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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

Source legislation.gov.uk

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(e) be authenticated and dated by the nominee.

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

2.17

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

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

2.18

(1) After the moratorium ends, the nominee—

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

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

(2) The notice must specify—

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

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

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

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

(b) deliver such a notice to—

(i) the registrar of companies,

(ii) the company,

(iii) all the creditors, and

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

Disposal of secured property etc. during a moratorium

2.19

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

(a) property subject to a security, or

(b) goods under a hire-purchase agreement.

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

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

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

2.20

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

(2) The notice must—

(a) identify the company;

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

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

(e) be authenticated and dated by the nominee.

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

2.21

(1) Directors who intend to make an application under paragraph 28[^f00031] of Schedule A1 for the nominee to be replaced must deliver a notice of the intention to make the application to the nominee at least five business days before lodging the application with the court.

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

(a) consents to act, and

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

Notice of appointment of replacement nominee

2.22

(1) A person appointed as a replacement nominee must as soon as reasonably practicable—

(a) deliver a notice of the appointment to the registrar of companies and the former nominee; and

(b) where the appointment is not by the court, lodge a notice of the appointment with the court.

(2) The notice of the appointment must—

(a) identify the company;

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

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

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

2.23

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

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

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

Consideration of proposal: common requirements (section 3)

2.24

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

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

(3) The nominee must examine whether there is jurisdiction to open the proceedings and must specify in the nominee’s comments on the proposal required by paragraphs (4)(d)(iii) and (6)(a)(iii) whether the proceedings will be main, secondary, territorial or non-EU proceedings with the reasons for so stating.

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

(a) identify the insolvency proceedings;

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

(i) rule 2.34 about members’ voting rights,

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

(iii) rule 5.32 about rights of appeal; and

(d) be accompanied by—

(i) a copy of the proposal,

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

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

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

(v) a blank proxy.

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

(6) The notice delivered under paragraph (5) must also—

(a) be accompanied by—

(i) a copy of the proposal,

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

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

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

(7) A notice delivered under paragraph (4) or (5) may also state that the results of the consideration of the proposal will be made available for viewing and downloading on a website and that no other notice will be delivered to the creditors or members (as the case may be).

(8) Where the results of the consideration of the proposal are to be made available for viewing and downloading on a website the nominee must comply with the requirements for use of a website to deliver a document set out in rule 1.44(2)(a) to (c), (3) and (4) with any necessary adaptations and rule 1.44(5)(a) applies to determine the time of delivery of the results of the consideration of the proposal.

Members' consideration at a meeting

2.25

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

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

(a) the nominee’s report was lodged with the court under rule 2.8; or

(b) the moratorium came into force.

Creditors' consideration by a decision procedure

2.26

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

(a) the nominee’s report is lodged with the court under rule 2.8; or

(b) the moratorium came into force.

Timing of decisions on proposal

2.27

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

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

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

(4) For the purpose of this rule, the timing of the members’ decision is either the date and time of the meeting of the company or, where the members are using the written resolution procedure, the deadline for receipt of members’ votes.

Creditors' approval of modified proposal

2.28

(1) This rule applies where a decision is sought from the creditors following notice to the nominee of proposed modifications to the proposal from the company’s directors under paragraph 31(7)[^f00032] of Schedule A1.

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

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

Notice of members' meeting and attendance of officers

2.29

(1) A notice under rule 2.24(4) summoning a meeting of the company must be delivered at least 14 days before the day fixed for the meeting to all the members and to—

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

(b) all other directors of the company.

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

Requisition of physical meeting by creditors

2.30

(1) This rule applies where the creditors requisition a physical meeting to consider a proposal (with or without modifications) in accordance with section 246ZE[^f00033] and rule 5.6.

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

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

Non-receipt of notice by members

2.31

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

Proposal for alternative supervisor

2.32

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

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

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

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

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

Chair at meetings

2.33

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

Members' voting rights

2.34

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

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

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

Requisite majorities of members

2.35

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

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

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

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

2.36

(1) This rule applies where the court makes an order under section 4A(6)[^f00034] or paragraph 36(5)[^f00035] of Schedule A1.

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

(a) the proposer; and

(b) the supervisor (if different).

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

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

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

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

2.37

(1) A report, or reports as the case may be, must be prepared of the consideration of a proposal under section 4(6) and (6A)[^f00036] or paragraph 30(3)[^f00037] and (4) of Schedule A1 by the convener or, in the case of a meeting, the chair.

(2) The report must—

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

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

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

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

(3) A copy of the report must be lodged with the court within four business days of the date of the company meeting.

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

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

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

CHAPTER 6 Additional matters concerning and following approval of CVA

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

Handover of property etc. to supervisor

2.38

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

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

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

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

(3) The balance is any balance due to the administrator or liquidator—

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

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

(4) The administrator or liquidator has a security over the assets included in the CVA in respect of any sums comprising the balance referred to in paragraph (3), subject to deduction from any realisations by the supervisor of the proper costs and expenses of such realisations.

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

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

(b) pay all the expenses of the administrator or liquidator.

Revocation or suspension of CVA

2.39

(1) This rule applies where the court makes an order of revocation or suspension under section 6 or paragraph 38 of Schedule A1[^f00038].

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

(a) the proposer; and

(b) the supervisor (if different).

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

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

(5) The proposer must—

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

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

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

Supervisor's accounts and reports

2.40

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

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

(b) to realise assets of the company; or

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

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

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

(a) the registrar of companies;

(b) the company;

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

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

(5) The report delivered to the registrar of companies must be accompanied by a notice which must contain the date on which the CVA took effect.

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

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

(8) Such a report is not required if the obligation to deliver a final report under rule 2.43 arises in the two month period.

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

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

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

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

Production of accounts and records to Secretary of State

2.41

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

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

(b) copies of reports and summaries prepared in compliance with rule 2.40.

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

Fees and expenses

2.42

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

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

(b) fees or expenses which—

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

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

Termination or full implementation of CVA

2.43

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

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

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

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

(d) states (if applicable) the amount paid to any unsecured creditors by virtue of section 176A.

(3) The supervisor must, within the period of 28 days mentioned in paragraph (1) send to the registrar of companies and lodge with the court a copy of the notice to creditors and of the supervisor’s report.

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

CHAPTER 7 — Time recording information

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

Provision of information

2.44

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

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

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

(b) the supervisor in relation to a CVA,

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

(3) The persons are—

(a) any director of the company; and

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

(4) The statement must cover the period which—

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

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

(5) The statement must set out—

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

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

PART 3 — ADMINISTRATION

CHAPTER 1 — Interpretation for this Part

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

Interpretation for Part 3

3.1

In this Part—

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

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

3.2

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

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

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

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

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

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

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

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

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

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

CHAPTER 2 — Appointment of administrator by Court

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

Administration application (paragraph 12 of Schedule B1)

3.3

An application made by way of petition for an administration order (“administration application”) must be lodged with the court together with a proposed administrator’s consent to act.

Administration application made by the directors

3.4

Where an administration application is made by the directors, it is to be treated as if it were an application by the company.

Administration application by the supervisor of a CVA

3.5

Where notice of an administration application by the supervisor of a CVA in respect of the company has been given to the company in accordance with rule 3.6(e) it is to be treated as if it were an application by the company.

Application

3.6

The applicant must give notice of the administration application to the following (in addition to notifying the persons referred to in paragraph 12(2)(a) to (c) of Schedule B1)—

(a) any administrative receiver;

(b) if there is a petition pending for the winding up of the company—

(i) the petitioner, and

(ii) any provisional liquidator;

(d) the Keeper of the Register of Inhibitions and Adjudications;

(e) the company, if the application is made by anyone other than the company or its directors;

(f) any supervisor of a CVA in relation to the company;

(g) the proposed administrator; and

(h) any other person on whom the court orders that the application be served.

Notice to messengers-at-arms or sheriff officers

3.7

The applicant must as soon as reasonably practicable after lodging the administration application deliver a notice of its being made to—

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

(b) any person who to the knowledge of the applicant has executed diligence against the company or its property.

Notice of other insolvency proceedings

3.8

After the administration application has been lodged and until an order is made, it is the duty of the applicant to lodge with the court notice of the existence of any insolvency proceedings in relation to the company, as soon as the applicant becomes aware of them—

(a) anywhere in the world, in the case of a company registered under the Companies Acts in Scotland;

(b) in any EEA State (including the United Kingdom), in the case of a company incorporated in an EEA State other than the United Kingdom; or

Intervention by holder of a qualifying floating charge (paragraph 36(1)(b) of Schedule B1)

3.9

(1) Where the holder of a qualifying floating charge applies to the court under paragraph 36(1)(b) of Schedule B1 to have a specified person appointed as administrator, the holder must produce to the court—

(a) the written consent of the holder of any prior qualifying floating charge;

(b) the proposed administrator’s consent to act; and

(c) sufficient evidence to satisfy the court that the holder is entitled to appoint an administrator under paragraph 14 of Schedule B1.

(2) If an administration order is made appointing the specified person, the expenses of the person who made the administration application and of the applicant under paragraph 36(1)(b) of Schedule B1 are, unless the court orders otherwise, to be paid as an expense of the administration.

The hearing

3.10

At the hearing of the administration application, any of the following may appear or be represented—

(a) the applicant;

(b) the company;

(d) any administrative receiver;

(e) any person who has presented a petition for the winding up of the company;

(f) the proposed administrator;

(g) any member State liquidator appointed in main proceedings in relation to the company;

(h) the holder of any qualifying floating charge;

(i) any supervisor of a CVA;

(j) with the permission of the court, any other person who appears to have an interest which justifies appearance.

The order

3.11

(1) Where the court makes an administration order the court’s order must be headed “Administration order” and must contain the following—

(a) identification details for the insolvency proceedings;

(b) the address for service of the applicant;

(d) an order that during the period the administration order is in force the affairs, business and property of the company are to be managed by the administrator;

(e) the name of the person appointed as administrator;

(f) an order that that person is appointed as administrator of the company;

(g) a statement that the court is satisfied either that the EU Regulation does not apply or that it does;

(h) where the EU Regulation does apply, a statement whether the proceedings are main, secondary, or territorial proceedings;

(i) the date of the order (and, if the court so orders, the time); and

(j) such other provisions, if any, as the court thinks just.

(2) Where two or more administrators are appointed, the order must also specify, in terms of paragraph 100(2) of Schedule B1—

(a) which functions, if any, are to be exercised by those persons appointed acting jointly; and

(b) which functions, if any, are to be exercised by any or all of the persons appointed.

Order on an application under paragraph 37 or 38 of Schedule B1

3.12

Where the court makes an administration order in relation to a company on an application under paragraph 37 or 38 of Schedule B1, the court must also include in the order—

(a) in the case of a liquidator appointed in a voluntary winding up, the removal of that liquidator from office;

(b) provision for payment of the expenses of the winding up;

(i) any indemnity given to the liquidator,

(ii) the release of the liquidator,

(iii) the handling or realisation of any of the company’s assets in the hands of, or under the control of the liquidator, and

(iv) other matters arising in connection with the winding up; and

(d) such other provisions, if any, as the court thinks just.

Notice of administration order

3.13

(1) If the court makes an administration order, it must as soon as reasonably practicable deliver two copies of the order certified by the court to the applicant.

(2) The applicant must, as soon as reasonably practicable, deliver a certified copy of the order to the person appointed as administrator.

(3) If the court makes an order under sub-paragraph (d) or (f) of paragraph 13(1) of Schedule B1, it must give directions as to the persons to whom, and how, notice of that order is to be delivered.

Notice of dismissal of application for an administration order

3.14

If the court dismisses the administration application under paragraph 13(1)(b) of Schedule B1, the applicant must as soon as reasonably practicable send notice of the court’s order dismissing the application to all those to whom the application was notified under rule 3.6.

Expenses allowed by the court

3.15

If the court makes an administration order, the expenses of the applicant, and of any other party whose expenses are allowed by the court, are to be regarded as expenses of the administration.

CHAPTER 3 — Appointment of administrator by holder of floating charge

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

Notice of intention to appoint

3.16

(1) This rule applies where the holder of a qualifying floating charge (“the appointer”) gives notice under paragraph 15(1)(a) of Schedule B1 of intention to appoint an administrator under paragraph 14 of that Schedule and lodges a copy of the notice with the court under paragraph 44(2) of that Schedule.

(2) The notice lodged with the court must be headed “Notice of intention to appoint an administrator by holder of qualifying floating charge” and must contain the following—

(a) identification details for the insolvency proceedings;

(b) the name and address of the appointer;

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

(e) a statement that the appointer is the holder of the qualifying floating charge in question and that it is now enforceable;

(f) details of the charge including the date the charge was created, the date the charge was registered and the maximum amount, if any, secured by the charge;

(g) a statement that the notice is being given in accordance with paragraph 15(1)(a) of Schedule B1 to the holder of every prior floating charge which satisfies paragraph 14(2) of that Schedule;

(h) the names and addresses of the holders of such prior floating charges and details of the charges;

(i) a statement whether the company is or is not subject to insolvency proceedings at the date of the notice, and details of the proceedings if it is;

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

(k) a statement whether the proceedings flowing from the appointment will be main, secondary, territorial or non-EU proceedings with reasons for the statement.

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

(4) The lodging of the copy with the court under paragraph 44(2) of Schedule B1 must be done at the same time as notice is given in accordance with paragraph 15(1)(a).

Notice of appointment

3.17

(1) Notice of an appointment under paragraph 14 of Schedule B1 must be headed “Notice of appointment of an administrator by holder of a qualifying floating charge” and must contain—

(a) identification details for the insolvency proceedings;

(b) the name and address of the appointer;

(d) the name and address of the person appointed as administrator;

(e) a statement that a copy of the administrator’s consent to act accompanies the notice;

(f) a statement that the appointer is the holder of the qualifying floating charge in question and that it is now enforceable;

(g) details of the charge including the date of the charge, the date on which it was registered and the maximum amount if any secured by the charge;

(h) one of the following statements—

(i) that notice has been given in accordance with paragraph 15(1)(a) of Schedule B1 to the holder of every prior floating charge which qualifies as such in terms of paragraph 14(2) of that Schedule, that two business days have elapsed from the date the last such notice was given (if more than one), and—

(aa) that a copy of every such notice was lodged with the court under paragraph 44(2) of Schedule B1, and the date of that lodging (or the latest date of lodging if more than one), or

(bb) that a copy of every such notice accompanies the notice of appointment but was not lodged with the court under paragraph 44(2) of Schedule B1,

(ii) that the holder of every such floating charge to whom notice was given has consented in writing to the making of the appointment and that a copy of every consent accompanies the notice of appointment,

(iii) that the holder of every such floating charge has consented in writing to the making of the appointment without notice having been given to all and that a copy of every consent accompanies the notice of appointment, or

(iv) that there is no such floating charge;

(i) a statement whether the company is or is not subject to insolvency proceedings at the date of the notice, and details of the insolvency proceedings if it is;

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

(k) a statement whether the insolvency proceedings flowing from the appointment will be main, secondary, territorial or non-EU proceedings and the reasons for so stating; and

(l) a statement that the appointment is in accordance with Schedule B1.

(2) Where two or more administrators are appointed the notice must also specify, in terms of paragraph 100(2) of Schedule B1—

(a) which functions, if any, are to be exercised by those persons acting jointly; and

(b) which functions, if any, are to be exercised by any or all of those persons.

(3) The statutory declaration included in the notice in accordance with paragraph 18(2) of Schedule B1 must be made not more than five business days before the notice is lodged with the court.

Lodging of notice with the court

3.18

(1) Three copies of the notice of appointment must be lodged with the court, accompanied by—

(a) the administrator’s consent to act; and

(b) either—

(i) evidence that the appointer has given notice as required by paragraph 15(1)(a) of Schedule B1, or

(ii) copies of the written consent of all those required to give consent in accordance with paragraph 15(1)(b) of Schedule B1.

(2) The court must certify the copies of the notice, endorse them with the date and time of lodging and deliver two of the certified copies to the appointer.

(3) The appointer must as soon as reasonably practicable deliver one of the certified copies to the administrator.

(4) This rule is subject to rules 3.20 and 3.21.

Appointment by floating charge holder after administration application made

3.19

(1) This rule applies where the holder of a qualifying floating charge, after receiving notice that an administration application has been made, appoints an administrator under paragraph 14 of Schedule B1.

(2) The holder must as soon as reasonably practicable deliver a copy of the notice of appointment to—

(a) the person making the administration application; and

(b) the court in which the application has been made.

Appointment taking place out of court business hours: procedure

3.20

(1) When (but only when) the court is not open for public business, the holder of a qualifying floating charge may lodge a notice of appointment in court in accordance with this rule.

(2) The person making the appointment must lodge the notice with the court by—

(a) faxing it to the court; or

(b) where rule 1.42 applies, by electronic means.

(3) Where the notice under paragraph (2) is faxed to the court the person making the appointment must—

(a) ensure that a fax transmission report is produced by the sending machine which records the date and time of sending; and

(b) send to the administrator, as soon as reasonably practicable, a copy of the notice of appointment and, where paragraph (2)(a) applies, a copy of the fax transmission report.

(4) The person making the appointment must lodge in court, on the next occasion that the court is open for public business, the original notice of appointment together with the documents required by rule 3.21 and—

(a) the fax transmission report showing the date and time when the notice was sent; and

(b) a statement of the full reasons for the out of hours lodging of the notice of appointment, including why it would have been damaging to the company or its creditors not to have so acted.

Appointment taking place out of court business hours: content of notice

3.21

(1) A notice of appointment lodged in accordance with rule 3.20 must be headed “Notice of appointment of an administrator by holder of qualifying floating charge pursuant to paragraphs 14 and 18 of Schedule B1 to the Insolvency Act 1986 and Rule 3.20 of the Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018” and must contain—

(a) identification details for the insolvency proceedings;

(b) the name and address of the appointer;

(d) the name and address of the person appointed as administrator;

(e) a statement that a copy of the administrator’s consent to act accompanies the notice;

(f) a statement that the appointer is the holder of the qualifying floating charge in question and that it is now enforceable;

(g) details of the charge including the date of the charge, the date on which it was registered and the maximum amount, if any, secured by the charge;

(h) one of the following statements—

(i) that notice has been given in accordance with paragraph 15(1)(a) of Schedule B1 to the holder of every prior floating charge which satisfied paragraph 14(2) of that Schedule, that two business days have elapsed from the date the last such notice was given (if more than one) and—

(aa) that a copy of every such notice was lodged with the court under paragraph 44(2) of Schedule B1, and the date of that lodging (or the latest date of lodging if more than one), or

(bb) that a copy of every such notice accompanies the notice of appointment but was not lodged with the court under paragraph 44(2) of Schedule B1,

(ii) that the holder of every such floating charge to whom notice was given has consented in writing to the making of the appointment and that a copy of every consent accompanies the notice of appointment,

(iii) that the holder of every such floating charge has consented in writing to the making of the appointment without notice having been given to all and that a copy of every consent accompanies the notice of appointment, or

(iv) that there is no such floating charge;

(i) a statement whether the company is or is not subject to insolvency proceedings at the date of the notice, and details of the proceedings if it is;

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

(k) a statement whether the proceedings flowing from the appointment will be main, secondary, territorial or non-EU proceedings and the reasons for so stating and that a copy of the statement accompanies the notice of appointment;

(l) a statement that the appointment is in accordance with Schedule B1; and

(m) an undertaking that the following will be delivered to the court on the next occasion on which the court is open for public business—

(i) any document referred to in the notice in accordance with rule 3.20 as accompanying the notice,

(ii) the fax transmission report, and

(iii) a statement of reasons for the lodging of the notice out of court business hours.

(2) Where two or more administrators are appointed the notice must also specify, in terms of paragraph 100(2) of Schedule B1—

(a) which functions, if any, are to be exercised by those persons acting jointly; and

(b) which functions, if any, are to be exercised by any or all of those persons.

(3) The statutory declaration included in the notice in accordance with paragraph 18(2) of Schedule B1 must be made not more than five business days before notice is lodged with the court.

Appointment taking place out of court business hours: legal effect

3.22

(1) The lodging of a notice in accordance with rule 3.20 has the same effect for all purposes as the lodging of a notice of appointment in accordance with rule 3.18.

(2) The appointment—

(a) takes effect either –

(i) from the date and time of the fax transmission, or

(ii) in accordance with rule 1.42(2)

but ceases to have effect if the requirements of rule 3.20(4) are not completed on the next occasion the court is open for public business.

(3) Where any question arises in relation to the date and time that the appointment was lodged with the court, it is a presumption capable of rebuttal that the date and time shown on the appointer’s fax transmission report is the date and time at which the notice was lodged.

CHAPTER 4 — Appointment of administrator by company or directors

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

Notice of intention to appoint

3.23

(1) A notice required by paragraph 26(1) of Schedule B1 must be headed “Notice of intention to appoint an administrator by company or directors” and must contain the following—

(a) identification details for the insolvency proceedings;

(b) a statement that the company or the directors, as the case may be, intend to appoint an administrator of the company;

(d) the names and addresses of the persons to whom notice is being given in accordance with paragraph 26(1) of Schedule B1;

(e) a statement that each of those persons is or may be entitled to appoint—

(i) an administrative receiver of the company, or

(ii) an administrator of the company under paragraph 14 of Schedule B1;

(f) a statement that the company has not within the preceding 12 months been—

(i) in administration,

(ii) the subject of a moratorium under Schedule A1[^f00039] which ended on a date when no CVA was in force, or

(iii) the subject of a CVA which was made during a moratorium under Schedule A1 and which ended prematurely within the meaning of section 7B;

(g) a statement that in relation to the company there is no—

(i) petition for winding up which has been presented but not yet disposed of,

(ii) administration application which has not yet been disposed of, or

(iii) administrative receiver in office;

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

(i) a statement whether the proceedings flowing from the appointment will be main, secondary, territorial or non-EU proceedings and the reasons for so stating;

(j) a statement that the notice is accompanied (as appropriate) by either—

(i) a copy of the resolution of the company to appoint an administrator, or

(ii) a record of the decision of the directors to appoint an administrator; and

(k) a statement that if a recipient of the notice who is named in terms of paragraph (e) wishes to consent in writing to the appointment that person may do so but that after five business days have expired from delivery of the notice the appointer may make the appointment although such a recipient has not replied.

(2) The notice must be accompanied by—

(a) a copy of the resolution of the company to appoint an administrator, where the company intends to make the appointment; or

(b) a record of the decision of the directors, where the directors intend to make the appointment.

(3) If notice of intention to appoint is given under paragraph 26(1) of Schedule B1, a copy of that notice must be sent at the same time to—

(a) any messenger-at-arms or sheriff officer who, to the knowledge of the person giving the notice, is instructed to execute diligence or other legal process against the company;

(b) any person who, to the knowledge of the person giving the notice, has executed diligence against the company or its property;

(d) the company, if the company is not intending to make the appointment.

(4) The statutory declaration accompanying the notice in accordance with paragraph 27(2) of Schedule B1 must—

(a) if it is not made by the person making the appointment, indicate the capacity in which the person making the declaration does so; and

(b) be made not more than five business days before the notice is lodged with the court.

Notice of appointment after notice of intention to appoint

3.24

(1) Notice of an appointment under paragraph 22 of Schedule B1 (when notice of intention to appoint has been given under paragraph 26) must be headed “Notice of appointment of an administrator by a company (where a notice of intention to appoint has been given)” or “Notice of appointment of an administrator by the directors of a company (where a notice of intention to appoint has been given)” and must contain—

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

(b) a statement that the company has, or the directors have, as the case may be, appointed the person named as administrator of the company;

(d) a statement that a copy of the administrator’s consent to act accompanies the notice;

(e) a statement that the company is, or the directors are, as the case may be, entitled to make an appointment under paragraph 22 of Schedule B1;

(f) a statement that the appointment is in accordance with Schedule B1;

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

(h) a statement whether the proceedings flowing from the appointment will be main, secondary, territorial, or non-EU proceedings and the reasons for so stating;

(i) a statement that the company has, or the directors have, as the case may be, given notice of their intention to appoint in accordance with paragraph 26(1) of Schedule B1, that a copy of the notice was lodged with the court, the date of that lodging and either—

(i) that five business days have elapsed since notice was given under paragraph 26(1) of Schedule B1, or

(ii) that each person to whom the notice was given has consented to the appointment; and

(j) the date and time of the appointment by the company or its directors.

(2) Where two or more administrators are appointed, the notice must also specify in terms of paragraph 100(2) of Schedule B1—

(a) which functions, if any, are to be exercised by those persons acting jointly; and

(b) which functions, if any, are to be exercised by any or all of those persons.

(3) The statutory declaration included in the notice in accordance with paragraph 29(2) of Schedule B1 must be made not more than five business days before the notice is lodged with the court.

(4) If the statutory declaration is not made by the person making the appointment it must indicate the capacity in which the person making the declaration does so.

Notice of appointment without prior notice of intention to appoint

3.25

(1) Notice of an appointment under paragraph 22 of Schedule B1 (when notice of intention to appoint has not been given under paragraph 26) must be headed “Notice of appointment of an administrator by a company (where a notice of intention to appoint has not been given)” or “Notice of appointment of an administrator by the directors of a company (where a notice of intention to appoint has not been given)” and must identify the company immediately below the heading.

(2) The notice must state the following—

(a) that the company has, or the directors have, as the case may be, appointed the person specified under sub-paragraph (b) as administrator of the company;

(b) the name and address of the person appointed as administrator;

(d) that the company is or the directors are, as the case may be, entitled to make an appointment under paragraph 22 of Schedule B1;

(e) that the appointment is in accordance with Schedule B1;

(f) that the company has not within the preceding 12 months been—

(i) in administration,

(ii) the subject of a moratorium under Schedule A1 which ended on a date when no CVA was in force, or

(iii) the subject of a CVA which was made during a moratorium under Schedule A1 and which ended prematurely within the meaning of section 7B;

(g) that in relation to the company there is no—

(i) petition for winding up which has been presented but not yet disposed of,

(ii) administration application which has not yet been disposed of, or

(iii) administrative receiver in office;

(h) whether the company is an Article 1.2 undertaking;

(i) whether the proceedings flowing from the appointment will be main, secondary, territorial or non-EU proceedings and the reasons for so stating;

(j) that the notice is accompanied by—

(i) a copy of the resolution of the company to appoint an administrator, or

(ii) a record of the decision of the directors to appoint an administrator; and

(k) the date and time of the appointment.

(3) Where two or more administrators are appointed the notice must also specify in terms of paragraph 100(2) of Schedule B1—

(a) which functions (if any) are to be exercised by those persons acting jointly; and

(b) which functions (if any) are to be exercised by any or all of those persons.

(4) The statutory declaration included in the notice in accordance with paragraph 29(2) and 30 of Schedule B1 must—

(a) if the declaration is made on behalf of the person making the appointment, indicate the capacity in which the person making the declaration does so; and

(b) be made not more than five business days before the notice is lodged with the court.

Notice of appointment: lodging with the court

3.26

(1) Three copies of the notice of appointment in accordance with rule 3.24 or 3.25 must be lodged with the court, accompanied by—

(a) the administrator’s consent to act; and

(b) the written consent of all those persons to whom notice was given in accordance with paragraph 26(1) of Schedule B1 unless the period of notice set out in paragraph 26(1) has expired.

(2) Where a notice of intention to appoint an administrator has not been given, the copies of the notice of appointment must also be accompanied by—

(a) a copy of the resolution of the company to appoint an administrator, where the company is making the appointment; or

(b) a record of the decision of the directors, where the directors are making the appointment.

(3) The court must certify the copies, endorse them with the date and time of lodging and deliver two of the certified copies to the appointer.

(4) The appointer must as soon as reasonably practicable deliver one of the certified copies to the administrator.

CHAPTER 5 — Notice of administrator's appointment

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

Publication of administrator's appointment

3.27

(1) The notice of appointment, to be published by the administrator as soon as reasonably practicable after appointment under paragraph 46(2)(b) of Schedule B1, must be gazetted and may be advertised in such other manner as the administrator thinks fit.

(2) The notice of appointment must state the following—

(a) that an administrator has been appointed;

(b) the date of the appointment; and

(3) The administrator must, as soon as reasonably practicable after the date specified in paragraph 46(6) of Schedule B1, deliver a notice of the appointment—

(a) if a receiver has been appointed, to that receiver;

(b) if there is pending a petition for the winding up of the company, to the petitioner (and also to the provisional liquidator, if any);

(c) to any messenger-at-arms or sheriff officer who, to the administrator’s knowledge, is instructed to execute diligence or other legal process against the company or its property;

(d) to any person who, to the administrator’s knowledge, has executed diligence against the company or its property;

(e) to the Keeper of the Register of Inhibitions and Adjudications; and

(f) to any supervisor of a CVA.

(4) Where, under Schedule B1 or these Rules, the administrator is required to deliver a notice of the appointment to the registrar of companies or any other person, it must be headed “Notice of administrator’s appointment” and must contain—

(a) the administrator’s name and address and IP number;

(b) identification details for the insolvency proceedings; and

(5) The notice under paragraph (4) must be authenticated and dated by the administrator.

CHAPTER 6 — Statement of affairs

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

Interpretation

3.28

In this Chapter—

“nominated person” means a relevant person who has been required by the administrator to make out and deliver to the administrator a statement of affairs;

“relevant person” means a person mentioned in paragraph 47(3) of Schedule B1; and

“fixed security”, in relation to any property of a company, means any security, other than a floating charge or a charge having the nature of a floating charge, which on the winding up of the company in Scotland would be treated as an effective security over that property, and (without prejudice to that generality) includes a security over that property, being a heritable security within the meaning of section 9(8) of the Conveyancing and Feudal Reform (Scotland) Act 1970[^f00040].

Statement of affairs: notice requiring and delivery to the administrator (paragraph 47(1) of Schedule B1)

[Note: see section 234(1) and 235(1) for the application of section 235 to administrators.]

3.29 1 A notice under paragraph 47(1) of Schedule B1 must be delivered to each person required to provide a statement of affairs of the company (“statement of affairs”). 2 The notice must be headed “Notice requiring statement of affairs” and must— a require each nominated person to whom the notice is delivered to prepare and submit to the administrator a statement of affairs of the company; b inform each nominated person of— i the names and addresses of all others (if any) to whom the same notice has been delivered, ii the requirement to deliver the statement of affairs to the administrator not later than 11 days after receipt of the notice requiring the statement of affairs, and iii the effect of paragraph 48(4) of Schedule B1 (penalty for non-compliance) and section 235 (duty to co-operate with the office-holder). 3 The administrator must inform each nominated person to whom notice is delivered that a document for the preparation of the statement of affairs capable of completion in compliance with rule 3.30 will be supplied if requested. 4 The nominated person (or one of them, if more than one) must deliver the statement of affairs to the administrator together with a copy of the statement.

Statement of affairs: content (paragraph 47 of Schedule B1)

3.30

(1) The statement of affairs must be headed “Statement of affairs” and must—

(a) identify the company immediately below the heading; and

(b) state that it is a statement of the affairs of the company on a specified date, being the date on which it entered administration.

(2) The statement of affairs must contain (in addition to the matters required by paragraph 47(2) of Schedule B1)—

(a) a summary of the assets of the company, setting out the book value and the estimated realisable value of—

(i) any assets subject to a fixed security,

(ii) any assets subject to a floating charge,

(iii) any uncharged assets, and

(iv) the total assets available for preferential creditors;

(b) a summary of the liabilities of the company, setting out—

(i) the amount of preferential debts,

(ii) an estimate of the deficiency with respect to preferential debts or the surplus available after paying the preferential debts,

(iii) an estimate of the prescribed part, if applicable,

(iv) an estimate of the total assets available to pay debts secured by floating charges,

(v) the amount of debts secured by floating charges,

(vi) an estimate of the deficiency with respect to debts secured by floating charges or the surplus available after paying the debts secured by fixed security or floating charges,

(vii) the amount of unsecured debts (excluding preferential debts),

(viii) an estimate of the deficiency with respect to unsecured debts or the surplus available after paying unsecured debts,

(ix) any issued and called-up capital, and

(x) an estimate of the deficiency with respect to, or surplus available to, members of the company;

(i) any creditors under hire-purchase, conditional sale and hiring agreements,

(ii) any creditors claiming retention of title over property in the company’s possession; and

(d) the name and address of each member of the company and the number, nominal value and other details of the shares held by each member.

(3) The list of creditors required by paragraph 47(2) of Schedule B1 and paragraph (2)(c) of this rule must contain the particulars mentioned in paragraph (4) except where paragraphs (5) and (6) apply.

(4) The particulars required by paragraph (3) are as follows—

(a) the name and postal address of the creditor;

(b) the amount of the debt owed to the creditor;

(d) the date on which the security was given; and

(e) the value of any such security.

(5) Paragraph (6) applies where the particulars mentioned in paragraph (4) relate to creditors who are either—

(a) employees or former employees of the company; or

(b) consumers claiming amounts paid in advance for the supply of goods or services.

(6) Where this paragraph applies—

(a) the statement of affairs itself must state separately for each of paragraph (5)(a) and (b) the number of such creditors and the total of the debts owed to them; and

(b) the particulars required by paragraph (4) must be set out in separate schedules to the statement of affairs for each of paragraphs (5)(a) and (b).

Statement of affairs: statement of concurrence

3.31

(1) The administrator may require a relevant person to deliver to the administrator a statement of concurrence.

(2) A statement of concurrence is a statement that that person concurs in the statement of affairs submitted by a nominated person.

(3) The administrator must inform the nominated person who has been required to submit a statement of affairs that the relevant person has been required to deliver a statement of concurrence.

(4) The nominated person must deliver a copy of the statement of affairs to every relevant person who has been required to deliver a statement of concurrence.

(5) A statement of concurrence—

(a) must identify the company; and

(b) may be qualified in relation to matters dealt with in the statement of affairs where the relevant person—

(i) is not in agreement with the statement of affairs,

(ii) considers the statement of affairs to be erroneous or misleading, or

(iii) is without the direct knowledge necessary for concurring with it.

(6) A statement of concurrence must be a statutory declaration made in accordance with the Statutory Declarations Act 1835[^f00041].

(7) The relevant person must deliver the required statement of concurrence together with a copy to the administrator before the end of the period of five business days (or such other period as the administrator may agree) beginning with the day on which the relevant person receives the statement of affairs.

Statement of affairs: registrar of companies

3.32

(1) The administrator must as soon as reasonably practicable deliver to the registrar of companies a copy of—

(a) the statement of affairs; and

(b) any statement of concurrence.

(2) The administrator must not deliver to the registrar of companies with the statement of affairs any schedule required by rule 3.30(6)(b).

(3) The requirement to deliver the statement of affairs is subject to any order of the court made under rule 3.45 that the statement of affairs or a specified part must not be delivered to the registrar of companies.

Statement of affairs: release from requirement and extension of time

3.33

(1) The power of the administrator under paragraph 48(2) of Schedule B1 to revoke a requirement to provide a statement of affairs or to extend the period within which it must be submitted may be exercised upon the administrator’s own initiative or at the request of a nominated person who has been required to provide it.

(2) The nominated person may apply to the court if the administrator refuses that person’s request for a revocation or extension.

(3) On receipt of an application, the court may, if it is satisfied that no sufficient cause is shown for it, dismiss it without giving notice to any party other than the applicant.

(4) The applicant must, at least 14 days before any hearing, deliver to the administrator a notice stating the venue with a copy of the application and of any evidence on which the applicant intends to rely.

(5) The administrator may do either or both of the following—

(a) lodge a report of any matters which the administrator thinks ought to be drawn to the court’s attention; or

(b) appear and be heard on the application.

(6) If a report is lodged, the administrator must deliver a copy of it to the applicant not later than five business days before the hearing.

(7) Copies of any order made on the application must be certified by the court and delivered by the court to the applicant and the administrator.

(8) The expenses of an application under this rule must be paid by the applicant in any event, but the court may order that an allowance of all or part of them be payable as an expense of the administration.

Statement of affairs: expenses

3.34

(1) The administrator must pay as an expense of the administration any expenses which the administrator considers to have been reasonably incurred by —

(a) a nominated person in making a statement of affairs and a statutory declaration; or

(b) a relevant person in making a statement of concurrence.

(2) Any decision by the administrator under this rule is subject to appeal to the court.

CHAPTER 7 — Administrator's proposals

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

Administrator's proposals: additional content

3.35

(1) The administrator’s statement of proposals (which is required by paragraph 49(4) to be sent to the registrar of companies, creditors and members) must identify the insolvency proceedings and, in addition to the matters set out in paragraph 49, contain—

(a) any other trading names of the company;

(b) details of the administrator’s appointment, including—

(i) the date of the appointment,

(ii) the person making the application or appointment, and

(iii) where a number of persons have been appointed as administrators, details of the matters set out in paragraph 100(2) of Schedule B1 relating to the exercise of their functions;

(c) the names of the directors and secretary of the company and details of any shareholdings in the company which they may have;

(d) an account of the circumstances giving rise to the appointment of the administrator;

(e) the date the proposals were sent to the creditors;

(f) if a statement of the company’s affairs has been submitted—

(i) a copy or summary of it, except so far as an order under rule 3.44 or 3.45 limits disclosure of it, and excluding any schedule referred to in rule 3.30(6)(b), or the particulars relating to individual creditors contained in any such schedule,

(ii) details of who provided the statement of affairs, and

(iii) any comments which the administrator may have upon the statement of affairs;

(g) if an order under rule 3.45 or 3.46 has been made—

(i) a statement of that fact, and

(ii) the date of the order;

(h) if no statement of affairs has been submitted—

(i) the details of the financial position of the company at the latest practicable date (which must, unless the court orders otherwise, be a date not earlier than that on which the company entered administration), and

(ii) an explanation as to why there is no statement of affairs;

(i) a full list of the company’s creditors in accordance with paragraph (2) if either—

(i) no statement of affairs has been submitted, or

(ii) a statement of affairs has been submitted but it does not include such a list, or the administrator believes the list included is less than full;

(j) a statement of—

(i) how it is envisaged the purpose of the administration will be achieved, and

(ii) how it is proposed that the administration will end, including, where it is proposed that the administration will end by the company moving to a creditors’ voluntary winding up—

(aa) details of the proposed liquidator,

(bb) where applicable, the declaration required by section 231, and

(cc) a statement that the creditors may, before the proposals are approved, nominate a different person as liquidator in accordance with paragraph 83(7)(a) of Schedule B1 and rule 3.60(6)(b);

(k) a statement of either—

(i) the method by which the administrator has decided to seek a decision by creditors as to whether they approve the proposals, or

(ii) the administrator’s reasons for not seeking a decision by creditors;

(l) the manner in which the affairs and business of the company—

(i) have, since the date of the administrator’s appointment, been managed and financed, including, where any assets have been disposed of, the reasons for the disposals and the terms upon which the disposals were made, and

(ii) will, if the administrator’s proposals are approved, continue to be managed and financed;

(m) a statement whether the proceedings are main, secondary, territorial or non-EU proceedings; and

(n) any other information that the administrator thinks necessary to enable creditors to decide whether or not to approve the proposals.

(2) The list of creditors required by paragraph (1)(i) must contain the details required by paragraph (3) except where paragraphs (4) and (5) apply.

(3) The particulars required by paragraph (2) are as follows and must be given in this order—

(a) the name and postal address of the creditor;

(b) the amount of the debt owed to the creditor;

(d) the date on which any such security was given; and

(e) the value of any such security;

(4) This paragraph applies where the particulars required by paragraph (3) relate to creditors who are either—

(a) employees or former employees of the company; or

(b) consumers claiming amounts paid in advance for the supply of goods and services.

(5) Where paragraph (4) applies—

(a) the list of creditors required by paragraph (1)(i) must state separately for each of paragraphs (4)(a) and (b) the number of the creditors and the total debts owed to them;

(b) the particulars required by paragraph (3) in respect of such creditors must be set out in separate schedules to the list of creditors for each of paragraphs (4)(a) and (b); and

(6) Except where the administrator proposes a CVA in relation to the company, the statement made by the administrator under paragraph 49 of Schedule B1 must also include—

(a) to the best of the administrator’s knowledge and belief, an estimate of the value of—

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

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

(b) a statement whether the administrator proposes to make an application to the court under section 176A(5) and if so the reason for the application.

(7) The administrator may exclude from an estimate under paragraph (6)(a) information the disclosure of which could seriously prejudice the commercial interests of the company.

(8) If the exclusion of such information affects the calculation of an estimate, the report must say so.

(9) The document containing the statement of proposals must include a statement of the basis on which it is proposed that the administrator’s remuneration should be fixed by a decision in accordance with Chapter 14 of Part 3 of these Rules.

(10) Where applicable, the document containing the statement of proposals must include—

(a) a statement of any pre-administration costs charged or incurred by the administrator or, to the administrator’s knowledge, by any other person qualified to act as an insolvency practitioner in relation to the company;

(b) a statement that the payment of any unpaid pre-administration costs as an expense of the administration is—

(i) subject to approval under rule 3.52, and

(ii) not part of the proposals subject to approval under paragraph 53[^f00042] of Schedule B1.

Administrator's proposals: statement of pre-administration costs

3.36

A statement of pre-administration costs under rule 3.35(10)(a) must include—

(a) details of any agreement under which the fees were charged and expenses incurred, including the parties to the agreement and the date on which the agreement was made;

(b) details of the work done for which the fees were charged and expenses incurred;

(c) an explanation of why the work was done before the company entered administration and how it had been intended to further the achievement of an objective in paragraph 3(1) of Schedule B1 in accordance with sub-paragraphs (2) to (4) of that paragraph;

(d) a statement of the amount of the pre-administration costs, setting out separately—

(i) the fees charged by the administrator,

(ii) the expenses incurred by the administrator,

(iii) the fees charged (to the administrator’s knowledge) by any other person qualified to act as an insolvency practitioner in relation to the company (and, if more than one, by each separately), and

(iv) the expenses incurred (to the administrator’s knowledge) by any other person qualified to act as an insolvency practitioner in relation to the company (and, if more than one, by each separately);

(e) a statement of the amounts of pre-administration costs which have already been paid (set out separately as under sub-paragraph (d));

(f) the identity of the person who made the payment or, if more than one person made the payment, the identity of each such person and of the amounts paid by each such person set out separately as under sub-paragraph (d);

(g) a statement of the amounts of unpaid pre-administrations costs (set out separately as under sub-paragraph (d)); and

(h) a statement that the payment of unpaid pre-administration costs as an expense of the administration is—

(i) subject to approval under rule 3.52, and

(ii) not part of the proposals subject to approval under paragraph 53 of Schedule B1.

Advertising administrator's proposals and notices of extension of time for delivery of proposals (paragraph 49 of Schedule B1)

3.37

(1) A notice published by the administrator under paragraph 49(6) of Schedule B1 must—

(a) identify the insolvency proceedings and contain the registered office of the company;

(b) be advertised in such manner as the administrator thinks fit; and

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

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

2.17

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

2.18

Disposal of secured property etc. during a moratorium

2.19

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

2.20

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

2.21

Notice of appointment of replacement nominee

2.22

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

2.23

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

Consideration of proposal: common requirements (section 3)

2.24

Members' consideration at a meeting

2.25

Creditors' consideration by a decision procedure

2.26

Timing of decisions on proposal

2.27

Creditors' approval of modified proposal

2.28

Notice of members' meeting and attendance of officers

2.29

Requisition of physical meeting by creditors

2.30

Non-receipt of notice by members

2.31

Proposal for alternative supervisor

2.32

Chair at meetings

2.33

Members' voting rights

2.34

Requisite majorities of members

2.35

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

2.36

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

2.37

CHAPTER 6

Additional matters concerning and following approval of CVA

Handover of property etc. to supervisor

2.38

Revocation or suspension of CVA

2.39

Supervisor's accounts and reports

2.40

Production of accounts and records to Secretary of State

2.41

Fees and expenses

2.42

Termination or full implementation of CVA

2.43

CHAPTER 7 — Time recording information

Provision of information

2.44

PART 3 — ADMINISTRATION

CHAPTER 1 — Interpretation for this Part

Interpretation for Part 3

3.1

Proposed administrator's statement and consent to act

3.2

CHAPTER 2 — Appointment of administrator by Court

Administration application (paragraph 12 of Schedule B1)

3.3

Administration application made by the directors

3.4

Administration application by the supervisor of a CVA

3.5

Application

3.6

Notice to messengers-at-arms or sheriff officers

3.7

Notice of other insolvency proceedings

3.8