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PART 12E+WCOURT PROCEDURE AND PRACTICE

CHAPTER 6E+WTransfer of proceedings

Sub-division B : Block transfer of cases where insolvency practitioner has died etc.E+W

InterpretationE+W

12.35.  In this Sub-division—

“outgoing office-holder” has the meaning given in rule 12.36(1);

“replacement office-holder” has the meaning given in rule 12.36(1);

“block transfer order” has the meaning given in rule 12.36(2);

“substantive application” is that part of the application in rule 12.37(1)(c) and (d).

Modifications etc. (not altering text)

C1Rule 12.35 applied (with modifications) (temp.) (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 4 para. 47 (with ss. 2(2), 5(2), Sch. 4 para. 12)

Power to make a block transfer orderE+W

12.36.—(1) This rule applies where an office-holder (‘the outgoing office-holder’)—

(a)dies;

(b)retires from practice; or

(c)is otherwise unable or unwilling to continue in office;

and it is expedient to transfer some or all of the cases in which the outgoing office-holder holds office to one or more office-holders (‘the replacement office-holder’) in a single transaction.

(2) In a case to which this rule applies the court has the power to make an order (‘a block transfer order’) appointing a replacement office-holder in the place of the outgoing office-holder to be—

(a)liquidator in any winding up (including a case where the official receiver is the liquidator by virtue of section 136) M1;

(b)administrator in any administration;

(c)trustee in a bankruptcy (including a case where the official receiver is the trustee by virtue of section 300 M2); F1...

(d)supervisor of a CVA or an IVA [F2; or]

[F3(e)a monitor in respect of a moratorium under Part A1 of the Act.]

(3) The replacement office-holder must be—

(a)qualified to act as an insolvency practitioner in relation to the company or bankrupt; or

(b)where the replacement office-holder is to be appointed supervisor of an IVA—

(i)qualified to act as an insolvency practitioner in relation to the debtor, or

(ii)a person authorised so to act.

Textual Amendments

Modifications etc. (not altering text)

C3Rule 12.36 applied (with modifications) (temp.) (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 4 para. 47 (with ss. 2(2), 5(2), Sch. 4 para. 12)

Marginal Citations

M1Section 136(4), (5)(a) and (c) and (6) are amended by paragraph 31 of Schedule 9 to the Small Business, Enterprise and Employment Act 2015 (c.26).

M2Section 300(4) and (8)_ is amended, (3) is substituted and (3A) is inserted by paragraph 79 of Schedule 9 to the Small Business, Enterprise and Employment Act 2015 (c.26).

Application for a block transfer orderE+W

12.37.—(1) An application for a block transfer order may be made to the registrar or District Judge for—

(a)the transfer to the High Court of the cases specified in the schedule to the application under paragraph (8);

(b)the transfer of the cases back to the court or hearing centre from which they were transferred when a replacement office-holder has been appointed;

(c)the removal of the outgoing office-holder by the exercise of any of the powers in paragraph (2);

(d)the appointment of a replacement office-holder by the exercise of any of the powers in paragraph (3); or

(e)such other order or direction as may be necessary or expedient in connection with any of the matters referred to above.

(2) The powers referred to in paragraph (1)(c) are those in—

[F4(za)section A39 (moratorium under Part A1 of the Act);]

(a)section 7(5) F5...;

(b)section 19 M3, paragraph 88 of Schedule B1 and rule 12.36(2) (administration);

(c)section 108 (voluntary winding up);

(d)section 172(2) M4 and rule 12.36(2) (winding up by the court);

(e)section 263(5) M5 (IVA); and

(f)section 298 M6 and rule 12.36(2) (bankruptcy).

(3) The powers referred to in paragraph (1)(d) are those in—

[F6(za)section A39 (moratorium under Part A1 of the Act);]

(a)section 7(5) F7...;

(b)section 13 M7, paragraphs 63, 91 and 95 of Schedule B1 and rule 12.36(2) (administration);

(c)section 108 (voluntary winding up);

(d)section 168(3) and (5) and rule 12.36(2) (winding up by the court);

(e)section 263(5) (IVA); and

(f)sections 298 and 303(2) and rule 12.36(2) (bankruptcy).

(4) Subject to paragraph (5), the application may be made by any of the following—

(a)the outgoing office-holder (if able and willing to do so);

(b)any person who holds office jointly with the outgoing office-holder;

(c)any person who is proposed to be appointed as the replacement office-holder;

(d)any creditor in a case subject to the application;

(e)the recognised professional body which was the source of the outgoing office-holder's authorisation; or

(f)the Secretary of State.

(5) Where one or more outgoing office-holder in the schedule under paragraph (8) is an administrator, an application may not be made unless the applicant is a person permitted to apply to replace that office-holder under section 13 or paragraph 63, 91 or 95 of Schedule B1 or such a person is joined as applicant in relation to the replacement of that office-holder.

(6) An applicant (other than the Secretary of State) must deliver a notice of the intended application to the Secretary of State on or before the date the application is made.

(7) The following must be made a respondent to the application and served with it—

(a)the outgoing office-holder (if not the applicant or deceased);

(b)any person who holds office jointly with the outgoing office-holder; and

(c)such other person as the registrar or District Judge directs.

(8) The application must contain a schedule setting out—

(a)identification details for the proceedings; and

(b)the capacity in which the outgoing office-holder was appointed.

(9) The application must be supported by evidence—

(a)setting out the circumstances as a result of which it is expedient to appoint a replacement office-holder; and

(b)exhibiting the consent to act of each person who is proposed to be appointed as replacement office-holder.

(10) Where all the cases in the schedule under paragraph (8) are in the County Court—

(a)the application may be made to a District Judge of a convenient hearing centre in which insolvency proceedings of such type may be commenced; and

(b)this rule applies with appropriate modifications.

Textual Amendments

Modifications etc. (not altering text)

C4Rule 12.37 applied (with modifications) (temp.) (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 4 para. 47 (with ss. 2(2), 5(2), Sch. 4 para. 12)

Marginal Citations

M3Section 19 is substituted by section 248(1) of the Enterprise Act 2002 (c.40).

M4Section 172(2) is amended by paragraph 43(2) of Schedule 9 to the Small Business, Enterprise and Employment Act 2015 (c.26).

M5Section 263(5) is amended by paragraph 2(11)(b) of Schedule 6 to the Deregulation Act 2015.

M6Section 298(8A) is inserted and (1) is amended by paragraph 77 of Schedule 9; subsection (4) is amended and, (2) omitted and (4A) and (4B) are inserted by paragraph 9 of Schedule 10 to the Small Business, Enterprise and Employment Act 2015 (c.26) and subsections (7) and (8) are amended by paragraph 23 of Schedule 19 to the Enterprise and Regulatory Reform Act 2013 (c.24).

M7Section 13 if substituted by section 248(1) of the Enterprise Act 2002.

Action following application for a block transfer orderE+W

12.38.—(1) The registrar or District Judge may in the first instance consider the application without a hearing and make such order as the registrar or District Judge thinks just.

(2) In the first instance, the registrar or District Judge may do any of the following—

(a)make an order directing the transfer to the High Court of those cases not already within its jurisdiction for the purpose only of the substantive application;

(b)if the documents are considered to be in order and the matter is considered straightforward, make an order on the substantive application;

(c)give any directions which are considered to be necessary including (if appropriate) directions for the joinder of any additional respondents or requiring the service of the application on any person or requiring additional evidence to be provided; or

(d)if an order is not made on the substantive application, give directions for the further consideration of the substantive application by the registrar or District Judge or a judge of the Chancery Division.

(3) The applicant must ensure that a sealed copy of every order transferring any case to the High Court and of every order which is made on a substantive application is filed with the court having jurisdiction over each case affected by such order.

(4) In any case other than an application relating to the appointment of an administrator, in deciding to what extent (if any) the costs of making an application under this rule should be paid as an expense of the insolvency proceedings to which the application relates, the factors to which the court must have regard include—

(a)the reasons for the making of the application;

(b)the number of cases to which the application relates;

(c)the value of assets comprised in those cases; and

(d)the nature and extent of the costs involved.

(5) Where an application relates to the appointment of an administrator and is made by a person under section 13 or paragraph 63, 91 or 95 of Schedule B1, the costs of making that application are to be paid as an expense of the administration to which the application relates unless the court directs otherwise.

(6) Notice of any appointment made under this rule must be delivered—

(a)to the Secretary of State as soon as reasonably practicable; and

(b)to—

(i)the creditors, and

(ii)such other persons as the court may direct, in such manner as the court may direct.

(7) Where the application was made to the District Judge under rule 12.37(10) this rule applies with appropriate modifications.

Modifications etc. (not altering text)

C5Rule 12.38 applied (with modifications) (temp.) (26.6.2020) by Corporate Insolvency and Governance Act 2020 (c. 12), s. 49(1), Sch. 4 para. 47 (with ss. 2(2), 5(2), Sch. 4 para. 12)