The Energy Supply Company Administration Rules 2013

PART 4 Meetings and reports

CHAPTER 1 Creditors’ meetings

Creditors’ meetings generally

22.—(1) This Rule applies to creditors’ meetings summoned by the energy administrator under paragraph 62 of Schedule B1 to the 1986 Act.

(2) Notice of a creditors’ meeting must be in Form ESCA9.

(3) In fixing the venue for the meeting, the energy administrator must have regard to the convenience of creditors and the meeting must be summoned for commencement between 10.00 and 16.00 on a business day, unless the court otherwise directs.

(4) Subject to paragraphs (6) and (7), at least 14 days’ notice of the meeting must be given to all creditors who are known to the energy administrator and had claims against the energy supply company at the date when the energy supply company entered energy supply company administration unless that creditor has subsequently been paid in full, and the notice must—

(a) specify the purpose of the meeting;

(b) contain a statement of the effect of Rule 25 (entitlement to vote); and

(c) contain the forms of proxy.

(5) As soon as reasonably practicable after notice of the meeting has been given, the energy administrator must have gazetted a notice which, in addition to the standard contents, must state—

(a) that a creditors’ meeting is to take place;

(b) the venue fixed for the meeting;

(c) the purpose of the meeting; and

(d) a statement of the effect of Rule 25 (entitlement to vote).

(6) If within 30 minutes from the time fixed for the commencement of the meeting there is no person present to act as chair, the meeting stands adjourned to the same time and place in the following week or, if that is not a business day, the business day immediately following.

(7) If within 30 minutes from the time fixed for the commencement of the meeting those persons attending the meeting do not constitute a quorum, the chair may adjourn the meeting to such time and place as the chair may appoint.

(8) Once only in the course of the meeting the chair may, without an adjournment, declare the meeting suspended for a period up to 1 hour.

(9) The chair may, and must if the meeting so resolves, adjourn the meeting to such time and place as seems to the chair to be appropriate in the circumstances.

(10) An adjournment under paragraph (9) must not be for a period of more than 14 days, subject to a direction of the court.

(11) If there are subsequently further adjournments, the final adjournment must not be to a day later than 14 days after the date on which the meeting was originally held, subject to a direction of the court.

(12) Where a meeting is adjourned under this Rule, proofs and proxies may be used if lodged at any time up to 12.00 hours on the business day immediately before the adjourned meeting.

(13) Paragraph (3) applies with regard to the venue fixed for a meeting adjourned under this Rule.

The chair at meetings

23.—(1) At any meeting of creditors summoned by the energy administrator, either the energy administrator shall be chair, or a person nominated by the energy administrator in writing to act in the energy administrator’s place.

(2) A person so nominated must be either—

(a) one who is qualified to act as an insolvency practitioner in relation to the energy supply company; or

(b) an employee of the energy administrator or the energy administrator’s firm who is experienced in insolvency matters.

(3) Where the chair holds a proxy which includes a requirement to vote for a particular resolution and no other person proposes that resolution—

(a) the chair must propose it unless the chair considers that there is good reason for not doing so; and

(b) if the chair does not propose it, the chair must as soon as reasonably practicable after the meeting notify the principal of the reason why not.

Creditors’ meeting for nomination of alternative liquidator

24.—(1) Where under Rules 20(4) or 32(2)(g) the energy administrator has proposed that the energy supply company enter creditors’ voluntary liquidation once the energy supply company administration has ended, the energy administrator must, in the circumstances detailed in paragraph (2), call 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 must call a meeting of creditors where such a meeting is requested by creditors of the energy supply company whose debts amount to at least 10 per cent of the total debts of the energy supply company.

(3) The request for a creditors’ meeting for the purpose set out in paragraph (1) must be in Form ESCA10. A request for such a meeting must be made within 8 business days of the date on which the energy administrator’s statement of proposals is sent out.

(4) A request under this Rule must include—

(a) a list of creditors concurring with the request, showing the amounts of the respective debts in the energy supply company administration; and

(b) from each creditor concurring, written confirmation of the creditor’s concurrence,

but this paragraph 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 must be held within 28 days of the energy administrator’s receipt of the notice requesting the meeting.

Entitlement to vote

25.—(1) Subject as follows, at a meeting of creditors in energy supply company administration proceedings a person is entitled to vote only if—

(a) the person has given to the energy administrator, not later than 12.00 hours on the business day before the day fixed for the meeting, details in writing of the debt which the person claims to be due to that person from the energy supply company;

(b) the claim has been duly admitted under Rule 26 or this Rule; and

(c) there has been lodged with the energy administrator any proxy which the person intends to be used on the person’s behalf,

and details of the debt must include any calculation for the purposes of Rules 27 to 29.

(2) The chair of the meeting may allow a creditor to vote, notwithstanding that the creditor has failed to comply with paragraph (1)(a), if satisfied that the failure was due to circumstances beyond the creditor’s control.

(3) The chair of the meeting may call for any document or other evidence to be produced to the chair, where the chair thinks it necessary for the purpose of substantiating the whole or any part of the claim.

(4) Votes are calculated according to the amount of a creditor’s claim as at the date on which the energy supply company entered energy supply company administration, less any payments that have been made to the creditor after that date in respect of the claim and any adjustment by way of set-off in accordance with Rule 54 as if that Rule were applied on the date that the votes are counted.

(5) A creditor shall not vote in respect of a debt for an unliquidated amount, or any debt whose value is not ascertained, except where the chair agrees to put upon the debt an estimated minimum value for the purpose of entitlement to vote and admits the claim for that purpose.

(6) No vote shall be cast by virtue of a claim more than once on any resolution put to the meeting.

Admission and rejection of claims

26.—(1) At any creditors’ meeting the chair has power to admit or reject a creditor’s claim for the purpose of the creditor’s entitlement to vote; and the power is exercisable with respect to the whole or any part of the claim.

(2) The chair’s decision under this Rule, or in respect of any matter arising under Rule 25, is subject to appeal to the court by any creditor.

(3) If the chair is in doubt whether a claim should be admitted or rejected, the chair must mark it as objected to and allow the creditor to vote, subject to the creditor’s vote being subsequently declared invalid if the objection to the claim is sustained.

(4) If on appeal the chair’s decision is reversed or varied, or a creditor’s vote is declared invalid, the court may order that another meeting be summoned, or make such other order as it thinks just.

(5) An application to the court by way of appeal under this Rule against a decision of the chair must be made not later than 21 days after the date of the meeting.

(6) Neither the energy administrator nor any person nominated by the energy administrator to be chair is personally liable for costs incurred by any person in respect of an appeal to the court under this Rule, unless the court makes an order to that effect.

Secured creditors

27.  At a meeting of creditors a secured creditor is entitled to vote only in respect of the balance (if any) of the creditor’s debt after deducting the value of the creditor’s security as estimated by the creditor.

Holders of negotiable instruments

28.  A creditor must not vote in respect of a debt on, or secured by, a current bill of exchange or promissory note, unless the creditor is willing—

(a) to treat the liability to the creditor on the bill or note of every person who is liable on it antecedently to the energy supply company, and against whom a bankruptcy order has not been made (or, in the case of an energy supply company, which has not gone into liquidation), as a security in the creditor’s hands; and

(b) to estimate the value of the security and, for the purpose of the creditor’s entitlement to vote (but not for dividend), to deduct it from the creditor’s claim.

Hire-purchase, conditional sale and chattel leasing agreements

29.—(1) Subject as follows, an owner of goods under a hire-purchase or chattel leasing agreement, 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 the owner by the energy supply company on the date that the energy supply company entered energy supply company 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 supply company administration application or any matter arising as a consequence, or of the energy supply company entering energy supply company administration.

Resolutions

30.—(1) Subject as follows, at a creditors’ meeting in energy supply company 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 chair’s belief, persons connected with the energy supply company.

(3) In the case of a resolution for the nomination of a person to act as liquidator once the energy supply company administration has ended—

(a) subject to paragraph (4), if on any vote there are two persons put forward by creditors for nomination as liquidator, the person who obtains the most support is nominated as liquidator;

(b) if there are three or more persons put forward by creditors for nomination as liquidator, and one of them has a clear majority over both or all the others together, that one is nominated as liquidator;

(c) in any other case, the chair of the meeting must continue to take votes (disregarding at each vote any person who has withdrawn and, if no person has withdrawn, the person who obtained the least support last time), until a clear majority is obtained for any one person.

(4) The support referred to in paragraph (3)(a) must represent a majority in value of all those present (in person or by proxy) at the meeting and entitled to vote.

(5) Where on such a resolution no person is nominated as liquidator, the person named as proposed liquidator in the energy administrator’s proposals or revised proposals shall be the liquidator once the energy supply company administration has ended.

(6) The chair may at any time put to the meeting a resolution for the joint appointment of any two or more persons put forward by creditors for nomination as liquidator.

(7) In this Rule “connected with the energy supply company” has the same meaning as “connected with a company” in section 249 of the 1986 Act.

Minutes

31.—(1) The chair of the meeting must cause minutes of its proceedings to be kept.

(2) The minutes must be authenticated by the chair, and be retained by the chair as part of the records of the energy supply company administration.

(3) The chair must also cause to be made up and kept a list of all the creditors who attended the meeting.

(4) The minutes must include—

(a) a list of the names of creditors who attended (personally or by proxy) and their claims; and

(b) a record of every resolution passed.

Revision of the energy administrator’s proposals

32.—(1) The energy administrator must, as soon as reasonably practicable, under paragraph 54 of Schedule B1 to the 1986 Act, make a statement setting out the proposed revisions to the energy administrator’s proposals and send it to all those to whom the energy administrator is required to send a copy of the revised proposals, attached to Form ESCA11. The energy administrator must also deliver a copy of the statement of proposed revisions to the registrar of companies.

(2) The statement of revised proposals must include—

(a) details of the court where the proceedings are and the relevant court reference number;

(b) the full name, registered address, registered number and any other trading names of the energy supply company;

(c) details relating to the energy administrator’s appointment, including the date of appointment and whether the energy supply company administration application was made by the Secretary of State or GEMA;

(d) the names of the directors and secretary of the energy supply company and details of any shareholdings in the energy supply company they may have;

(e) a summary of the initial proposals and the reason(s) for proposing a revision;

(f) details of the proposed revision including details of the energy administrator’s assessment of the likely impact of the proposed revision upon creditors generally or upon each class of creditors (as the case may be);

(g) where a proposed revision relates to the ending of the energy supply company administration by a creditors’ voluntary liquidation and the nomination of a person to be the proposed liquidator of the energy supply company—

(i) details of the proposed liquidator;

(ii) where applicable, the declaration required by section 231 of the 1986 Act;

(iii) a statement that the creditors may nominate a different person as liquidator in accordance with paragraph 83(7)(a) of Schedule B1 to the 1986 Act and Rule 81(2); and

(h) any other information that the energy administrator thinks necessary.

(3) Subject to paragraph 54(4) of Schedule B1 to the 1986 Act, within 5 business days of sending out the statement in paragraph (1) above, the energy administrator must send a copy of the statement to every member of the energy supply company.

(4) Any notice to be published by the energy administrator acting under paragraph 54(3) of Schedule B1 to the 1986 Act must be advertised in such manner as the energy administrator thinks fit.

(5) The notice must be published as soon as reasonably practicable after the energy administrator sends the statement to the creditors and in addition to the standard contents must state—

(a) that members can write for a copy of the statement of revised proposals for the energy supply company administration; and

(b) the address to which to write.

Reports

33.—(1) The energy administrator must prepare a report (the “progress report”) which includes—

(a) details of the court where the proceedings are and the relevant court reference number;

(b) full details of the energy supply company’s name, address of registered office and registered number;

(c) full details of the energy administrator’s name and address, date of appointment and name and address of the applicant for the energy supply company administration application including any changes in office-holder, and, in the case of joint energy administrators, their functions as set out in the statement made for the purposes of section 158(5) of the 2004 Act;

(d) details of progress during the period of the report, including a receipts and payments account (as detailed in paragraph (2) below);

(e) details of any assets that remain to be realised; and

(f) any other relevant information for the creditors.

(2) A receipts and payments account must state what assets of the energy supply company have been realised, for what value, and what payments have been made to creditors or others. The account is to be in the form of an abstract showing receipts and payments during the period of the report and where the energy administrator has ceased to act, the receipts and payments account must 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).

(3) The progress report must cover—

(a) the period of 6 months commencing on the date that the energy supply company entered energy supply company administration, and every subsequent period of 6 months; and

(b) when the energy administrator ceases to act, any period from the date of the previous report, if any, and from the date that the energy supply company entered energy supply company administration if there is no previous report, until the time that the energy administrator ceases to act.

(4) The energy administrator must send a copy of the progress report, attached to Form ESCA12, within 1 month of the end of the period covered by the report, to—

(a) the Secretary of State;

(b) GEMA;

(c) the creditors; and

(d) the court,

and must deliver a copy to the registrar of companies, but this rule does not apply when the period covered by the report is that of a final progress report under Rule 78.

(5) The court may, on the energy administrator’s application, extend the period of 1 month mentioned in paragraph (4) above, or make such other order in respect of the content of the report as it thinks fit.

(6) It is an offence for the energy administrator to fail to comply with this Rule.

CHAPTER 2 Company meetings

Venue and conduct of company meeting

34.—(1) Where the energy administrator summons a meeting of members of the energy supply company, the energy administrator must fix a venue for it having regard to their convenience.

(2) The chair of the meeting shall be the energy administrator or a person nominated by the energy administrator in writing to act in the energy administrator’s place.

(3) A person so nominated must be either—

(a) one who is qualified to act as an insolvency practitioner in relation to the energy supply company, or

(b) an employee of the energy administrator or the energy administrator’s firm who is experienced in insolvency matters.

(4) If within 30 minutes from the time fixed for commencement of the meeting there is no person present to act as chair, the meeting stands adjourned to the same time and place in the following week or, if that day is not a business day, to the business day immediately following.

(5) Subject to anything to the contrary in the 1986 Act and these Rules, the meeting must be summoned and conducted—

(a) in the case of an energy supply company incorporated—

(i) in England and Wales, or

(ii) outside the United Kingdom other than in an EEA state,

in accordance with the law of England and Wales, including any applicable provision in or made under the Companies Act;

(b) in the case of an energy supply company incorporated in an EEA state other than the United Kingdom, in accordance with the law of the state applicable to meetings of the company.

(6) The chair of the meeting must cause minutes of its proceedings to be entered in the energy supply company’s minute book.