The Insolvency (Amendment) Rules 2005

Citation and commencement

1.—(1) These Rules may be cited as the Insolvency (Amendment) Rules 2005.

(2) These Rules shall come into force on 1st April 2005 (“the commencement date”).

Interpretation

2.—(1) In these Rules references to the “principal Rules” are to the Insolvency Rules 1986(1) and a Rule referred to by number alone means the Rule so numbered in the principal Rules.

(2) These Rules shall be construed as one with the principal Rules.

Transitional provisions

3.—(1) The provisions of Rules 8 to 17, 23 to 27, 43 and 44 of these Rules shall not apply, and the provisions of the principal Rules shall continue to apply without the amendments made by those Rules, in any case where a company has entered administration or gone into liquidation, or a bankruptcy order has been made, before the commencement date.

(2) The provisions of Rules 29, 30, 32 and 39 to these Rules shall apply in any case where, on or after 1st April 2004, a winding-up order has been made or a resolution for the winding up of a company has been passed or a bankruptcy order has been made, before the commencement date.

Amendment to Rule 1.40

4.  In paragraph (4)(a) of Rule 1.40 for “sheriff” substitute “enforcement officer”.

Amendment to Rule 2.7

5.  In Rule 2.7—

(a) in the heading to the Rule for “sheriff” substitute “officers charged with execution of writs or other process”; and

(b) in paragraph (a) of Rule 2.7 for “sheriff” substitute “enforcement officer”.

Amendment to Rule 2.20

6.  In paragraph (2)(a) of Rule 2.20 for “sheriff” substitute “enforcement officer”.

Amendment to Rule 2.27

7.  In paragraph (2)(c) of Rule 2.27 for “sheriff” substitute “enforcement officer”.

Amendment to Rule 2.67

8.  In Rule 2.67 insert—

“(4) For the purposes of paragraph 99(3), the former administrator’s remuneration and expenses shall comprise all those items set out in paragraph (1) of this Rule.”.

Substitution of Rule 2.85

9.  For Rule 2.85 substitute—

“Mutual credits and set-off

2.85.— (1) This Rule applies where the administrator, being authorised to make the distribution in question, has, pursuant to Rule 2.95 given notice that he proposes to make it.

(2) In this Rule “mutual dealings” means mutual credits, mutual debts or other mutual dealings between the company and any creditor of the company proving or claiming to prove for a debt in the administration but does not include any of the following—

(a) any debt arising out of an obligation incurred after the company entered administration;

(b) any debt arising out of an obligation incurred at a time when the creditor had notice that—

(i) an application for an administration order was pending; or

(ii) any person had given notice of intention to appoint an administrator;

(c) any debt arising out of an obligation where—

(i) the administration was immediately preceded by a winding up; and

(ii) at the time the obligation was incurred the creditor had notice that a meeting of creditors had been summoned under section 98 or a petition for the winding up of the company was pending;

(d) any debt arising out of an obligation incurred during a winding up which immediately preceded the administration; or

(e) any debt which has been acquired by a creditor by assignment or otherwise, pursuant to an agreement between the creditor and any other party where that agreement was entered into—

(i) after the company entered administration;

(ii) at a time when the creditor had notice that an application for an administration order was pending;

(iii) at a time when the creditor had notice that any person had given notice of intention to appoint an administrator;

(iv) where the administration was immediately preceded by a winding up, at a time when the creditor had notice that a meeting of creditors had been summoned under section 98 or that a winding up petition was pending; or

(v) during a winding up which immediately preceded the administration.

(3) An account shall be taken as at the date of the notice referred to in paragraph (1) of what is due from each party to the other in respect of the mutual dealings and the sums due from one party shall be set off against the sums due from the other.

(4) A sum shall be regarded as being due to or from the company for the purposes of paragraph (3) whether—

(a) it is payable at present or in the future;

(b) the obligation by virtue of which it is payable is certain or contingent; or

(c) its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion.

(5) Rule 2.81 shall apply for the purposes of this Rule to any obligation to or from the company which, by reason of its being subject to any contingency or for any other reason, does not bear a certain value;

(6) Rules 2.86 to 2.88 shall apply for the purposes of this Rule in relation to any sums due to the company which—

(a) are payable in a currency other than sterling;

(b) are of a periodical nature; or

(c) bear interest.

(7) Rule 2.105 shall apply for the purposes of this Rule to any sum due to or from the company which is payable in the future.

(8) Only the balance (if any) of the account owed to the creditor is provable in the administration. Alternatively the balance (if any) owed to the company shall be paid to the administrator as part of the assets except where all or part of the balance results from a contingent or prospective debt owed by the creditor and in such a case the balance (or that part of it which results from the contingent or prospective debt) shall be paid if and when that debt becomes due and payable.

(9) In this Rule “obligation” means an obligation however arising, whether by virtue of an agreement, rule of law or otherwise.”.

Amendment to Rule 2.86

10.  At the end of Rule 2.86(1) insert “or, if the administration was immediately preceded by a winding up, on the date that the company went into liquidation”.

Amendment to Rule 2.87

11.  At the end of Rule 2.87(1) insert “or, if the administration was immediately preceded by a winding up, up to the date that the company went into liquidation”.

Amendment to Rule 2.88

12.  In Rule 2.88—

(a) at the end of paragraph (1) insert “or, if the administration was immediately preceded by a winding up, any period after the date that the company went into liquidation”; and

(b) in paragraph (7) omit the words “Subject to Rule 2.105(3),”.

Amendment to Rule 2.89

13.  In Rule 2.89 after “entered administration,” insert “or, if the administration was immediately preceded by a winding up, up to the date that the company went into liquidation”.

Amendment to Rule 2.105

14.—(1) For paragraph (2) of Rule 2.105 substitute—

“(2) For the purpose of dividend (and no other purpose) the amount of the creditor’s admitted proof (or, if a distribution has previously been made to him, the amount remaining outstanding in respect of his admitted proof) shall be reduced by applying the following formula—

where—

a

“X” is the value of the admitted proof; and

b

“n” is the period beginning with the relevant date and ending with the date on which the payment of the creditor’s debt would otherwise be due expressed in years and months in a decimalised form.

(3) In paragraph (2) “relevant date” means—

(a) in the case of an administration which was not immediately preceded by a winding up, the date that the company entered administration;

(b) in the case of an administration which was immediately preceded by a winding up, the date that the company went into liquidation.”.

(2) Omit paragraph (3).

Amendment to Rule 2.106

15.—(1) After paragraph (5) of Rule 2.106 insert—

“(5A) In a case where the administrator has made a statement under paragraph 52(1)(b), if there is no creditors' committee, or the committee does not make the requisite determination, the administrator’s remuneration may be fixed (in accordance with paragraph (2)) by the approval of—

(a) each secured creditor of the company: or

(b) if the administrator has made or intends to make a distribution to preferential creditors—

(i) each secured creditor of the company; and

(ii) preferential creditors whose debts amount to more than 50% of the preferential debts of the company, disregarding debts of any creditor who does not respond to an invitation to give or withhold approval;

and paragraph (4) applies to them as it does to the creditors' committee.”.

(2) Omit paragraph (9).

Amendment to Rule 2.107

16.  After Rule 2.107 insert, and Rule 2.107 becomes Rule 2.107(1)—

“(2) In a case where the administrator has made a statement under paragraph 52(1)(b), if the administrator’s remuneration has been fixed by the creditors' committee, and he considers the rate or amount to be insufficient, he may request that it be increased by the approval of—

(a) each secured creditor of the company: or

(b) if the administrator has made or intends to make a distribution to preferential creditors—

(i) each secured creditor of the company; and

(ii) preferential creditors whose debts amount to more than 50% of the preferential debts of the company, disregarding debts of any creditor who does not respond to an invitation to give or withhold approval.”.

Amendment to Rule 2.108

17.  After paragraph (1) of Rule 2.108 insert—

“(1A) In a case where the administrator has made a statement under paragraph 52(1)(b), if the administrator considers that the remuneration fixed by the approval of the creditors in accordance with Rule 2.107(2) is insufficient, he may apply to the court for an order increasing its amount or rate.”.

Amendment to Rule 4.7

18.  For Rule 4.7(7)(c) substitute—

“(c) where applicable, contain an application under paragraph 79 of Schedule B1, requesting that the appointment of the administrator shall cease to have effect.”.

Amendment to Rule 4.11

19.  In Rule 4.11(4)(a) after “the name” insert “and registered number”.

Amendment to Rule 4.12

20.  After paragraph (7) of Rule 4.12 insert—

“(8) The affidavit shall state whether, in the opinion of the person making the application, (i) the EC Regulation will apply and (ii) if so, whether the proceedings will be main proceedings or territorial proceedings.”.

Amendment to Rule 4.26

21.  In Rule 4.26—

(a) in paragraph (2)—

(i) in sub-paragraph (a) for “two” substitute “three”; and,

(ii) in sub-paragraph (b)(i) for “two” substitute “three”; and,

(b) for paragraph (3) substitute—

“(3) Of the three copies of the order sent to the official receiver under paragraph (2)(a), or to another person under paragraph (2)(b)(i)—

(i) one shall in each case be sent by the recipient to the company, or if a liquidator has been appointed for the company’s voluntary winding-up, to him; and

(ii) one shall be sent with Form 4.15A to the registrar of companies.”.

Amendment to Rule 4.51-CVL

22.  In Rule 4.51-CVL(2) after “summoning the meeting shall” insert “state the name of the company and the registered number of the company, and”.

Substitution of Rule 4.90

23.  For Rule 4.90 substitute—

“Mutual credits and set-off

4.90.— (1) This Rule applies where, before the company goes into liquidation there have been mutual credits, mutual debts or other mutual dealings between the company and any creditor of the company proving or claiming to prove for a debt in the liquidation.

(2) The reference in paragraph (1) to mutual credits, mutual debts or other mutual dealings does not include—

(a) any debt arising out of an obligation incurred at a time when the creditor had notice that—

(i) a meeting of creditors had been summoned under section 98; or

(ii) a petition for the winding up of the company was pending;

(b) any debt arising out of an obligation where—

(i) the liquidation was immediately preceded by an administration; and

(ii) at the time the obligation was incurred the creditor had notice that an application for an administration order was pending or a person had given notice of intention to appoint an administrator;

(c) any debt arising out of an obligation incurred during an administration which immediately preceded the liquidation; or

(d) any debt which has been acquired by a creditor by assignment or otherwise, pursuant to an agreement between the creditor and any other party where that agreement was entered into—

(i) after the company went into liquidation;

(ii) at a time when the creditor had notice that a meeting of creditors had been summoned under section 98;

(iii) at a time when the creditor had notice that a winding up petition was pending;

(iv) where the liquidation was immediately preceded by an administration, at a time when the creditor had notice that an application for an administration order was pending or a person had given notice of intention to appoint an administrator; or

(v) during an administration which immediately preceded the liquidation.

(3) An account shall be taken of what is due from each party to the other in respect of the mutual dealings, and the sums due from one party shall be set off against the sums due from the other.

(4) A sum shall be regarded as being due to or from the company for the purposes of paragraph (3) whether—

(a) it is payable at present or in the future;

(b) the obligation by virtue of which it is payable is certain or contingent; or

(c) its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion.

(5) Rule 4.86 shall also apply for the purposes of this Rule to any obligation to or from the company which, by reason of its being subject to any contingency or for any other reason, does not bear a certain value.

(6) Rules 4.91 to 4.93 shall apply for the purposes of this Rule in relation to any sums due to the company which—

(a) are payable in a currency other than sterling;

(b) are of a periodical nature; or

(c) bear interest.

(7) Rule 11.13 shall apply for the purposes of this Rule to any sum due to or from the company which is payable in the future.

(8) Only the balance (if any) of the account owed to the creditor is provable in the liquidation. Alternatively the balance (if any) owed to the company shall be paid to the liquidator as part of the assets except where all or part of the balance results from a contingent or prospective debt owed by the creditor and in such a case the balance (or that part of it which results from the contingent or prospective debt) shall be paid if and when that debt becomes due and payable.

(9) In this Rule “obligation” means an obligation however arising, whether by virtue of an agreement, rule of law or otherwise.”.

Amendment to Rule 4.91

24.  At the end of Rule 4.91(1) insert “or, if the liquidation was immediately preceded by an administration, on the date that the company entered administration”.

Amendment to Rule 4.92

25.  At the end of Rule 4.92(1) insert “or, if the liquidation was immediately preceded by an administration, up to the date that the company entered administration”.

Amendment to Rule 4.93

26.  At the end of Rule 4.93(1) insert “or, if the liquidation was immediately preceded by an administration, any period after the date that the company entered administration”.

Amendment to Rule 4.94

27.  In Rule 4.94 after “went into liquidation,” insert “or, if the liquidation was immediately preceded by an administration, on the date that the company entered administration”.

Amendment to Rule 4.125

28.  In Rule 4.125(4) for the words “official receiver” substitute “Secretary of State”.

Amendment to Rule 4.127B

29.  At the end of sub-paragraph (3)(b) of Rule 4.127B there shall be inserted “and payments made in respect of preferential debts”.

Amendment to Rule 4.148A

30.  In paragraph (5) of Rule 4.148A after “Rule 4.128” insert “and Rule 4.127B”.

Amendment to Rule 4.184

31.  In Rule 4.184(1) after “liquidation committee” insert “(or if there is no such committee, a meeting of the company’s creditors)” and after “under” insert “section 165(2) or”.

Amendment to Rule 4.218

32.  In sub-paragraph (o) of paragraph (1) of Rule 4.218 for the words “to the official receiver under general regulations” substitute “under Schedule 6”.

Amendment to Rule 4.223-CVL

33.  Omit paragraph (4) of Rule 4.223-CVL.

Amendment to Rule 5.60

34.  In paragraph (5) of Rule 5.60 for the words “paragraphs (3) and (4) are” substitute “paragraph (3) is”.

Amendment to Rule 6.34

35.  In paragraph (3) of Rule 6.34 for “Rule 6.223(B)(1)” substitute “Rule 6A.4(2)”.

Amendment to Rule 6.42

36.  In Rule 6.42—

(a) in paragraph (1) for “two copies” substitute “one copy”; and

(b) for paragraph (4) substitute—

“(4) The copy of the statement of affairs shall be sent by the court to the official receiver.”.

Amendment to Rule 6.46

37.  In paragraph (3) of Rule 6.46 for “Rule 6.223(B)(1)” substitute “Rule 6A.4(2)”.

Amendment to Rule 6.137

38.  In Rule 6.137(4) for the words “official receiver” substitute “Secretary of State”.

Amendment to Rule 6.224

39.  In sub-paragraph (o) of paragraph (1) of Rule 6.224 for the words “to the official receiver under general regulations” substitute “under Schedule 6”.

Insertion of new Rule 6.235A

40.  After Rule 6.235 insert—

“Application for redirection order

6.235A.— (1) This Rule applies where the official receiver or trustee in bankruptcy applies to the court under section 371(1) (re-direction of bankrupt’s letters etc).

(2) The application shall be made without notice to the bankrupt or any other person, unless the court directs otherwise.

(3) The applicant shall with his application, where he is the official receiver, file a report, and where he is the trustee in bankruptcy, an affidavit, setting out the reasons why such an order is sought.

(4) The court shall fix a venue for the hearing of the application if the court thinks fit and give notice to the applicant.

(5) The court may make an order on such conditions as it thinks fit.

(6) The order shall identify the person on whom it is to be served, and need not be served on the bankrupt unless the court directs otherwise.”.

Amendment to Rule 6A.2

41.  In Rule 6A.2(1) at the end, there shall be inserted—

• “; and ,

  (c)

  in the circumstances set out in (a) and (b) above, the debtor’s gender, date of birth and any name by which he was known, not being the name in which he has entered into the voluntary arrangement”.

Amendment to Rule 7.36

42.  In Rule 7.36—

(a) in the heading for “sheriff” substitute “officers charged with execution of writs or other process”;

(b) in paragraph (1) for “a sheriff” substitute “an enforcement officer, or other officer, charged with execution of the writ or other process;” and for “the sheriff's” substitute “the enforcement officer’s or other officer's”; and

(c) in paragraph (3) for “sheriff” substitute “ enforcement officer”.

Amendment to Rule 11.13

43.—(1) For paragraph (2) of Rule 11.13 substitute—

“(2) For the purpose of dividend (and no other purpose) the amount of the creditor’s admitted proof (or, if a distribution has previously been made to him, the amount remaining outstanding in respect of his admitted proof) shall be reduced by applying the following formula—

where—

a

“X” is the value of the admitted proof; and

b

“n” is the period beginning with the relevant date and ending with the date on which the payment of the creditor’s debt would otherwise be due expressed in years and months in a decimalised form.

(3) In paragraph (2) “relevant date” means—

(a) in the case of a winding up which was not immediately preceded by an administration, the date that the company went into liquidation;

(b) in the case of a winding up which was immediately preceded by an administration, the date that the company entered administration; and

(c) in the case of a bankruptcy, the date of the bankruptcy order.”.

(2) Omit paragraph (3).

Amendment to Rule 12.3

44.  In paragraph (2)(a) of Rule 12.3 after the words “any obligation” where they first appear insert “(other than an obligation to pay a lump sum or to pay costs)” and after the words “family proceedings or” insert “any obligation arising”.

Amendment to Rule 12.11

45.  After the words “Rule 12.10” insert “and Rule 12.12”.

Amendment to Rule 12.12

46.  In paragraph (1) of Rule 12.12 for “RSC Order 11” substitute “CPR Part 6, paragraphs 6.17 to 6.35” and for “does” substitute “do”.

Amendment to Rule 12.15

47.  In paragraph (a) of Rule 12.15 for “section 130 of the Supreme Court Act 1981 or under section 128 of the County Courts Act 1984” substitute “section 92 of the Courts Act 2003”.

Amendment to Rule 12.19

48.  In Rule 12.19—

(a) in paragraph (1) for “sheriff” substitute “enforcement officer”; and

(b) in paragraph (2) for “under-sheriff” substitute “enforcement officer”.

Amendments to Schedule 4 to the principal Rules

49.—(1) In the index to forms in Schedule 4 to the principal Rules—

(a) omit the entry for Form 4.3; and

(b) after the entry relating to Form 4.15 insert the following entry—

“4.15A.   Notice of appointment of provisional liquidator in winding up by the court”.

(2) In Schedule 4 to the principal Rules—

(a) omit Form 4.3;

(b) the Form set out in Part A of the Schedule to these Rules is inserted as Form 4.15A; and

(c) for Forms 2.8B, 2.11B, 2.13B, 2.14B, 3.1A, 3.2, 4.6, 4.11, 4.12, 4.13, 4.14, 4.17, 4.18, 4.19, 4.68, 6.9, 6.24A, 6.28, 6.80, 6.83 and 6.84 substitute the forms so numbered as set out in Part B of the Schedule to these Rules.

Falconer of Thoroton C.

3rd March 2005

I concur, on behalf of the Secretary of State,

Gerry Sutcliffe

Parliamentary Under-Secretary of State for Employment Relations, Competition and Consumers,

Department of Trade and Industry

8th March 2005