Made | 13th March 2006 | ||
Laid before Parliament | 15th March 2006 | ||
Coming into force | 6th April 2006 |
1. | Citation and commencement |
2. | Construction and interpretation |
3. | Application |
4. | Form of application |
5. | Service of petition |
6. | Expenses |
7. | Notice of dismissal of application for an energy administration order |
8. | Notification and advertisement of energy administrator's appointment |
9. | Notice requiring statement of affairs |
10. | Statements of affairs and statements of concurrence |
11. | Limited disclosure |
12. | Release from duty to submit statement of affairs; extension of time |
13. | Expenses of statement of affairs |
14. | Energy administrator's proposals |
15. | Meetings generally and notice |
16. | Adjournment |
17. | The chairman at meetings |
18. | Quorum at meeting of creditors |
19. | Chairman of meeting as proxy holder |
20. | Meeting following nomination of alternative liquidator |
21. | Entitlement to vote (creditors and members) |
22. | Hire-purchase, conditional sale and hiring agreements |
23. | Disposal of secured property |
24. | Resolutions |
25. | Report of Meeting |
26. | Revision of the energy administrator's proposals |
27. | Reports to creditors |
28. | Submission of claims |
29. | Secured debts |
30. | Entitlement to vote and draw dividend |
31. | Adjudication of claims |
32. | Evidence in relation to claims |
33. | Criminal offences in relation to false claims or evidence |
34. | Amount which may be claimed generally |
35. | Debts depending on contingency |
36. | Liabilities and rights of co-obligants |
37. | Claims in foreign currency |
38. | Application of Part and general |
39. | Order of priority in distribution |
40. | Expenses of the energy administration |
41. | Assets to be distributed |
42. | Procedure after accounting period |
43. | Unclaimed Dividends |
44. | Final progress reports |
45. | Application to court |
46. | Notification by energy administrator of court order |
47. | Moving from energy administration to creditors' voluntary liquidation |
48. | Moving from energy administration to dissolution |
49. | Provision of information to the Secretary of State |
50. | Grounds for resignation |
51. | Notice of intention to resign |
52. | Notice of resignation |
53. | Application to court to remove energy administrator from office |
54. | Incapacity to act, through death or otherwise |
55. | Application to replace |
56. | Joint or concurrent appointments |
57. | Notification and advertisement of appointment of replacement energy administrator |
58. | Hand-over of assets to successor energy administrator |
59. | Application under section 176A(5) of the 1986 Act to disapply section 176A of the 1986 Act |
60. | Notice of order under section 176A(5) of the 1986 Act |
61. | Definition of "proxy" |
62. | Form of proxy |
63. | Use of proxy at meeting |
64. | Retention of proxies |
65. | Right of inspection |
66. | Proxy-holder with financial interest |
67. | Representation of corporations |
68. | Giving of notices, etc. |
69. | Sending by post |
70. | Certificate of giving notice, etc. |
71. | Validity of proceedings |
72. | Evidence of proceedings at meetings |
73. | Right to list of creditors and copy documents |
74. | Confidentiality of documents |
75. | Energy administrator's caution |
76. | Punishment of offences |
77. | Forms for use in energy administration proceedings |
78. | Fees, expenses, etc. |
79. | Power of court to cure defects in procedure |
80. | Sederunt book |
81. | Disposal of protected energy company's books, papers and other records |
82. | Information about time spent on a case |
SCHEDULE — | Forms |
(2) 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.
(3) 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.
(4) Where the protected energy company is a non GB company within the meaning of section 171 of the 2004 Act, references in these 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.
(5) 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)[5] or 718[6] of the Companies Act.
Application
3.
The Rules apply in relation to protected energy companies which the courts in Scotland have jurisdiction to wind up.
(3) Where an application is made by GEMA, it shall also state that it is made with the consent of the Secretary of State.
Service of petition
5.
—(1) In addition to those persons referred to in section 156(2)(a) to (c) of the 2004 Act, notice of a petition shall be given by the petitioner in Form EA2(S) to–
(2) Notice of the petition shall also be given to the persons upon whom the court orders that the petition be served.
Expenses
6.
If the court makes an energy administration order, the expenses of the petitioner, and of any other party whose expenses are allowed by the court, shall be regarded as expenses of the energy administration.
Notice of dismissal of application for an energy administration order
7.
If the court dismisses the petition the petitioner shall as soon as reasonably practicable send notice of the court's order dismissing the petition to all those to whom the petition was notified under Rule 5 in Form EA3(S).
(3) Where, under a provision of Schedule B1 to the 1986 Act or these Rules, the energy administrator is required to send a notice of his appointment to any person, he shall do so in Form EA5(S).
Notice requiring statement of affairs
9.
—(1) In this Part "relevant person" has the meaning given to it in paragraph 47(3) of Schedule B1 to the 1986 Act.
(2) The energy administrator shall send a notice in Form EA6(S) to each relevant person whom he determines appropriate requiring him to prepare and submit a statement of the protected energy company's affairs.
(3) The notice shall inform each of the relevant persons–
(4) The energy administrator shall furnish each relevant person upon whom he has sent notice in Form EA6(S) with the forms required for the preparation of the statement of affairs.
Statements of affairs and statements of concurrence
10.
—(1) The statement of the protected energy company's affairs shall be in Form EA7(S), contain all the particulars required by that form and shall be a statutory declaration.
(2) Where more than one relevant person is required to submit a statement of affairs the energy administrator may require one or more such persons to submit, in place of a statement of affairs, a statement of concurrence in Form EA8(S); and where the energy administrator does so, he shall inform the person making the statement of affairs of that fact.
(3) The person making the statutory declaration in support of a statement of affairs shall send the statement, together with one copy thereof, to the energy administrator, and a copy of the statement to each of those persons whom the energy administrator has required to submit a statement of concurrence.
(4) A person required to submit a statement of concurrence shall deliver to the energy administrator the statement of concurrence, together with one copy thereof, before the end of the period of 5 business days (or such other period as the energy administrator may agree) beginning with the day on which the statement of affairs being concurred with is received by him.
(5) A statement of concurrence may be qualified in respect of matters dealt with in the statement of affairs, where the maker of the statement of concurrence is not in agreement with the statement of affairs, he considers that statement to be erroneous or misleading, or he is without the direct knowledge necessary for concurring with it.
(6) A statement of concurrence shall be a statutory declaration.
(7) Subject to Rule 11, the energy administrator shall–
Limited disclosure
11.
—(1) Where the energy administrator thinks that it would prejudice the conduct of the energy administration for the whole or part of the statement of the protected energy company's affairs to be disclosed, he may apply to the court for an order of limited disclosure in respect of the statement, or any specified part of it.
(2) The court may order that the statement or, as the case may be, the specified part of it, shall not be filed with the registrar of companies or entered in the sederunt book.
(3) The energy administrator shall as soon as reasonably practicable file a copy of that order with the registrar of companies, and shall place a copy of the order in the sederunt book.
(4) If a creditor seeks disclosure of the statement of affairs or a specified part of it in relation to which an order has been made under this Rule, he may apply to the court for an order that the energy administrator disclose it or a specified part of it.
(5) The court may attach to an order for disclosure any conditions as to confidentiality, duration and scope of the order in any material change of circumstances, and other matters as it sees fit.
(6) If there is a material change in circumstances rendering the limit on disclosure unnecessary, the energy administrator shall, as soon as reasonably practicable after the change, apply to the court for the order to be discharged or varied; and upon the discharge or variation of the order the energy administrator shall, as soon as reasonably practicable–
Release from duty to submit statement of affairs; extension of time
12.
—(1) The power of the energy administrator under paragraph 48(2) of Schedule B1 to the 1986 Act to revoke a requirement under paragraph 47(1) of Schedule B1 to the 1986 Act, or to grant an extension of time, may be exercised at the energy administrator's own instance, or at the request of any relevant person.
(2) A relevant person whose request under this Rule has been refused by the energy administrator may apply to the court for a release or extension of time.
(3) An applicant under this Rule shall bear his own expenses in the application and, unless the court otherwise orders, no allowance towards such expenses shall be made out of the assets of the protected energy company.
Expenses of statement of affairs
13.
—(1) A relevant person who provides to the energy administrator a statement of the protected energy company's affairs or statement of concurrence shall be allowed, and paid by the energy administrator out of his receipts, any expenses incurred by the relevant person in so doing which the energy administrator considers reasonable.
(2) Any decision by the energy administrator under this Rule is subject to appeal to the court.
(3) Nothing in this Rule relieves a relevant person from any obligation to provide a statement of affairs or statement of concurrence, or to provide information to the energy administrator.
Energy administrator's proposals
14.
—(1) The statement required to be made by the energy administrator under paragraph 49 of Schedule B1 to the 1986 Act shall include, in addition to the matters set out in that paragraph–
(h) if a full statement of affairs is not provided, the names and addresses of the creditors, and details of the debts owed to, and security held by, each of them;
(i) if no statement of affairs has been submitted–
(j) except where the energy administrator proposes a voluntary arrangement in relation to the protected energy company–
provided that such estimates shall not be required to include any information the disclosure of which could seriously prejudice the commercial interests of the protected energy company, but if such information is excluded the estimates shall be accompanied by a statement to that effect; and
(ii) whether and, if so, why the energy administrator proposes to make an application to the court under section 176A(5) of the 1986 Act;
(k) how it is envisaged the objective of the energy administration will be achieved and how it is proposed that the energy administration shall end;
(l) where a creditors' voluntary liquidation is proposed–
(m) where it is proposed to make distributions to creditors in accordance with Part 6, the classes of creditors to whom it is proposed that distributions be made and whether or not the energy administrator intends to make an application to the court under paragraph 65(3) of Schedule B1 to the 1986 Act;
(n) the manner in which the affairs and business of the protected energy company–
(o) such other information (if any) as the energy administrator thinks necessary.
(2) A copy of the energy administrator's statement of his proposals shall be sent to the registrar of companies together with a notice in Form EA10(S).
(3) Where the court orders, upon an application by the energy administrator under paragraph 107 of the Schedule B1 to the 1986 Act, an extension of the period of time in paragraph 49(5) of Schedule B1 to the 1986 Act, the energy administrator shall notify in Form EA11(S) all the persons set out in paragraph 49(4) of Schedule B1 to the 1986 Act as soon as reasonably practicable after the making of the order.
(4) Where the energy administrator wishes to publish a notice under paragraph 49(6) of Schedule B1 to the 1986 Act he shall publish the notice once in the Edinburgh Gazette and once in the newspaper in which the energy administrator's appointment was advertised. The notice shall–
(5) This notice must be published as soon as reasonably practicable after the energy administrator sends his statement of proposals to the protected energy company's creditors and in any case no later than 8 weeks (or such other period as may be ordered by the court) from the date that the protected energy company entered energy administration.
(7) With the notice given under paragraph (1), the energy administrator shall also send out a proxy form.
(8) In the case of any meeting of creditors, the court may order that notice of the meeting be given by public advertisement in such form as may be specified in the order and not by individual notice to the persons concerned. In considering whether to make such an order, the court shall have regard to the cost of the public advertisement, to the amount of the assets available and to the extent of the interest of creditors or any particular class of them.
Adjournment
16.
—(1) This Rule applies to meetings of creditors.
(2) If, within a period of 30 minutes from the time appointed for the commencement of a meeting, a quorum is not present, then, unless the chairman otherwise decides, the meeting shall be adjourned to the same time and place in the following week or, if that is not a business day, to the business day immediately following.
(3) In the course of any meeting, the chairman may, in his discretion, and shall, if the meeting so resolves, adjourn it to such venue as seems to him to be appropriate in the circumstances.
(4) An adjournment under paragraph (2) or (3) shall not be for a period of more than 21 days and notice of the adjourned meeting may be given by the chairman.
(5) Where a meeting is adjourned, any proxies given for the original meeting may be used at the adjourned meeting.
The chairman at meetings
17.
—(1) At any meeting of creditors summoned by the energy administrator, either he shall be chairman, or a person nominated by him in writing to act in his place.
(2) A person so nominated must be either–
Quorum at meeting of creditors
18.
—(1) Any meeting of creditors in energy administration proceedings is competent to act if a quorum is present.
(2) Subject to paragraph (3), a quorum is at least one creditor entitled to vote.
(3) For the purposes of this Rule, the reference to the creditor necessary to constitute a quorum is to those persons present or represented by proxy by any person (including the chairman) and includes persons duly represented under section 375 of the Companies Act.
(4) Where at any meeting of creditors–
(b) the chairman is aware, by virtue of claims and proxies received or otherwise, that one or more additional persons would, if attending, be entitled to vote,
the meeting shall not commence until at least the expiry of 15 minutes after the time appointed for its commencement.
Chairman of meeting as proxy holder
19.
Where the chairman at a meeting of creditors holds a proxy which requires him to vote for a particular resolution and no other person proposes that resolution–
Meeting following nomination of alternative liquidator
20.
—(1) Where under Rules 14(1)(k), (1)(l) or 26(2)(h), the energy administrator has proposed that the protected energy company enter creditors' voluntary liquidation once the energy administration has ended, the energy administrator shall, in the circumstances detailed in paragraph (2), summon a meeting of creditors for the purpose of nominating a person other than the person named as proposed liquidator in the energy administrator's proposals or revised proposals.
(2) The energy administrator shall summon a meeting of creditors where such a meeting is requested by creditors of the protected energy company whose debts amount to at least 25 per cent of the total debts of the protected energy company.
(3) A request for such a meeting shall be made within 21 days of the date on which the energy administrator's statement of proposals is sent out, or where revised proposals have been sent out and a proposed revision relates to the ending of the energy administration by a creditors' voluntary liquidation, within 21 days from the date on which the revised statement of proposals is sent out.
(4) A request under this Rule shall include–
but sub-paragraph (a) does not apply if the requesting creditor's debt is alone sufficient without the concurrence of other creditors.
(5) A meeting requested under this Rule shall be held within 21 days of the energy administrator's receipt of the notice requesting the meeting.
Entitlement to vote (creditors and members)
21.
—(1) Except Rule 29(2) and (3), Part 5 (claims in energy administration) applies for the purpose of determining a creditor's entitlement to vote at any creditors' meeting in an energy administration.
(2) Members of a protected energy company at their meetings shall vote according to their rights attaching to their shares in accordance with the articles of association.
(3) The reference in paragraph (2) to a member's share shall include any other interests which he may have as a member of the protected energy company.
Hire-purchase, conditional sale and hiring agreements
22.
—(1) Subject as follows, an owner of goods under a hire-purchase agreement or under an agreement for the hire of goods for more than 3 months, or a seller of goods under a conditional sale agreement, is entitled to vote in respect of the amount of the debt due and payable to him by the protected energy company on the date that the protected energy company entered energy administration.
(2) In calculating the amount of any debt for this purpose, no account shall be taken of any amount attributable to the exercise of any right under the relevant agreement, so far as the right has become exercisable solely by virtue of the making of an energy administration application or any matter arising as a consequence, or of the protected energy company entering energy administration.
Disposal of secured property
23.
—(1) The following applies where the energy administrator applies to the court under paragraphs 71 or 72 of Schedule B1 to the 1986 Act for authority to dispose of property of the protected energy company which is subject to a security (other than a floating charge), or goods in the possession of the protected energy company under a hire purchase agreement.
(2) If an order is made under paragraphs 71 or 72 of Schedule B1 to the 1986 Act, the energy administrator shall as soon as reasonably practicable send a copy of it certified by the clerk of court to the person who is the holder of the security or owner under the agreement.
(3) The energy administrator shall send to the registrar of companies a copy of the order, certified by the clerk of court, together with Form EA12(S), and shall place a copy of the order in the sederunt book.
Resolutions
24.
—(1) Subject to paragraph (2) and (3), at a creditors' or members' meeting in energy administration proceedings, a resolution is passed when a majority (in value) of those present and voting, in person or by proxy, have voted in favour of it.
(2) Any resolution is invalid if those voting against it include more than half in value of the creditors to whom notice of the meeting was sent and who are not, to the best of the chairman's belief, persons connected with the protected energy company.
(3) In this Rule, "connected with the protected energy company" has the same meaning as the phrase "connected with a company" in section 249 of the 1986 Act.
Report of Meeting
25.
—(1) The chairman of the meeting shall cause a report to be made of the proceedings at the meeting which shall be signed by him.
(2) The report shall include–
(3) The chairman shall keep a copy of the report of the meeting as part of the sederunt book in the energy administration.
Revision of the energy administrator's proposals
26.
—(1) Where the energy administrator revises his proposals under paragraph 54 of Schedule B1 to the 1986 Act, he shall send a statement of the revised proposals in Form EA13(S) as soon as reasonably practicable to all those to whom he is required to do so.
(2) The statement of revised proposals shall include–
(i) any other information that the energy administrator thinks necessary to enable creditors to decide whether or not to vote for the proposed revisions.
(3) Subject to paragraph 54(4) of Schedule B1 to the 1986 Act, within 5 days of sending out the statement in paragraph (1) above, the energy administrator shall send a copy of the statement to every member of the protected energy company.
(4) A notice under paragraph 54(4) of Schedule B1 to the 1986 Act shall be published once in the Edinburgh Gazette and once in the newspaper in which the energy administrator's appointment was advertised, and shall–
Reports to creditors
27.
—(1) The energy administrator shall–
send to the court, the registrar of companies, each creditor, the Secretary of State and GEMA, a progress report attached to Form EA14(S).
(2) For the purposes of this Part, "accounting period", in relation to an energy administration, shall be construed in accordance with Rule 41.
(3) For the purposes of this Part, "progress report" means a report which includes–
(4) For the purposes of paragraph (3)(d), the account shall be in the form of an abstract showing–
(5) In a receipts and payments account falling within paragraph (4)(b), the energy administrator shall include a statement as to the amount paid to unsecured creditors by virtue of the application of section 176A of the 1986 Act (prescribed part).
(6) The court may, on the application of the energy administrator, extend the period of six weeks referred to in paragraph (1) of this Rule.
(7) If the energy administrator makes default in complying with this Rule without reasonable excuse, he shall be guilty of an offence.
(8) An energy administrator convicted of an offence under paragraph (7) shall be liable–
(9) This Rule is without prejudice to the requirements of Part 6 (distribution to creditors).
(2) A creditor shall submit his claim by producing to the energy administrator–
but the energy administrator may dispense with any requirement of this paragraph in respect of any debt or any class of debt.
(3) A claim submitted by a creditor, which has been accepted in whole or in part by the energy administrator for the purpose of voting at a meeting or of drawing a dividend in respect of any accounting period, shall be deemed to have been resubmitted for the purpose of obtaining an adjudication as to his entitlement both to vote at any subsequent meeting and (so far as funds are available) to a dividend in respect of an accounting period or, as the case may be, any subsequent accounting period.
(4) A creditor, who has submitted a claim, may at any time submit a further claim specifying a different amount for his claim;
Provided that a secured creditor shall not be entitled to produce a further claim specifying a different value for the security at any time after the energy administrator has required the creditor to discharge, or convey or assign, the security under Rule 29(2).
Secured debts
29.
—(1) In calculating the amount of his claim, a secured creditor shall deduct the value of any security as estimated by him;
Provided that if he surrenders, or undertakes in writing to surrender, a security for the benefit of the protected energy company's assets, he shall not be required to make a deduction of the value of that security.
(2) The energy administrator may, at any time after the expiry of 12 weeks from the date on which the protected energy company enters energy administration, require a secured creditor to discharge the security or convey or assign it to the energy administrator on payment to the creditor of the value specified by the creditor (the expense of such discharge, conveyance or assignation being met from the assets of the protected energy company); and the amount in respect of which the creditor shall then be entitled to claim shall be any balance of his debt remaining after receipt of such payment.
(3) In calculating the amount of his claim, a creditor whose security has been realised shall deduct the amount (less the expenses of realisation) which he has received, or is entitled to receive, from the realisation.
Entitlement to vote and draw dividend
30.
—(1) A creditor who has had his claim accepted in whole or in part by the energy administrator or on appeal under paragraph (5) of Rule 31 shall be entitled–
(2) Votes are calculated according to the amount of a creditor's debt as at the date on which the protected energy company entered energy administration, deducting any amount paid in respect of that debt after that date.
(3) No vote shall be cast by virtue of a debt more than once on any resolution put to the meeting.
(4) Any reference in this Rule and Rules 28 to 36 to the energy administrator includes, where applicable, a reference to the chairman of the meeting.
Adjudication of claims
31.
—(1) At the commencement of every meeting of creditors, the energy administrator shall, for the purposes of Rule 30 so far as it relates to voting at that meeting, accept or reject the claim of each creditor.
(2) Where funds are available for payment of a dividend out of the assets of the protected energy company in respect of an accounting period, the energy administrator for the purpose of determining who is entitled to such a dividend shall, not later than 4 weeks before the end of the period, accept or reject every claim submitted or deemed to have been re-submitted to him under these Rules; and shall at the same time make a decision on any matter requiring to be specified under sub-paragraph (a) or (b) of paragraph (4).
(3) Where the energy administrator rejects a claim, he shall forthwith notify the creditor giving reasons for the rejection.
(4) Where the energy administrator accepts or rejects a claim, he shall record in the sederunt book his decision on the claim specifying–
(5) Any member or 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 specified under paragraph (4)(a) or (b) above), appeal therefrom to the court–
and the energy administrator shall record the court's decision in the sederunt book.
(6) Any reference in this Rule to the acceptance or rejection of a claim shall be construed as a reference to the acceptance or rejection of the claim in whole or in part.
Evidence in relation to claims
32.
—(1) The energy administrator, for the purpose of satisfying himself as to the validity or amount of a claim submitted by a creditor may require–
and, if the creditor or other person refuses or delays to do so, the energy administrator may apply to the court for an order requiring the creditor or other person to attend for his private examination before the court.
(2) On an application being made in accordance with paragraph (1), 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 8 days nor later than 16 days after the date of the order) and at a time specified in the order.
(3) A person who fails without reasonable excuse to comply with an order made under paragraph (2) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale or to imprisonment for a term not exceeding three months or to both.
(4) The examination shall be taken on oath.
(5) At any private examination, a solicitor or counsel may act on behalf of the energy administrator or he may appear himself.
Criminal offences in relation to false claims or evidence
33.
—(1) If a creditor produces under Rule 28 a statement of claim, account, voucher or other evidence which is false, the creditor shall be guilty of an offence unless he shows that he neither knew nor had reason to believe that the statement of claim, account, voucher or other evidence was false.
(2) A person convicted of an offence under paragraph (1) shall be liable–
(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding two years or to both.
Amount which may be claimed generally
34.
—(1) Subject to Rules 29 and 35, the amount in respect of which a creditor shall be entitled to claim shall be the accumulated sum of principal and any interest which is due on the debt as at the date upon which the protected energy company entered energy administration.
(2) If a debt does not depend on a contingency but would not be payable but for the energy administration until after the date upon which the protected energy company entered energy administration, the amount of the claim shall be calculated as if the debt were payable on the date when the protected energy company entered energy administration but subject to the deduction of interest at the rate specified in section 17 of the Judgments Act 1838[8] on the date when the protected energy company entered energy administration from the said date until the date for payment of the debt.
(3) In calculating the amount of his claim, a creditor shall deduct any discount (other than any discount for payment in cash) which is allowable by contract or course of dealing between the creditor and the protected energy company or by the usage of trade.
Debts depending on contingency
35.
—(1) Subject to paragraph (2), the amount which a creditor shall be entitled to claim shall not include a debt in so far as its existence or amount depends upon a contingency.
(2) On an application by the creditor to the energy administrator, the energy administrator shall put a value on the debt in so far as it is contingent, and the amount in respect of which the creditor shall then be entitled to claim shall be that value but no more; and, where the contingent debt is an annuity, a cautioner may not then be sued for more than that value.
Liabilities and rights of co-obligants
36.
—(1) Where a creditor has an obligant (in this Rule referred to as the "co-obligant") bound to him along with the protected energy company for the whole or part of the debt, the co-obligant shall not be freed or discharged from his liability for the debt by reason of the dissolution of the protected energy company or by virtue of the creditor's voting or drawing a dividend.
(2) Where–
the co-obligant shall account to the energy administrator so as to put the protected energy company in the same position as if the co-obligant had paid the debt to the creditor and thereafter had had his claim accepted in whole or in part in the energy administration after deduction of the value of the security.
(3) Without prejudice to any right under any rule of law of a co-obligant who has paid the debt, the co-obligant may require and obtain at his own expense from the creditor an assignation of the debt on payment of the amount thereof, and thereafter may in respect of that debt submit a claim, and vote and draw a dividend, if otherwise legally entitled to do so.
(4) In this Rule a "co-obligant" includes a cautioner.
Claims in foreign currency
37.
—(1) A creditor may state the amount of his claim in currency other than sterling where–
(2) Where a claim is stated in currency other than sterling for the purposes of the preceding paragraph, it shall be converted into sterling at the official exchange rate prevailing on the date when the protected energy company entered energy administration.
between the said date on which the protected energy company entered energy administration and the date of payment of the debt; and
(e) any postponed debt.
(2) In the above paragraph–
(3) The expenses of the energy administration mentioned in sub-paragraph (a) of paragraph (1) above are payable in the order of priority mentioned in Rule 40.
(4) Subject to the provisions of paragraph (5), any debt falling within any of sub-paragraphs (b) to (e) of paragraph (1) shall have the same priority as any other debt falling within the same sub paragraph and, where the funds of the protected energy company's assets are inadequate to enable the debts mentioned in this paragraph to be paid in full, they shall abate in equal proportions.
(5) So far as the assets of the protected energy company available for payment of general creditors are insufficient to meet them, preferential debts have priority over the claims of holders of debentures secured by, or holders of, any floating charge created by the protected energy company, and shall be paid accordingly out of any property comprised in or subject to that charge.
(6) Any surplus remaining, after all expenses and debts mentioned in paragraph (1) have been paid in full, shall (unless the articles of the protected energy company otherwise provide) be distributed among the members according to their rights and interests in the company.
(7) Nothing in this Rule shall affect–
Expenses of the energy administration
40.
—(1) The expenses of the energy administration are payable out of the assets in the following order of priority—
(2) Nothing in this Rule applies to or affects the power of any court in proceedings by or against the protected energy company, to order expenses to be paid by the protected energy company or the energy administrator, nor does it affect the rights of any person to whom such expenses are ordered to be paid.
(3) The priorities laid down by paragraph (1) of this Rule are subject to the power of the court to make orders under paragraph (4) of this Rule where the assets are insufficient to satisfy the liabilities.
(4) The court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the assets of the expense incurred in the energy administration in such order of priority as the court thinks just.
Assets to be distributed
41.
—(1) The energy administrator shall make up accounts of his intromissions with the protected energy company's assets in respect of each accounting period.
(2) In this Rule "accounting period" shall be construed as follows–
(3) A determination in paragraph (2)(b)–
and shall be recorded in the sederunt book by the energy administrator.
(4) Subject to the following paragraphs, the energy administrator may, if the funds of the protected energy company are sufficient and after making allowance for future contingencies, pay under Rule 42(7) a dividend out of the assets of the protected energy company to the creditors in respect of each accounting period.
(5) The energy administrator may make a distribution to secured or preferential creditors or, where he has the permission of the court, to unsecured creditors only if–
(6) The energy administrator may pay–
(7) If the energy administrator–
he may postpone such payment to a date not later than the time for payment of a dividend in respect of the next accounting period.
(8) Where an appeal is taken under Rule 31(5) against the acceptance or rejection of a creditor's claim, the energy administrator shall, 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.
(9) Where a creditor–
the energy administrator shall set aside, for such time as is reasonable to enable him to produce that evidence or any other evidence that will enable the energy administrator to be satisfied under that Rule, an amount which would be sufficient, if the claim were accepted in full, to pay a dividend in respect of that claim.
(10) Where a creditor submits a claim to the energy 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 energy administrator shall, if he accepts the claim in whole or in part, pay to the creditor–
provided that sub-paragraph (a) above shall be without prejudice to any dividend which has already been paid.
(11) In the declaration of and payment of a dividend, no payments shall be made more than once by virtue of the same debt.
(12) If a person entitled to a dividend gives notice to the energy administrator that he wishes the dividend to be paid to another person, or that he has assigned his entitlement to another person, the energy administrator shall pay the dividend to that other accordingly, provided that such notice specifies the name and address of that other.
Procedure after accounting period
42.
—(1) Within two weeks after the end of an accounting period, the energy administrator shall in respect of that period submit to the court–
(2) The energy administrator may, at any time before the end of an accounting period, submit to the court an interim claim in respect of that period for the outlays reasonably incurred by him and for his remuneration and the court may make an interim determination in relation to the amount of the outlays and remuneration payable to the energy administrator and, where it does so, it shall take into account that interim determination when making its determination under paragraph (3)(a)(ii).
(3) Within six weeks after the end of an accounting period–
(b) the energy administrator shall make the audited accounts, scheme of division and the said determination available for inspection by the members and the creditors.
(4) The basis for fixing the amount of the remuneration payable to the energy administrator shall take into account–
(5) In fixing the amount of such remuneration in respect of any accounting period, the court 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.
(6) Not later than eight weeks after the end of an accounting period, the energy administrator, the protected energy company or any creditor may appeal against a determination issued under paragraph (2) or (3)(a)(ii) above and the decision of the court on such appeal shall be final.
(7) On the expiry of the period within which an appeal may be taken under paragraph (5) above or, if an appeal is so taken, on the final determination of the last such appeal, the energy administrator shall pay to the creditors their dividends in accordance with the scheme of division.
(8) Any dividend–
shall be deposited by the energy administrator in an appropriate bank or institution.
(9) If a creditor's claim is revalued, the energy administrator may–
(10) The energy administrator shall insert in the sederunt book the audited accounts, the scheme of division and final determination in relation to the energy administrator's outlays and remuneration.
(11) For the purposes of paragraph 99(3) of Schedule B1 to the 1986 Act, the former energy administrator's remuneration and expenses shall comprise all those items set out in Rule 40.
(12) Where there are joint energy administrators –
Unclaimed Dividends
43.
—(1) Any person, producing evidence of his right, may apply to the court to receive a dividend deposited under Rule 42, if the application is made not later than seven years after the date of such deposit.
(2) If the court is satisfied of the applicant's right to the dividend, it shall authorise the appropriate bank or institution to pay to the applicant the amount of that dividend and of any interest which accrued thereon.
(3) The court shall, at the expiry of seven years from the date of deposit of any unclaimed dividend or unapplied balance under Rule 42, hand over the deposit receipt or other voucher relating to such dividend or balance to the Secretary of State, who shall thereupon be entitled to payment of the amount due, principal and interest, from the bank or institution in which the deposit was made.
Application to court
45.
—(1) An application under paragraph 79 of Schedule B1 to the 1986 Act for an order providing for the appointment of an energy administrator of the protected energy company to cease to have effect shall be accompanied by a progress report for the period since the last such report (if any) and a statement indicating what the applicant thinks should be the next steps for the protected energy company (if applicable).
(2) Subject to paragraph (3), where the applicant applies to the court he shall give to–
at least 7 days' written notice of his intention so to apply.
(3) Where an applicant other than the energy administrator applies to the court–
(4) Where the application is made other than by the Secretary of State, it shall also state that it is made with the consent of the Secretary of State.
(5) Where the energy administrator applies to court under paragraph 79 of Schedule B1 to the 1986 Act in conjunction with a petition under section 124 of the 1986 Act for an order to wind up the protected energy company, he shall, in addition to the requirements of paragraphs (2) and (4), notify the creditors of whether he intends to seek appointment as liquidator.
Notification by energy administrator of court order
46.
—(1) Where the court makes an order to end the energy administration, the energy administrator shall notify the registrar of companies in Form EA16(S), attaching a copy of the court order and a copy of the final progress report.
(2) Where the court makes an order to end the energy administration and the applicant was not the energy administrator then that applicant shall give a copy of the order to the energy administrator.
Moving from energy administration to creditors' voluntary liquidation
47.
—(1) A notice pursuant to paragraph 83(3) of Schedule B1 to the 1986 Act shall be in Form EA17(S) and shall be accompanied by a final progress report which includes details of the assets to be dealt with in the liquidation.
(2) As soon as reasonably practicable, the energy administrator shall send a copy of the notice and accompanying documents to–
(3) For the purposes of paragraph 83(7) of Schedule B1 to the 1986 Act, a person shall be nominated as liquidator in accordance with the provisions of Rule 14(1)(l) or Rule 26(2)(h) and his appointment takes effect–
(4) GEMA must notify the Secretary of State before consenting to the energy administrator sending a notice of moving from energy administration to creditors' voluntary liquidation to the registrar of companies.
Moving from energy administration to dissolution
48.
—(1) The notice required by paragraph 84(1) of Schedule B1 to the 1986 Act shall be in Form EA18(S) and shall be accompanied by a final progress report.
(2) As soon as reasonably practicable a copy of the notice and accompanying documents shall be sent to–
(3) Where the court makes an order under paragraph 84(7) of Schedule B1 to the 1986 Act it shall, where the applicant is not the energy administrator, give a copy of the order to the energy administrator.
(4) The notice required by paragraph 84(8) of Schedule B1 to the 1986 Act shall be in Form EA19(S).
(5) GEMA must notify the Secretary of State before directing the energy administrator to send a notice of moving from energy administration to dissolution to the registrar of companies.
Provision of information to the Secretary of State
49.
Where the energy administration ends pursuant to paragraphs 79, 83 or 84 of Schedule B1 to the 1986 Act, the energy administrator shall, within 5 business days from the date of the end of the energy administration, provide the Secretary of State with the following information–
(2) The energy administrator may, with the leave of the court, give notice of his resignation on grounds other than those specified in paragraph (1).
Notice of intention to resign
51.
The energy administrator must give to the persons specified below at least 7 days' notice in Form EA20(S) of his intention to resign, or to apply for the court's leave to do so–
Notice of resignation
52.
The notice of resignation shall be in Form EA21(S), lodged in court and a copy sent to the registrar of companies. A copy of the notice of resignation shall be sent, not more than 5 business days after it has been lodged in court, to all those to whom notice of intention to resign was sent.
Application to court to remove energy administrator from office
53.
—(1) An application to the court to remove an energy administrator from office shall be served upon–
(2) An applicant under this Rule shall, within 5 business days of the order being made, send a copy of the order to–
Incapacity to act, through death or otherwise
54.
—(1) Subject to paragraph (2), where the energy administrator has died, it is the duty of his executors or, where the deceased energy administrator was a partner in a firm, of a partner of that firm to give notice of that fact to the court and to the registrar of companies, specifying the date of death, in Form EA22(S).
(2) Notice of the death may also be given by any person.
(3) Where an energy administrator who has ceased to be qualified to act as an insolvency practitioner in relation to the protected energy company gives notice in accordance with paragraph 89(2) of Schedule B1 to the 1986 Act, he shall also give notice to the registrar of companies.
Application to replace
55.
—(1) Where an application is made to the court under paragraph 91 of Schedule B1 to the 1986 Act to appoint a replacement energy administrator, the application shall be accompanied by a Statement of the Proposed Administrator in Form EA1(S).
(2) A copy of the application shall be served, in addition to those persons listed in section 156(2) of the 2004 Act and Rule 5, on the person who made the application for the energy administration order.
(3) Where the court makes an order filling a vacancy in the office of energy administrator, the same provisions shall apply, subject to such modification as may be necessary, in respect of giving notice of, and advertising, the appointment as in the case of the original appointment of an energy administrator.
Joint or concurrent appointments
56.
—(1) Where, after an initial appointment has been made, an additional person or persons are to be appointed as joint energy administrator the same rules shall apply in respect of giving notice of and advertising the appointment as in the case of the initial appointment, subject to paragraph (2).
(2) The replacement or additional energy administrator shall send notice of the appointment in Form EA23(S) to the registrar of companies.
Notification and advertisement of appointment of replacement energy administrator
57.
—(1) This Rule applies where any person has appointed an energy administrator in accordance with these Rules and a replacement energy administrator is appointed.
(2) The same provisions apply in respect of giving notice of, and advertising, the replacement appointment as in the case of an initial appointment, and all statements, consents and other documents as required shall also be required in this case.
Hand-over of assets to successor energy administrator
58.
—(1) This Rule applies where a person appointed as energy administrator ("the succeeding energy administrator") succeeds a previous energy administrator ("the former energy administrator").
(2) When the succeeding energy administrator's appointment takes effect, the former energy administrator shall forthwith do all that is required for putting the succeeding energy administrator into possession of the protected energy company's assets.
(3) The former energy administrator shall give to the succeeding energy administrator all such information, relating to the affairs of the protected energy company and the course of the energy administration, as the succeeding energy administrator considers to be reasonably required for the effective discharge by him of his duties as such and shall hand over all books, accounts, statements of affairs, statements of claim and other records and documents in his possession relating to the affairs of the protected energy company and its energy administration.
Notice of order under section 176A(5) of the 1986 Act
60.
—(1) Where the court makes an order under section 176A(5) of the 1986 Act the energy administrator shall, as soon as reasonably practicable after the making of the order–
(2) The court may direct that the requirement of paragraph (1)(c) of this Rule be met by the publication of a notice in a newspaper calculated to come to the attention of the unsecured creditors stating that the court has made an order disapplying the requirement to set aside the prescribed part.
(2) The reference in paragraph (1) to creditors is a reference to those persons who have submitted in writing a claim to be creditors of the protected energy company but does not include a person whose claim has been wholly rejected for purposes of voting, dividend or otherwise.
(3) The right of inspection given by this Rule is also exercisable by the directors of the protected energy company.
(4) Any person attending a meeting in energy administration proceedings is entitled, immediately before or in the course of the meeting, to inspect proxies and associated documents (including claims)–
Proxy-holder with financial interest
66.
—(1) A proxy-holder shall not vote in favour of any resolution which would directly or indirectly place him, or any associate of his, in a position to receive any remuneration of the assets of the protected energy company, unless the proxy specifically directs him to vote that way.
(2) Where a proxy-holder has signed the proxy as being authorised to do so by his principal and the proxy specifically directs him to vote in the way mentioned in paragraph (1), he shall nevertheless not vote in that way unless he produces to the chairman of the meeting written authorisation from his principal sufficient to show the proxy-holder was entitled so to sign the proxy.
(3) This Rule applies also to any person acting as chairman of a meeting and using proxies in that capacity in accordance with Rule 63(3); and in the application of this Rule to any such person, the proxy-holder is deemed an associate of his.
Representation of corporations
67.
—(1) Where a person is authorised under section 375 of the Companies Act to represent a corporation at a meeting of creditors or of the protected energy company, he shall produce to the chairman of the meeting a copy of the resolution from which he derives his authority.
(2) The copy resolution must be executed in accordance with the provisions of section 36B(2) of the Companies Act, or certified by the secretary or a director of the corporation to be a true copy.
(3) Nothing in this Rule requires the authority of a person to sign a proxy on behalf of a principal which is a corporation to be in the form of a resolution of that corporation.
he may decline to allow it to be inspected by a person who would otherwise be entitled to inspect it.
(2) Where under this Rule the energy administrator refuses inspection of a document, the person who made that request may apply to the court for an order to overrule the refusal and the court may either overrule it altogether, or sustain it, either unconditionally or subject to such conditions, if any, as it thinks fit to impose.
(3) Nothing in this Rule entitles the energy administrator to decline to allow inspection of any claim or proxy.
Energy administrator's caution
75.
—(1) Wherever under the Rules any person has to appoint a person to the office of energy administrator, he is under a duty to satisfy himself that the person appointed or to be appointed has caution for the proper performance of his functions.
(2) In any energy administration proceedings the cost of the energy administrator's caution shall be paid as an expense of the energy administration.
Punishment of offences
76.
Section 431 (summary proceedings), as it applies to Scotland, has effect in relation to offences under the Rules as to offences under the 1986 Act.
Forms for use in energy administration proceedings
77.
—(1) The forms contained in the Schedule to the Rules shall be used in, and in connection with, energy administration proceedings.
(2) The forms shall be used with such variations, if any, as the circumstances may require.
Fees, expenses, etc.
78.
—(1) All fees, costs, charges and other expenses incurred in the course of the energy administration are to be regarded as expenses of the energy administration.
(2) The expenses associated with the prescribed part shall be paid out of the prescribed part.
Power of court to cure defects in procedure
79.
—(1) The court may, on the application of any person having an interest–
(2) The court, in an order under paragraph (1), may impose such conditions, including conditions as to expenses, as it thinks fit and may–
(3) An application under paragraph (1)–
if the sheriff or the Court of Session, as the case may be, considers that the remit is desirable because of the importance or complexity of the matters raised by the application.
(4) The energy administrator shall record in the sederunt book the decision of the court.
Sederunt book
80.
—(1) The energy administrator shall maintain a sederunt book during his term of office for the purpose of providing an accurate record of the administration of the energy administration.
(2) Without prejudice to the generality of the above paragraph, there shall be inserted in the sederunt book a copy of anything required to be recorded in it by any provision of the 1986 Act or of the Rules.
(3) The energy administrator shall make the sederunt book available for inspection at all reasonable hours by any interested person.
(4) Any entry in the sederunt book shall be sufficient evidence of the facts stated therein, except where it is founded on by the energy administrator in his own interest.
(5) Without prejudice to paragraph (3), the energy administrator shall retain, or shall make arrangements for retention of, the sederunt book for a period of ten years from the date on which the energy administration ends.
(6) Where the sederunt book is maintained in non-documentary form it shall be capable of reproduction in legible form.
Disposal of protected energy company's books, papers and other records
81.
—(1) Where a protected energy company has been the subject of energy administration proceedings ("the original proceedings") which have terminated and other insolvency proceedings ("the subsequent proceedings") have commenced in relation to that protected energy company, the energy administrator appointed in relation to the original proceedings, shall, before the expiry of the later of–
deliver to the responsible insolvency practitioner appointed in relation to the subsequent proceedings the books, papers and other records of the protected energy company.
(2) The energy administrator shall dispose of the books, papers and records of the protected energy company in accordance with the directions of the court or, if by the date which is 12 months after dissolution of the protected energy company no such directions have been given, he may do so after that date in such a way as he deems appropriate.
(3) The energy administrator or former energy administrator shall within 14 days of a request by the Secretary of State give the Secretary of State particulars of any money in his hands or under his control representing unclaimed or undistributed assets of the protected energy company or dividends or other sums due to any person as a member or former member of the protected energy company.
Information about time spent on a case
82.
—(1) Subject as set out in this Rule, in respect of any energy administration in which he acts, the energy administrator shall on request in writing made by any person mentioned in paragraph (2), supply free of charge to that person a statement of the kind described in paragraph (3).
(2) The persons referred to in paragraph (1) are–
(3) The statement referred to in paragraph (1) shall comprise in relation to the period beginning with the date of the energy administrator's appointment and ending with the relevant date the following details–
(4) In relation to paragraph (3) the "relevant date" means the date next before the date of the making of the request on which the energy administrator has completed any period in office which is a multiple of six months or, where the energy administrator has vacated office, the date that he vacated office.
(5) Where the energy administrator has vacated office, an obligation to provide information under this Rule shall only arise in relation to a request that is made within 2 years of the date he vacates office.
(6) Any statement required to be provided to any person under this Rule shall be supplied within 28 days of the date of the receipt of the request by the energy administrator.
Malcolm Wicks
Minister of State for Energy Department of Trade and Industry
13th March 2006
[4] S.I. 1986/1915, as amended by S.I. 1987/1921, 1999/1820, 2001/4040, 2002/2709, 2003/2108, 2003/2109 and 2003/2111.back
[5] 1985 c.6, as amended by S.I. 2000/3373 and 2002/912.back
[6] As amended by S.I. 1996/2827 and 2001/1228.back
[7] 1986 c.45; section 235 was amended by the Enterprise Act 2002 (c.40), Schedule 17, paragraph 24.back
[8] 1838 c.110, as amended by S.I. 1998/2940.back