The Building Society Insolvency (England and Wales) Rules 2010

Application of Rules, construction and interpretation

3.—(1) These Rules apply in relation to a building society undergoing the procedure in Part 2 of the Banking Act 2009(1), as applied and modified by section 90C of the Building Societies Act 1986(2) and by any order made under section 130 of the Banking Act, known as building society insolvency.

(2) In these Rules—

“the 1986 Rules” means the Insolvency Rules 1986(3) including all amendments to them up to and including those made by the Insolvency (Amendment)(No. 2) Rules 2009(4);

“the 2009 Order” means the Building Societies (Insolvency and Special Administration) Order 2009;

“the 2010 Rules” mean these Rules;

“the Banking Act” means the Banking Act 2009;

“the Building Societies Act” means the Building Societies Act 1986;

“building society” means a building society incorporated under the Building Societies Act;

“building society insolvency”, “building society insolvency order” and “building society liquidator” have the same meaning as in the Building Societies Act (see section 90C(2));

“contributory”, in relation to a building society and subject as provided in rule 40—

(i)

means every person liable to contribute to the assets of the society in the event of its being wound up, and

(ii)

for the purposes of all proceedings for determining, and all proceedings prior to the determination of, the persons who are deemed to be contributories, includes any person alleged to be a contributory, and

(iii)

includes persons who are liable to pay or contribute to the payment of any debt or liability of the building society, or any sum for the adjustment of rights of members among themselves, or the expenses of the winding up,

but does not include persons liable to contribute by virtue of a declaration by the court under section 213 (fraudulent trading) or 214 (wrongful trading) of the Insolvency Act;

“CPR” means the Civil Procedure Rules 1998(5);

“eligible depositor” means a depositor who is eligible for compensation under the FSCS;

“the FSA” means the Financial Services Authority;

“the FSCS” means the Financial Services Compensation Scheme (established under Part 15 of the Financial Services and Markets Act 2000(6)) or, where appropriate, the scheme manager of that scheme;

“the Insolvency Act” means the Insolvency Act 1986(7);

“liquidation committee” means the committee established pursuant to section 100 of the Banking Act;

“Objective 1” has the same meaning as in Part 2 of the Banking Act (see section 99(2));

“personal service” has the meaning given in Part 6 of the CPR;

“principal office” means—

(b)

the place which is specified in the building society’s memorandum sent to the FSA under paragraph 1(1)(c) of Schedule 2 to the Building Societies Act as the address of its principal office; or

(c)

if notice has been given by the building society to the FSA under paragraph 11(2) of that Schedule (change of principal office), the place specified in that notice or, as the case may be, in the last such notice;

“registered name” in relation to a building society means the name of the society which is for the time being registered with the FSA; and

“sealed” means sealed with the seal of the court under which the application was made.

(3) Other expressions used in these Rules, where used in relation to building societies, have the same meaning as in the Building Societies Act.

(4) In these Rules—

(a) any reference to Part 2 of the Banking Act (Bank Insolvency), or to any provision in that Part, is a reference to that Part or provision as applied and modified by section 90C of the Building Societies Act and by any order made under section 130 of the Banking Act;

(b) any reference to any provision of the Insolvency Act that is not applied by Part 2 of the Banking Act, is a reference to that provision as applied and modified by section 90A of, and Schedule 15A to, the Building Societies Act;

(c) any reference to any provision of the Insolvency Act which is applied by Part 2 of the Banking Act is a reference to that provision as applied and modified by section 90C of the Building Societies Act and by any order made under section 130 of the Banking Act.

(5) These Rules consist of—

(a) the rules set out in full;

(b) in the case of a rule applying a rule in Part 4, 7, 8, 9, 11, 12 or 13 of the 1986 Rules, the rule so applied with—

(i) the modifications set out in paragraph (6),

(ii) the modifications contained in the rule applying it, and

(iii) any other necessary modification;

(c) the Schedule, which applies the relevant schedules of the 1986 Rules.

(6) The modifications are that where applicable, a reference to—

(a) any provision of the Insolvency Act that is applied by Part 2 of the Banking Act is a reference to that provision as applied and modified by section 90C of the Building Societies Act and by any order made under section 130 of the Banking Act;

(b) any provision of the Insolvency Act that is not applied by Part 2 of the Banking Act is a reference to that provision as applied and modified by section 90A of, and Schedule 15A to, the Building Societies Act;

(c) the 1986 Rules (or “the Rules”) is a reference to these Rules;

(d) an affidavit is a reference to a witness statement;

(e) ex parte is a reference to without notice;

(f) the commencement of winding up is a reference to the commencement of building society insolvency;

(g) the chairman is a reference to the chair;

(h) a company is a reference to a building society;

(i) going into liquidation is a reference to entering building society insolvency;

(j) insolvency proceedings is a reference to building society insolvency proceedings;

(k) the official receiver should be ignored unless otherwise stated;

(l) a petition for winding up is a reference to an application for building society insolvency under section 95 of the Banking Act;

(m) a petitioner is a reference to an applicant;

(n) the provisional liquidator is a reference to the provisional building society liquidator;

(o) winding up is a reference to building society insolvency;

(p) winding up by the court is a reference to a building society being placed into building society insolvency by the court;

(q) a winding–up order is a reference to a building society insolvency order;

(r) the registered office is a reference to the principal office within the meaning of these Rules;

(s) the articles is a reference to the rules of the building society;

(t) the officers, or a particular officer of a company, is a reference to the officers, or the corresponding officer, of the building society and includes a person holding themself out as such an officer;

(u) the registrar of companies or the registrar is a reference to the FSA;

(v) contributory is a reference to a contributory in relation to a building society within the meaning of these Rules.

(7) Expressions used—

(a) both in a rule set out in full and in Part 2 of the Banking Act, or

(b) both in a modification to a rule from the 1986 Rules applied by these Rules and in Part 2 of the Banking Act,

have the same meaning as in Part 2 of the Banking Act.

(8) Expressions used—

(a) both in a rule set out in full and in the Building Societies Act, or

(b) both in a modification to a rule from the 1986 Rules applied by these Rules and in the Building Societies Act,

have the same meaning as in the Building Societies Act.

(9) Where a rule applies a rule of the 1986 Rules and modifies that rule by inserting or substituting text—

(a) any reference in the modified rule to the 2010 Rules is a reference to these Rules;

(b) expressions inserted or substituted have the same meaning as in these Rules.

(10) Where a rule in the 1986 Rules (Rule A) contains a reference to another such rule (Rule B) and—

(a) both Rule A and Rule B are applied by these Rules, or

(b) Rule A is applied by and the provision in Rule B to which Rule A refers is substantially repeated in these Rules,

the reference in Rule A shall be treated, for the purpose of these Rules, as being, respectively, to the rule in these Rules that applies Rule B or the provision in these Rules that substantially repeats the provision in Rule B.

(11) Where a rule (Rule A) refers to another rule (Rule B), and Rule B applies a rule of the 1986 Rules (Rule C) with or without modifications, the reference in Rule A includes a reference to Rule C as applied by Rule B.

(12) Any notice or document required to be sent electronically pursuant to these Rules shall be treated as having been sent to the person if—

(a) it is sent by email to the person’s last known email address, and

(b) the email contains a prompt asking the person for an electronic receipt saying that the email has been read.

(13) Where these Rules provide for a witness statement (either expressly, or through the application of the 1986 Rules as modified above)—

(a) that statement is a reference to a witness statement verified by a statement of truth in accordance with Part 22 of the CPR, and

(b) if the statement is made by the building society liquidator or provisional building society liquidator, the statement should state as such and should include the address at which that person works.

(1)

2009 c. 1.

(2)

1986 c.53. Section 90C was inserted by the Building Societies (Insolvency and Special Administration) Order 2009, article 2.

(3)

SI 1986/1925 as amended by S.I. 1987/1919, 1989/397, 1991/495, 1993/602, 1995/586, 1999/359, 1999/1022, 2001/763, 2002/1307, 2002/2712, 2004/584, 2004/1070, 2005/527, 2006/1272, 2007/1974, 2008/737, 2009/642 and 2009/2472.

(4)

S.I. 2009/2472.

(5)

S.I. 1998/3132.

(6)

2000 c.8.

(7)

1986 c.45.