The Energy Administration (Scotland) Rules 2006

PART 3 Process of Energy Administration

Notification and advertisement of energy administrator’s appointment

8.—(1) As soon as is reasonably practicable, the energy administrator shall advertise his appointment, in Form EA4(S), once in the Edinburgh Gazette and once in a newspaper circulating in the area where the protected energy company has its principal place of business or in such newspaper as he thinks appropriate for ensuring that the order comes to the notice of the protected energy company’s creditors.

(2) The energy administrator shall at the same time give notice of his appointment to the following persons–

(a) if the application for the energy administration order was made by the Secretary of State, to GEMA;

(b) if the application for the energy administration order was made by GEMA, to the Secretary of State;

(c) a receiver or an administrative receiver, if appointed;

(d) a petitioner in a petition for the winding up of the protected energy company, if that petition is pending;

(e) any provisional liquidator of the protected energy company, if appointed;

(f) any person who has applied to the court for an administration order under Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act, in relation to the protected energy company;

(g) any supervisor of a voluntary arrangement under Part 1 of the 1986 Act;

(h) any holder of a qualifying floating charge who, to the energy administrator’s knowledge, has served notice in accordance with section 163 of the 2004 Act that he is seeking to appoint an administrator;

(i) any creditor who, to the energy administrator’s knowledge, has served notice in accordance with section 164 of the 2004 Act of his intention to enforce his security over property of the protected energy company; and

(j) the Keeper of the Register of Inhibitions and Adjudications for recording in that register.

(3) Where, under a provision of Schedule B1 to the 1986 Act or these Rules, the energy administrator is required to send a notice of his appointment to any person, he shall do so in Form EA5(S).

Notice requiring statement of affairs

9.—(1) In this Part “ relevant person” has the meaning given to it in paragraph 47(3) of Schedule B1 to the 1986 Act.

(2) The energy administrator shall send a notice in Form EA6(S) to each relevant person whom he determines appropriate requiring him to prepare and submit a statement of the protected energy company’s affairs.

(3) The notice shall inform each of the relevant persons–

(a) of the names and addresses of all others (if any) to whom the same notice has been sent;

(b) of the time within which the statement must be delivered;

(c) of the effect of paragraph 48(4) of Schedule B1 to the 1986 Act (penalty for non compliance); and

(d) of the application to him, and to each other relevant person, of section 235 of the 1986 Act (duty to co-operate with office-holder)(1).

(4) The energy administrator shall furnish each relevant person upon whom he has sent notice in Form EA6(S) with the forms required for the preparation of the statement of affairs.

Statements of affairs and statements of concurrence

10.—(1) The statement of the protected energy company’s affairs shall be in Form EA7(S), contain all the particulars required by that form and shall be a statutory declaration.

(2) Where more than one relevant person is required to submit a statement of affairs the energy administrator may require one or more such persons to submit, in place of a statement of affairs, a statement of concurrence in Form EA8(S); and where the energy administrator does so, he shall inform the person making the statement of affairs of that fact.

(3) The person making the statutory declaration in support of a statement of affairs shall send the statement, together with one copy thereof, to the energy administrator, and a copy of the statement to each of those persons whom the energy administrator has required to submit a statement of concurrence.

(4) A person required to submit a statement of concurrence shall deliver to the energy administrator the statement of concurrence, together with one copy thereof, before the end of the period of 5 business days (or such other period as the energy administrator may agree) beginning with the day on which the statement of affairs being concurred with is received by him.

(5) A statement of concurrence may be qualified in respect of matters dealt with in the statement of affairs, where the maker of the statement of concurrence is not in agreement with the statement of affairs, he considers that statement to be erroneous or misleading, or he is without the direct knowledge necessary for concurring with it.

(6) A statement of concurrence shall be a statutory declaration.

(7) Subject to Rule 11, the energy administrator shall–

(a) as soon as is reasonably practicable, file a copy of the statement of affairs and any statement of concurrence with the registrar of companies in Form EA9(S), and

(b) insert any statement of affairs submitted to him, together with any statement of concurrence, in the sederunt book.

Limited disclosure

11.—(1) Where the energy administrator thinks that it would prejudice the conduct of the energy administration for the whole or part of the statement of the protected energy company’s affairs to be disclosed, he may apply to the court for an order of limited disclosure in respect of the statement, or any specified part of it.

(2) The court may order that the statement or, as the case may be, the specified part of it, shall not be filed with the registrar of companies or entered in the sederunt book.

(3) The energy administrator shall as soon as reasonably practicable file a copy of that order with the registrar of companies, and shall place a copy of the order in the sederunt book.

(4) If a creditor seeks disclosure of the statement of affairs or a specified part of it in relation to which an order has been made under this Rule, he may apply to the court for an order that the energy administrator disclose it or a specified part of it.

(5) The court may attach to an order for disclosure any conditions as to confidentiality, duration and scope of the order in any material change of circumstances, and other matters as it sees fit.

(6) If there is a material change in circumstances rendering the limit on disclosure unnecessary, the energy administrator shall, as soon as reasonably practicable after the change, apply to the court for the order to be discharged or varied; and upon the discharge or variation of the order the energy administrator shall, as soon as reasonably practicable–

(a) file a copy of the full statement of affairs (or so much of the statement of affairs as is no longer subject to the order) with the registrar of companies;

(b) where he has previously sent a copy of his proposals to the creditors in accordance with paragraph 49 of Schedule B1 to the 1986 Act, provide the creditors with a copy of the full statement of affairs (or so much of the statement as is no longer subject to the order) or a summary thereof; and

(c) place a copy of the full statement of affairs (or so much of the statement as is no longer subject to the order) in the sederunt book.

Release from duty to submit statement of affairs; extension of time

12.—(1) The power of the energy administrator under paragraph 48(2) of Schedule B1 to the 1986 Act to revoke a requirement under paragraph 47(1) of Schedule B1 to the 1986 Act, or to grant an extension of time, may be exercised at the energy administrator’s own instance, or at the request of any relevant person.

(2) A relevant person whose request under this Rule has been refused by the energy administrator may apply to the court for a release or extension of time.

(3) An applicant under this Rule shall bear his own expenses in the application and, unless the court otherwise orders, no allowance towards such expenses shall be made out of the assets of the protected energy company.

Expenses of statement of affairs

13.—(1) A relevant person who provides to the energy administrator a statement of the protected energy company’s affairs or statement of concurrence shall be allowed, and paid by the energy administrator out of his receipts, any expenses incurred by the relevant person in so doing which the energy administrator considers reasonable.

(2) Any decision by the energy administrator under this Rule is subject to appeal to the court.

(3) Nothing in this Rule relieves a relevant person from any obligation to provide a statement of affairs or statement of concurrence, or to provide information to the energy administrator.

Energy administrator’s proposals

14.—(1) The statement required to be made by the energy administrator under paragraph 49 of Schedule B1 to the 1986 Act shall include, in addition to the matters set out in that paragraph–

(a) details of the court which granted the energy administration order and the relevant court reference number (if any);

(b) the full name, registered address, registered number and any other trading names of the protected energy company;

(c) details relating to his appointment as energy administrator, including the date of appointment and whether the application was made by the Secretary of State or GEMA and, where there are joint energy administrators, details of the matters set out in section 158(5) of the 2004 Act;

(d) the names of the directors and secretary of the protected energy company and details of any shareholdings which they have in the protected energy company;

(e) an account of the circumstances giving rise to the appointment of the energy administrator;

(f) if a statement of the protected energy company’s affairs has been submitted, a copy or summary of it, with the energy administrator’s comments, if any;

(g) if an order limiting the disclosure of the statement of affairs has been made, a statement of that fact, as well as–

(i) details of who provided the statement of affairs;

(ii) the date of the order of limited disclosure; and

(iii) the details or a summary of the details that are not subject to that order;

(h) if a full statement of affairs is not provided, the names and addresses of the creditors, and details of the debts owed to, and security held by, each of them;

(i) if no statement of affairs has been submitted–

(i) details of the financial position of the protected energy company at the latest practicable date (which must, unless the court otherwise orders, be a date not earlier than that on which the protected energy company entered energy administration);

(ii) the names and addresses of the creditors, and details of the debts owed to, and security held by, each of them; and

(iii) an explanation as to why there is no statement of affairs;

(j) except where the energy administrator proposes a voluntary arrangement in relation to the protected energy company–

(i) to the best of the energy administrator’s knowledge and belief–

(aa) an estimate of the value of the prescribed part (whether or not he proposes to make an application to the court under section 176A(5) of the 1986 Act and whether or not section 176A(3) of the 1986 Act applies); and

(bb) an estimate of the value of the protected energy company’s net property,

provided that such estimates shall not be required to include any information the disclosure of which could seriously prejudice the commercial interests of the protected energy company, but if such information is excluded the estimates shall be accompanied by a statement to that effect; and

(ii) whether and, if so, why the energy administrator proposes to make an application to the court under section 176A(5) of the 1986 Act;

(k) how it is envisaged the objective of the energy administration will be achieved and how it is proposed that the energy administration shall end;

(l) where a creditors' voluntary liquidation is proposed–

(i) details of the proposed liquidator; and

(ii) a statement that, in accordance with paragraph 83(7) of Schedule B1 to the 1986 Act and Rule 47(3), creditors may nominate a different person to act as liquidator, provided that the nomination is made at a meeting of creditors called for that purpose;

(m) where it is proposed to make distributions to creditors in accordance with Part 6, the classes of creditors to whom it is proposed that distributions be made and whether or not the energy administrator intends to make an application to the court under paragraph 65(3) of Schedule B1 to the 1986 Act;

(n) the manner in which the affairs and business of the protected energy company–

(i) have, since the date of the energy administrator’s appointment, been managed and financed, including, where any assets have been disposed of, the reasons for such disposals and the terms upon which such disposals were made; and

(ii) will continue to be managed and financed; and

(o) such other information (if any) as the energy administrator thinks necessary.

(2) A copy of the energy administrator’s statement of his proposals shall be sent to the registrar of companies together with a notice in Form EA10(S).

(3) Where the court orders, upon an application by the energy administrator under paragraph 107 of the Schedule B1 to the 1986 Act, an extension of the period of time in paragraph 49(5) of Schedule B1 to the 1986 Act, the energy administrator shall notify in Form EA11(S) all the persons set out in paragraph 49(4) of Schedule B1 to the 1986 Act as soon as reasonably practicable after the making of the order.

(4) Where the energy administrator wishes to publish a notice under paragraph 49(6) of Schedule B1 to the 1986 Act he shall publish the notice once in the Edinburgh Gazette and once in the newspaper in which the energy administrator’s appointment was advertised. The notice shall–

(a) state the full name of the protected energy company;

(b) state the full name and address of the energy administrator;

(c) give details of the energy administrator’s appointment; and

(d) specify an address to which any member of the protected energy company may apply in writing for a copy of the statement of proposals to be provided free of charge.

(5) This notice must be published as soon as reasonably practicable after the energy administrator sends his statement of proposals to the protected energy company’s creditors and in any case no later than 8 weeks (or such other period as may be ordered by the court) from the date that the protected energy company entered energy administration.

(1)

1986 c. 45; section 235 was amended by the Enterprise Act 2002 (c. 40), Schedule 17, paragraph 24.