The Insolvency (Scotland) (Receivership and Winding up) Rules 2018

Publication Date:January 01, 2018
 
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2018No. 347

INSOLVENCY

COMPANIES

The Insolvency (Scotland) (Receivership and Winding up) Rules 2018

Made13thNovember2018

Laid before the Scottish Parliament14thNovember2018

Coming into force6thApril2019

The Scottish Ministers make the following Rules in exercise of the powers conferred by section 411(1)(b), (2) and (2A)( 1) of the Insolvency Act 1986 and all other powers enabling them to do so.

The Secretary of State has consented to these Rules in accordance with article 2(2) of the Scotland Act 1998 (Insolvency Functions) Order 2018( 2).

Citation and commencement

1. These Rules may be cited as the Insolvency (Scotland) (Receivership and Winding up) Rules 2018 and come into force on 6th April 2019.

Revocations

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

Extent and application

3.—(1) These Rules extend to Scotland only.

(2) These Rules as they relate to receivership under Part 3 of the Insolvency Act 1986 apply to receivers appointed under section 51 of that Act (Receivers (Scotland)).

(3) These Rules as they relate to winding up under Parts 4 and 5 of the Act apply in relation to companies which the courts in Scotland have jurisdiction to wind up.

Transitional and savings provisions

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

Punishment of offences

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

PART 1

SCOPE, INTERPRETATION, TIME AND RULES ABOUT DOCUMENTS

CHAPTER 1

Scope of these Rules

Scope

1.1.—(1) These Rules are made to give effect in Scotland in relation to receivership and winding up to—

(a) Parts 3 to 7 of the Insolvency Act 1986; and

(b) the EU Regulation.

(2) Consequently references to insolvency proceedings and requirements relating to such proceedings are, unless the context requires otherwise, limited to insolvency proceedings in respect of Parts 3 to 5 of the Act and the EU Regulation (whether or not court proceedings).

CHAPTER 2

Interpretation

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

Defined terms

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

“the Act” means the Insolvency Act 1986, and—

(a) a reference to a numbered section without mention of another Act is to that section of the Act; and

(b) a reference to schedule B1 is to that schedule of the Act;

“Companies Act” means the Companies Act 2006( 3);

“Accountant in Bankruptcy” (or “AiB”) is to be construed in accordance with section 199 of the Bankruptcy (Scotland) Act 2016( 4);

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

“Article 1.2 undertaking” means one of the following within the meaning of Article 1.2 of the EU Regulation—

(a) an insurance undertaking;

(b) a credit institution;

(c) an investment undertaking which provides services involving the holding of funds or securities for third parties;

(d) a collective investment undertaking;

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

“attendance” and “attend”—

a person attends by being present, by attending remotely in accordance with section 246A( 5) or rule 8.6, or by participating in a virtual meeting; and a person may attend a meeting in person, by proxy or by corporate representative (in accordance with section 434B of the Act( 6) or section 323 of the Companies Act, as applicable);

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

“authorised deposit-taker” means a person with permission under Part 4A of the Financial Services and Markets Act 2000( 7) to accept deposits; this definition must be read with—

(a) section 22 of that Act( 8) and any relevant order under that section; and

(b) schedule 2 of that Act;

“blank proxy” is to be interpreted in accordance with rule 9.3;

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

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

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

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

[Note: “contributory” is defined in section 79];

“convener” means an office-holder or other person who seeks a decision in accordance with Part 8 (decision making) of these Rules;

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

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

“CVA and Administration Rules” means the Insolvency (Scotland) (Company Voluntary Arrangement and Administration) Rules 2018( 9);

“decision date” and “decision procedure” are to be interpreted in accordance with rule 8.2;

[Note: “deemed consent procedure” is defined in section 246ZF( 10) (also see rule 8.7)];

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

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

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

[Note: “EU Regulation” is defined in section 436 as “Regulation (EU) 2015/848 of the European Parliament and the Council of 20 May 2015 on insolvency proceedings( 11)”];

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

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

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

[Note: “hire-purchase agreement” is defined by section 436(1) as having the same meaning as in the Consumer Credit Act 1974( 12)];

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

“insolvent estate” means the company's assets;

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

“local creditor” has the same meaning as in Article 2(11) of the EU Regulation;

“main proceedings” means proceedings opened in accordance with Article 3(1) of the EU Regulation and falling within the definition of insolvency proceedings in Article 2(4) of the EU Regulation and which—

(a) in relation to Scotland, are set out in Annex A to that Regulation under the heading “United Kingdom”; and

(b) in relation to another member State, are set out in Annex A under the heading relating to that member State( 13);

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

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

“nominated person” means a person who has been required under section 66 or 131 to make out and submit a statement as to the affairs of a company in receivership or being wound up by the court;

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

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

“the official rate”, in relation to interest, is defined in section 251( 14);

“petitioner” includes a person who has been substituted as such;

“physical meeting” has the meaning given by rule 8.2;

“prescribed part” has the same meaning as in section 176A(2)(a)( 15) and the Insolvency Act 1986 (Prescribed Part) Order 2003( 16);

“progress report” means a report which complies with Chapter 1 of Part 7 (reporting, accounts, remuneration, claims and distributions);

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

“proxy” and “proxy-holder” are to be interpreted in accordance with rule 9.2;

“qualified to act as an insolvency practitioner”, in relation to a company, is to be interpreted in accordance with Part 13 of the Act( 17);

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

“secondary proceedings” means proceedings opened in accordance with Article 3(2) and (3) of the EU Regulation and falling within the definition of insolvency proceedings in Article 2(4) of the EU Regulation and which—

(a) in relation to Scotland, are set out in Annex A to that Regulation under the heading “United Kingdom”; and

(b) in relation to another member State, are set out in Annex A under the heading relating to that member State( 18);

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

“standard contents” means—

(a) for a Gazette notice, the standard contents set out in Chapter 5 of Part 1;

(b) for a notice to be advertised other than in the Gazette, the standard contents set out in Chapter 6 of Part 1;

(c) for a document to be delivered to—

(i) the registrar of companies;

(ii) AiB;

the standard contents set out in Chapter 7 of Part 1;

(d) for notices to be delivered to other persons, the standard contents set out in Chapter 8 of Part 1;

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

“statement of claim” is to be interpreted in accordance with rule 7.16;

“temporary administrator” means a temporary administrator referred to in Article 52 of the EU Regulation;

“territorial proceedings” means proceedings opened in accordance with Article 3(2) and (4) of the EU Regulation which fall within the definition of insolvency proceedings in Article 2(4) of the EU Regulation and—

(a) in relation to Scotland, are set out in Annex A to that Regulation under the heading “United Kingdom”; and

(b) in relation to another member State, are set out in Annex A...

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