2021 No. 324
Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Company Insolvency Rules Amendment) (Insolvency) 2021
Made
Laid before the Scottish Parliament
Coming into force in accordance with paragraph 1(2) and (3)
In accordance with section 4 of the Scottish Civil Justice Council and Criminal Legal Assistance Act 20131, the Court of Session has approved draft rules submitted to it by the Scottish Civil Justice Council.
The Court of Session therefore makes this Act of Sederunt under the powers conferred by sections 103(1) and 104(1) of the Courts Reform (Scotland) Act 20142 and all other powers enabling it to do so.
Citation and commencement, etc.1
1
This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Company Insolvency Rules Amendment) (Insolvency) 2021.
2
Subject to sub-paragraph (3), it comes into force on 1st October 2021.
3
Paragraphs 2(5), 2(6), 3(4) and (5) come into force on 29th September 2021.
4
A certified copy is to be inserted in the Books of Sederunt.
Amendment of the Rules of the Court of Session 19942
1
Chapter 74 (companies) of the Rules of the Court of Session 19943 is amended in accordance with this paragraph.
2
3
For rule 74.3C (moratoriums – general)6 substitute—
Moratoriums — general74.3C
1
A moratorium to be obtained by lodging the relevant documents in court must be—
a
lodged in the Petition Department;
b
marked by the clerk of session receiving them with the time and date on which they are lodged and a certified copy of them so marked provided to the directors.
2
An application to the court for a moratorium must be made—
a
where the eligible company is subject to an outstanding winding-up petition, by note in the process of that petition; or
b
in all other cases, by petition.
3
Where the court grants an application mentioned in paragraphs (2), (6)(c) or (d), the Deputy Principal Clerk must provide forthwith a certified copy of the interlocutor to the applicant.
4
An extension of a moratorium under section A10 (extension by directors without creditor consent)7 or A11 (extension by directors with creditor consent) of the Act of 1986, to be obtained by lodging the documents mentioned in section A10(1) or A11(1), respectively, and a notice of extension, must be—
a
lodged in the Petition Department;
b
marked by the clerk of session receiving them with the time and date on which they are lodged and a certified copy of them so marked provided to the directors.
5
Termination of a moratorium by the monitor under section A38(1) (termination of moratorium by monitor) of the Act of 1986, to be obtained by lodging the notice mentioned in that subsection and copy notice mentioned in rule 1A.20(2)(a)(i) of the Insolvency (CVAA) Rules (notice bringing the moratorium to an end (section A28))8, must be—
a
lodged in the Petition Department;
b
marked by the clerk of session receiving them with the time and date on which they are lodged and a certified copy of them so marked provided to the monitor.
6
Paragraph (7) applies to an application to the court under—
a
section A13(1) (extension by court on application of directors);
b
section A21(1) (restrictions on enforcement and legal proceedings);
c
section A31(1) (disposal of charged property free from charge);
d
section A32(1) (disposal of hire-purchase property);
e
section A37 (application by monitor for directions);
f
section A39(1) or (2) (replacement of monitor or appointment of additional monitor);
g
section A42(1) (challenge to monitor’s actions);
h
rules under section A43(1) (challenges to monitor remuneration in insolvency proceedings);
i
section A44(1) (challenge to directors’ actions),
of the Act of 1986.
7
Where this paragraph applies, an application to the court must be made—
a
where the eligible company is subject to an outstanding winding-up petition, by note in the process of that petition;
b
where the application for the moratorium was made by petition, by note in the process of that petition; or
c
in all other cases, by petition.
8
An application to the court under section A13(1) of the Act of 1986 must be marked by the clerk of session receiving it with the time and date on which it is lodged and a certified copy of the application so marked provided to the directors.
Moratoriums — service74.3CA
Unless the court otherwise directs, the order under rule 14.5 (first order in petitions), or rule 15.2(3) (applications by note), for intimation, service and advertisement must include a requirement to serve the petition or, as the case may be, note—
a
on the company and the monitor, where the application is made under section A21(1) or A42(1);
b
on the holder of the security interest and the monitor, where the application is made under section A31(1);
c
on the owner of the property and the monitor, where the application is made under section A32(1);
d
on the company, where the application is made under section A37;
e
on the monitor where the application is made by the directors, or on the directors where the application is made by the monitor, under section A39(1) or (2);
f
on the directors and the monitor, where the application is made under section A43(1) or A44(1),
of the Act of 1986.
4
In rule 74.3E (moratoriums – challenge to monitor’s remuneration), for “paragraph 80 of schedule 4 of the Act of 2020 (challenge to monitor’s remuneration)” substitute “rule 1A.24 of the Insolvency (CVAA) Rules (challenges to monitor’s remuneration in subsequent insolvency proceedings)9”.
5
After rule 74.20 (interpretation of this Part), insert—
Application to disapply restrictions on winding-up petitions74.20A
An application under paragraph 1(9) of schedule 10 of the Act of 2020 (restriction on winding-up petitions)10 must be made by petition.
6
In rule 74.22 (intimation, service and advertisement under this Part)11, omit paragraph (A1).
Amendment of the Act of Sederunt (Sheriff Court Company Insolvency Rules) 19863
1
The Act of Sederunt (Sheriff Court Company Insolvency Rules) 198612 is amended in accordance with this paragraph.
2
For rule 3C (moratoriums – general)13 substitute—
Moratoriums — general3C
1
A moratorium to be obtained by lodging the relevant documents in court must be—
a
lodged in the offices of the court;
b
marked by the sheriff clerk with the time and date on which they are lodged and a certified copy of them so marked provided to the directors.
2
An application to the court for a moratorium must be made—
a
where the eligible company is subject to an outstanding winding-up petition, by note in the process of that petition; or
b
in all other cases, by petition.
3
Where the court grants an application mentioned in paragraphs (2), (6)(c) or (d), the sheriff clerk must provide forthwith a certified copy of the interlocutor to the applicant.
4
An extension of a moratorium under section A10 (extension by directors without creditor consent)14 or A11 (extension by directors with creditor consent) of the Act of 1986, to be obtained by lodging the documents mentioned in section A10(1) or A11(1), respectively, and a notice of extension, must be—
a
lodged in the offices of the court;
b
marked by the sheriff clerk with the time and date on which they are lodged and a certified copy of them so marked provided to the directors.
5
Termination of a moratorium by the monitor under section A38(1) (termination of moratorium by monitor) of the Act of 1986, to be obtained by lodging the notice mentioned in that subsection and copy notice mentioned in rule 1A.20(2)(a)(i) of the Insolvency (CVAA) Rules (notice bringing the moratorium to an end (section A28))15, must be—
a
lodged in the offices of the court;
b
marked by the sheriff clerk with the time and date on which they are lodged and a certified copy of them so marked provided to the monitor.
6
Paragraph (7) applies to an application to the court under—
a
section A13(1) (extension by court on application of directors);
b
section A21(1) (restrictions on enforcement and legal proceedings);
c
section A31(1) (disposal of charged property free from charge);
d
section A32(1) (disposal of hire-purchase property);
e
section A37 (application by monitor for directions);
f
section A39(1) or (2) (replacement of monitor or appointment of additional monitor);
g
section A42(1) (challenge to monitor’s actions);
h
rules under section A43(1) (challenges to monitor remuneration in insolvency proceedings);
i
section A44(1) (challenge to directors’ actions),
of the Act of 1986.
7
Where this paragraph applies, an application to the court must be made—
a
where the eligible company is subject to an outstanding winding-up petition, by note in the process of that petition;
b
where the application for the moratorium was made by petition, by note in the process of that petition; or
c
in all other cases, by petition.
8
An application to the court under section A13(1) of the Act of 1986 must be marked by the sheriff clerk with the time and date on which it is lodged and a certified copy of the application so marked provided to the directors.
Moratoriums — service3CA
Unless the court otherwise directs, there must be included in the order for service a requirement to serve the petition or, as the case may be, note—
a
on the company and the monitor, where the application is made under section A21(1) or A42(1);
b
on the holder of the security interest and the monitor, where the application is made under section A31(1);
c
on the owner of the property and the monitor, where the application is made under section A32(1);
d
on the company, where the application is made under section A37;
e
on the monitor where the application is made by the directors, or on the directors where the application is made by the monitor, under section A39(1) or (2);
f
on the directors and the monitor, where the application is made under section A43(1) or A44(1),
of the Act of 1986.
3
In rule 3E (moratoriums – challenge to monitor’s remuneration), for “paragraph 80 of schedule 4 of the Act of 2020 (challenge to monitor’s remuneration)” substitute “rule 1A.24 of the Insolvency (CVAA) Rules (challenges to monitor’s remuneration in subsequent insolvency proceedings)16”.
4
In Part IV (winding up of companies registered under the Companies Acts and of unregistered companies), before rule 18 (petitions to wind up a company)17 insert—
Applications to disapply restrictions on winding-up petitions17A
1
An application under paragraph 1(9) of schedule 10 of the Act of 2020 (restriction on winding-up petitions)18 must be made by petition.
2
Rule 19 applies to a petition under paragraph (1).
5
In rule 19 (intimation, service and advertisement)19, omit paragraph (A1).
Revocations4
Paragraphs 2(6) and 3(4) of the Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Company Insolvency Rules Amendment) (Insolvency) 202022 are revoked.
Saving provision5
The amendments made by paragraphs 2(2) to (4) and 3(2), (3) and (6) of this Act of Sederunt are of no effect in respect of—
a
a moratorium under Part A1 (moratorium) of the Insolvency Act 198623 which came into force;
b
applications under section A4 (obtaining a moratorium for company subject to winding-up petition) or A5 (obtaining a moratorium for other overseas companies) of that Act which were lodged in accordance with those sections,
before 1st October 2021.
(This note is not part of the Act of Sederunt)