The Credit Institutions (Reorganisation and Winding up) Regulations 2004

PART 3 U.K. Modifications of the Law of Insolvency: Notification and Publication

Modifications of the law of insolvency U.K.

7.  The general law of insolvency has effect in relation to UK credit institutions subject to the provisions of this Part.

Consultation of the Authority prior to a voluntary winding up U.K.

8.—(1) Where, on or after 5th May 2004, a UK credit institution (“the institution”) intends to pass a resolution to wind up the institution under paragraph (b) or (c) of section 84(1) of the 1986 Act or sub-paragraph (b) or (c) of Article 70(1) of the 1989 Order, the institution must give written notice of the resolution to the Authority before it passes the resolution.

(2) Where notice is given under paragraph (1), the resolution may be passed only after the end of the period of five business days beginning with the day on which the notice was given.

Notification of relevant decision to the Authority U.K.

9.—(1) Where on or after 5th May 2004 the court makes a decision, order or appointment of any of the following kinds—

(a) an administration order under paragraph 13 of Schedule B1 to the 1986 Act or section 8(1) of the 1986 Act;

(b) a winding-up order under section 125 of the 1986 Act or Article 105 of the 1989 Order;

(c) the appointment of a provisional liquidator under section 135(1) of the 1986 Act or Article 115(1) of the 1989 Order;

(d) the appointment of an administrator in an interim order under paragraph 13(1)(d) of Schedule B1 to the 1986 Act or Article 22(4) of the 1989 Order,

it must immediately inform the Authority, or cause the Authority to be informed, of the order or appointment which has been made.

(2) Where a decision with respect to the approval of a voluntary arrangement has effect, and the arrangement which is the subject of that decision is a qualifying arrangement, the supervisor must forthwith inform the Authority of the arrangement which has been approved.

(3) Where a liquidator is appointed as mentioned in section 100 of the 1986 Act, paragraph 83 of Schedule B1 to the 1986 Act or Article 86 of the 1989 Order (appointment of liquidator in a creditors' voluntary winding up), the liquidator must inform the Authority forthwith of his appointment.

(4) Where in the case of a members' voluntary winding up, section 95 of the 1986 Act (effect of company’s insolvency) or Article 81 of the 1989 Order applies, the liquidator must inform the Authority forthwith that he is of that opinion.

(5) Paragraphs (1), (2) and (3) do not apply in any case where the Authority was represented at all hearings in connection with the application in relation to which the order or appointment is made.

(6) For the purposes of paragraph (2), a “qualifying arrangement” means a voluntary arrangement which—

(a) varies the rights of creditors as against the credit institution and is intended to enable the credit institution, and the whole or any part of its undertaking, to survive as a going concern; or

(b) includes a realisation of some or all of the assets of the credit institution, with a view to terminating the whole or any part of the business of that credit institution.

(7) A supervisor, administrator or liquidator who fails without reasonable excuse to comply with paragraph (2), (3), or (4) (as the case may be) commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

Notification to EEA regulators U.K.

10.—(1) Where the Authority is informed of a decision, order or appointment in accordance with regulation 9, the Authority must as soon as is practicable inform the relevant person—

(a) that the decision, order or appointment has been made; and

(b) in general terms, of the possible effect of a decision, order or appointment of that kind on the business of a credit institution.

(2) Where the Authority has been represented at all hearings in connection with the application in relation to which the decision, order or appointment has been made, the Authority must inform the relevant person of the matters mentioned in paragraph (1) as soon as is practicable after that decision, order or appointment has been made.

(3) Where, on or after 5th May 2004, it appears to the Authority that a directive reorganisation measure should be adopted in relation to or imposed on an EEA credit institution which has a branch in the United Kingdom, it will inform the home state regulator as soon as is practicable.

(4) In this regulation, the “relevant person” means the EEA regulator of any EEA State in which the UK credit institution has a branch.

Withdrawal of authorisation U.K.

11.—(1) For the purposes of this regulation—

(a) a qualifying decision means a decision with respect to the approval of a voluntary arrangement where the voluntary arrangement includes a realisation of some or all of the assets of the credit institution with a view to terminating the whole or any part of the business of that credit institution;

(b) a qualifying order means—

(i) a winding-up order under section 125 of the 1986 Act or Article 105 of the 1989 Order; or

(ii) an administration order under paragraph 13 of Schedule B1 to the 1986 Act in the prescribed circumstances;

(c) a qualifying appointment means—

(i) the appointment of a provisional liquidator under section 135(1) of the 1986 Act or Article 115(1) of the 1989 Order; or

(ii) the appointment of a liquidator as mentioned in section 100 of the 1986 Act, Article 86 of the 1989 Order (appointment of liquidator in a creditors' voluntary winding up) or paragraph 83 of Schedule B1 to the 1986 Act (moving from administration to creditors' voluntary liquidation).

(2) The prescribed circumstances are where, after the appointment of an administrator, the administrator concludes that it is not reasonably practicable to achieve the objective specified in paragraph 3(1)(a) of Schedule B1 to the 1986 Act.

(3) When the Authority is informed of a qualifying decision, qualifying order or qualifying appointment, the Authority will as soon as reasonably practicable exercise its power under section 45 of the 2000 Act to vary or to cancel the UK credit institution’s permission under Part 4 of that Act to accept deposits or to issue electronic money as the case may be.

Publication of voluntary arrangement, administration order, winding-up order or scheme of arrangement U.K.

12.—(1) This regulation applies where a qualifying decision is approved, or a qualifying order or qualifying appointment is made, in relation to a UK credit institution on or after 5th May 2004.

(2) For the purposes of this regulation—

(a) a qualifying decision means a decision with respect to the approval of a proposed voluntary arrangement, in accordance with section 4A of the 1986 Act or Article 17A of the 1989 Order;

(b) a qualifying order means—

(i) an administration order under paragraph 13 of Schedule B1 to the 1986 Act or section 8(1) of the 1986 Act,

(ii) an order appointing a provisional liquidator in accordance with section 135 of that Act or Article 115 of that Order, or

(iii) a winding-up order made by the court under Part 4 of that Act or Part V of the 1989 Order;

(c) a qualifying appointment means the appointment of a liquidator as mentioned in section 100 of the 1986 Act or Article 86 of the 1989 Order (appointment of liquidator in a creditors' voluntary winding up).

(3) Subject to paragraph (7), as soon as is reasonably practicable after a qualifying decision has effect or a qualifying order or a qualifying appointment has been made, the relevant officer must publish, or cause to be published, in the Official Journal of the European Communities and in 2 national newspapers in each EEA State in which the UK credit institution has a branch the information mentioned in paragraph (4) and (if applicable) paragraphs (5) or (6).

(4) That information is—

(a) a summary of the terms of the qualifying decision, qualifying appointment or the provisions of the qualifying order (as the case may be);

(b) the identity of the relevant officer;

(c) the statutory provisions in accordance with which the qualifying decision has effect or the qualifying order or appointment has been made or takes effect.

(5) In the case of a qualifying appointment, that information includes the court to which an application under section 112 of the 1986 Act (reference of questions to the court), section 27 of the 1986 Act or Article 98 of the 1989 Order (reference of questions to the High Court) may be made.

(6) In the case of a qualifying decision, that information includes the court to which an application under section 6 of the 1986 Act or Article 19 of the 1989 Order (challenge of decisions) may be made.

(7) Paragraph (3) does not apply where a qualifying decision or qualifying order falling within paragraph (2)(b)(i) affects the interests only of the members, or any class of members, or employees of the credit institution (in their capacity as members or employees).

(8) This regulation is without prejudice to any requirement to publish information imposed upon a relevant officer under any provision of the general law of insolvency.

(9) A relevant officer who fails to comply with paragraph (3) of this regulation commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(10) A qualifying decision, qualifying order or qualifying appointment is not invalid or ineffective if the relevant official fails to comply with paragraph (3) of this regulation.

(11) In this regulation, “relevant officer” means—

(a) in the case of a voluntary arrangement, the supervisor;

(b) in the case of an administration order, the administrator;

(c) in the case of a creditors' voluntary winding up, the liquidator;

(d) in the case of winding-up order, the liquidator; or

(e) in the case of an order appointing a provisional liquidator, the provisional liquidator.

(12) The information to be published in accordance with paragraph (3) of this regulation shall be—

(a) in the case of the Official Journal of the European Communities, in the official language or languages of each EEA State in which the UK credit institution has a branch;

(b) in the case of the national newspapers of each EEA State in which the UK credit institution has a branch, in the official language or languages of that EEA State.

Honouring of certain obligations U.K.

13.—(1) This regulation applies where, on or after 5th May 2004, a relevant obligation has been honoured for the benefit of a relevant credit institution by a relevant person.

(2) Where a person has honoured a relevant obligation for the benefit of a relevant credit institution, he shall be deemed to have discharged that obligation if he was unaware of the winding up of that credit institution.

(3) For the purposes of this regulation—

(a) a relevant obligation is an obligation which, after the commencement of the winding up of a relevant credit institution, should have been honoured for the benefit of the liquidator of that credit institution;

(b) a relevant credit institution is a UK credit institution which—

(i) is not a body corporate; and

(ii) is the subject of a winding up;

(c) a relevant person is a person who at the time the obligation is honoured—

(i) is in the territory of an EEA State; and

(ii) is unaware of the winding up of the relevant credit institution.

(4) For the purposes of paragraph (3)(c)(ii) of this regulation—

(a) a relevant person shall be presumed, in the absence of evidence to the contrary, to have been unaware of the winding up of a relevant credit institution where the relevant obligation was honoured before date of the publication provided for in regulation 12 in relation to that winding up;

(b) a relevant person shall be presumed, in the absence of evidence to the contrary, to have been aware of the winding up of the relevant credit institution where the relevant obligation was honoured on or after the date of the publication provided for in regulation 12 in relation to that winding up.

Notification to creditors: winding-up proceedings U.K.

14.—(1) When a relevant order or appointment is made, or a relevant decision is taken, in relation to a UK credit institution on or after 5th May 2004, the appointed officer must, as soon as is reasonably practicable, notify in writing all known creditors of that credit institution—

(a) of the matters mentioned in paragraph (4); and

(b) of the matters mentioned in paragraph (5).

(2) The appointed officer may comply with the requirement in paragraphs (1)(a) and the requirement in paragraph (1)(b) by separate notifications.

(3) For the purposes of this regulation—

(a) “relevant order” means—

(i) an administration order under paragraph 13 of Schedule B1 to the 1986 Act in the prescribed circumstances or an administration order made for the purposes set out in section 8(3)(b) or (d) of the 1986 Act, as the case may be,

(ii) a winding-up order under section 125 of the 1986 Act (powers of the court on hearing a petition) or Article 105 of the 1989 Order (powers of High Court on hearing of petition),

(iii) the appointment of a liquidator in accordance with section 138 of the 1986 Act (appointment of a liquidator in Scotland), or

(iv) an order appointing a provisional liquidator in accordance with section 135 of that Act or Article 115 of the 1989 Order;

(b) a “relevant appointment” means the appointment of a liquidator as mentioned in section 100 of the 1986 Act or Article 86 of the 1989 Order (appointment of liquidator in a creditors' voluntary winding up); and

(c) a “relevant decision” means a decision as a result of which a qualifying voluntary arrangement has effect.

(4) The matters which must be notified to all known creditors in accordance with paragraph (1)(a) are as follows—

(a) that a relevant order or appointment has been made, or a relevant decision taken, in relation to the UK credit institution; and

(b) the date from which that order, appointment or decision has effect.

(5) The matters which must be notified to all known creditors in accordance with paragraph (1)(b) are as follows—

(a) if applicable, the date by which a creditor must submit his claim in writing;

(b) the matters which must be stated in a creditor’s claim;

(c) details of any category of debt in relation to which a claim is not required;

(d) the person to whom any such claim or any observations on a claim must be submitted; and

(e) the consequences of any failure to submit a claim by any specified deadline.

(6) Where a creditor is notified in accordance with paragraph (1)(b), the notification must be headed with the words “Invitation to lodge a claim. Time limits to be observed”, and that heading must be given in every official language.

(7) The obligation under paragraph (1)(b) may be discharged by sending a form of proof in accordance with rule 4.74 of the Insolvency Rules, Rule 4.080 of the Insolvency Rules (Northern Ireland) or Rule 4.15(2) of the (Insolvency) Scotland Rules as applicable in cases where any of those rules applies, provided that the form of proof complies with paragraph (6).

(8) The prescribed circumstances are where, after the appointment of an administrator, the administrator concludes that it is not reasonably practicable to achieve the objective specified in paragraph 3(1)(a) of Schedule B1 to the 1986 Act.

(9) Where, after the appointment of an administrator, the administrator concludes that it is not reasonably practicable to achieve the objective specified in paragraph 3(1)(a) of Schedule B1 to the 1986 Act, he shall inform the court and the Authority in writing of that conclusion and upon so doing the order by which he was appointed shall be a relevant order for the purposes of this regulation and the obligation under paragraph (1) shall apply as from the date on which he so informs the court and the Authority.

(10) An appointed officer commits an offence if he fails without reasonable excuse to comply with a requirement under paragraph (1) of this regulation, and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(11) For the purposes of this regulation—

(a) “appointed officer” means—

(i) in the case of a relevant order falling within paragraph (3)(a)(i), the administrator,

(ii) in the case of a relevant order falling within paragraph (3)(a)(ii) or (iii) or a relevant appointment falling within paragraph (3)(b), the liquidator,

(iii) in the case of a relevant order falling within paragraph (3)(a)(iv), the provisional liquidator, or

(iv) in the case of a relevant decision, the supervisor; and

(b) a creditor is a “known” creditor if the appointed officer is aware of—

(i) his identity,

(ii) his claim or potential claim, and

(iii) a recent address where he is likely to receive a communication.

(12) For the purposes of paragraph (3), a voluntary arrangement is a qualifying voluntary arrangement if its purposes include a realisation of some or all of the assets of the UK credit institution to which the order relates with a view to terminating the whole or any part of the business of that credit institution.

Submission of claims by EEA creditors U.K.

15.—(1) An EEA creditor who, on or after 5th May 2004, submits a claim or observations relating to his claim in any relevant proceedings (irrespective of when those proceedings were commenced or had effect) may do so in his domestic language, provided that the requirements in paragraphs (3) and (4) are complied with.

(2) For the purposes of this regulation, “relevant proceedings” means—

(a) a winding up;

(b) a qualifying voluntary arrangement; or

(c) administration.

(3) Where an EEA creditor submits a claim in his domestic language, the document must be headed with the words “Lodgement of claim” (in English).

(4) Where an EEA creditor submits observations on his claim (otherwise than in the document by which he submits his claim), the observations must be headed with the words “Submission of observations relating to claims” (in English).

(5) Paragraph (3) does not apply where an EEA creditor submits his claim using—

(a) in the case of a winding up, a form of proof supplied by the liquidator in accordance with rule 4.74 of the Insolvency Rules, Rule 4.080 of the Insolvency Rules (Northern Ireland) or rule 4.15(2) of the Insolvency (Scotland) Rules;

(b) in the case of a qualifying voluntary arrangement, a form approved by the court for that purpose.

(6) In this regulation—

(a) “domestic language”, in relation to an EEA creditor, means the official language, or one of the official languages, of the EEA State in which he is ordinarily resident or, if the creditor is not an individual, in which the creditor’s head office is located; and

(b) “qualifying voluntary arrangement” means a voluntary arrangement whose purposes include a realisation of some or all of the assets of the UK credit institution to which the order relates with a view to terminating the whole or any part of the business of that credit institution.

Reports to creditors U.K.

16.—(1) This regulation applies where, on or after 5th May 2004—

(a) a liquidator is appointed in accordance with section 100 of the 1986 Act, Article 86 of the 1986 Order (creditors' voluntary winding up: appointment of liquidator) or paragraph 83 of Schedule B1 to the 1986 Act (moving from administration to creditors' voluntary liquidation);

(b) a winding-up order is made by the court;

(c) a provisional liquidator is appointed; or

(d) administration.

(2) The liquidator, provisional liquidator or administrator (as the case may be) must send a report to every known creditor once in every 12 months beginning with the date when his appointment has effect.

(3) The requirement in paragraph (2) does not apply where a liquidator, provisional liquidator or administrator is required by order of the court to send a report to creditors at intervals which are more frequent than those required by this regulation.

(4) This regulation is without prejudice to any requirement to send a report to creditors, imposed by the court on the liquidator, provisional liquidator or administrator, which is supplementary to the requirements of this regulation.

(5) A liquidator, provisional liquidator or administrator commits an offence if he fails without reasonable excuse to comply with an applicable requirement under this regulation, and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(6) For the purposes of this regulation—

(a) “known creditor” means—

(i) a creditor who is known to the liquidator, provisional liquidator or administrator, and

(ii) in a case falling within paragraph (1)(b) or (c), a creditor who is specified in the credit institution’s statement of affairs (within the meaning of section 131 of the 1986 Act or Article 111 of the 1989 Order);

(b) “report” means a written report setting out the position generally as regards the progress of the winding up, provisional liquidation or administration (as the case may be).

Service of notices and documents U.K.

17.—(1) This regulation applies to any notification, report or other document which is required to be sent to a creditor of a UK credit institution by a provision of this Part (“a relevant notification”).

(2) A relevant notification may be sent to a creditor by one of the following methods—

(a) by posting it to the proper address of the creditor;

(b) by transmitting it electronically, in accordance with paragraph (4).

(3) For the purposes of paragraph (2)(a), the proper address of a creditor is any current address provided by that person as an address for service of a relevant notification and, if no such address is provided—

(a) the last known address of that creditor (whether his residence or a place where he carries on business);

(b) in the case of a body corporate, the address of its registered or principal office; or

(c) in the case of an unincorporated association, the address of its principal office.

(4) A relevant notification may be transmitted electronically only if it is sent to—

(a) an electronic address notified to the relevant officer by the creditor for this purpose; or

(b) if no such address has been notified, to an electronic address at which the relevant officer reasonably believes the creditor will receive the notification.

(5) Any requirement in this Part to send a relevant notification to a creditor shall also be treated as satisfied if the conditions set out in paragraph (6) are satisfied.

(6) The conditions of this paragraph are satisfied in the case of a relevant notification if—

(a) the creditor has agreed with—

(i) the UK credit institution which is liable under the creditor’s claim, or

(ii) the relevant officer,

that information which is required to be sent to him (whether pursuant to a statutory or contractual obligation, or otherwise) may instead be accessed by him on a web site;

(b) the agreement applies to the relevant notification in question;

(c) the creditor is notified of—

(i) the publication of the relevant notification on a web site,

(ii) the address of that web site,

(iii) the place on that web site where the relevant notification may be accessed, and how it may be accessed; and

(d) the relevant notification is published on that web site throughout a period of at least one month beginning with the date on which the creditor is notified in accordance with sub-paragraph (c).

(7) Where, in a case in which paragraph (5) is relied on for compliance with a requirement of regulation 14 or 16—

(a) a relevant notification is published for a part, but not all, of the period mentioned in paragraph (6)(d) but

(b) the failure to publish it throughout that period is wholly attributable to circumstances which it would not be reasonable to have expected the relevant officer to prevent or avoid,

no offence is committed under regulation 14(10) or regulation 16(5) (as the case may be) by reason of that failure.

(8) In this regulation—

(a) “electronic address” includes any number or address used for the purposes of receiving electronic communications which are sent electronically;

(b) “electronic communication” means an electronic communication within the meaning of the Electronic Communications Act 2000 M1 the processing of which on receipt is intended to produce writing; and

(c) “relevant officer” means (as the case may be) an administrator, liquidator, provisional liquidator or supervisor who is required to send a relevant notification to a creditor by a provision of this Part.

Marginal Citations

M1 2000 c. 7.

Disclosure of confidential information received from an EEA regulator U.K.

18.—(1) This regulation applies to information (“insolvency information”) which—

(a) relates to the business or affairs of any other person; and

(b) is supplied to the Authority by an EEA regulator acting in accordance with Articles 4, 5, 9, or 11 of the reorganisation and winding up directive.

(2) Subject to paragraphs (3) and (4), sections 348, 349 and 352 of the 2000 Act apply in relation to insolvency information as they apply in relation to confidential information within the meaning of section 348(2) of the 2000 Act.

(3) Insolvency information is not subject to the restrictions on disclosure imposed by section 348(1) of the 2000 Act (as it applies by virtue of paragraph (2)) if it satisfies any of the criteria set out in section 348(4) of the 2000 Act.

(4) The Disclosure Regulations apply in relation to insolvency information as they apply in relation to single market directive information (within the meaning of those Regulations).