The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) Rules 2018

Estate to be distributed in respect of the accounting periodsS

This section has no associated Explanatory Memorandum

3.117.—(1) The administrator must make up accounts of the administrator's intromissions with the company's assets in respect of each accounting period.

(2) In this rule, “accounting period” is to be construed as follows—

(a)the first accounting period is the period of six months beginning with the date on which the company entered administration; and

(b)any subsequent accounting period is the period of six months beginning with the end of the last accounting period except that—

(i)where the administrator and the creditors' committee agree; or

(ii)where there is no creditors' committee, the court determines,

the accounting period is to be such other period beginning with the end of the last accounting period as may be agreed or, as the case may be determined, it is to be that other period.

(3) An agreement or determination under paragraph (2)(b)—

(a)may be made in respect of one or more than one accounting period;

(b)may be made before the beginning of the accounting period in relation to which it has effect and, in any event, is not to have effect unless made before the day on which such accounting period would, but for the agreement or determination, have ended;

(c)may provide for different accounting periods to be of different durations.

(4) The administrator may make a distribution to secured or preferential creditors or, where the administrator has the permission of the court, to unsecured creditors only if-

(a)the administrator has sufficient funds for the purpose;

(b)the administrator does not intend to give notice pursuant to paragraph 83 of Schedule B1 M1;

(c)the administrator's statement of proposals, as approved by the creditors under paragraph 53(1) or 54(5) of Schedule B1 M2, contains a proposal to make a distribution to the class of creditors in question, and

(d)the payment of a dividend is consistent with the functions and duties of the administrator and any proposals made by the administrator or which the administrator intends to make.

(5) The administrator may pay—

(a)the expenses of the administration mentioned in rule 3.116(1)(a), other than the administrator's own remuneration, at any time;

(b)the preferential debts within the meaning of section 386 at any time but only with the consent of the creditors' committee or, if there is no creditors' committee, of the court.

[F1(5A) Where paragraph 64A of Schedule B1 applies, paragraph (4) and (5) shall have effect as if the reference to preferential creditors and preferential debts included references to moratorium debts and priority pre-moratorium debts within the meaning given by section 174A.]

(6) If the administrator—

(a)is not ready to pay a dividend in respect of an accounting period; or

(b)considers it would be inappropriate to pay such a dividend because the expenses of doing so would be disproportionate to the amount of the dividend,

the administrator may postpone such payment to a date not later than the time for payment of a dividend in respect of the next accounting period.

(7) Where an appeal is taken under rule 3.108(5) against the acceptance or rejection of a creditor's claim, the administrator must 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.

(8) Where a creditor—

(a)has failed to produce evidence in support of a claim earlier than eight weeks before the end of an accounting period on being required by the administrator to do so under rule 3.107; and

(b)has given a reason for such failure which is acceptable to the administrator,

the administrator must set aside, for such time as is reasonable to enable the creditor to produce that evidence or any other evidence that will enable the administrator to be satisfied under rule 3.107 an amount which would be sufficient, if the claim were accepted in full, to pay a dividend in respect of that claim.

(9) Where a creditor submits a claim to the 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 administrator must, if accepting the claim in whole or in part, pay to the creditor—

(a)the same dividend or dividends as has or have already been paid to creditors of the same class in respect of any accounting period or periods; and

(b)whatever dividend may be payable to that creditor in respect of the said subsequent accounting period

provided that paragraph (a) above is without prejudice to any dividend which has already been paid.

(10) In the declaration of and payment of a dividend, no payments are to be made more than once by virtue of the same debt.

F2(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

M1Paragraph 83 is amended by section 128(3) of the 2015 Act.

M2Paragraph 53 is amended by paragraph 10(8) to (10) of Schedule 9 to the 2015 Act. Paragraph 54 is amended by paragraph 10(11) to (16) of Schedule 9 to the 2015 Act.