has the same meaning as in section 176A(2)(a)[^f00014] and the Insolvency Act 1986 (Prescribed Part) Order 2003[^f00015];

“progress report” means a report which complies with rules 3.93 and 3.94;

[Note: “property” is defined in section 436(1)];

“proxy” and “proxy-holder” are to be interpreted in accordance with rule 6.2;

“qualified to act as an insolvency practitioner”, in relation to a company, is to be interpreted in accordance with Part 13 of the Act;

[Note: “records” are defined in section 436(1)];

“secondary proceedings” means proceedings opened in accordance with Article 3(2) and (3) of the EU Regulation and falling within the definition of insolvency proceedings in Article 2(4) of the EU Regulation and which— in relation to Scotland, are set out in Annex A to that Regulation under the heading “United Kingdom”; and in relation to another member State are set out in Annex A under the heading relating to that member State;

“serve” and “service” are to be interpreted in respect of a particular document by reference to the Rules of Court;

“standard contents” means— for a Gazette notice, the standard contents set out in Chapter 5 of Part 1; for a notice to be advertised other than in the Gazette, the standard contents set out in Chapter 6 of Part 1; for a document to be delivered to the registrar of companies, the standard contents set out in Chapter 7 of Part 1; and for notices to be delivered to other persons, the standard contents set out in Chapter 8 of Part 1;

“standard fee for copies” means 15 pence per A4 or A5 page or 30 pence per A3 page;

“statement of claim” is to be interpreted in accordance with rule 3.105;

“statement of proposals” means a statement made by an administrator under paragraph 49 of Schedule B1[^f00016] setting out proposals for achieving the purpose of an administration;

“territorial proceedings” means proceedings opened in accordance with Article 3(2) and (4) of the EU Regulation and falling within the definition of insolvency proceedings in Article 2(4) of that Regulation and which— in relation to Scotland, are set out in Annex A to the EU Regulation under the heading “United Kingdom”; and in relation to another member State, are set out in Annex A under the heading relating to that member State;

“venue” in relation to any proceedings, attendance before the court, decision procedure or meeting means the time, date and place or platform for the proceedings, attendance, decision procedure or meeting;

“virtual meeting” has the meaning given by rule 5.2;

[Note: “writing” is to be construed in accordance with section 436B[^f00017]];

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

(2) An appointed person in relation to a company must be—

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

(b) a person experienced in insolvency matters who is—

(i) a member or employee of the office-holder’s firm, or

(ii) an employee of the office-holder.

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

CHAPTER 3 — Calculation of time periods

Periods of time expressed in days

1.3

(1) This rule applies to the calculation of a period of time expressed in days.

(2) A period of time expressed as a number of days is to be computed as clear days.

(3) In this rule, “clear days” means that in computing the number of days—

(a) the day on which the period begins; and

(b) if the end of the period is defined by reference to an event, the day on which that event occurs,

are not included.

Periods of time expressed in months

1.4

(1) This rule applies to the calculation of a period of time expressed in months.

(2) The beginning and the end of a period expressed in months are to be determined as follows—

(a) if the beginning of the period is specified—

(i) the month in which the period ends is the specified number of months after the month in which it begins; and

(ii) the date in the month on which the period ends is—

(aa) the day before the date corresponding to the date in the month on which it begins, or

(bb) if there is no such date in the month in which it ends, the last day of that month;

(b) if the end of the period is specified—

(i) the month in which the period begins is the specified number of months before the month in which it ends; and

(ii) the date in the month on which the period begins is—

(aa) the day after the date corresponding to the date in the month on which it ends, or

(bb) if there is no such date in the month in which it begins, the last day of that month.

CHAPTER 4 — Form and content of documents

Requirement for writing and form of documents

1.5

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

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

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

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

Authentication

1.6

(1) A document in electronic form is authenticated—

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

(b) where the recipient has not so specified, if the communication contains or is accompanied by a statement of the identity of the sender and the recipient has no reason to doubt the truth of that statement.

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

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

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

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

Information required to identify persons and insolvency proceedings etc.

1.7

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

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

Company where it is the subject of the insolvency proceedings	In the case of a registered company—
Company where it is the subject of the insolvency proceedings	the registered name; for a company incorporated in Scotland under the Companies Act or a previous Companies Act, its registered number; for a company incorporated outside the United Kingdom—
Company where it is the subject of the insolvency proceedings	the country or territory in which it is incorporated, the number, if any, under which it is registered, and the number, if any, under which it is registered as an overseas company under Part 34 of the Companies Act.
Company where it is the subject of the insolvency proceedings	In the case of an unregistered company—
Company where it is the subject of the insolvency proceedings	its name; and the postal address of any principal place of business.
Company other than one which is the subject of the insolvency proceedings	In the case of a registered company—
Company other than one which is the subject of the insolvency proceedings	the registered name; for a company incorporated in any part of the United Kingdom under the Companies Act or a previous Companies Act, its registered number; for a company incorporated outside the United Kingdom—
Company other than one which is the subject of the insolvency proceedings	the country or territory in which it is incorporated; the number, if any, under which it is registered; and the number, if any, under which it is registered as an overseas company under Part 34 of the Companies Act;
Company other than one which is the subject of the insolvency proceedings	In the case of an unregistered company—
Company other than one which is the subject of the insolvency proceedings	its name; and the postal address of any principal place of business
Office-holder	the name of the office-holder; and the nature of the appointment held by the office-holder.
Contact details for an office-holder	a postal address for the office-holder; and either an email address, or a telephone number, through which the office-holder may be contacted.
Insolvency proceedings	information identifying the company to which the insolvency proceedings relate; if the insolvency proceedings are, or are to be, conducted in a court— the full name of the court and, if applicable; any number assigned to those insolvency proceedings by the court.

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

1.8

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

(a) the company’s centre of main interests,

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

Prescribed format of documents

1.9

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

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

Variations from prescribed contents

1.10

Where a rule sets out the required contents of a document, the document may depart from the required contents if—

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

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

CHAPTER 5 — Standard contents of Gazette notices and the Gazette as evidence etc.

[Note: the requirements in Chapter 5 must be read with rule 1.7 which sets out the information required to identify an office-holder, a company etc.]

Contents of notices to be gazetted under the Act or Rules

1.11

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

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

Standard contents of Gazette notices

1.12

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

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

(b) the office-holder’s IP number;

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

(2) A Gazette notice relating to a registered company must also state—

(a) its registered office;

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

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

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

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

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

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

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

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

The Gazette: evidence, variations, errors and timing

1.13

(1) Where a notice is gazetted under the Act or these Rules a copy of the Gazette containing the notice is evidence of any facts stated in the notice.

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

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

(4) A Gazette notice, variation or correction is taken to be gazetted or published on the date it first appears in either electronic or hard copy form.

CHAPTER 6 — Standard contents of notices advertised otherwise than in the Gazette

[Note: the requirements in Chapter 6 must be read with rule 1.7 which sets out the information required to identify an office-holder, a company etc.]

Standard contents of notices advertised otherwise than in the Gazette

1.14

(1) Where, in accordance with the Act or these Rules, a notice is to be advertised otherwise than in the Gazette, the notice must contain the standard contents set out in this rule (in addition to any content specifically required by the Act or any other provision of these Rules).

(2) A notice relating to a company must also identify the insolvency proceedings and state—

(a) the company’s principal trading address;

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

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

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

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

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

Non-Gazette notices: clear and comprehensible

1.15

Information which this Chapter requires to be stated in a notice must be so stated in a way that is clear and comprehensible.

CHAPTER 7 — Standard contents of documents to be delivered to the registrar of companies

[Note: the requirements in Chapter 7 must be read with rule 1.7 which sets out the information required to identify an office-holder, a company etc.]

Standard contents of documents delivered to the registrar of companies

1.16

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

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

Registrar of companies: covering notices

1.17

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

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

(b) a court order;

(d) a statement of affairs;

(e) a statement of concurrence;

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

(g) any report including—

(i) a final report,

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

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

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

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

(i) an undertaking given under Article 36 of the EU Regulation.

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

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

Standard contents of all documents

1.18

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

(a) identify the company;

(b) state—

(i) the nature of the document,

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

(iii) the date of the document,

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

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

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

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

1.19

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

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

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

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

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

Standard contents of documents relating to other documents

1.20

A document relating to another document must also state—

(a) the nature of the other document;

(b) the date of the other document; and

Standard contents of documents relating to court orders

1.21

A document relating to a court order must also specify—

(a) the nature of the order;

(b) the name of the court; and

Standard contents of returns or reports of decisions

1.22

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

(a) the purpose of the procedure or meeting;

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

(d) in the case of a deemed consent procedure, the date the decision was deemed to have been made;

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

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

Standard contents of returns or reports of matters considered by company members by written resolution

1.23

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

(a) the purpose of the consideration; and

(b) the outcome of the consideration (including any resolutions passed).

Standard contents of documents relating to other events

1.24

A document relating to any other event must also state—

(a) the nature of the event, including the section (or paragraph) of the Act or the rule in relation to which it took place; and

(b) the date on which the event occurred.

CHAPTER 8 — Standard contents of notices for delivery to other persons etc.

[Note: the requirements in Chapter 8 must be read with rule 1.7 which sets out the information required to identify an office-holder, a company etc.]

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

1.25

(1) Where the Act or these Rules require a notice to be delivered to a person other than the registrar of companies in respect of insolvency proceedings under Parts 1 and 2 of the Act or the EU Regulation, the notice must contain the standard contents set out in this Chapter (in addition to any content specifically required by the Act or another provision of these Rules).

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

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

Standard contents of all notices

1.26

A notice must—

(a) state the nature of the notice;

(b) identify the insolvency proceedings;

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

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

1.27

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

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

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

Standard contents of notices relating to documents

1.28

A notice relating to a document must also state—

(a) the nature of the document;

(b) the date of the document; and

Standard contents of notices relating to court proceedings or orders

1.29

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

(a) the nature of the order; and

(b) the date of the order.

Standard contents of notices of the results of decisions

1.30

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

(a) the purpose of the procedure or meeting;

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

(d) in the case of a deemed consent procedure, the date the decision was deemed to have been made;

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

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

Standard contents of returns or reports of matters considered by company members by written resolution

1.31

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

(a) the purpose of the consideration; and

(b) the outcome of the consideration (including any resolutions passed).

CHAPTER 9 — Delivery of documents and opting out (sections 246C and 248A )

Application of Chapter

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

1.32 1 Subject to paragraph (2) this Chapter applies where a document is required under the Act or these Rules to be delivered, lodged, forwarded, furnished, given, sent, or submitted in respect of insolvency proceedings under Parts 1 and 2 of the Act or the EU Regulation unless the Act, a rule or an order of the court makes different provision. 2 Rules 1.41 and 1.43 to 1.46 do not apply to— a the lodging of any petition or application or other document with the court; b the service of any application or other document lodged with the court; c the service of any order of the court; or d the delivery of a document to the registrar of companies, except in accordance with paragraph 3. 3 In respect of delivery of a document to the registrar of companies— a subject to sub-paragraph (b) only the following rules in this Chapter apply: rules 1.38 (postal delivery of documents), 1.39 (delivery by document exchange), 1.40 (personal delivery) and 1.47 (proof of delivery of documents); b requirements imposed under section 1068 and rules made under section 1117 of the Companies Act apply to determine the date when any document is received by the registrar of companies. 4 Where a document is required or permitted to be served at a company’s registered office service may be effected at a previous registered office in accordance with section 87(2) of the Companies Act. 5 In the case of an overseas company service may be effected in any manner provided for by section 1139(2) of the Companies Act.

Delivery to the creditors and opting out

1.33

(1) Where the Act or a rule requires an office-holder to deliver a document to the creditors, or the creditors in a class, the requirement is satisfied by the delivery of the document to all such creditors of whose address the office-holder is aware other than opted-out creditors unless the opt out does not apply.

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

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

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

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

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

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

(4) An office-holder in any consecutive insolvency proceedings of a different kind under Parts 1, 2, 4 or 5 of the Act in respect of the same company who is aware that a creditor was an opted-out creditor in the earlier insolvency proceedings must treat the creditor as an opted-out creditor in the consecutive insolvency proceedings.

Creditor’s election to opt out

1.34

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

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

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

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

(5) An opted-out creditor—

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

(b) is deemed to be an opted-out creditor in respect of any consecutive insolvency proceedings under Parts 1, 2, 4 or 5 of the Act of a different kind relating to the same company.

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

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

Office-holder to provide information to creditors on opting out

1.35

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

(2) The communication must contain—

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

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

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

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

(iii) the document is a notice of a dividend or proposed dividend; or

(iv) the document is a notice which the court orders to be sent to all creditors or all creditors of a particular category to which the creditor belongs;

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

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

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

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

Delivery of documents to authorised recipients

1.36

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

Delivery of documents to joint office-holders

1.37

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

Postal delivery of documents

1.38

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

(2) A document delivered by post may be delivered to the last known address of a person.

(3) First class or second class post may be used to deliver a document.

(4) Unless the contrary is shown—

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

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

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

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

Delivery by document exchange

1.39

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

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

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

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

Personal delivery of documents

1.40

(1) A document is delivered if it is personally delivered in accordance with this rule.

(2) In the case of an individual, a document is personally delivered if it is left with that individual.

(3) In the case of a legal person, a document is personally delivered if it is left with an individual at the registered office, official address or place of business of that legal person.

Electronic delivery of documents

1.41

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

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

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

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

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

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

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

(a) contains the document; and

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

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

Electronic delivery of documents to the court

1.42

(1) A document may not be delivered to a court by electronic means unless this is expressly permitted by Rules of Court.

(2) A document delivered by electronic means is to be treated as delivered to the court at the time it is recorded by the court as having been received or otherwise as the Rules of Court provide.

Electronic delivery by office-holders

1.43

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

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

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

[Note: rule 3.54(3) allows notice of an extension to an administration to be given on a website and rule 2.25(6) does likewise in respect of notice of the result of the consideration of a proposal for a CVA]

1.44 1 This rule applies for the purposes of section 246B. 2 An office-holder who proposes to satisfy the requirement to deliver a document to any person by making it available on a website in accordance with section 246B(1) must deliver a notice to that person which contains— a a statement that the document is available for viewing and downloading on a website; b the website’s address and any password necessary to view and download the document; and c a statement that that person may request a hard copy of the document together with a telephone number, email address and postal address which may be used to make that request. 3 An office-holder who receives such a request must deliver a hard copy of the document to the person who made the request free of charge within five business days of receipt of the request. 4 A document to which a notice under paragraph (2) relates must— a remain available on the website for the period required by rule 1.46; and b be in a format that enables it to be downloaded within a reasonable time of an electronic request being made for it to be downloaded. 5 A document which is delivered to a person by means of a website in accordance with this rule is deemed to have been delivered— a when it is first made available on the website; or b when the notice under paragraph (2) is delivered to that person, if that is later. 6 Section 246B(1) does not apply to a notice delivered under paragraph (2). 7 In this rule “document” includes any notice or information in any other form.

General use of website to deliver documents

1.45

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

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

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

(i) any document available for viewing on the website,

(ii) any document which may be made available there in the future; and

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

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

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

(b) a document which is not delivered generally.

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

(a) members,

(b) creditors,

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

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

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

(5) An office-holder who receives a request under paragraph (1)(c)—

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

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

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

(a) remain available on the website for the period required by rule 1.46; and

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

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

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

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

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

Retention period for documents made available on websites

1.46

(1) This rule applies to a document which is made available on a website under rules 1.44, 1.45, 2.24(7) and 3.54(3).

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

Proof of delivery of documents

1.47

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

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

(3) In the case of an office-holder the certificate must be given by—

(a) the office-holder;

(b) the office-holder’s solicitor; or

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

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

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

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

Delivery of statements of claim and documentary evidence of debt

1.48

(1) Once a statement of claim or documentary evidence of debt has been delivered to an office-holder in accordance with these Rules it need not be delivered again.

(2) Accordingly, where these Rules require such delivery by a certain time, that requirement is satisfied if that statement or evidence has already been delivered.

(3) This rule also applies where a creditor in an administration is deemed to have submitted a statement of claim and documentary evidence of a debt in winding up proceedings which immediately preceded the administration.

(4) In a CVA, where a creditor has given written notification of a debt in accordance with rule 5.9(1)(b)(i), it need not be given again.

CHAPTER 10 — Inspection of documents, copies and provision of information

Right to copies of documents

1.49

Where the Act, in relation to proceedings under Parts 1 and 2, or these Rules, gives a person the right to inspect documents, that person has a right to be supplied on request with copies of those documents on payment of the standard fee for copies.

Charges for copies of documents provided by the office-holder

1.50

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

Offence in relation to inspection of documents

1.51

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

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

Right to list of creditors

1.52

(1) In an administration, a creditor has the right to require the administrator to provide a list of the names and addresses of the creditors and the amounts of their respective debts.

(2) The administrator, on being required to provide such a list—

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

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

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

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

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

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

Confidentiality of documents: grounds for refusing inspection

1.53

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

(a) should be treated as confidential; or

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

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

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

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

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

Sederunt book

1.54

(1) The office-holder must maintain a sederunt book during the office-holder’s term of office for the purpose of providing an accurate record of the insolvency proceedings.

(2) The office-holder must include in the sederunt book—

(a) the information listed in Schedule 4; and

(b) a copy of anything else required to be recorded in it by any provision of the Act or these Rules.

(3) The office-holder must make the sederunt book available for inspection at all reasonable hours by any interested person.

(4) Any entry in the sederunt book is sufficient evidence of the facts stated in it, except where it is relied upon by the office-holder in the office-holder’s own interest.

(5) The office-holder must retain, or make arrangements for the retention of, the sederunt book for the period specified in regulation 13(5) of the Insolvency Practitioners Regulations 2005[^f00020].

(6) Where the sederunt book is maintained in electronic form, it must be capable of reproduction in hard copy form.

Transfer and disposal of company's books, papers and other records

1.55

(1) Where an administration has terminated and other insolvency proceedings under Parts 2 to 5 of the Act have commenced in relation to the same company, the administrator must, before the expiry of the earlier of—

(a) the period of 30 days beginning with the date the office-holder in the subsequent insolvency proceedings makes a request to the administrator to do so; or

(b) the period of six months beginning with the date the administration ends,

deliver to the office-holder appointed in the subsequent proceedings the books, papers and other records of the company.

(2) Where an administration has terminated and no subsequent insolvency proceedings under Parts 2 to 5 of the Act have commenced in relation to the same company, the administrator must dispose of the books, papers and records of the company in accordance with the directions of—

(a) the creditors’ committee (if there is one); or

(b) where there is no creditors’ committee, the court.

(3) If no directions under paragraph (2) have been given by the expiry of the period of 12 months after the date of dissolution of the company, the administrator may dispose of the company’s books, papers and records in such a way as the administrator considers appropriate.

CHAPTER 11 — Formal defects

Power to cure defects in procedure

1.56

(1) The court may, on the application of any person having an interest—

(a) if there has been a failure to comply with any requirement of the Act or the Rules, make an order waiving any such failure and, so far as practicable, restoring any person prejudiced by the failure to the position that person would have been in but for the failure;

(b) if for any reason anything required or authorised to be done in, or in connection with, the insolvency proceedings cannot be done, make such order as may be necessary to enable that thing to be done.

(2) The court, in an order under paragraph (1), may impose such conditions, including conditions as to expenses, as the court thinks fit and may in particular—

(a) authorise or dispense with the performance of any act in the insolvency proceedings;

(b) appoint as office-holder in the insolvency proceedings any person who would be eligible to act in that capacity, whether or not in place of an existing office-holder;

(3) An application under paragraph (1) which is made to the sheriff—

(a) may at any time be remitted by the sheriff to the Court of Session;

(b) must be so remitted if the Court of Session so directs on an application by any person;

if the sheriff or the Court of Session, as the case may be, considers that the remit is desirable because of the importance or complexity of the matters raised by the application.

Formal defects

1.57

No insolvency proceedings are invalidated by any formal defect or irregularity unless the court before which objection is made considers that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of the court.

PART 2 — COMPANY VOLUNTARY ARRANGEMENTS

CHAPTER 1 — Preliminary

Interpretation

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 — 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

2.2

(1) A proposal must—

(a) contain identification details for the company;

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

(d) be authenticated and dated by the proposer.

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

(3) The first case is where—

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

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

(4) The second case is where—

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

(b) the nominee’s statement under paragraph 6(2) of Schedule A1[^f00021] (nominee’s opinion on prospects of CVA being approved etc.) has not yet been submitted to the directors.

Proposal: contents

2.3

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

Assets	the company’s assets, with an estimate of their respective values; which assets are subject to any security in favour of creditors and the extent of any such security; which assets are to be excluded from the CVA; 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	the nature and amount of the company’s liabilities; how the company’s liabilities will be met, modified, postponed or otherwise dealt with by means of the CVA and, in particular- how preferential creditors and creditors who are, or claim to be, secured will be dealt with, how creditors who are connected with the company[^f00022] will be dealt with, 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[^f00023] (floating charges invalid) and 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	identification and contact details for the supervisor; 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; how the fees and expenses of the supervisor will be determined and paid; the functions to be performed by the supervisor; 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	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; 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	the proposed duration of the CVA; the proposed dates of distributions to creditors, with estimates of their amounts;
Type of insolvency proceedings	whether the insolvency proceedings will be main, secondary, territorial or non-EU insolvency proceedings 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	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; how funds held for the purpose of payment to creditors, and not so paid on the termination of the CVA, will be dealt with; how the claim of any person bound by the CVA by virtue of section 5(2)(b)(ii)[^f00024] or paragraph 37(2)(b)(ii) of Schedule A1 will be dealt with;
Address (where moratorium proposed)	where the proposal is made in relation to a company that is eligible for a moratorium (in accordance with paragraphs 2 and 3 of Schedule A1) with a view to obtaining a moratorium under Schedule A1, the address to which the documents referred to in paragraph 6(1) of that Schedule must be delivered; and
Other matters	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

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

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

CHAPTER 3 — Procedure for a CVA ...

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

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

2.4

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

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

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

(4) The period of 28 days in which the nominee must submit a report to the court under section 2(2)[^f00025] begins on the date the nominee received the proposal as stated in the notice.

Statement of affairs (section 2(3))

2.5

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

(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;

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

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

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

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

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

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

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

Application to omit information from statement of affairs delivered to creditors

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

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;

(d) granted a trust deed; 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.

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

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

(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))

2.9

(1) A person (other than the nominee) who intends to apply to the court under section 2(4)[^f00026] 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.

CHAPTER 4 — 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)

2.10

(1) The statement of affairs required by paragraph 6(1)(b) of Schedule A1 must contain the same information as is required by rule 2.5.

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

(4) Where the statement is made up to an earlier date, the nominee’s statement to the directors 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 knowledge and belief of at least one of the directors, accurate and complete.

Application to omit information from a statement of affairs

2.11

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

2.12

(1) The nominee must submit to the directors the statement required by paragraph 6(2)[^f00027] of Schedule A1 within 28 days of the submission to the nominee of the proposal.

(2) The statement must—

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

(b) be authenticated and dated by the nominee.

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

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

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

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

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

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

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

2.13

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

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

(a) be made by the directors;

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

(3) The statement required by paragraph 7(1)(d) of Schedule A1 that the nominee has consented to act must be in the same terms as the statement referred to in rule 2.12(3)(b).

(4) The statement of the nominee’s opinion required by paragraph 7(1)(e)[^f00028] of that Schedule—

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

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

(5) A statement from the nominee whether the proceedings will be main, secondary, territorial or non-EU proceedings with reasons for so stating must also be lodged with the court.

(6) The documents lodged with the court under paragraph 7(1) of Schedule A1, together with the statement required by paragraph (5) of this rule, must be accompanied by four copies of a schedule, authenticated and dated by the directors, identifying the company and listing all the documents lodged.

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

Notice and advertisement of beginning of moratorium

2.14

(1) The directors must, as soon as reasonably practicable, after delivery to them of the endorsed copies of the schedule deliver two copies of the schedule referred to in rule 2.13(6) to the nominee and one to the company.

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

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

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

(3) The notice must specify—

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

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

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

(a) the registrar of companies;

(b) the company; and

(5) The notice must specify—

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

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

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

(a) any messenger-at-arms or sheriff officer who to the knowledge of the nominee is charged with executing diligence against the company or its property; and

(b) the Keeper of the Register of Inhibitions and Adjudications.

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

2.15

(1) This rule applies where under paragraph 8(3B)(b) and (3C) of Schedule A1[^f00029] the moratorium continues after the initial period of 28 days referred to in paragraph 8(3) of that Schedule because a physical meeting of the company’s creditors is first summoned to take place after the end of that period.

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

(3) The notice must—

(a) identify the company;

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

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

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

(f) be authenticated and dated by the nominee.

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

2.16

(1) This rule applies where the moratorium is extended, or further extended, by a decision which takes effect under paragraph 36[^f00030] of Schedule A1.

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

(3) The notice must—

(a) identify the company;

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

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

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