SCHEDULE 1Revocations
1
In this Schedule, “the 1986 Rules” means the Insolvency (Scotland) Rules 1986.
Name | Number | Extent of revocation |
|---|---|---|
The Insolvency (Scotland) Rules 1986 | S.I. 1986/1915 | Parts 3 to 6 (and schedules 1 to 2) in their entirety. Rules 0.1 to 0.3 and Part 7 (and schedules 3 to 5) so far as they apply to receivership and winding up. |
The Receivers (Scotland) Regulations 1986 | S.I. 1986/1917 | The entire S.I. |
The Insolvency (Scotland) Amendment Rules 1987 | S.I. 1987/1921 | Insofar as they amend the 1986 Rules in relation to receivership and winding up. |
The Scotland Act 1998 (Consequential Modifications) (No. 2) Order 1999 | S.I. 1999/1820 | In schedule 2, paragraphs 141 and 142. |
The Enterprise Act 2002 (Consequential Amendments) (Prescribed Part) (Scotland) Order 2003 | S.I. 2003/2108 | Part 1 insofar as it amends the 1986 Rules in relation to receivership and winding up. Part 2. |
The Insolvency (Scotland) Regulations 2003 | S.I. 2003/2109 | Part 2 and schedule 2 insofar as they amend the 1986 Rules in relation to receivership and winding up. |
The Insolvency (Scotland) Amendment Rules 2003 | S.I. 2003/2111 | Insofar as they amend the 1986 Rules in relation to receivership and winding up. |
The Insolvency (Scotland) Amendment Rules 2006 | S.I. 2006/734 | rule 13 |
The Insolvency (Scotland) Amendment Rules 2007 | S.I. 2007/2537 | The entire S.I. |
The Tribunals, Courts and Enforcement Act 2007 (Consequential Amendments) Order 2012 | S.I. 2012/2404 | In schedule 3, paragraph 4(5) and (6) |
The Insolvency (Scotland) Rules 1986 Amendment Rules 2008 | S.S.I. 2008/393 | The entire S.S.I. |
The Insolvency (Scotland) Amendment Rules 2014 | S.S.I. 2014/114 | The entire S.S.I. except insofar as it amends the 1986 Rules in relation to administration. |
The Insolvency Amendment (EU 2015/848) Regulations 2017 | S.I. 2017/702 | Part 5 of schedule 1 insofar as it amends the 1986 Rules in relation to winding up. |
SCHEDULE 2Transitional and savings provisions
General1
In this Schedule—
“the 1986 Rules” means the Insolvency (Scotland) Rules 1986 as they had effect immediately before the commencement date and a reference to “1986 rule” followed by a rule number is a reference to a rule in the 1986 Rules; and
“the commencement date” means the date these Rules come into force.
Requirement for office-holder to provide information to creditors on opting out2
1
Rule 1.35, which requires an office-holder to provide information to a creditor on the right to opt out under rule 1.34 in the first communication to the creditor, does not apply to an office-holder who has delivered the first communication before the commencement date.
2
However, such an office-holder may choose to deliver information on the right to opt out in which case the communication to the creditor must contain the information required by rule 1.35.
Electronic communication3
1
Rule 1.41(4) does not apply where the relevant proceedings commenced before the commencement date.
2
In this paragraph, relevant proceedings are commenced on—
a
the appointment of a receiver;
b
the passing or deemed passing of a resolution to wind up a company; or
c
the making of a winding-up order.
Statements of affairs4
1
The provisions of these Rules relating to statements of affairs in receivership and company winding up do not apply and the following rules in the 1986 Rules continue to apply where relevant proceedings commenced before the commencement date and a person is required to provide a statement of affairs:—
a
1986 rules 3.2 to 3.3 (receivership); and
b
1986 rules 4.7 to 4.9 (company winding up).
2
In this paragraph, “commenced” means—
a
the appointment of a receiver;
b
the passing or deemed passing of a resolution to wind up a company; or
c
the making of a winding-up order.
Savings in respect of meetings taking place on or after the commencement date and resolutions by post5
1
This paragraph applies where on or after the commencement date—
a
a creditors' or contributories' meeting is to be held as a result of a notice issued before that date in relation to a meeting for which provision is made by the 1986 Rules or the Act;
b
a meeting is to be held as a result of a requisition by a creditor or contributory made before that date;
c
a meeting at year's end is required by section 105 M1 in the winding up of a company where the resolution to wind up was passed before the commencement date.
2
Where paragraph (1) applies, Part 8 of these Rules does not apply and the 1986 Rules relating to the following continue to apply:—
a
the requirement to hold the meeting;
b
notice and advertisement of the meeting;
c
governance of the meeting;
d
recording and taking minutes of the meeting;
e
the report or return of the meeting;
f
membership and formalities of establishment of liquidation and creditors' committees where the resolution to form the committee is passed at the meeting;
g
the office-holder's resignation or removal at the meeting;
h
the office-holder's release;
i
fixing the office-holder's remuneration;
j
requests for further information from creditors;
k
claims that remuneration is or that other expenses are excessive; and
l
complaints about exclusion at the meeting.
3
Where, before the commencement date, the office-holder sought to obtain a resolution by correspondence under 1986 rule 4.55, the 1986 Rules relating to resolutions by correspondence continue to apply and sub-paragraph (2) applies to any meeting that those rules require the office-holder to summon.
Savings in respect of final meetings taking place on or after the commencement date6
1
This paragraph applies where—
a
before the commencement date—
i
a final report to creditors has been sent under 1986 rule 4.31 (final report to creditors in liquidation),
b
a meeting under section 94, 106 or 146 of the Act is held on or after the commencement date.
2
Where a meeting is held to which this paragraph applies, Part 8 of these Rules does not apply and the 1986 Rules relating to the following continue to apply:—
a
the requirement to hold the meeting;
b
notice and advertisement of the meeting;
c
governance of the meeting;
d
recording and taking minutes of the meeting;
e
the form and content of the final report;
f
the office-holder's resignation or removal;
g
the office-holder's release;
h
fixing the office-holder's remuneration;
i
requests for further information from creditors;
j
claims that remuneration is or other expenses are excessive; and
k
complaints about exclusion at the meeting.
Progress reports and statements to the registrar of companies7
1
Where an obligation to prepare a progress report arises before the commencement date but has not yet been fulfilled 1986 rules 4.10 (information to creditors and contributories), 4.11 (information to register of companies) and 4.56 (liquidator's reports) continue to apply.
2
The provisions of these Rules relating to progress reporting do not apply where the winding-up order was made on a petition presented before the commencement date.
Foreign currency8
1
Where, before the commencement date an amount stated in a foreign currency on an application, statement of claim or evidence of debt (according to the nature of the debt claimed) is converted into sterling by the office-holder under 1986 rule 4.17, the office-holder and any successor to the office-holder must continue to use that exchange rate for subsequent conversions of that currency into sterling for the purpose of distributing the insolvent estate.
2
However when an office-holder, convener, appointed person or chair uses an exchange rate to convert an application, claim or proof in a foreign currency into sterling solely for voting purposes before the commencement date, it does not prevent the office-holder from using an alternative rate for subsequent conversions.
General powers of liquidator9
1986 rule 4.58 (dealings by committee-members and others) continues to apply in respect of the power of the court or the liquidation committee to ratify anything done by the liquidator without sanction, or leave of the court, before the amendments made to sections 165 and 167 of the Act by section 120(2) and (3) of the Small Business, Enterprise and Employment Act 2015 M5 (which removed the requirements for the liquidator to obtain such sanction) came into force.
Accounting periods10
1
1986 rule 4.68(2) (estate to be distributed in respect of accounting periods) continues to apply where the date of appointment of any provisional liquidator or liquidator in the winding up under the 1986 Rules fell before the commencement date.
2
Rules 7.31(2) and (3) relating to the distribution of estate in respect of accounting periods do not apply where paragraph (1) applies.
Applications before the court11
Where an application to court is lodged or a petition is presented under the Act or under the 1986 Rules before the commencement date and the application or petition has not been determined or withdrawn, the 1986 Rules continue to apply to that application or petition.
Forms12
A form contained in schedule 5 of the 1986 Rules may be used on or after the commencement date if—
a
the form is used to provide a statement of affairs pursuant to paragraph 4 of this schedule;
b
the form relates to a meeting held under the 1986 Rules to which paragraph 5(1) of this schedule applies;
c
the form is required because before the commencement date, the office-holder sought to obtain the passing of a resolution by post; or
d
the form relates to any application to the court or petition presented before the commencement date.
Insolvency registers13
1
The AiB must maintain on the register of insolvencies information which is on the register immediately before the commencement date.
2
The AiB must also enter on that register information received (but not yet entered on the register) before the commencement date.
3
The court's power under rules 2.11, 4.6 and 5.16 to order that information must not be entered in those registers where there is a risk of violence applies equally to information received by AiB before the commencement date but not yet entered on a register.
Savings in respect of special insolvency rules: limited liability partnerships14
SCHEDULE 3Punishment of offences under these Rules
Rule creating offence | General nature of the offence | Mode of prosecution | Maximum penalty | Daily default fine (if applicable) |
|---|---|---|---|---|
1.51(1) | Falsely claiming to be a person entitled to inspect a document with the intention of gaining sight of it. | 1. On indictment. | 2 years' imprisonment, or a fine, or both. | Not applicable. |
2. Summary. | 12 months' imprisonment, or a fine not exceeding the statutory maximum, or both. | |||
2.16(7) | Receiver failing to deliver required accounts summary of receipts and payments. | Summary. | Level 3 on the standard scale. | One tenth of level 3 on the standard scale. |
4.14(13) | Directors failing to seek a decision on the nomination of a liquidator | 1. On indictment. | 1 A fine | Not applicable |
2. Summary. | 2. A fine not exceeding the statutory maximum. | |||
7.17 | Producing false evidence; failing to report false evidence | 1. On indictment | 2 years' imprisonment, or a fine, or both. | Not applicable |
2. Summary | 12 months' imprisonment, or a fine not exceeding the statutory maximum, or both. | |||
7.18(7) | Failing to comply with an order requiring attendance for private examination | Summary | 3 months' imprisonment; a fine not exceeding level 5 on the standard scale, or both. | Not applicable |
SCHEDULE 4Information to be included in the sederunt book
Receivership
1
The instrument of appointment of the receiver under section 53.
2
1
Each statement of affairs and each statement of concurrence under Part 2 of these Rules, subject to rule 2.11(3), 2.12 and sub-paragraph (2).
2
Any schedule required by rule 2.8(5)(b) with the statement of affairs need not be inserted.
3
Any order for limited disclosure under rule 2.11(3) must be inserted as soon as reasonably practicable.
4
On discharge or variation of an order for limited disclosure under rule 2.11 as soon as reasonably practicable the full statement of affairs or statement of concurrence (or so much of the statement as is no longer subject to the order).
5
The report by the receiver under section 67.
Winding up
6
A certificate of appointment of the liquidator by the company under rule 3.2.
7
The inventory and valuation of the assets of the company under rule 3.14.
8
1
The statement of affairs under rule 4.2 must be inserted as soon as reasonably practicable after completion of the decision procedure or deemed consent procedure referred to in rule 4.11 (nomination of liquidator and information to creditors on conversion from members' voluntary winding up (section 96)) in respect of the appointment of the liquidator, subject to rule 4.6 (order limiting disclosure of statement of affairs etc) and sub-paragraph (2).
2
Any schedule required by rule 4.4(4)(b) (additional requirements as to statements of affairs) need not be inserted with the statement of affairs.
9
1
The statement of affairs under rule 4.3 must be inserted as soon as reasonably practicable after the completion of the decision procedure or deemed consent procedure referred to in rule 4.14 (information to creditors and appointment of liquidator) in respect of the appointment of the liquidator, subject to rule 4.6 and sub-paragraph (2).
2
Any schedule required by rule 4.4(4)(b) need not be inserted with the statement of affairs.
10
Any statement of concurrence under Part 4 of these Rules, subject to rule 4.6.
11
Any order for limited disclosure under rule 4.6(3) must be inserted as soon as reasonably practicable.
12
On discharge or variation of an order for limited disclosure under rule 4.6 as soon as reasonably practicable the full statement of affairs or statement of concurrence must be inserted (or so much of the statement as is no longer subject to the order).
13
A certificate of appointment of the liquidator by creditors or the company under rule 4.20.
14
The inventory and valuation of the assets of the company under rule 4.32.
15
1
Each statement of affairs and each statement of concurrence under Part 5 of these Rules, subject to rule 5.16(3) and sub-paragraph (2).
2
Any schedule required by rule 5.13(4)(b) with the statement of affairs need not be inserted.
16
Any order for limited disclosure under rule 5.16(3) must be inserted as soon as reasonably practicable.
17
On discharge or variation of an order for limited disclosure under rule 5.16 as soon as reasonably practicable the full statement of affairs or statement of concurrence must be inserted (or so much of the statement as is no longer subject to the order).
18
A certificate of appointment of the liquidator under rule 5.23.
19
The inventory and valuation of the assets of the company under rule 5.36.
20
Any transcript prepared of a public examination under section 133.
Common parts
21
Any petition for winding up or the appointment of any office-holder.
22
Any decision or order of the court, including any decision or order-
a
appointing an office-holder;
b
under rule 1.56 (power to cure defects in procedure).
23
Any progress report required by Chapter 1 of Part 7.
24
Any final report or account mentioned in Chapter 2 of Part 7.
25
Where the liquidator accepts or rejects a claim under rule 7.19, the decision on the claim specifying—
a
the amount of the claim accepted;
b
the category of debt, and the value of any security, as decided by the liquidator; and
c
if rejecting the claim, the reasons for doing so.
26
A record of the court's decision on any appeal against acceptance of rejection of a claim under rule 7.19.
27
A record of an agreement or determination under rule 7.31(2)(c)(i) or (ii).
28
The audited accounts.
29
The scheme of division.
30
The final determination in relation to the liquidator's outlays and remuneration.
31
A record of a decision procedure made in accordance with rule 8.40(1).
32
A record of a deemed consent procedure made in accordance with rule 8.40(4).
33
All proxies.
34
A copy of every resolution passed under rule 10.18 (voting rights and resolutions).
35
A copy of every resolution passed under rule 10.19 (resolutions by correspondence).
36
A note that the agreement of the committee to a resolution under rule 10.19 was obtained.