The Energy Supply Company Administration (Scotland) Rules 2013

Part 3 Process of Energy Supply Company Administration

Notification and advertisement of energy administrator’s appointment

9.—(1) The notice of appointment, which the energy administrator must publish as soon as is reasonably practicable after appointment by virtue of paragraph 46(2)(b) of Schedule B1 to the 1986 Act, shall be advertised in the Edinburgh Gazette in Form ESCA4(S) and may be advertised in such other manner as the energy administrator thinks fit.

(2) In addition to the standard content, the notice under paragraph (1) must state—

(a) that an energy administrator has been appointed;

(b) the date of the appointment; and

(c) the nature of the business of the company.

(3) The energy administrator shall at the same time give notice of the energy administrator’s appointment to the following persons—

(a) an administrative receiver, if appointed;

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

(c) any provisional liquidator of the energy supply company, if appointed;

(d) 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 energy supply company;

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

(f) 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 the person is seeking to appoint an administrator;

(g) any creditor who, to the energy administrator’s knowledge, has served notice in accordance with section 164 of the 2004 Act (restrictions on enforcement of security) of the creditor’s intention to enforce the creditor’s security over property of the energy supply company;

(h) the Keeper of the Register of Inhibitions and Adjudications for recording in that register;

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

(j) if the application for the energy supply company administration order was made by GEMA, to the Secretary of State.

(4) Where, under a provision of Schedule B1 to the 1986 Act or these Rules, the energy administrator is required to send a notice of the energy administrator’s appointment to any person, the energy administrator shall do so in Form ESCA5(S).

Notice requiring statement of affairs

10.—(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 to each relevant person upon whom the energy administrator decides to make a requirement under paragraph 47 of Schedule B1 to the 1986 Act a notice in Form ESCA6(S) requiring that relevant person to prepare and submit a statement of the energy supply company’s affairs.

(3) The notice shall inform each relevant person—

(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 the person, 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 the energy administrator decides to make a requirement under paragraph 47 of Schedule B1 to the 1986 Act with the forms required for the preparation of the statement of affairs.

Statements of affairs and statements of concurrence

11.—(1) The statement of the energy supply company’s affairs shall be in Form ESCA7(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 ESCA8(S); and where the energy administrator does so, the energy administrator 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 of it, 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 of it, 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 that person.

(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, considers that statement to be erroneous or misleading, or is without the direct knowledge necessary for concurring with it.

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

(7) Subject to Rule 12, 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 ESCA9(S), and

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

Limited disclosure

12.—(1) Where the energy administrator thinks that it would prejudice the conduct of the energy supply company administration or might reasonably be expected to lead to violence against any person for the whole or part of the statement of the energy supply company’s affairs to be disclosed, the energy administrator 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, the creditor 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 the energy administrator has previously sent a copy of the energy administrator’s 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

13.—(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 that Schedule 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, and unless the court otherwise orders, no allowance towards the expenses of an applicant under this Rule in relation to the application shall be made as an expense of the administration of the energy supply company.

Expenses of statement of affairs

14.—(1) A relevant person who provides to the energy administrator a statement of the affairs of the energy supply company or statement of concurrence shall be allowed, and paid by the energy administrator as an expense of the energy supply company administration, 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

15.—(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 those matters set out in that paragraph—

(a) details of the court which granted the energy supply company administration order or in which the notice of appointment was lodged, and the relevant court reference number (if any);

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

(c) details relating to the energy administrator’s appointment, 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 (energy administrators);

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

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

(f) if a statement of the energy supply 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 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 energy supply company at the latest practicable date (which must, unless the court otherwise orders, be a date not earlier than that on which the energy supply company entered energy supply company 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) a statement complying with paragraph (3) of any pre-energy supply company administration costs charged or incurred by the energy administrator or, to the energy administrator’s knowledge, by any other person qualified to act as an insolvency practitioner;

(k) except where the energy administrator proposed a voluntary arrangement in relation to the energy supply 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 the energy administrator proposes to make an application to court under section 176A(5) of the 1986 Act (share of assets for unsecured creditors)(2) or section 176A(3) of the 1986 Act applies); and

(bb) an estimate of the value of the energy supply 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 energy supply 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 proposed to make an application to court under section 176A(5) of the 1986 Act;

(l) a statement (which must comply with paragraph (4) where that paragraph applies) of how it is envisaged the objective of the energy supply company administration will be achieved and how it is proposed that the energy supply company administration shall end;

(m) the manner in which the affairs and business of the energy supply 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

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

(2) In this Part—

(a) “pre-energy supply company administration costs” are—

(i) fees charged; and

(ii) expenses incurred,

by the energy administrator, or another person qualified to act as an insolvency practitioner, before the energy supply company entered energy supply company administration but with a view to its doing so; and

(b) “unpaid pre-energy supply company administration costs” are pre-energy supply company administration costs which had not been paid when the energy supply company entered energy supply company administration.

(3) A statement of pre-energy supply company administration costs complies with this paragraph if it includes—

(a) details of any agreement under which the fees were charged and expenses incurred, including the parties to the agreement and the date on which the agreement was made;

(b) details of the work done for which the fees were charged and expenses incurred;

(c) an explanation of why the work was done before the company entered energy supply company administration and how it would further the achievement of the objective of the energy supply company administration;

(d) a statement of the amount of the pre-energy supply company administration costs, setting out separately—

(i) the fees charged by the energy administrator;

(ii) the expenses incurred by the energy administrator;

(iii) the fees charged (to the energy administrator’s knowledge) by any other person qualified to act as an insolvency practitioner (and, if more than one, by each separately); and

(iv) the expenses incurred (to the energy administrator’s knowledge) by any other person qualified to act as an insolvency practitioner (and, if more than one, by each separately);

(e) a statement of the amounts of pre-energy supply company administration costs which have already been paid (set out separately as under sub-paragraph (d));

(f) the identity of the person who made the payment or, if more than one person made the payment, the identity of each such person and of the amounts paid by each such person (set out separately as under sub-paragraph (d));

(g) a statement of the amounts of unpaid pre-energy supply company administration costs (set out separately as under paragraph (d)); and

(h) a statement that the payment of unpaid pre-energy supply company administration costs as an expense of the energy supply company administration is subject to approval under Rule 48.

(4) This paragraph applies where it is proposed that the energy supply company administration will end by the energy supply company moving to a creditors’ voluntary liquidation; and in that case, the statement required by paragraph (1)(l) must include—

(a) details of the proposed liquidator;

(b) where applicable, the declaration required by section 231 of the 1986 Act (appointment to office of two or more persons); and

(c) a statement that the creditors may, nominate a different person as liquidator in accordance with paragraph 83(7) of Schedule B1 to the 1986 Act and Rule 57.

(5) A copy of the energy administrator’s statement of the energy administrator’s proposals shall be sent to the registrar of companies together with a notice in Form ESCA10(S).

(6) Where the court orders, upon an application by the energy administrator under paragraph 107 of Schedule B1 to the 1986 Act, an extension of the period of time in paragraph 49(5) of that Schedule, the energy administrator must as soon as reasonably practicable after the making of the order notify in Form ESCA11(S) every creditor of the energy supply company and every member of the energy supply company of whose address (in either case) the energy administrator is aware.

(7) Where the energy supply company administrator wishes to publish a notice under paragraph 49(6) of Schedule B1 to the 1986 Act, the notice shall be advertised in such manner as the energy administrator thinks fit.

(8) A notice published under paragraph (7) must include the standard content and must also state—

(a) that members can write for a copy of the statement of proposals for achieving the purpose of energy supply company administration; and

(b) the address to which to write.

(9) The notice must be published as soon as reasonably practicable after the energy administrator sends the statement of proposals to the energy supply company’s creditors but no later than 8 weeks (or such other period as may be agreed by the creditors or as the court may order) from the date that the energy supply company entered energy supply company administration.

Limited disclosure of paragraph 49 of Schedule B1 to the 1986 Act statement

16.—(1) Where the energy administrator thinks that it would prejudice the conduct of the energy administration or might reasonably be expected to lead to violence against any person for any of the matters specified in Rule 15(1)(h) and (i) to be disclosed, the energy administrator may apply to the court for an order of limited disclosure in respect of any specified part of the statement under paragraph 49 of Schedule B1 to the 1986 Act containing such matter.

(2) The court may, on such application, order that some or all of the specified part of the statement must not be sent to the registrar of companies or to creditors or members of the energy supply company as otherwise required by paragraph 49(4) of Schedule B1 to the 1986 Act.

(3) The energy administrator must as soon as reasonably practicable send to the persons specified in paragraph 49(4) to Schedule B1 to the 1986 Act the statement under paragraph 49 of that Schedule (to the extent provided by the order) and an indication of the nature of the matter in relation to which the order was made.

(4) The energy administrator must also send a copy of the order to the registrar of companies.

(5) A creditor who seeks disclosure of a part of a statement under paragraph 49 of Schedule B1 to the 1986 Act in relation to which an order has been made under this Rule may apply to the court for an order that the energy administrator disclose it. The application must be supported by written evidence in the form of an affidavit.

(6) The court may make any order for disclosure subject to any conditions as to confidentiality, duration and scope of the order in the event of any change of circumstances, or other matters, as it sees just.

(7) If there is a material change in circumstances rendering the limit on disclosure or any part of it unnecessary, the energy administrator must, as soon as reasonable practicable after the change, apply to the court for the order to be discharged or varied.

(8) The energy administrator must, as soon as reasonably practicable after the making of an order under paragraph (7), send to the persons specified in paragraph 49(4) of Schedule B1 to the 1986 Act a copy of the statement under paragraph 49 of that Schedule to the extent provided by the order.

Notices to creditors

17.—(1) As soon as reasonably practicable after the conclusion of a meeting of creditors to consider the energy administrator’s proposals or revised proposals, or of the conclusion of the business of such a meeting by correspondence in accordance with these Rules, the administrator shall

(a) send notice of the result of the meeting (including details of any modifications to the proposals that were approved) to every person who received notice of the meeting and to the registrar of companies;

(b) lodge in court, and send to any creditors who did not receive notice of the meeting and of whose claim the energy administrator has become subsequently aware, a copy of the notice of the result of the meeting along with a copy of the proposals which were considered at that meeting; and

(c) place a copy of the notice of the result of the meeting in the sederunt book.

(2) Where the business of a creditors’ meeting has been carried out by correspondence in accordance with Rule 23, for the references in the foregoing paragraph of this Rule to the result of the meeting and notice of the meeting there shall be substituted references to the result of the correspondence and to the correspondence.

(1)

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

(2)

1986 c.45. Section 176A was inserted by the Enterprise Act 2002 ((c. 40), section 252.