The Energy Administration Rules 2005
| Jurisdiction | UK Non-devolved |
| Citation | SI 2005/2483 |
| Year | 2005 |
2005 No. 2483
INSOLVENCY, ENGLAND AND WALES
COMPANIES
The Energy Administration Rules 2005
Made 2nd September 2005
Laid before Parliament 7th September 2005
Coming into force 1st October 2005
The Lord Chancellor, in the exercise of the powers conferred on him by section 411 of the Insolvency Act 19861and section 159(3) of the Energy Act 20042, with the concurrence of the Secretary of State, and after consulting the committee existing for that purpose under section 413 of the Insolvency Act 1986, hereby makes the following Rules:—
PART 1
INTRODUCTORY PROVISIONS
Citation and commencement
1. These Rules may be cited as the Energy Administration Rules 2005 and shall come into force on 1st October 2005.
Construction and interpretation
2.—(1) In these Rules—
“the 1986 Act” means the Insolvency Act 1986;
“the 2004 Act” means the Energy Act 2004;
“administrative receiver” has the same meaning as in section 156(4) of the 2004 Act;
“the Companies Act” means the Companies Act 19853;
“CPR” means the Civil Procedure Rules 19984and “CPR” followed by a Part or rule number means the Part or rule with that number in those Rules;
“enforcement officer” means an individual who is authorised to act as an enforcement officer under the Courts Act 20035;
“GEMA” means the Gas and Electricity Markets Authority;
“insolvency proceedings” has the same meaning as in Rule 13.7 of the Insolvency Rules;
“the Insolvency Rules” means the Insolvency Rules 19866;
“qualifying floating charge” has the same meaning as in paragraph 14(2) of Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act;
“the Rules” means the Energy Administration Rules 2005.
(2) References in the Rules toex parte hearings shall be construed as references to hearings without notice being served on any other party; references to applications made ex parte as references to applications made without notice being served on any other party and other references which include the expression “ex parte” shall be similarly construed.
(3) References to provisions of Schedule B1 to the 1986 Act are references to those provisions as modified and applied by Schedule 20 to the 2004 Act unless otherwise stated.
(4) References to other provisions of the 1986 Act are, where those provisions have been modified by Schedule 20 to the 2004 Act, references to those provisions as so modified.
(5) Where the protected energy company is a non-GB company within the meaning of section 171 of the 2004 Act, references in the Rules to the affairs, business and property of the company are references only to its affairs and business so far as carried on in Great Britain and to its property in Great Britain unless otherwise stated.
(6) Where the protected energy company is an unregistered company, any requirement to send information to the registrar of companies applies only if the company is subject to a requirement imposed by virtue of section 691(1)7or 7188of the Companies Act.
(7) Subject to paragraphs (1), (2), (3), (4), (5) and (6), Part 15 of the Rules has effect for their interpretation and application.
Extent
3. The Rules apply in relation to protected energy companies which the courts in England and Wales have jurisdiction to wind up.
PART 2
APPOINTMENT OF ENERGY ADMINISTRATOR BY COURT
Affidavit in support of energy administration application
4. Where it is proposed to apply to the court for an energy administration order to be made in relation to a protected energy company, the energy administration application shall be in Form EA1 and an affidavit complying with Rule 6 must be prepared and sworn, with a view to its being filed with the court in support of the application.
Form of application
5.—(1) The application shall state by whom it is made and the applicant’s address for service.
(2) Where it is made by GEMA, the application shall contain a statement that it is made with the consent of the Secretary of State.
(3) There shall be attached to the application a written statement which shall be in Form EA2 by each of the persons proposed to be energy administrator stating—
(a)
(a) that he consents to accept the appointment; and
(b)
(b) details of any prior professional relationship(s) that he has had with the protected energy company to which he is to be appointed as energy administrator.
Contents of application and affidavit in support
6.—(1) The energy administration application shall state that the company is a protected energy company.
(2) The application shall state one or both of the following—
(a)
(a) the applicant’s belief that the protected energy company is, or is likely to be, unable to pay its debts;
(b)
(b) the Secretary of State has certified that it would be appropriate for him to petition for the winding up of the protected energy company under section 124A of the 1986 Act9(petition for winding up on grounds of public interest).
(3) There shall be attached to the application an affidavit in support which shall contain—
(a)
(a) a statement of the protected energy company’s financial position, specifying (to the best of the applicant’s knowledge and belief) the company’s assets and liabilities, including contingent and prospective liabilities;
(b)
(b) details of any security known or believed to be held by the creditors of the protected energy company and whether in any case the security is such as to confer power on the holder to appoint an administrative receiver or to appoint an administrator under paragraph 14 of Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act. If an administrative receiver has been appointed, that fact shall be stated;
(c)
(c) details of any insolvency proceedings in relation to the protected energy company including any petition that has been presented for the winding up of the protected energy company so far as within the immediate knowledge of the applicant;
(d)
(d) details of any notice served in accordance with section 164 of the 2004 Act by any person intending to enforce any security over the protected energy company’s assets, so far as within the immediate knowledge of the applicant;
(e)
(e) details of any step taken to enforce any such security, so far as within the immediate knowledge of the applicant;
(f)
(f) details of any application for leave of the court to pass a resolution for the voluntary winding up of the protected energy company, so far as within the immediate knowledge of the applicant;
(g)
(g) where it is intended to appoint a number of persons as energy administrators, details of the matters set out in section 158(5) of the 2004 Act regarding the exercise of the powers and duties of the energy administrator;
(h)
(h) any other matters which, in the opinion of those intending to make the application for an energy administration order, will assist the court in deciding whether to make such an order, so far as lying within the knowledge or belief of the applicant.
Filing of application
7.—(1) The application (and all supporting documents) shall be filed with the court, with a sufficient number of copies for service and use as provided by Rule 8.
(2) Each of the copies filed shall have applied to it the seal of the court and be issued to the applicant; and on each copy there shall be endorsed the date and time of filing.
(3) The court shall fix a venue for the hearing of the application and this also shall be endorsed on each copy of the application issued under paragraph (2).
(4) After the application is filed, it is the duty of the applicant to notify the court in writing of the existence of any insolvency proceedings, in relation to the protected energy company, as soon as the applicant becomes aware of them.
Service of application
8.—(1) In the following paragraphs of this Rule, references to the application are to a copy of the application issued by the court under Rule 7(2) together with the affidavit in support of it and the documents attached to the application.
(2) Notification for the purposes of section 156(2) of the 2004 Act shall be by way of service in accordance with Rule 10, verified in accordance with Rule 11.
(3) The application shall be served in addition to those persons referred to in section 156(2) of the 2004 Act—
(a)
(a) if an administrative receiver has been appointed, on him;
(b)
(b) if there is pending an administration application under Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act, on the applicant;
(c)
(c) if there is pending a petition for the winding-up of the protected energy company, on the petitioner (and also on the provisional liquidator, if any);
(d)
(d) on any creditor who has served notice in accordance with section 164 of the 2004 Act of his intention to enforce his security over property of the protected energy company;
(e)
(e) on the person proposed as energy administrator;
(f)
(f) on the protected energy company;
(g)
(g) if the applicant is the Secretary of State, on GEMA;
(h)
(h) if the applicant is GEMA, on the Secretary of State;
(i)
(i) if a supervisor of a voluntary arrangement under Part I of the 1986 Act has been appointed, on him.
Notice to officers charged with execution of writs or other process, etc
9. The applicant shall as soon as reasonably practicable after filing the application give notice of its being made to—
(a) any enforcement officer or other officer who to the applicant’s knowledge is charged with an execution or other legal process against the protected energy company or its property; and
(b) any person who to the applicant’s knowledge...
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