The Insolvency (Scotland) (Company Voluntary Arrangements and Administration) (Amendment) Rules 2021

New Part 1A of the Insolvency Rules

6.—(1) After Part 1 of the Insolvency Rules (scope, interpretation, time and rules about documents)—

“PART 1A MORATORIUM

CHAPTER 1 Preliminary

Application of Part 1A

1A.1.   This Part applies for the purposes of a moratorium under Part A1 of the Act.

CHAPTER 2 Obtaining moratorium by lodging notice at court

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application of Chapter

1A.2.   This Chapter applies for the purpose of obtaining a moratorium under section A3.

Obtaining a moratorium by lodging document at court (section A3)

1A.3   An application for a moratorium under section A3 is made by lodging at court the relevant documents listed in section A6 (referred to in these Rules as “the relevant documents”).

The relevant documents: standard contents and requirements (section A6)

1A.4.— (1) Each relevant document must—

(a) state the nature of the document;

(b) identify the proceedings;

(c) contain the identification details for the company to which it relates; and

(d) be authenticated by, or on behalf of, the person giving the notice or, as the case may be, making the statement.

(2) The statement under section A6(1)(b) to (e) must—

(a) be made within the period of 5 business days ending with the day on which the application is lodged with the court; and

(b) indicate the date on which the statement is made.

The relevant documents: further requirements relating to the proposed monitor’s statement and consent to act (section A6(1)(b))

1A.5.   A statement under section A6(1)(b) must—

(a) be headed “Proposed monitor’s statement and consent to act”; and

(b) contain the following—

(i) a certificate that the proposed monitor(1) is qualified to act as an insolvency practitioner in relation to the company;

(ii) the name of the relevant recognised professional body which is the source of the proposed monitor’s authorisation;

(iii) the proposed monitor’s IP number; and

(iv) a statement that the proposed monitor consents to act as a monitor in relation to the company.

CHAPTER 3 Obtaining a moratorium by application to the court

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application of Chapter

1A.6.   This Chapter applies for the purpose of obtaining a moratorium under section A4 or A5.

Moratorium application (sections A4 and A5)

1A.7.   An application for a moratorium under section A4 or A5 must—

(a) state the date on which the application is lodged; and

(b) be lodged with the court together with the relevant documents.

The relevant documents: standard contents and requirements (section A6)

1A.8.— (1) Each relevant document must—

(a) state the nature of the document;

(b) identify the proceedings;

(c) contain the identification details for the company to which it relates; and

(d) be authenticated by or on behalf of the person giving the notice or, as the case may be, making the statement.

(2) The statements under section A6(1)(b) to (e) must—

(a) be made within the period of 5 business days ending with the date on which the application is lodged with the court; and

(b) indicate the date on which the statement is made.

The relevant documents: further requirements relating to the monitor’s statement and consent to act (section A6(1)(b))

1A.9.   A statement under section A6(1)(b) must be headed “Proposed monitor’s statement and consent to act” and must contain the following—

(a) a certificate that the proposed monitor is qualified to act as an insolvency practitioner in relation to the company;

(b) the name of the relevant recognised professional body which is the source of the proposed monitor’s authorisation;

(c) the proposed monitor’s IP number; and

(d) a statement that the proposed monitor consents to act as monitor in relation to the company.

CHAPTER 4 Obligations to notify where moratorium comes into force

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1]

Notice given by monitor where moratorium comes into force: standard contents and requirements

1A.10.— (1) Notification of the coming into force of a moratorium required by section A8(1) must be delivered—

(a) to each of the persons specified in section A8(2) (as applicable); and

(b) where paragraph (2) applies in accordance with that paragraph.

(2) Paragraph (3) applies where—

(a) notification is required to be given to any of the persons referred to in section A8(2)(b) to (d); or

(b) the moratorium is for a company which is a regulated company within the meaning given by section A49.

(3) Where the paragraph applies the monitor must deliver a copy of the document delivered to the registrar of companies to—

(a) the persons referred to in section A8(2)(b) to (d), for the purpose of giving the notification required by those paragraphs; and

(b) the appropriate regulator, for the purpose of giving the notification required by section A49(3)(2).

CHAPTER 5 Extending moratorium by lodging notice at court

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application of Chapter

1A.11.   This Chapter applies for the purpose of extending a moratorium under sections A10 or A11.

Extending a moratorium by lodging a notice at court (sections A10 and A11): notice of extension

1A.12.— (1) The directors must lodge a notice with the court (referred to as a “notice of extension”) in accordance with paragraph (2).

(2) The notice of extensions must—

(a) be lodged with the court together with the documents referred to in section A10(1) or, as the case may be, section A11(1);

(b) be headed “Notice of extension of a moratorium under section A10/A11”;

(c) state—

(i) that the notice is lodged for the purpose of extending a moratorium;

(ii) whether the extension is under section A10 or section A11 of the Act;

(iii) the names of the persons lodging the notice;

(iv) the identification details of the company for which the moratorium is to be extended;

(v) the court in which the notice is lodged;

(vi) where the court has previously allocated a number to the insolvency proceedings in which the notice is lodged, that number; and

(vii) the date on which the notice is lodged; and

(d) be authenticated by, or on behalf of, the person lodging the notice.

(3) The notice of extension must be endorsed by the court with the date and time of lodging.

Documents lodged with the court under sections A10(1) or A11(1) of the Act: standard contents and requirements

1A.13.— (1) Each document lodged with the court under section A10(1) or A11(1) must—

(a) state the nature of the document;

(b) identify the proceedings;

(c) contain the identification details for the company to which it relates;

(d) be authenticated by, or on behalf of, the person giving the notice or, as the case may be, the statement.

(2) The statement under section A11(1)(e) must also state—

(a) a description of the procedure used;

(b) the venue;

(c) whether, in the case of a meeting, the required quorum was in place; and

(d) the outcome.

(3) The statements under section A10(1)(b) to (d) or, as the case may be, section A11(1)(b) to (e) must—

(a) be made within the period of 3 business days ending with the day on which the notice of extension is lodged with the court; and

(b) indicate the date on which the statement is made.

CHAPTER 6 Extending moratorium by application to the court

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application of Chapter

1A.14.   This Chapter applies for the purpose of extending a moratorium under section A13.

Extending a moratorium by application to the court (section A13)

1A.15.— (1) An application for an extension to a moratorium under section A13 must—

(a) state the date on which the application is lodged; and

(b) be lodged at court together with the documents referred to in section A13(2).

(2) The application must be endorsed by the court with the date and time of lodging.

Documents lodged with the court under section A13(2): standard contents and requirements

1A.16.— (1) Each document lodged with the court under section A13(2) must—

(a) state the nature of the document;

(b) identify the proceedings;

(c) contain the identification details for the company to which it relates; and

(d) be authenticated by, or on behalf of, the person making the statement.

(2) The statements comprised in a document lodged with the court under section A13(2) must—

(a) be made within the period of 3 business days ending with the day on which the application is lodged with the court; and

(b) indicate the date on which the statement is made.

CHAPTER 7 Notices about change in the end of moratorium

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Notification by directors to the monitor under section A17(1) of the Act: standard contents and requirements

1A.17.— (1) A notice under section A17(1) must be delivered to the monitor in accordance with paragraph (2).

(2) The notice must—

(a) be delivered within the period of 3 business days beginning with the day on which the duty to give the notice arises; and

(b) contain the following—

(i) the identification details for the company to which it relates;

(ii) the provision in Part A1 of the Act by virtue of which the moratorium was extended or, as the case may be, came to an end ; and

(iii) if the moratorium has come to an end by virtue of section A16(1)(a) or (b) (company enters into insolvency procedure etc), the additional information referred to in paragraph (3).

(3) The additional information that is required if a moratorium has come to an end by virtue of—

(a) section A16(1)(a) is the date on which the compromise or arrangement(3) came into effect; and

(b) section A16(1)(b) is—

(i) the date on which the company entered into the relevant insolvency procedure(4); and

(ii) the contact details for the office holder for that procedure.

Notification by the monitor to the relevant persons under section A17(2) or (3) of the Act: standard contents and requirements

1A.18.— (1) Notification under section A17(2) or (3) must—

(a) be delivered—

(i) to each of the relevant persons(5) specified in section A17(8)(a) to (d) (as applicable);

(ii) in accordance with paragraph (2); and

(iii) where paragraphs (3) and (4) apply in accordance with those paragraphs; and

(b) if the moratorium has come to an end by virtue of section A16(1)(b), contain the additional information referred to in paragraph (5).

(2) Notification delivered under this rule must be delivered within the period of 5 business days beginning with the date in which the duty to give the notice arises.

(3) Paragraph (4) applies where—

(a) notification is required to be given to any of the relevant persons referred to in section A17(8)(b) to (d); or

(b) the moratorium is for a company which is a regulated company within the meaning given by section A49.

(4) Where this paragraph applies the monitor must deliver a copy of the document to the registrar of companies to—

(a) the persons referred to in section A17(8)(b) to (d), for the purpose of giving the notification required by that section; and

(b) the appropriate regulator for the purpose of giving the notification required by section A49(3).

(5) The additional information that is required if a moratorium has come to an end by virtue of section A16(1)(b) is —

(a) the date on which the company entered into the relevant insolvency procedure; and

(b) the contact details for the office-holder for that procedure.

[Note: Chapter 9 includes provision about notification by the monitor to the company etc. where the end of the moratorium changes by virtue of a notice given to the court under section A38 (termination of the monitor).]

CHAPTER 8 Notification by directors of insolvency proceedings

[Note: a document required by the Act or these Rules must also contain the standard content set out in Part 1.]

Notification by directors to the monitor of insolvency proceedings (section A24)

1A.19.   Notice by the directors of certain insolvency proceedings under section A24 must be delivered within the period of—

(a) in the case of a notice under subsection (1), 3 business days ending with the day on which any of the steps mentioned in paragraphs (a) to (c) of that subsection are taken; and

(b) in the case of a notice under subsection (2), 3 business days beginning with the day on which the duty to give the notice arises.

CHAPTER 9 Termination of moratorium by monitor

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Notice bringing the moratorium to an end (section A38)

1A.20.— (1) Notice bringing the moratorium to an end under section A38 must be lodged with the court in accordance with paragraph (2).

(2) The notice must—

(a) be lodged with the court—

(i) together with one copy for the company; and

(ii) as soon as practicable after the duty to bring the moratorium to an end arises.

(b) be headed “Notice of termination of moratorium by monitor under section A38”;

(c) state—

(i) that the notice is lodged for the purpose of terminating a moratorium under section A38 of the Act;

(ii) the identification details of the company to which the notice relates;

(iii) the name and contact details of the monitor;

(iv) the court in which the notice is lodged;

(v) where the court has previously allocated a number to the insolvency proceedings within which the notice is lodged, that number;

(vi) the date on which the notice is lodged;

(vii) the grounds on which the moratorium is to be terminated;

(viii) the monitor’s reasons for concluding that those grounds are made out; and

(ix) the date on which the monitor concluded that those grounds were made out; and

(d) be authenticated by, or on behalf of, the monitor.

(3) The court must endorse both the notice and the copy of the notice with the date and time of lodging.

(4) The endorsed copy of the notice must be delivered to the monitor.

(5) The monitor must deliver—

(a) the endorsed copy of the notice to the company; and

(b) further copies of that notice to—

(i) the registrar of companies; and

(ii) where paragraph (7) applies, the person specified in paragraphs 7(b),

within the period of 3 business days beginning with the day on which the endorsed copy of the notice is delivered to the monitor.

(6) Paragraph (7) applies where—

(a) notification is required to be given to any of the relevant persons referred to in section A17(8)(b) to (d); or

(b) the moratorium is for a company which is a regulated company within the meaning given by section A49.

(7) Where this paragraph applies the monitor must deliver a copy of the document delivered to the registrar of companies to—

(a) the persons referred to in section A17(8)(b) to (d) for the purpose of giving the notification required by that section; and

(b) the appropriate regulator, for the purpose of giving the notification required by section A49(3).

Debts that are to be disregarded for the purpose of section A38(1)(d) of the Act

1A.21.   For the purpose of deciding whether to bring a moratorium to an end under section A38(1)(d) the monitor must disregard—

(a) any debts that the monitor has reasonable grounds for thinking are likely to be—

(i) paid; or

(ii) compounded to the satisfaction of the creditor;

within 5 business days of the decision; and

(b) any debts in respect of which the creditor has agreed to defer payment until a time that is later than the decision.

CHAPTER 10 Replacement of monitor or appointment of additional monitor

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Replacement or additional monitor’s statement and consent to act: standard contents and requirements (section A39(4))

1A.22.— (1) A statement by a proposed replacement or additional monitor under section A39(4) must be lodged with the court in accordance with paragraph (2).

(2) The statement must—

(a) be headed “Proposed monitor’s statement and consent to act”;

(b) contain the following—

(i) a certificate that the proposed monitor is qualified to act as an insolvency practitioner in relation to the company;

(ii) the name of the relevant recognised professional body which is the source of the proposed monitor’s authorisation;

(iii) the proposed monitor’s IP number; and

(iv) a statement that the proposed monitor consents to act as a replacement monitor or, as the case may be, an additional monitor, in relation to the company;

(c) indicate the date on which the statement was made;

(d) be authenticated by the proposed replacement monitor or, as the case may be, the proposed additional monitor; and

(e) be made within the period of 5 business days ending with the day on which the statement is lodged with the court.

Notice to be given by monitor of replacement of monitor or appointment of additional monitor (section A39(8))

1A.23.— (1) Notification of the appointment of a replacement monitor or, as the case may be, the appointment of an additional monitor, by virtue of an order under section A39(1) must be delivered—

(a) to each of the persons specified in section A39(8) (as applicable); and

(b) where paragraph (2) applies, in accordance with that paragraph.

(2) Paragraph (3) applies where—

(a) notification is required to given to any of the persons referred to in section A39(8)(b) to (d); or

(b) the moratorium is for a company which is a regulated company within the meaning given by section A49(13).

(3) Where this paragraph applies the monitor must deliver a copy of the document delivered to the registrar of companies to—

(a) the persons referred to in section A39(8)(b) to (d), for the purpose of giving the notification required by those paragraphs; and

(b) the appropriate regulator for the purpose of giving the notification required by section A49(3).

CHAPTER 11 Challenges to monitor remuneration

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Challenges to monitor’s remuneration in subsequent insolvency proceedings

1A.24.— (1) An administrator or liquidator may apply to the court on the grounds that remuneration charged by the monitor in relation to a prior moratorium was excessive.

(2) An application under this rule may not be made after the end of the period of 2 years beginning with the day after the day on which the moratorium ends.

(3) On an application under this paragraph the court may—

(a) dismiss the application;

(b) order the monitor to repay—

(i) some or all of the remuneration; and

(ii) to pay interest on that sum at the rate specified in paragraph (4) for the period beginning with the date on which the remuneration was paid to the monitor and ending with the date of repayment; or

(c) make such other order as it sees fit.

(4) The rate specified for the purpose of paragraph (3)(b)(ii) is the official rate.

CHAPTER 12 Disposal of property

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Notice where the court grants permission under section A31 or A32

1A.25.— (1) This rule applies where the court grants permission on an application in respect of—

(a) the disposal of charged property by a company free from charge under section A31; or

(b) the disposal of hire-purchase property by a company under section A32.

(2) As soon as reasonably practicable after receiving the court order the company must deliver a copy to, as the case may be, the holder of the security or the owner of the hire-purchase goods.

CHAPTER 13 Claims by creditors

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Application and interpretation of Chapter

1A.26.   This Chapter applies to the quantification of creditors’ claims for the purposes of a qualifying decision procedure under Part A1 of the Act.

Submission of claims

1A.27.— (1) A creditor must submit a claim by producing to the convenor—

(a) a statement of claim as described in paragraph (2); and

(b) documentary evidence of debt;

but the convenor may dispense with the requirement of sub-paragraph (b) in respect of any debt or class of debt.

(2) The statement of claim must—

(a) be made out by, or under the direction of, the creditor and dated and authenticated by the creditor or a person authorised on the creditor’s behalf;

(b) state the creditor’s name and address;

(c) if the creditor is a company, identify the company;

(d) state the name and address of any person authorised to act on behalf of the creditor;

(e) state the total amount as at the date of the administration order claimed in respect of all debts;

(f) state whether or not the claim includes any outstanding uncapitalised interest;

(g) contain particulars of how and when the debt was incurred by the company;

(h) contain particulars of any security held, the date on which it was given and the value which the creditor puts on it;

(i) include details of any retention of title in relation to goods to which the debt relates;

(j) include any details of any document by reference to which the debt can be substantiated; and

(k) state the name, postal address and authority of the person authenticating the statement of claim and documentary evidence of debt (if someone other than the creditor).

Amount which may be claimed generally

1A.28.— (1) Subject to the provisions of this rule and rules 1A.29 and 1A.30 the amount in respect of which a creditor is entitled to claim is the accumulated sum of principal and any interest which is due on the debt as at the date of the decision procedure under Part A1 of the Act.

(2) In calculating the amount of a creditor’s claim, the creditor must deduct any discount (other than any discount for immediate or early settlement) which is allowable by contract or course of dealing between the creditor and the company or by the usage of trade.

(3) The rate of interest referred to in paragraph (2) is to be whichever is the greater of—

(a) the official rate at the date the company entered the moratorium; or

(b) the rate applicable to that debt apart from the moratorium.

Debts depending on contingency

1A.29.   The convenor must estimate the value of a debt that does not have a certain value because it is subject to a contingency or for any other reason.

Secured debts

1A.30.— (1) In calculating the amount of a secured creditor’s claim for the purposes of a decision procedure under section A12 of the Act, the value of the debt for voting purposes is its full value without deduction of the value of the security.

(2) In calculating the amount of a secured creditor’s claim for the purposes of a decision procedure under section A44(4)(c) of the Act, the secured creditor is to deduct the value of any security as estimated by the secured creditor.

Claims in foreign currency

1A.31.— (1) A creditor may state the amount of his or her claim in a currency other than sterling where—

(a) the creditor’s claim is constituted by decree or other order made by a court ordering the company to pay to the creditor a sum expressed in a currency other than sterling; or

(b) where it is not so constituted, the creditor’s claim arises from a contract or bill of exchange in terms of which payment is may be required to be made by the company in a currency other than sterling.

(2) Where under paragraph (1) a claim is stated in a currency other than sterling the convenor must convert it into sterling at a single rate for each currency determined by the convenor by reference to the exchange rates prevailing in the London market at the close of business on the business day preceding the date of the decision procedure.”.

(1)

“Monitor” in relation to the Moratorium has the meaning given by section A54.

(2)

“Appropriate Regulator” has the meaning given by A49.

(3)

“Compromise or arrangement” has the meaning given by section A16(2).

(4)

“Relevant insolvency procedure” has the meaning given by section A16(3)

(5)

“relevant person” has the meaning given by section A17(8).