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The Payment and Electronic Money Institution Insolvency (Scotland) Rules 2022

Type Statutory-Instrument

Publication 2022-11-25

Last updated 2025-02-26

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

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PART 7 — Claims by and distributions to creditors

Application and Interpretation of Part

113

(1) This Part applies where the administrator proposes to make a distribution to creditors or any class of creditors.

(2) Where the distribution is to a particular class of creditors, references in this Part to creditors shall be a reference to that class of creditors only.

Payments of dividends

114

(1) On the final determination of the remuneration under Chapter 1 of Part 8 the administrator must, subject to rule 128, pay to the creditors their dividends in accordance with the scheme of division.

(2) Any dividend—

(a) allocated to a creditor which is not cashed or uplifted, or

(b) dependent on a claim in respect of which an amount has been set aside under rule 128(6) or rule 128(7)

must be held by the administrator in an appropriate bank or institution in the name of the Accountant of Court and the deposit receipts transmitted to the Accountant of Court.

(3) If a creditor’s claim is revalued, the administrator may—

(a) in paying any dividend to that creditor, make such adjustment to it as the administrator considers necessary to take account of that revaluation, or

(b) require the creditor to repay to the administrator the whole or part of a dividend already paid to the creditor.

(4) The administrator must insert in the sederunt book the audited accounts, scheme of division and the final determination in relation to the administrator’s outlays and remuneration.

New administrator appointed

115

(1) If a new administrator is appointed in place of another, the former administrator must, as soon as is reasonably practicable, transmit to the new administrator all the creditors’ claims which the former administrator has received, together with an itemised list of them.

(2) The new administrator must authenticate the list by way of receipt for the creditors’ claims and return it to the former administrator.

(3) From then on, all creditors’ claims must be sent to and retained by the new administrator.

Submission of claims

116

(1) A creditor, in order to obtain an adjudication as to the creditor’s entitlement to a dividend (so far as funds are available) out of the assets of the institution in respect of any accounting period, must submit the creditor’s claim to the administrator not later than eight weeks before the end of the accounting period.

(2) A creditor must submit a claim by producing to the administrator the following—

(a) a statement of claim as described in paragraph (3),

(b) documentary evidence of debt,

but the administrator may dispense with the requirement of sub-paragraph (b) in respect of any debt or any class of debt.

(3) The statement of claim must—

(a) be made out by, or under the direction of, the creditor and dated and authenticated by the creditor or a person authorised on the creditor’s behalf,

(b) state the creditor’s name and address,

(d) state the name and address of any person authorised to act on behalf of the creditor,

(e) state the total amount claimed in respect of all debts as at the date on which the institution entered special administration,

(f) state whether or not the claim includes any outstanding uncapitalised interest,

(g) contain particulars of how and when the debt was incurred by the institution,

(h) contain particulars of any security held, the date on which it was given and the value which the creditor puts on it,

(i) include details of any retention of title in relation to goods to which the debt relates,

(j) state the nature and amount of any preference under Schedule 6 to the IA 1986[^f00017] claimed in respect of the debt,

(k) include any details of any document by reference to which the debt can be substantiated,

(l) state the name, postal address and authority of the person authenticating the statement of claim and documentary evidence of debt (if someone other than the creditor).

(4) A claim submitted by a creditor, which has been accepted in whole or in part by the administrator for the purpose of drawing a dividend in respect of any accounting period, is to be deemed to have been resubmitted for the purpose of obtaining an adjudication as to the creditor’s entitlement to a dividend in respect of an accounting period or, as the case may be, any subsequent accounting period.

(5) A creditor who has submitted a claim may at any time submit a further claim specifying a different amount for the claim, provided that a secured creditor is not entitled to produce a further claim specifying a different value for the security at any time after the administrator has required the creditor to discharge, or convey or assign, the security under Rule 124.

(6) Where the administrator becomes aware that a customer has a shortfall claim, the administrator must—

(a) keep a record of the shortfall claim, including the details set out in paragraphs (3)(b) to (3)(l) to the extent relevant,

(b) treat each record under sub-paragraph (a) as if it were a statement of claim submitted by a customer in respect of its shortfall claim,

(c) notify the customer that a statement of claim for the shortfall claim has been submitted under this rule as soon as is reasonably practicable.

(7) Where paragraph (6) applies, a customer does not need to submit a separate statement of claim under paragraph (1) for the shortfall claim.

False claims or evidence

117

If a creditor produces under rule 116 a statement of claim or documentary evidence of debt or other evidence which is false—

(a) the creditor is guilty of an offence unless the creditor shows that the creditor neither knew nor had reason to believe that the statement of claim or documentary evidence of debt or other evidence was false,

(b) the institution is guilty of an offence if the institution—

(i) knew or became aware that the statement of claim or documentary evidence of debt or other evidence was false,

(ii) failed as soon as is reasonably practicable after acquiring such knowledge to report it to the administrator.

Evidence of Claims

118

(1) The administrator, for the purpose of being satisfied as to the validity or amount of a claim submitted by a creditor under rule 116, may require—

(a) the creditor to produce further evidence, or

(b) any other person who the administrator believes can produce relevant evidence, to produce such evidence.

(2) If the creditor or other person refuses or delays to produce such evidence as required under paragraph (1), the administrator may apply to the court for an order requiring the creditor or other person to attend for private examination before the court.

(3) On an application to it under paragraph (2) above the court may make an order requiring the creditor or other person to attend for private examination before it on a date (being not earlier than eight days nor later than sixteen days after the date of the order) and at a time specified in the order.

(4) If a creditor or other person is for any good reason prevented from attending for examination, the court may grant a commission to take the examination (the commissioner being in this rule referred to as an “examining commissioner”).

(5) At any private examination under paragraph (2) or where the court grants a commission to take the examination under paragraph (4), a solicitor or counsel may act on behalf of the administrator, or the administrator may appear on the administrator’s own behalf.

(6) The examination, whether before the court or an examining commissioner, must be taken on oath.

(7) A person who fails without reasonable excuse to comply with an order made under paragraph (2) is guilty of an offence.

(8) References in this rule to a creditor in a case where the creditor is one of the following entities—

(a) a trust,

(b) a partnership (including a dissolved partnership),

(d) a limited partnership (including a dissolved partnership) within the meaning of the Limited Partnerships Act 1907[^f00018],

are to be construed, unless the context otherwise requires, as references to a person representing the entity.

Adjudication of Claims

119

(1) Where funds are available for payment of a dividend out of the institution’s assets in respect of an accounting period, the administrator for the purpose of determining who is entitled to such a dividend must—

(a) not later than four weeks before the end of the period, accept or reject every claim submitted or deemed to have been re-submitted under rule 116,

(b) at the same time make a decision on any matter requiring to be specified under paragraph (4)(a) or (4)(b).

(2) On accepting or rejecting, under paragraph (1), every claim submitted or deemed to have been re-submitted, the administrator must, as soon as is reasonably practicable, send a list of every claim so accepted or rejected (including the amount of each claim and whether it has been accepted or rejected) to the following—

(a) every creditor known to the administrator,

(b) the FCA.

(3) Where the administrator rejects a claim, the administrator must without delay notify the creditor giving reasons for the rejection.

(4) The administrator must include the following information in the sederunt book—

(a) details of the decision whether to accept a claim including—

(i) the amount of the claim accepted,

(ii) the category of debt, and the value of any security, as decided by the administrator,

(b) if the administrator is rejecting the claim, the administrator’s reasons for doing so,

(5) Any member of the institution or any creditor may, if dissatisfied with the acceptance or rejection of any claim (or, in relation to such acceptance or rejection with a decision in respect of any matter requiring to be recorded under paragraph (4)(a) or (4)(b) appeal to the court not later than 14 days before the end of the accounting period, and the applicant must give notice of an application under this paragraph to the FCA.

(6) Any reference in this rule to the acceptance or rejection of a claim is to be construed as a reference to the acceptance or rejection of the claim in whole or in part.

Entitlement to draw a dividend

120

(1) A creditor who has had a claim accepted in whole or in part by the administrator under rule 119(1) or on appeal under rule 119(5) is entitled to payment out of the institution’s assets of a dividend in respect of the accounting period for the purposes of which the claim is accepted.

(2) Such entitlement to payment arises only in so far as the institution has funds available to make that payment, having regard to rule 127.

Liabilities and rights of obligants

121

(1) Where a creditor has an obligant bound to the creditor along with the institution for the whole or part of the debt, the obligant is not freed or discharged from liability for the debt by reason of the dissolution of the institution or the creditor’s voting or drawing a dividend or assenting to or not opposing—

(a) the dissolution of the institution, or

(b) any composition with creditors.

(2) Paragraph (3) applies where—

(a) a creditor has had a claim accepted in whole or in part,

(b) the obligant holds a security over any part of the institution’s assets.

(3) The obligant must account to the administrator so as to put the institution’s assets in the same position as if the obligant had paid the debt to the creditor and subsequently had had the obligant’s claim accepted in whole or in part in the special administration after deduction of the value of the security.

(4) The obligant may require and obtain at the obligant’s own expense from the creditor an assignation of the debt on payment of the amount of the debt, and on that being done may in respect of the debt submit a claim, and vote and draw a dividend, if otherwise legally entitled to do so.

(5) Paragraph (4) is without prejudice to any right, under any rule of law, of an obligant who has paid the debt.

(6) In this rule an “obligant” includes a cautioner.

Amount which may be claimed generally

122

(1) Subject to the provisions of this rule and rules 123 and 124 a creditor is entitled to claim the accumulated sum of principal and any interest which is due on the debt as at the date on which the institution entered special administration.

(2) If a debt does not depend on a contingency but would not be payable but for the special administration until after the date on which the institution entered special administration, the amount of the claim is to be calculated as if the debt were payable on the date on which the institution entered special administration but subject to the deduction of interest at the rate specified in paragraph (4) from that date until the date for payment of the debt.

(3) In calculating the amount of a creditor’s claim, the creditor must deduct any discount (other than any discount for immediate or early settlement) which is allowable by contract or course of dealing between the creditor and the institution or by the usage of trade.

(4) The rate of interest referred to in paragraph (2) is to be whichever is the greater of—

(a) the official rate at the date the institution entered special administration, or

(b) the rate applicable to that debt apart from the special administration.

Debts depending on contingency

123

(1) Subject to paragraph (2), the amount which a creditor is entitled to claim is not to include a debt in so far as its existence or amount depends on a contingency.

(2) On an application by the creditor—

(a) to the administrator, or

(b) if there is no administrator, to the court,

the administrator or court must put a value on the debt in so far as it is contingent.

(3) Where under paragraph (2) a value is put on the debt—

(a) the amount in respect of which the creditor is then entitled to claim is to be that value but no more,

(b) where the contingent debt is an annuity, a cautioner may not then be sued for more than that value.

(4) Any interested person may appeal to the court against a valuation under paragraph (2) by the administrator, and the court may affirm or vary that valuation.

Secured debts

124

(1) In calculating the amount of a secured creditor’s claim the secured creditor is to deduct the value of any security as estimated by the secured creditor.

(2) If the secured creditor surrenders, or undertakes in writing to surrender, a security for the benefit of the institution’s assets, the secured creditor is not required to deduct the value of that security.

(3) The administrator may, at any time after the expiry of twelve weeks from the date on which the institution entered special administration, require a secured creditor at the expense of the institution’s assets to discharge the security or convey or assign it to the administrator on payment to the creditor of the value specified by the creditor.

(4) Where under paragraph (3) the administrator makes payment to the creditor, the amount in respect of which the creditor is then entitled to claim is to be any balance of the creditor’s debt remaining after receipt of such payment.

(5) In calculating the amount of the claim of a creditor whose security has been realised, the creditor must deduct the amount (less the expenses of realisation) which the creditor has received, or is entitled to receive, from the realisation.

Claims in a foreign currency

125

(1) A creditor may state the amount of their claim in a currency other than sterling where—

(a) the creditor’s claim is constituted by decree or other order made by a court ordering the institution to pay to the creditor a sum expressed in a currency other than sterling, or

(b) where it is not so constituted, the creditor’s claim arises from a contract or bill of exchange in terms of which payment is or may be required to be made by the institution to the creditor in a currency other than sterling.

(2) Where under paragraph (1) a claim is stated in a currency other than sterling the administrator must convert it into sterling at a single rate for each currency determined by the administrator by reference to the exchange rates prevailing in the London market at the close of business on the date on which the institution entered special administration.

(3) On the next occasion when the administrator communicates with the creditors the administrator must advise them of any rate so determined.

(4) A creditor who considers that the rate determined by the administrator is unreasonable may apply to the court.

(5) If on hearing the application the court finds that the rate is unreasonable it may itself determine the rate.

(6) The administrator must place a copy of any court order granted under paragraph (5) in the sederunt book.

Administrator to allow inspection of statements of claim

126

The administrator must, so long as submitted claims are in the administrator’s hands, allow them to be inspected, at all reasonable times on any business day, by any of the following persons—

(a) any creditor who has submitted a claim (unless that claim has been wholly rejected for purposes of dividend or otherwise),

(b) any contributory of the institution,

Order of priority in distribution

127

(1) The funds of the institution’s assets must be distributed by the administrator to meet the following expenses and debts in the order in which they are mentioned—

(a) the expenses of the special administration,

(b) any preferential debts within the meaning of section 386(1) of the IA 1986[^f00019] (excluding any interest which has been accrued to the date on which the institution entered special administration),

(c) ordinary debts, that is to say, a debt which is neither a secured debt nor a debt mentioned in any other sub-paragraph of this paragraph,

(d) interest at the official rate, between the date on which the institution entered special administration and the date of payment, on—

(i) the preferential debts,

(ii) the ordinary debts,

(e) any postponed debt.

(2) In paragraph (1)—

(a) “postponed debt” means—

(i) a creditor’s right to any alienation which has been reduced or restored to the institution’s assets under section 242 of the IA 1986[^f00020] or to the proceeds of the sale of such an alienation,

(ii) a claim arising by virtue of section 382(1)(a) of the Financial Services and Markets Act 2000[^f00021] (restitution orders), unless it is also a claim arising by virtue of sub-paragraph (b) of that section (a person who has suffered loss etc.), or

(iii) in special administration, a claim which by virtue of the IA 1986 (as applied by regulation 37) or any other enactment is a claim the payment of which is to be postponed.

(3) The expenses of the special administration mentioned in paragraph (1)(a) are payable in the order of priority mentioned in rule 95.

(4) Subject to section 175 of the IA 1986[^f00022] (as applied by paragraph 65(2))—

(a) any debt falling within either of sub-paragraphs (1)(b) or (1)(c) is to have the same priority as any other debt falling within the same sub-paragraph,

(b) where the funds of the institution’s assets are inadequate to enable such debts to be paid in full, they are to abate in equal proportions.

(5) Any surplus remaining, after all expenses and debts mentioned in paragraph (1) have been paid in full, must (unless the articles of the institution provide otherwise) be distributed among the members according to their rights and interests in the institution.

(6) Nothing in this rule affects—

(a) the right of a secured creditor which is preferable to the rights of the administrator, or

(b) any preference of the holder of a lien over a title deed or other document which the administrator has taken into their custody or control in accordance with paragraph 67.

Assets to be distributed in respect of the accounting periods

128

(1) The administrator must make up accounts of the administrator’s intromissions with the institution’s assets in respect of each accounting period.

(2) In this rule, “accounting period” is to be construed as follows—

(a) the first accounting period is the period of six months beginning with the date on which the institution entered special administration,

(b) any subsequent accounting period is the period of six months beginning with the end of the last accounting period except that—

(i) where the administrator and the creditors’ committee agree, or

(ii) where there is no creditors’ committee, the court determines,

the accounting period is to be such other period beginning with the end of the last accounting period as may be agreed or, as the case may be determined, it is to be that other period.

(3) An agreement or determination under paragraph (2)(b)—

(a) may be made in respect of one or more than one accounting period,

(b) may be made before the beginning of the accounting period in relation to which it has effect and, in any event, is not to have effect unless made before the day on which such accounting period would, but for the agreement or determination, have ended,

(4) The administrator may pay a dividend to secured or preferential creditors or, where the administrator has the permission of the court, to unsecured creditors only if the following conditions are met—

(a) the administrator has sufficient funds for the purpose,

(b) the administrator’s statement of proposals, as approved by the creditors under Chapter 3 of Part 3, contains a proposal to make a distribution to the class of creditors in question,

(c) the payment of a dividend is consistent with the functions and duties of the administrator and any proposals made by the administrator or which the administrator intends to make.

(5) The administrator may pay—

(a) the expenses of the special administration mentioned in rule 95, other than the administrator’s remuneration, at any time,

(b) the preferential debts within the meaning of section 386 of the IA 1986 at any time but only with the consent of the creditors’ committee or, if there is no creditors’ committee, of the court.

(6) If the administrator—

(a) is not ready to pay a dividend in respect of an accounting period, or

(b) considers it would be inappropriate to pay such a dividend because the expenses of doing so would be disproportionate to the amount of the dividend,

the administrator may postpone such payment to a date not later than the time for payment of a dividend in respect of the next accounting period.

(7) Where an appeal is taken under rule 119(5) against the acceptance or rejection of a creditor’s claim, the administrator must at the time of payment of dividends and until the appeal is determined, set aside an amount which would be sufficient, if the determination in the appeal were to provide for the claim being accepted in full, to pay a dividend in respect of that claim.

(8) Where a creditor—

(a) has failed to produce evidence in support of a claim earlier than eight weeks before the end of an accounting period on being required by the administrator to do so under rule 118,

(b) has given a reason for such failure which is acceptable to the administrator,

the administrator must set aside, for such time as is reasonable to enable the creditor to produce that evidence or any other evidence that will enable the administrator to be satisfied under rule 118, an amount which would be sufficient, if the claim were accepted in full, to pay a dividend in respect of that claim.

(9) Where a creditor submits a claim to the administrator later than eight weeks before the end of an accounting period but more than eight weeks before the end of a subsequent accounting period in respect of which, after making allowance for contingencies, funds are available for the payment of a dividend, the administrator must, if accepting the claim in whole or in part, pay to the creditor—

(a) the same dividend or dividends as has or have already been paid to creditors of the same class in respect of any accounting period or periods,

(b) whatever dividend may be payable to that creditor in respect of the said subsequent accounting period,

provided that paragraph (a) is without prejudice to any dividend which has already been paid.

(10) In the declaration of and payment of a dividend, no payments are to be made more than once by virtue of the same debt.

(11) Where the administrator pays a dividend under this rule, notice of the dividend must be given to the FCA.

(12) Where the administrator postpones payment of a dividend in accordance with paragraph (6), the administrator must notify the FCA.

(13) Details of any agreement reached under paragraph (2)(b)(i) and of any determination made under paragraph (2)(b)(ii) must be inserted in the sederunt book.

PART 8 — The Administrator

CHAPTER 1 — Remuneration of the administrator

Remuneration of administrator

129

(1) The administrator is entitled to receive remuneration—

(a) to be paid out of the estate of the institution for services given—

(i) in respect of the pursuit of Objectives 2 and 3,

(ii) as a consequence of a failure by the institution to safeguard relevant funds,

(b) to be paid out of relevant funds for services given in respect of the pursuit of Objective 1.

(2) The basis of remuneration in both cases in paragraph (1) must be fixed—

(a) as a percentage of the value of the property with which the administrator has to deal,

(b) by reference to the time properly given by the insolvency practitioner (as administrator) and their staff in attending to matters arising in the special administration, or

(3) The basis of remuneration may be fixed as any one or more of the bases set out in paragraph (2), and different bases may be fixed in respect of different things done by the administrator or administrator’s staff.

(4) Subject to paragraph (5) and paragraph (6), where an administrator intends to submit a claim for the outlays reasonably incurred by the administrator and for remuneration within two weeks of the end of an accounting period, the administrator must submit to the creditors’ committee, or, if there is no creditors’ committee, to a meeting of creditors and customers, in respect of that period—

(a) the administrator’s accounts of their intromissions with the institution’s assets for audit,

(b) where funds are available after making allowance for contingencies, a scheme of division of the divisible funds,

(i) any outlays reasonably incurred by the administrator,

(ii) the administrator’s remuneration, in respect of the pursuit of the Objectives in paragraph (1)(a).

(5) The administrator may, at any time within two weeks after the end of an accounting period, in respect of the previous accounting period, submit to a creditors’ committee, or if there is no creditors’ committee, to a meeting of creditors and customers, in respect of that period—

(a) the administrator’s accounts of its intromissions with the institutions’ assets for audit (such accounts of intromissions may include or consist of a progress report),

(b) a claim for—

(i) the outlays reasonably incurred by the administrator,

(ii) the administrator’s remuneration in respect of the pursuit of the Objectives under paragraph (1)(a).

(6) Within two weeks after the end of an accounting period, the administrator must in respect of that period submit to the creditors’ committee (or if there is no creditors’ committee, to a meeting of customers) a claim for the outlays reasonably incurred by the administrator and for the administrator’s remuneration in respect of the pursuit of the Objective under paragraph (1)(b).

(7) The administrator may, at any time before the end of an accounting period, submit to the creditors’ committee or, if there is no creditors’ committee, a meeting of creditors and customers (or in respect of a claim in respect of the pursuit of the Objective in paragraph (1)(b), a meeting of customers)—

(a) an interim claim in respect of that period for the outlays reasonably incurred by the administrator,

(b) an interim claim in respect of that period for remuneration,

and the body to whom the claim has been submitted may make an interim determination in relation to the amount of the outlays and remuneration payable to the administrator and, where they do so, they must take into account that interim determination when making their determination under paragraph (9)(a)(ii).

(8) In fixing the amount of the administrator’s remuneration and outlays in respect of any accounting period, the body to whom the claim has been submitted may take into account any adjustment which it may wish to make in the amount of the remuneration and outlays fixed in respect of any earlier accounting period.

(9) Within six weeks of the end of an accounting period—

(a) the creditors’ committee or, as the case may be, a meeting of creditors and customers or a meeting of customers—

(i) may audit the accounts (in respect of a submission under paragraph (2)),

(ii) must issue a determination fixing the amount of the outlays and the remuneration payable to the administrator,

(b) the administrator must make the audited accounts, scheme of division and the said determination available for inspection by the members of the institution, the creditors or customers.

(10) If the administrator’s remuneration and outlays have been fixed by determination of the creditor’s committee in accordance with paragraph (9)(a)(ii) and the administrator considers the amount to be insufficient, the administrator may request that the remuneration and outlays be increased by—

(a) resolution of the creditors and customers in respect of claim under paragraph (1)(a), or

(b) resolution of the customers in respect of a claim under paragraph (1)(b).

(11) If the creditor’s committee fails to issue a determination in accordance with paragraph (9)(a)(ii), the administrator must submit their claim—

(a) to a meeting of creditors and customers in respect of a claim under paragraph (1)(a), or

(b) to a meeting of customers in respect of a claim under paragraph (1)(b),

and the meeting must issue a determination in accordance with paragraph (9)(a)(ii).

(12) If the meeting of creditors and customers, or as the case may be, the meeting of customers fails to issue a determination in accordance with paragraph (11), then the administrator must submit their claim to the court and the court must issue a determination.

(13) Where there are joint administrators—

(a) it is for them to agree between themselves as to how the remuneration payable should be apportioned,

(b) if they cannot agree as to how the remuneration payable should be apportioned, any one of them may refer the issue for determination—

(i) by the court, or

(ii) by resolution of the creditors’ committee or a meeting of creditors and customers.

(14) The administrator must insert the final determination in relation to the administrators’ outlays and remuneration in the sederunt book, together with the audited accounts and scheme of division.

Appeal against fixing of remuneration

130

(1) If the administrator considers that the remuneration or outlays fixed for the administrator under rule 129 by—

(a) the creditors’ committee, or

(b) by resolution of the creditors and customers, or as the case may be, of the customers,

is insufficient, the administrator may apply to the court for an order increasing this amount or rate.

(2) The administrator must give at least fourteen days’ notice of the application to the members of the creditors’ committee, and the committee may nominate one or more members to appear, or be represented, and to be heard, on the application.

(3) If there is no creditors’ committee, the notice of the application must be sent to such one or more of the institution’s creditors or customers as the court may direct, which creditors or customers may nominate one or more of their number to appear or be represented and heard on the application.

(4) Notice of the application must also be given to the FCA.

(5) The court may order the expenses of the administrator’s application, including the expenses of any member of the creditors’ committee appearing or being represented on it, or any creditor or customer so appearing or being represented, to be paid as an expense of the special administration.

Claim that remuneration is excessive

131

(1) The following persons may apply to the court for an order that the administrator’s remuneration or outlays be reduced on the grounds that they are, in all the circumstances, excessive in respect of the administrator’s remuneration for services set out in rule 129(1)(a)—

(a) a secured creditor,

(b) any unsecured creditor or creditors representing at least twenty-five per cent in value of the unsecured creditors (including that creditor),

(c) a customer or customers whose relevant funds claims represent at least twenty-five per cent of all relevant funds claims,

(d) the FCA.

(2) A customer, with the concurrence of customers whose relevant funds claims represent at least twenty-five per cent of the total relevant funds claims, or with the permission of the court, may apply to the court for an order in paragraph (1) in respect of the administrator’s remuneration for services set out in rule 129(1)(b).

(3) An application under paragraphs (1) and (2) may be made on the grounds that the remuneration charged by the administrator is, or the expenses incurred by the administrator are, in all the circumstances, excessive.

(4) The application must be made no later than eight weeks after the end of an accounting period.

(5) The court may make an order fixing the remuneration or outlays at a reduced amount or rate.

(6) The court may order the expenses of the person making application to be paid as an expense of the special administration.

CHAPTER 2 — Replacing the administrator

Grounds for resignation

132

(1) The administrator may resign in the following circumstances—

(a) on grounds of ill health,

(b) that the administrator intends ceasing to be in practice as an insolvency practitioner, or

(c) that there is some conflict of interest, or change of personal circumstances, which precludes or makes impracticable the further discharge by that person of the duties of administrator.

(2) The administrator may, with the permission of the court, resign on grounds other than those specified in paragraph (1).

Notice of intention to resign

133

(1) The administrator must in all cases give at least five business days’ notice of their intention to resign, or their intention to apply for the court’s permission to do so, to the following persons—

(a) if there is a continuing administrator of the institution, to that person,

(b) if there is a creditors’ committee, to it.

(2) If there is no continuing administrator and no creditors’ committee, the administrator must give at least five business days’ notice of their intention to resign, or their intention to apply for the court’s permission to do so, to the institution and its creditors and customers of whose claim the administrator is aware and whom the administrator has a means of contacting.

(3) Where the administrator was appointed on the application of the FCA or the Secretary of State, notice under paragraph (1) or paragraph (2) must also be given to the applicant.

(4) Notice under paragraph (1) or paragraph (2) must set out—

(a) a statement that the proceedings are being held in the court and the court reference number,

(b) the full name, registered address, registered number of the institution,

(d) either—

(i) the date on which the administrator’s resignation shall take effect, or

(ii) the date upon which the administrator intends to apply to the court for leave to resign.

(5) The notice must be accompanied by a summary of the administrator’s receipts and payments.

Notice of resignation

134

(1) The notice of resignation must set out—

(a) a statement that the proceedings are being held in the court and the court reference number,

(b) the full name, registered address and registered number of the institution,

(d) whether or not the person resigning is the sole administrator of the institution,

(e) a statement that either—

(i) the administrator resigns from office with effect from a specified date, or

(ii) the court gave the administrator leave to resign (and the statement must include the date of the court’s permission) and that the administrator therefore resigns with effect from a specified date.

(2) The notice must be lodged with the court and a copy of the notice of resignation must be sent not more than five business days after it has been lodged with the court to all those to whom the notice of intention to resign was sent.

(3) The administrator must notify the registrar of companies of their resignation.

Application to court to remove administrator from office

135

(1) Any application for an order under paragraph 88 must state the grounds on which it is requested that the administrator should be removed from office.

(2) Notice of the application must be served on the following—

(a) the administrator,

(b) the person who made the application for the special administration order,

(d) the joint administrator (if any),

(e) where there is neither a creditors’ committee nor a joint administrator, the institution and all the creditors and customers of whose claim the administrator is aware and of whom they have a means of contacting,

(f) the FCA.

(3) Where a court makes an order removing the administrator it must give a copy of the order to the applicant, who as soon as is reasonably practicable must send a copy to the administrator.

(4) The applicant must also within five business days of the order being made send a copy of the order to all those to whom notice of the application was sent.

(5) The applicant must send notice of the order to the registrar of companies within five business days of the order being made.

Notice of vacation of office when administrator ceases to be qualified

136

Where the administrator who has ceased to be qualified to act as an insolvency practitioner in relation to the institution gives notice in accordance with paragraph 89, notice must also be given—

(a) to the registrar of companies,

(b) where the administrator was appointed on the application of the FCA or the Secretary of State, to the applicant.

Administrator deceased

137

(1) Subject to paragraphs (2) to (4), where the administrator has died, it is the duty of the administrator’s executors to give notice of the fact to the court, specifying the date of the death. This does not apply if notice has been given under either paragraph (3) or (4) of this rule.

(2) Notice of the death must also be sent to the registrar of companies.

(3) If the deceased administrator was a partner in or an employee of a firm, notice to the court may be given by a partner in the firm who is qualified to act as an insolvency practitioner, or is a member of any body recognised by the Secretary of State or the Department for the Economy for Northern Ireland for the authorisation of insolvency practitioners.

(4) Notice of the death may be given to the court by any person.

Application to replace

138

(1) Where an application is made to court under paragraph 91(1) to appoint a replacement administrator, the application must be accompanied by a written statement by the person proposed to be the replacement administrator.

(2) The written statement must be in accordance with rule 7.

(3) A copy of the application must be served on the following—

(a) the person who made the application for a special administration order,

(b) the institution (if neither the institution nor its directors are the applicant),

(d) the FCA (if not the applicant),

(e) the Keeper of the Register of Inhibitions and Adjudications for recording in that register.

(4) Service of the application under this rule shall be the same as service of an application for a special administration order.

(5) Rule 14 shall apply to the notice of appointment of a replacement administrator as it applies to notice of a special administration order.

Notification and advertisement of appointment of replacement administrator

139

(1) Subject to rule 141, where a replacement administrator is appointed, the same provisions apply in respect of giving notice of, and advertising, the replacement appointment as in the case of the initial appointment.

(2) All notices must clearly identify that the appointment is of a replacement administrator.

Notification and advertisement of appointment of joint administrator

140

Subject to rule 141, where a person is to be appointed in accordance with paragraph 100 to act as administrator, jointly or concurrently with the person or persons then acting, the same provisions apply, subject to this rule and to such other modification as may be necessary, in respect of the making of this appointment, in the case of the original appointment of an administrator.

Notification of new administrator

141

(1) The replacement or additional administrator must send notice of the appointment to the registrar of companies.

(2) The notice in paragraph (1) must contain—

(a) the name and business address of the administrator appointed,

(b) the name, registered address and registered number of the institution in respect of which the appointment is made,

(c) whether the administrator is appointed to replace an existing administrator or in addition to a previously appointed administrator,

(d) the date from which the administrator’s appointment will take effect.

Administrator’s duties on vacating office

142

(1) Where the administrator (‘A’) ceases to be in office in consequence of this Chapter, A is under an obligation as soon as is reasonably practicable to deliver up to the person succeeding A as administrator (‘B’)—

(a) the assets (after deduction of any expenses properly incurred and distributions made by A),

(b) the records of the special administration, including correspondence, statements of claim and other related papers appertaining to the special administration while it was within A’s responsibility,

(2) If A makes default in complying with this rule, A is guilty of an offence.

PART 9 — End of special administration

Final progress reports

143

The final progress report means a progress report which includes a summary of the following—

(a) the administrator’s proposals (including whether the FCA has given a direction under regulation 38 and whether that direction has been withdrawn),

(b) any major amendments to, or deviations from, those proposals,

(d) the outcome.

Application to court by administrator

144

(1) An application to court under paragraph 79 for an order ending a special administration must be accompanied by the following—

(a) a progress report for the period since the last progress report (if any) or, if there has been no previous progress report, the date the institution entered special administration,

(b) a statement indicating what the administrator thinks should be the next steps for the institution (if applicable).

(2) Before making the application under paragraph (1), the administrator must give notice in writing to the following—

(a) the applicant for the special administration order under which the administrator was appointed,

(b) the creditors and customers,

and the application must be accompanied by a statement that the creditors and customers have been notified of the application and copies of any response to that notification.

(3) Notice under paragraph (2) must be given at least five business days before the date that the administrator intends to make the application.

(4) The administrator—

(a) must send a copy of the application under paragraph (1) to the FCA,

(b) must, within five business days of filing the application, gazette a notice undertaking to provide a copy of the application to any person who so requests it (and an address to which they can write),

Application to court by creditor

145

(1) Where a creditor applies to the court to end the special administration a copy of the application must be served on the following—

(a) the administrator,

(b) the person who made the application for the special administration order,

(2) Service must be effected not less than five business days before the date fixed for the hearing.

(3) The persons in paragraph (1) may appear at the hearing of the application.

(4) Where the court makes an order to end the special administration, the court must send a copy of the order to the administrator.

Notification by administrator of court order

146

Where the court makes an order to end the special administration, the administrator must send—

(a) a copy of the court order to the registrar of companies within fourteen days of the date of the order,

(b) a copy of the final progress report to the registrar of companies as soon as is reasonably practicable,

(c) a copy of the court order and a copy of the final progress report to all other persons to whom notice of the administrator’s appointment was delivered as soon as is reasonably practicable.

Moving from special administration to dissolution

147

(1) The notice of moving from special administration to dissolution to the registrar of companies required to be sent by the administrator in accordance with paragraph 84(1) must be accompanied by a copy of the final progress report.

(2) As soon as is reasonably practicable, a copy of the notice and the accompanying document must be sent to all other persons who received notice of the administrator’s appointment.

(3) Where a court makes an order under paragraph 84(7) it must, where the applicant is not the administrator, give a copy of the order to the administrator.

PART 10 — Applications to court

CHAPTER 1 — Applications to the court under section 176A of the IA 1986

Application of Chapter

148

The rules in this Chapter apply to applications in connection with section 176A of the IA 1986.

Applications under section 176A(5) of the IA 1986 to disapply section 176A(2) of the IA 1986

149

An application under section 176A(5) of the IA 1986 must include averments—

(a) that the application arises in respect of a special administration,

(b) as to the financial position of the institution,

(c) as to the basis of the applicant’s view that the cost of making a distribution to unsecured creditors would be disproportionate to the benefits.

Notice of an order under section 176A(5) of the IA 1986

150

(1) Where the court makes an order under section 176A(5) of the IA 1986, the applicant must as soon as is reasonably practicable after the making of the order—

(a) send to the institution a copy of the order certified by the clerk of court,

(b) send to the registrar of companies a copy of the order certified by the clerk of court,

(2) The court may direct that the requirement of paragraph (1)(c) be met by publication of a notice containing the standard content and stating that the court has made an order disapplying the requirement to set aside the prescribed part.

(3) The notice referred to in paragraph (2)—

(a) must be gazetted as soon as is reasonably practicable,

(b) may be further advertised in such other manner as the court may direct.

CHAPTER 2 — Formal defects

Power to cure defects in procedure

151

(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 Regulations or these 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 special administration 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—

(a) authorise or dispense with the performance of any act in the special administration,

(b) appoint as administrator of the institution a person who would be eligible to be appointed as such under Part 2 of these Rules, whether or not in place of an existing administrator,

(3) The administrator must record in the sederunt book the decision of the court under this rule.

Formal defects

152

No special administration proceedings shall be invalidated by any formal defect or by any irregularity unless the court before which an 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 11 — Prohibited names

Preliminary

153

The rules in this Part—

(a) relate to the permission required under section 216 of the IA 1986 for a person to act in all or any of the ways specified in section 216(3) of the IA 1986 in relation to an institution with a prohibited name,

(b) prescribe the cases excepted from section 216 of the IA 1986, that is to say, those in which a person to whom that section applies may so act without that permission.

Application for permission under section 216(3) of the IA 1986

154

(1) At least fourteen days’ notice of any application for permission to act in all or any of the ways which would otherwise be prohibited by section 216(3) of the IA 1986 must be given by the applicant to the Secretary of State, who may—

(a) appear at the hearing of the application,

(b) whether or not appearing at the hearing, make representations.

(2) When considering an application for permission under section 216 of the IA 1986, the court may call on the administrator, or any former administrator, of the institution for a report of the circumstances in which that institution became insolvent and the extent (if any) of the applicant’s apparent responsibility for the institution becoming insolvent.

First excepted case

155

(1) This rule applies where—

(a) a person (‘P’) was within the period mentioned in section 216(1) of the IA 1986 a director, or shadow director, of an institution that has gone into special administration by virtue of Ground A in regulation 9 being satisfied,

(b) P acts in all or any of the ways specified in section 216(3) of the IA 1986 in connection with, or for the purposes of, the carrying on (or proposed carrying on) of the whole or substantially the whole of the business of the institution where that business (or substantially the whole of it) is (or is to be) acquired from the institution under arrangements—

(i) made by the administrator, or

(ii) made before the institution entered into special administration by an office-holder acting in relation to it as supervisor of a voluntary arrangement under Part 1 of the IA 1986.

(2) P will not be taken to have contravened section 216 of the IA 1986 if prior to P’s acting in the circumstances set out in paragraph (1) a notice is, in accordance with the requirements of paragraph (3)—

(a) given by P to every creditor and customer of the institution whose name and address—

(i) is known by P, or

(ii) is ascertainable by P on the making of such enquiries as are reasonable in the circumstances,

(b) published in the Gazette.

(3) The notice referred to in paragraph (2)—

(a) may be given and published before the completion of the arrangements referred to in paragraph (1)(b) but must be given and published no later than twenty-eight days after that completion,

(b) must contain the following—

(i) the name and registered number of the institution,

(ii) the date that the institution went into special administration,

(iii) P’s name,

(iv) a statement that P was a director of the institution during the period of twelve months ending with the day before the institution entered special administration,

(v) a statement that it is P’s intention to act (or, where the institution has not entered into special administration, to act or continue to act) in all or any of the ways specified in section 216(3) of the IA 1986 in connection with, or for the purposes of, the carrying on of the whole or substantially the whole of the business of the institution,

(vi) the prohibited name or, where the institution has not entered into special administration, the name under which the business is being, or is to be, carried on which would be a prohibited name in respect of P in the event of the institution entering special administration,

(vii) a statement that P would not otherwise be permitted to act in all or any of the ways specified in section 216(3) of the IA 1986 without the leave of the court or the application of an exception created by these Rules,

(viii) a statement that contravention of the prohibition created by section 216 of the IA 1986 is a criminal offence,

(ix) a statement as set out in paragraph (6) of the effect of issuing the notice under this paragraph.

(4) Notice may in particular be given under this rule—

(a) prior to the institution entering special administration where the business (or substantially the whole of the business) is, or is to be, acquired by another company under arrangements made by an office-holder acting in relation to the institution as supervisor of a voluntary arrangement (whether or not at the time of the giving of the notice P is a director of that other company), or

(b) at a time where P is a director of another company where—

(i) the other company has acquired, or is to acquire, the whole, or substantially the whole, of the business of the institution under arrangements made by the administrator,

(ii) it is proposed that after the giving of the notice a prohibited name should be adopted by the other company.

(5) Notice may not be given under this rule by a person who has already acted in contravention of section 216 of the IA 1986.

(6) The statement as to the effect of the notice under paragraph (2) must be as set out below—

Section 216(3) of the Insolvency Act 1986 lists the activities that a director of an institution that has gone into special administration may not undertake unless the court gives permission or there is an exception in the Payment and Electronic Money Institution Insolvency (Scotland) Rules 2022. This includes the exceptions in Part 11 of those Rules. These activities are— (a) being a director of another company that is known by a name which is either the same as a name used by the institution in special administration during the period of twelve months ending with the day before the institution entered special administration or is so similar as to suggest an association with that institution, (b) directly or indirectly being concerned or taking part in the promotion, formation or management of any such company, (c) directly or indirectly being concerned or taking part in the carrying on of a business otherwise than through a company under a name of the kind mentioned in (a) above. This notice is given under Rule 155 of the Payment and Electronic Money Institution Insolvency (Scotland) Rules 2022 because the business of an institution which is in, or may go into, special administration is, or is to be, carried on otherwise than by the institution in special administration with the involvement of a director of that institution and under the same or a similar name to that of that institution. The purpose of giving this notice is to permit the director to act in these circumstances where the institution enters (or has entered) special administration without the director committing a criminal offence and, in the case of the carrying on of the business through another company, being personally liable for that company’s debts. Notice may be given where the person giving the notice is already the director of a company which proposes to adopt a prohibited name.

Second excepted case

156

(1) Where a person (‘P’) to whom section 216 of the IA 1986 applies, applies for permission of the court under that section not later than seven business days from the date on which the institution went into special administration, P may, during the period specified in paragraph (2), act in any of the ways mentioned in section 216(3) of the IA 1986, notwithstanding that P has not the permission of the court under that section.

(2) The period referred to in paragraph (1) begins with the day on which the institution goes into special administration and ends either on the day falling six weeks after that date or on the day on which the court disposes of the application for permission under section 216 of the IA 1986, whichever of those days occurs first.

Third excepted case

157

The court’s permission under section 216(3) of the IA 1986 is not required where the company there referred to, though known by a prohibited name—

(a) has been known by that name for the whole of the period of twelve months ending with the day before the institution went into special administration,

(b) has not at any time in those twelve months been dormant within the meaning of section 1169(1), (2) and (3)(a) of the CA 2006.

PART 12 — Provisions of general effect

CHAPTER 1 — Miscellaneous and general

Costs, expenses etc

158

(1) All fees, costs, charges and other expenses incurred in the course of the special administration are, unless otherwise stated, to be regarded as expenses of the special administration.

(2) The costs associated with the prescribed part must be paid out of the prescribed part.

False representation of status for purpose of inspecting documents

159

(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, customer, member of the institution or contributory of the institution with the intention of gaining sight of the relevant document.

(2) A relevant document is one which is on the court file or in the hands of the administrator or any other person and which a creditor, customer, member of the institution or contributory of the institution has a right to inspect under these Rules.

Punishment of offences

160

The Schedule sets out the maximum penalties for offences under the Rules.

CHAPTER 2 — The giving of notice and the supply of documents

Application

161

(1) Subject to paragraphs (2) and (3), this Chapter applies where a notice or other document is required to be given, delivered or sent under the Regulations or these Rules by any person, including the administrator.

(2) This Chapter does not apply to —

(a) the lodging of any application, or other document, with the court,

(b) the service of any application, or other document, lodged with the court,

(3) This Chapter does not apply to the submission of documents to the registrar of companies.

Personal delivery

162

(1) Personal delivery of a notice or other document is permissible in any case.

(2) A document is personally delivered—

(a) in the case of an individual, if it is left with that individual,

(b) in the case of a legal person, if it is left with an individual at the registered office, official address or place of business of that legal person.

Postal delivery of documents

163

(1) A notice or other document may be sent by post in accordance with the provisions of this rule unless in any particular case some other form of delivery is required by the Regulations or these Rules or an order of the court.

(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 notice or other document.

(4) Unless the contrary is shown—

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

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

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

Notice etc to authorised recipients

164

Where a notice or other document is to be given, delivered or sent to a person under the Regulations or these Rules, it may be given, delivered or sent instead to any other person authorised in writing to accept delivery on behalf of the first-mentioned person.

CHAPTER 3 — The giving of notice and the supply of documents to or by the administrator

Application

165

(1) Subject to paragraphs (2) , (2A) and (3), this Chapter applies where a notice or other document is required to be given, delivered or sent under the Regulations or these Rules.

(2) This Chapter does not apply to the submission of notices or other documents to the registrar of companies.

(2A) Rule 166A does not apply where a notice is required to be given or delivered under the Regulations or these Rules.

(3) Rules 169 to 172 do not apply to the filing of any notice or other document with the court.

The form

166

Subject to any order of the court, any notice or other document required to be given, delivered or sent must be in writing, and where electronic delivery is permitted a notice or other document in electronic form is treated as being in writing if it is capable of being—

(a) read by the recipient in electronic form,

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

Proof of sending

167

(1) Where a notice or other document is required to be given, delivered or sent by the administrator, the giving, delivering or sending of it may be proved by means of a certificate that the notice or other document was duly given, delivered or sent.

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

(3) A certificate under paragraph (1) may be given by any of the following—

(a) the administrator,

(b) the administrator’s solicitor,

(4) Where a notice or other document is required to be given, delivered or sent by a person other than the administrator, the giving, delivering or sending of it may be proved by means of a certificate by that person—

(a) that the notice or document was given, delivered or sent by that person, or

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

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

Authentication

168

(1) A notice, other document or information given, delivered, sent or supplied in hard copy form is sufficiently authenticated if it is signed by the person giving, delivering, sending or supplying it.

(2) A notice, other document or information given, delivered or sent in electronic form is sufficiently authenticated—

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

(b) where no such manner has been specified by the recipient, 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.

(3) If a notice, other document or information 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.

Electronic delivery — general

169

(1) A notice or other document may be given, delivered or sent by electronic means unless in any particular case some other form of delivery is required by the Regulations or these Rules or an order of the court, provided that the intended recipient of the notice or other document has—

(a) given actual consent (whether in the specific case or generally) to electronic delivery and has—

(i) not revoked that consent,

(ii) provided an electronic address for delivery,

(b) given deemed consent in accordance with paragraph (2) (in which case the electronic address for delivery shall be the address used by the institution for communications with the intended recipient before the special administration commenced) and has not revoked that consent.

(2) For the purposes of paragraph (1) an intended recipient is deemed to have consented to the electronic delivery of a notice or other document by the administrator where the intended recipient and the institution had customarily communicated with each other by electronic means before the special administration commenced.

(3) In the absence of evidence to the contrary, a notice or other document is presumed to have been delivered by electronic means where the sender can produce a copy of the electronic communication which—

(a) contains the notice or other document, or to which the notice or other document was attached,

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

(4) Unless the contrary is shown, a document sent electronically is deemed to have been delivered to the recipient at 09.00 hours on the next business day after it was sent.

(5) Paragraph (4) does not apply in respect of notices or other documents sent electronically under Part 2.

Electronic delivery by administrator

170

(1) Where the administrator gives, sends or delivers a notice or other document to any person by electronic means, the notice or document must contain or be accompanied by a statement—

(a) that the recipient may request a hard copy of the notice or document,

(b) specifying a telephone number, email address and postal address which may be used to make that request.

(2) Where a hard copy of the notice or other document is requested, it must be sent free of charge within five business days of receipt of the request by the administrator.

Use of websites by administrator

171

(1) This rule applies for the purposes of section 246B of the IA 1986.

(2) Where the administrator is required to give, deliver or send a notice or other document to any person (other than in a case where personal service is required), the administrator may satisfy that requirement by sending that person a notice which contains—

(a) a statement that the notice or other document is available for viewing and downloading on a website,

(b) the address of that website together with any password necessary to view and download the notice or other document from that site,

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

(3) Where a notice to which this rule applies is sent, the notice or other document to which it relates must—

(a) be available on the website for a period of not less than two months after the end of the special administration or (if later) the release of the last person to hold office as administrator in the special administration,

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

(4) Where a hard copy of the document is requested it must be sent free of charge within five business days of the receipt of the request by the administrator.

(5) Where a document is given, delivered or sent to a person by means of a website in accordance with this rule, it is deemed to have been delivered—

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

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

General use of websites to deliver notices and other documents

172

(1) The administrator may deliver a notice to each person to whom a notice or other document will be required to be given, delivered or sent in the special administration which contains—

(a) a statement that—

(i) future notices or other documents in the special administration other than those mentioned in paragraph (2) will be made available for viewing and downloading on a website without notice to the recipient,

(ii) the administrator will not be obliged to deliver, give or send any such notices or other documents to the recipient of the notice unless it is requested by that person,

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

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

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

(c) a telephone number, email address and postal address which may be used to make a request for a hard copy of a notice or other document, 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 notices or other documents—

(a) a notice or other document for which personal delivery is required,

(b) a notice or other document which is not delivered, given or sent generally.

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

(a) members,

(b) contributories,

(d) customers,

(e) any class of members, contributories, customers or creditors.

(4) An administrator 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 notice or other document to which the notice applies has been made available on the website,

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

(5) An administrator who receives a request under paragraph (1)(b)—

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

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

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

(a) remain available on the website for a period of not less than two months after the end of the special administration or (if later) the release of the last person to hold office as administrator in the special administration,

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

(7) A notice or other 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 that notice or other document was first made available on the website, or

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

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

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