The Insolvent Companies (Reports on Conduct of Directors) (Scotland) Rules 1996

Return by office-holder

4.—(1) This rule applies where it appears to a liquidator of a company as mentioned in rule 3(1)(a) or (b), to an administrative receiver as mentioned in rule 3(1)(c), or to an administrator as mentioned in rule 3(1)(d) (each of whom is referred to hereinafter as “an office-holder”) that the company has at any time become insolvent within the meaning of section 6(2) of the Act.

(2) Subject as follows there may be furnished to the Secretary of State by an office-holder at any time during the period of 6 months from the relevant date (defined in paragraph (4) below) a return with respect to every person who:—

(a) was, on the relevant date, a director or shadow director of the company, or

(b) had been a director or shadow director of the company at any time in the 3 years immediately preceding that date.

(3) The return shall be made in the Form D2 (Scot) set out in the Schedule hereto, or in a form which is substantially similar, and in the manner and to the extent required by the Form D2 (Scot).

(4) For the purposes of this rule, “the relevant date” means: —

(a) in the case of a company in liquidation (except in the case mentioned in paragraph (4)(b) below), the date on which the company goes into liquidation within the meaning of section 247(2) of the Insolvency Act 1986,

(b) in the case of a company in members' voluntary winding up, the date on which the liquidator forms the opinion that, at the time when the company went into liquidation, its assets were insufficient for the payment of its debts and other liabilities and the expenses of winding up,

(c) in the case of the administrative receiver, the date of his appointment,

(d) in the case of the administrator, the date of the administration order made in relation to the company,

and for the purposes of sub-paragraph (c) above the only appointment of an administrative receiver to be taken into account in determining the relevant date shall be that appointment which is not that of a successor in office to an administrative receiver who has vacated office either by death or pursuant to section 62 of the Insolvency Act 1986.

(5) Subject to paragraph (6) below, it shall be the duty of an office-holder to furnish a return complying with the provisions of paragraphs (3) and (4) of this rule to the Secretary of State: —

(a) where he is in office in relation to the company on the day one week before the expiry of the period of 6 months from the relevant date, not later than the expiry of such period;

(b) where he vacates office (otherwise than by death) before the day one week before the expiry of the period of 6 months from the relevant date, within 14 days after his vacation of office except where he has furnished such a return on or prior to the day one week before the expiry of such period.

(6) A return need not be provided under this rule by an office-holder if he has, whilst holding that office in relation to the company, since the relevant date, made a report under rule 3 with respect to all persons falling within paragraph (2) of this rule and (apart from this paragraph) required to be the subject of a return.

(7) If an office-holder without reasonable excuse fails to comply with the duty imposed by paragraph (5) of this rule, he is guilty of an offence and—

(a) on summary conviction of the offence, is liable to a fine not exceeding level 3 on the standard scale, and

(b) after continued contravention, is liable to a daily default fine; that is to say, he is liable on a second or subsequent summary conviction of the offence to a fine of one-tenth of level 3 on the standard scale for each day on which the contravention is continued (instead of the penalty specified in sub-paragraph (a)).

(8) Section 431 of the Insolvency Act 1986 (summary proceedings), as it applies to Scotland, has effect in relation to an offence under this rule as to offences under Parts I to VII of that Act.