The Energy Administration Rules 2005

• Citation: S.I. 2005/2483
• Sections: 189

Section 1 Citation and commencement

These Rules may be cited as the Energy Administration Rules 2005 and shall come into force on 1st October 2005.

Section 2 Construction and interpretation

(1) In these Rules—

“the 1986 Act ” means the Insolvency Act 1986;

“the 2004 Act ” means the Energy Act 2004;

“administrative receiver” has the same meaning as in section 156(4) of the 2004 Act;

“the Companies Act ” means the Companies Act 1985 ;

“ CPR ” means the Civil Procedure Rules 1998 and “CPR” followed by a Part or rule number means the Part or rule with that number in those Rules;

“enforcement officer” means an individual who is authorised to act as an enforcement officer under the Courts Act 2003 ;

“ GEMA ” means the Gas and Electricity Markets Authority;

“insolvency proceedings” has the same meaning as in Rule 13.7 of the Insolvency Rules ;

“the Insolvency Rules” means the Insolvency Rules 1986 ;

“qualifying floating charge” has the same meaning as in paragraph 14(2) of Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act;

“ the Rules ” means the Energy Administration Rules 2005.

(2) References in the Rules to ex parte hearings shall be construed as references to hearings without notice being served on any other party; references to applications made ex parte as references to applications made without notice being served on any other party and other references which include the expression “ ex parte ” shall be similarly construed.

(3) References to provisions of Schedule B1 to the 1986 Act are references to those provisions as modified and applied by Schedule 20 to the 2004 Act unless otherwise stated.

(4) References to other provisions of the 1986 Act are, where those provisions have been modified by Schedule 20 to the 2004 Act, references to those provisions as so modified.

(5) Where the protected energy company is a non-GB company within the meaning of section 171 of the 2004 Act, references in the Rules to the affairs, business and property of the company are references only to its affairs and business so far as carried on in Great Britain and to its property in Great Britain unless otherwise stated.

(6) Where the protected energy company is an unregistered company, any requirement to send information to the registrar of companies applies only if the company is subject to a requirement imposed by virtue of section 691(1) or 718 of the Companies Act.

(7) Subject to paragraphs (1), (2), (3), (4), (5) and (6), Part 15 of the Rules has effect for their interpretation and application.

Section 3 Extent

The Rules apply in relation to protected energy companies which the courts in England and Wales have jurisdiction to wind up.

Section 4 Affidavit in support of energy administration application

Where it is proposed to apply to the court for an energy administration order to be made in relation to a protected energy company, the energy administration application shall be in Form EA1 and an affidavit complying with Rule 6 must be prepared and sworn, with a view to its being filed with the court in support of the application.

Section 5 Form of application

(1) The application shall state by whom it is made and the applicant’s address for service.

(2) Where it is made by GEMA, the application shall contain a statement that it is made with the consent of the Secretary of State.

(3) There shall be attached to the application a written statement which shall be in Form EA2 by each of the persons proposed to be energy administrator stating—

(a) that he consents to accept the appointment; and

(b) details of any prior professional relationship(s) that he has had with the protected energy company to which he is to be appointed as energy administrator.

Section 6 Contents of application and affidavit in support

(1) The energy administration application shall state that the company is a protected energy company.

(2) The application shall state one or both of the following—

(a) the applicant’s belief that the protected energy company is, or is likely to be, unable to pay its debts;

(b) the Secretary of State has certified that it would be appropriate for him to petition for the winding up of the protected energy company under section 124A of the 1986 Act (petition for winding up on grounds of public interest).

(3) There shall be attached to the application an affidavit in support which shall contain—

(a) a statement of the protected energy company’s financial position, specifying (to the best of the applicant’s knowledge and belief) the company’s assets and liabilities, including contingent and prospective liabilities;

(b) details of any security known or believed to be held by the creditors of the protected energy company and whether in any case the security is such as to confer power on the holder to appoint an administrative receiver or to appoint an administrator under paragraph 14 of Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act. If an administrative receiver has been appointed, that fact shall be stated;

(c) details of any insolvency proceedings in relation to the protected energy company including any petition that has been presented for the winding up of the protected energy company so far as within the immediate knowledge of the applicant;

(d) details of any notice served in accordance with section 164 of the 2004 Act by any person intending to enforce any security over the protected energy company’s assets, so far as within the immediate knowledge of the applicant;

(e) details of any step taken to enforce any such security, so far as within the immediate knowledge of the applicant;

(f) details of any application for leave of the court to pass a resolution for the voluntary winding up of the protected energy company, so far as within the immediate knowledge of the applicant;

(g) where it is intended to appoint a number of persons as energy administrators, details of the matters set out in section 158(5) of the 2004 Act regarding the exercise of the powers and duties of the energy administrator;

(h) any other matters which, in the opinion of those intending to make the application for an energy administration order, will assist the court in deciding whether to make such an order, so far as lying within the knowledge or belief of the applicant.

Section 7 Filing of application

(1) The application (and all supporting documents) shall be filed with the court, with a sufficient number of copies for service and use as provided by Rule 8.

(2) Each of the copies filed shall have applied to it the seal of the court and be issued to the applicant; and on each copy there shall be endorsed the date and time of filing.

(3) The court shall fix a venue for the hearing of the application and this also shall be endorsed on each copy of the application issued under paragraph (2).

(4) After the application is filed, it is the duty of the applicant to notify the court in writing of the existence of any insolvency proceedings, in relation to the protected energy company, as soon as the applicant becomes aware of them.

Section 8 Service of application

(1) In the following paragraphs of this Rule, references to the application are to a copy of the application issued by the court under Rule 7(2) together with the affidavit in support of it and the documents attached to the application.

(2) Notification for the purposes of section 156(2) of the 2004 Act shall be by way of service in accordance with Rule 10, verified in accordance with Rule 11.

(3) The application shall be served in addition to those persons referred to in section 156(2) of the 2004 Act—

(a) if an administrative receiver has been appointed, on him;

(b) if there is pending an administration application under Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act, on the applicant;

(c) if there is pending a petition for the winding-up of the protected energy company, on the petitioner (and also on the provisional liquidator, if any);

(d) on any creditor who 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;

(e) on the person proposed as energy administrator;

(f) on the protected energy company;

(g) if the applicant is the Secretary of State, on GEMA;

(h) if the applicant is GEMA, on the Secretary of State;

(i) if a supervisor of a voluntary arrangement under Part I of the 1986 Act has been appointed, on him.

Section 9 Notice to officers charged with execution of writs or other process, etc

The applicant shall as soon as reasonably practicable after filing the application give notice of its being made to—

(a) any enforcement officer or other officer who to the applicant’s knowledge is charged with an execution or other legal process against the protected energy company or its property; and

(b) any person who to the applicant’s knowledge has distrained against the protected energy company or its property.

Section 10 Manner in which service to be effected

(1) Service of the application in accordance with Rule 8 shall be effected by the applicant, or the applicant’s solicitor, or by a person instructed by the applicant or the applicant’s solicitor, not less than 2 days before the date fixed for the hearing.

(2) Service shall be effected as follows—

(a) on the protected energy company (subject to paragraph (3) below), by delivering the documents to its registered office;

(b) on any other person (subject to paragraph (4) below), by delivering the documents to his proper address;

(c) in either case, in such other manner as the court may direct.

(3) If delivery to a protected energy company’s registered office is not practicable or if the protected energy company is an unregistered company, service may be effected by delivery to its last known principal place of business in England and Wales.

(4) Subject to paragraph (5), for the purposes of paragraph (2)(b) above, a person’s proper address is any which he has previously notified as his address for service; but if he has not notified any such address, service may be effected by delivery to his usual or last known address.

(5) In the case of a person who—

(a) is an authorised deposit-taker or a former authorised deposit-taker;

(b)

(i) has appointed, or is or may be entitled to appoint, an administrative receiver of the protected energy company, or

(ii) is, or may be entitled to appoint an administrator of the protected energy company under paragraph 14 of Schedule B1 to the 1986 Act, without the modifications made by Schedule 20 to the 2004 Act; and

(c) has not notified an address for service,

the proper address is the address of an office of that person where, to the knowledge of the applicant, the protected energy company maintains a bank account or, where no such office is known to the applicant, the registered office of that person, or, if there is no such office, his usual or last known address.

(6) Delivery of the documents to any place or address may be made by leaving them there, or sending them by first class post.

Section 11 Proof of service

(1) Service of the application shall be verified by an affidavit of service in Form EA3, specifying the date on which, and the manner in which, service was effected.

(2) The affidavit of service, with a sealed copy of the application exhibited to it, shall be filed with the court as soon as reasonably practicable after service, and in any event not less than 1 day before the hearing of the application.

Section 12 The hearing

(1) At the hearing of the energy administration application, any of the following may appear or be represented—

(a) the Secretary of State;

(b) GEMA;

(c) the protected energy company;

(d) one or more of the directors;

(e) if an administrative receiver has been appointed, that person;

(f) any person who has presented a petition for the winding-up of the protected energy company;

(g) the person proposed for appointment as energy administrator;

(h) any person that is the holder of a qualifying floating charge;

(i) 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;

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

(k) any supervisor of a voluntary arrangement under Part I of the 1986 Act;

(l) with the permission of the court, any other person who appears to have an interest justifying his appearance.

(2) If the court makes an energy administration order, it shall be in Form EA4.

(3) If the court makes an energy administration order, the costs of the applicant, and of any person whose costs are allowed by the court, are payable as an expense of the energy administration.

Section 13 Notice of energy administration order

(1) If the court makes an energy administration order, it shall as soon as reasonably practicable send two sealed copies of the order to the person who made the application.

(2) The applicant shall send a sealed copy of the order as soon as reasonably practicable to the person appointed as energy administrator.

(3) If the court makes an order under section 157(1)(d) of the 2004 Act or any other order under section 157(1)(f) of the 2004 Act, it shall give directions as to the persons to whom, and how, notice of that order is to be given.

Section 14 Notification and advertisement of energy administrator’s appointment

(1) The energy administrator shall advertise his appointment once in the Gazette, and once in such newspaper as he thinks most appropriate for ensuring that the appointment comes to the notice of the protected energy company’s creditors. The advertisement shall be in Form EA5.

(2) The energy administrator shall, as soon as reasonably practicable after the date specified in paragraph 46(6) of Schedule B1 to the 1986 Act, give notice of his appointment—

(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) if a receiver or an administrative receiver has been appointed, to him;

(d) if there is pending a petition for the winding up of the protected energy company, to the petitioner (and to the provisional liquidator, if any);

(e) to 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;

(f) to any enforcement officer who, to the energy administrator’s knowledge, is charged with execution or other legal process against the protected energy company;

(g) to any person who, to the energy administrator’s knowledge, has distrained against the protected energy company or its property;

(h) to any supervisor of a voluntary arrangement under Part I of the 1986 Act;

(i) to 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; and

(j) to 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.

(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 EA6.

Section 15 Notice requiring statement of affairs

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

(2) The energy administrator shall send notice in Form EA7 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 provide information, and to attend on the energy administrator, if required).

(4) The energy administrator shall furnish each relevant person to whom he has sent notice in Form EA7 with the forms required for the preparation of the statement of affairs.

Section 16 Verification and filing

(1) The statement of the protected energy company’s affairs shall be in Form EA8, contain all the particulars required by that form and shall be verified by a statement of truth by the relevant person.

(2) The energy administrator may require any relevant person to submit a statement of concurrence in Form EA9 stating that he concurs in the statement of affairs. Where the energy administrator does so, he shall inform the person making the statement of affairs of that fact.

(3) The statement of affairs shall be delivered by the relevant person making the statement of truth, together with a copy, to the energy administrator. The relevant person shall also deliver a copy of the statement of affairs to all those persons whom the energy administrator has required to make a statement of concurrence.

(4) A person required to submit a statement of concurrence shall do so 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 relevant person, or he considers the statement of affairs to be erroneous or misleading, or he is without the direct knowledge necessary for concurring with it.

(6) Every statement of concurrence shall be verified by a statement of truth and be delivered to the energy administrator by the person who makes it, together with a copy of it.

(7) Subject to Rule 17 below, the energy administrator shall as soon as reasonably practicable send to the registrar of companies and file with the court a Form EA10 together with a copy of the statement of affairs and any statement of concurrence.

Section 17 Limited disclosure

(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, on such application, order that the statement or, as the case may be, the specified part of it, shall not be filed with the registrar of companies.

(3) The energy administrator shall as soon as reasonably practicable send to the registrar of companies a Form EA10 together with a copy of the order and the statement of affairs (to the extent provided by the order) and any statement of concurrence.

(4) If a creditor seeks disclosure of a 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. The application shall be supported by written evidence in the form of an affidavit.

(5) The applicant shall give the energy administrator notice of his application at least 3 days before the hearing.

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

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

(8) The energy administrator shall, as soon as reasonably practicable after the making of an order under paragraph (7) above, file with the registrar of companies Form EA10 together with a copy of the statement of affairs to the extent provided by the order.

(9) When the statement of affairs is filed in accordance with paragraph (8), the energy administrator shall, where he has sent a statement of proposals under paragraph 49 of Schedule B1 to the 1986 Act, provide the creditors with a copy of the statement of affairs as filed, or a summary thereof.

(10) The provisions of Part 31 of the CPR shall not apply to an application under this Rule.

Section 18 Release from duty to submit statement of affairs; extension of time

(1) The power of the energy administrator under paragraph 48(2) of Schedule B1 to the 1986 Act to give a release from the obligation imposed by 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 discretion, or at the request of any relevant person.

(2) A relevant person may, if he requests a release or extension of time and it is refused by the energy administrator, apply to the court for it.

(3) The court may, if it thinks that no sufficient cause is shown for the application, dismiss it without a hearing but it shall not do so without giving the relevant person at least 7 days' notice, upon receipt of which the relevant person may request the court to list the application for a without notice hearing. If the application is not dismissed, the court shall fix a venue for it to be heard, and give notice to the relevant person accordingly.

(4) The relevant person shall, at least 14 days before the hearing, send to the energy administrator a notice stating the venue and accompanied by a copy of the application and of any evidence which he (the relevant person) intends to adduce in support of it.

(5) The energy administrator may appear and be heard on the application and, whether or not he appears, he may file a written report of any matters which he considers ought to be drawn to the court’s attention.

If such a report is filed, a copy of it shall be sent by the energy administrator to the relevant person, not later than 5 days before the hearing.

(6) Sealed copies of any order made on the application shall be sent by the court to the relevant person and the energy administrator.

(7) On any application under this Rule the relevant person’s costs shall be paid in any event by him and, unless the court otherwise orders, no allowance towards them shall be made out of the assets.

Section 19 Expenses of statement of affairs

(1) A relevant person making the 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 of any obligation with respect to the preparation, verification and submission of the statement of affairs, or to the provision of information to the energy administrator.

Section 20 Energy administrator’s proposals

(1) The energy administrator shall, under paragraph 49 of Schedule B1 to the 1986 Act, make a statement which he shall send to the registrar of companies attached to Form EA11.

(2) The statement shall include, in addition to those matters set out in paragraph 49 of Schedule B1 to the 1986 Act—

(a) details of the court where the proceedings are and the relevant court reference number;

(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 in the protected energy company they may have;

(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 (under Rule 17) 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, addresses and debts of the creditors including details of any security held;

(i) if no statement of affairs has been submitted, 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), a list of the protected energy company’s creditors including their names, addresses and details of their debts, including any security held, and 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 and subject to paragraph (3))—

(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 court under section 176A(5) of the 1986 Act or section 176A(3) of the 1986 Act applies); and

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

(ii) whether, and, if so, why, the energy administrator proposes to make an application to 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. If a creditors' voluntary liquidation is proposed, details of the proposed liquidator must be provided, and a statement that, in accordance with paragraph 83(7) of Schedule B1 to the 1986 Act and Rule 78(3), creditors may nominate a different person as the proposed liquidator, provided that the nomination is made at a meeting of creditors called for that purpose;

(l) 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

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

(3) Nothing in paragraph (2)(j) is to be taken as requiring any such estimate to include any information, the disclosure of which could seriously prejudice the commercial interests of the protected energy company. If such information is excluded from the calculation the estimate shall be accompanied by a statement to that effect.

(4) 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 Schedule B1 to the 1986 Act, the energy administrator shall notify in Form EA12 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.

(5) 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 such newspaper as he thinks most appropriate for ensuring that the notice comes to the attention of the protected energy company’s members. 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 members can write for a copy of the statement of proposals.

(6) 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 but no later than 8 weeks (or such other period as the court may order) from the date that the protected energy company entered energy administration.

Section 21 Creditors' meetings generally

(1) This Rule applies to creditors' meetings summoned by the energy administrator under paragraph 62 of Schedule B1 to the 1986 Act.

(2) Notice of a creditors' meeting shall be in Form EA13.

(3) In fixing the venue for the meeting, the energy administrator shall have regard to the convenience of creditors and the meeting shall be summoned for commencement between 10.00 and 16.00 hours on a business day, unless the court otherwise directs.

(4) Subject to paragraphs (6) and (7) below and Rule 23, at least 14 days' notice of the meeting shall be given to all creditors who are known to the energy administrator and had claims against the protected energy company at the date when the protected energy company entered energy administration unless that creditor has subsequently been paid in full; and the notice shall—

(a) specify the purpose of the meeting;

(b) contain a statement of the effect of Rule 24 (entitlement to vote); and

(c) contain the forms of proxy.

(5) If within 30 minutes from the time fixed for the commencement of the meeting there is no person present to act as chairman, the meeting stands adjourned to the same time and place in the following week or, if that day is not a business day, to the business day immediately following.

(6) The meeting may be adjourned once, if the chairman thinks fit, but not for more than 14 days from the date on which it was fixed to commence, subject to the direction of the court.

(7) If a meeting is adjourned the energy administrator shall as soon as reasonably practicable notify the creditors of the venue of the adjourned meeting.

Section 22 The chairman at meetings

(1) At any meeting of creditors summoned by the energy administrator, either he shall be chairman, or a person nominated by him in writing to act in his place.

(2) A person so nominated must be either—

(a) one who is qualified to act as an insolvency practitioner in relation to the protected energy company, or

(b) an employee of the energy administrator or his firm who is experienced in insolvency matters.

Section 23 Creditors' meeting for nomination of alternative liquidator

(1) Where under Rule 20(2)(k) or 31(2)(g), the energy administrator has proposed that the protected energy company enter creditors' voluntary liquidation once the energy administration has ended, the energy administrator shall, in the circumstances detailed in paragraph (2), call a meeting of creditors for the purpose of nominating a person other than the person named as proposed liquidator in the energy administrator’s proposals or revised proposals.

(2) The energy administrator shall call a meeting of creditors where such a meeting is requested by creditors of the protected energy company whose debts amount to at least 25 per cent of the total debts of the protected energy company.

(3) The request for a creditors' meeting for the purpose set out in paragraph (1) shall be in Form EA14. A request for such a meeting shall be made within 21 days of the date on which the energy administrator’s statement of proposals is sent out, or where revised proposals have been sent out and a proposed revision relates to the ending of the energy administration by a creditors' voluntary liquidation, within 21 days from the date on which the revised statement of proposals is sent out.

(4) A request under this Rule shall include—

(a) a list of creditors concurring with the request, showing the amounts of their respective debts in the energy administration; and

(b) from each creditor concurring, written confirmation of his concurrence,

but sub-paragraph (a) does not apply if the requesting creditor’s debt is alone sufficient without the concurrence of other creditors.

(5) A meeting requested under this Rule shall be held within 21 days of the energy administrator’s receipt of the notice requesting the meeting.

Section 24 Entitlement to vote

(1) Subject as follows, at a meeting of creditors in energy administration proceedings a person is entitled to vote only if—

(a) he has given to the energy administrator, not later than 12.00 hours on the business day before the day fixed for the meeting, details in writing of the debt which he claims to be due to him from the protected energy company;

(b) the claim has been duly admitted under the following provisions of this Rule; and

(c) there has been lodged with the energy administrator any proxy which he intends to be used on his behalf,

and details of the debt must include any calculation for the purposes of Rules 26 to 28.

(2) The chairman of the meeting may allow a creditor to vote, notwithstanding that he has failed to comply with paragraph (1)(a), if satisfied that the failure was due to circumstances beyond the creditor’s control.

(3) The chairman of the meeting may call for any document or other evidence to be produced to him, where he thinks it necessary for the purpose of substantiating the whole or any part of the claim.

(4) Votes are calculated according to the amount of a creditor’s claim as at the date on which the protected energy company entered energy administration, less any payments that have been made to him after that date in respect of his claim and any adjustment by way of set-off in accordance with Rule 53 as if that Rule were applied on the date that the votes are counted.

(5) A creditor shall not vote in respect of a debt for an unliquidated amount, or any debt whose value is not ascertained, except where the chairman agrees to put upon the debt an estimated minimum value for the purpose of entitlement to vote and admits the claim for that purpose.

(6) No vote shall be cast by virtue of a claim more than once on any resolution put to the meeting.

Section 25 Admission and rejection of claims

(1) At any creditors' meeting the chairman has power to admit or reject a creditor’s claim for the purpose of his entitlement to vote; and the power is exercisable with respect to the whole or any part of the claim.

(2) The chairman’s decision under this Rule, or in respect of any matter arising under Rule 24, is subject to appeal to the court by any creditor.

(3) If the chairman is in doubt whether a claim should be admitted or rejected, he shall mark it as objected to and allow the creditor to vote, subject to his vote being subsequently declared invalid if the objection to the claim is sustained.

(4) If on appeal the chairman’s decision is reversed or varied, or a creditor’s vote is declared invalid, the court may order that another meeting be summoned, or make such other order as it thinks fit.

(5) Neither the energy administrator nor any person nominated by him to be chairman is personally liable for costs incurred by any person in respect of an appeal to the court under this Rule, unless the court makes an order to that effect.

Section 26 Secured creditors

At a meeting of creditors a secured creditor is entitled to vote only in respect of the balance (if any) of his debt after deducting the value of his security as estimated by him.

Section 27 Holders of negotiable instruments

A creditor shall not vote in respect of a debt on, or secured by, a current bill of exchange or promissory note, unless he is willing—

(a) to treat the liability to him on the bill or note of every person who is liable on it antecedently to the protected energy company, and against whom a bankruptcy order has not been made (or, in the case of a company, which has not gone into liquidation), as a security in his hands, and

(b) to estimate the value of the security and, for the purpose of his entitlement to vote, to deduct it from his claim.

Section 28 Hire-purchase, conditional sale and chattel leasing agreements

(1) Subject as follows, an owner of goods under a hire-purchase or chattel leasing agreement, or a seller of goods under a conditional sale agreement, is entitled to vote in respect of the amount of the debt due and payable to him by the protected energy company on the date that the protected energy company entered energy administration.

(2) In calculating the amount of any debt for this purpose, no account shall be taken of any amount attributable to the exercise of any right under the relevant agreement, so far as the right has become exercisable solely by virtue of the making of an energy administration application or any matter arising as a consequence, or of the protected energy company entering energy administration.

Section 29 Resolutions

(1) Subject as follows, at a creditors' meeting in energy administration proceedings, a resolution is passed when a majority (in value) of those present and voting, in person or by proxy, have voted in favour of it.

(2) Any resolution is invalid if those voting against it include more than half in value of the creditors to whom notice of the meeting was sent and who are not, to the best of the chairman’s belief, persons connected with the protected energy company.

(3) In the case of a resolution for the nomination of a person to act as liquidator once the energy administration has ended—

(a) subject to paragraph (4), if on any vote there are two persons put forward by creditors for nomination as liquidator, the person who obtains the most support is nominated as liquidator;

(b) if there are three or more persons put forward by creditors for nomination as liquidator, and one of them has a clear majority over both or all the others together, that one is nominated as liquidator; and

(c) in any other case, the chairman of the meeting shall continue to take votes (disregarding at each vote any person who has withdrawn and, if no person has withdrawn, the person who obtained the least support last time), until a clear majority is obtained for any one person.

(4) The support referred to in paragraph (3)(a) must represent a majority in value of all those present (in person or by proxy) at the meeting and entitled to vote.

(5) Where, on such a resolution no person is nominated as liquidator, the person named as proposed liquidator in the energy administrator’s proposals or revised proposals shall be the liquidator once the energy administration has ended.

(6) The chairman may at any time put to the meeting a resolution for the joint appointment of any two or more persons put forward by creditors for nomination as liquidator.

(7) In this Rule, “connected with the protected energy company” has the same meaning as the phrase “connected with a company” in section 249 of the 1986 Act.

Section 30 Minutes

(1) The chairman of the meeting shall cause minutes of its proceedings to be entered in the protected energy company’s minute book.

(2) The minutes shall include a list of the names and addresses of creditors who attended (personally or by proxy).

Section 31 Revision of the energy administrator’s proposals

(1) The energy administrator shall, as soon as reasonably practicable, under paragraph 54 of Schedule B1 of the 1986 Act, make a statement setting out the proposed revisions to his proposals which he shall attach to Form EA15 and send to all those to whom he is required to send a copy of his revised proposals.

(2) The statement of revised proposals shall include—

(a) details of the court where the proceedings are and the relevant court reference number;

(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 energy administration application was made by the Secretary of State or by GEMA;

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

(e) a summary of the initial proposals and the reason(s) for proposing a revision;

(f) details of the proposed revision including details of the energy administrator’s assessment of the likely impact of the proposed revision upon creditors generally or upon each class of creditors (as the case may be);

(g) where a proposed revision relates to the ending of the energy administration by a creditors' voluntary liquidation and the nomination of a person to be the proposed liquidator of the protected energy company, a statement that, in accordance with paragraph 83(7) of Schedule B1 to the 1986 Act and Rule 78(3), creditors may nominate a different person as the proposed liquidator, provided that the nomination is made at a meeting of creditors called for that purpose; and

(h) any other information that the energy administrator thinks necessary.

(3) Subject to paragraph 54(4) of Schedule B1 to the 1986 Act, within 5 days of sending out the statement in paragraph (1) above, the energy administrator shall send a copy of the statement to every member of the protected energy company.

(4) When the energy administrator is acting under paragraph 54(4) of Schedule B1 to the 1986 Act, the notice shall be published once in such newspaper as he thinks most appropriate for ensuring that the notice comes to the attention of the protected energy company’s members. The notice shall—

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

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

(c) specify an address to which members can write for a copy of the statement; and

(d) be published as soon as reasonably practicable after the energy administrator sends the statement to creditors.

Section 32 Reports to creditors

(1) “Progress report” means a report which includes—

(a) details of the court where the proceedings are and the relevant court reference number;

(b) full details of the protected energy company’s name, address of registered office and registered number;

(c) full details of the energy administrator’s name and address, date of appointment and name and address of the applicant for the energy administration application, including any changes in office-holder, and, in the case of joint energy administrators, their functions as set out in the statement made for the purposes of section 158(5) of the 2004 Act;

(d) details of progress during the period of the report, including a receipts and payments account (as detailed in paragraph (2) below);

(e) details of any assets that remain to be realised; and

(f) any other relevant information for the creditors.

(2) A receipts and payments account shall state what assets of the protected energy company have been realised, for what value, and what payments have been made to creditors or others. The account is to be in the form of an abstract showing receipts and payments during the period of the report and where the energy administrator has ceased to act, the receipts and payments account shall include a statement as to the amount paid to unsecured creditors by virtue of the application of section 176A of the 1986 Act (prescribed part).

(3) The progress report shall cover—

(a) the period of 6 months commencing on the date that the protected energy company entered energy administration, and every subsequent period of 6 months; and

(b) when the energy administrator ceases to act, any period from the date of the previous report, if any, and from the date that the protected energy company entered energy administration if there is no previous report, until the time that the energy administrator ceases to act.

(4) The energy administrator shall send a copy of the progress report, attached to Form EA16, within 1 month of the end of the period covered by the report, to—

(a) the Secretary of State;

(b) GEMA;

(c) the creditors;

(d) the court; and

(e) the registrar of companies.

(5) The court may, on the energy administrator’s application, extend the period of 1 month mentioned in paragraph (4) above, or make such other order in respect of the content of the report as it thinks fit.

(6) If the energy administrator makes default in complying with this Rule, he is liable to a fine and, for continued contravention, to a daily default fine.

Section 33 Venue and conduct of company meeting

(1) Where the energy administrator summons a meeting of members of the protected energy company, he shall fix a venue for it having regard to their convenience.

(2) The chairman of the meeting shall be the energy administrator or a person nominated by him in writing to act in his place.

(3) A person so nominated must be either—

(a) one who is qualified to act as an insolvency practitioner in relation to the protected energy company, or

(b) an employee of the energy administrator or his firm who is experienced in insolvency matters.

(4) If within 30 minutes from the time fixed for commencement of the meeting there is no person present to act as chairman, the meeting stands adjourned to the same time and place in the following week or, if that day is not a business day, to the business day immediately following.

(5) Subject as above, the meeting shall be summoned and conducted as if it were a general meeting of the protected energy company summoned under the company’s articles of association, and in accordance with the applicable provisions of the Companies Act .

(6) The chairman of the meeting shall cause minutes of its proceedings to be entered in the protected energy company’s minute book.

Section 34 Authority to dispose of property

(1) The following applies where the energy administrator applies to the court under paragraphs 71 or 72 of Schedule B1 to the 1986 Act for authority to dispose of property of the protected energy company which is subject to a security (other than a floating charge), or goods in the possession of the protected energy company under a hire purchase agreement.

(2) The court shall fix a venue for the hearing of the application, and the energy administrator shall as soon as reasonably practicable give notice of the venue to the person who is the holder of the security or, as the case may be, the owner under the agreement.

(3) If an order is made under paragraphs 71 or 72 of Schedule B1 to the 1986 Act the court shall send two sealed copies to the energy administrator.

(4) The energy administrator shall send one of them to that person who is the holder of the security or owner under the agreement.

(5) The energy administrator shall send a Form EA17 to the registrar of companies with a copy of the sealed order.

Section 35 Priority of expenses of energy administration

(1) The expenses of the energy administration are payable in the following order of priority—

(a) expenses properly incurred by the energy administrator in performing his functions in the energy administration of the protected energy company;

(b) the cost of any security provided by the energy administrator in accordance with the 1986 Act or the Rules;

(c) where an energy administration order was made, the costs of the applicant and any person appearing on the hearing of the application;

(d) any amount payable to a person employed or authorised, under Part 3 of the Rules, to assist in the preparation of a statement of affairs or statement of concurrence;

(e) any allowance made, by order of the court, towards costs on an application for release from the obligation to submit a statement of affairs or statement of concurrence;

(f) any necessary disbursements by the energy administrator in the course of the energy administration (but not including any payment of corporation tax in circumstances referred to in sub-paragraph (i) below);

(g) the remuneration or emoluments of any person who has been employed by the energy administrator to perform any services for the protected energy company, as required or authorised under the 1986 Act or the 2004 Act, Schedule B1 to the 1986 Act or the Rules;

(h) the remuneration of the energy administrator agreed under Part 8 of the Rules;

(i) the amount of any corporation tax on chargeable gains accruing on the realisation of any asset of the protected energy company (without regard to whether the realisation is effected by the energy administrator, a secured creditor, or a receiver or manager appointed to deal with a security).

(2) The priorities laid down by paragraph (1) of this Rule are subject to the power of the court to make orders under paragraph (3) of this Rule where the assets are insufficient to satisfy the liabilities.

(3) The court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the assets of the expenses incurred in the energy administration in such order of priority as the court thinks just.

(4) For the purposes of paragraph 99(3) of Schedule B1 to the 1986 Act, the former energy administrator’s remuneration and expenses shall comprise all those items set out in paragraph (1) of this Rule.

Section 36 Distribution to creditors generally

(1) This Part applies where the energy administrator makes, or proposes to make, a distribution to any class of creditors. Where the distribution is to a particular class of creditors, references in this Part to creditors shall, in so far as the context requires, be a reference to that class of creditors only.

(2) The energy administrator shall give notice to the creditors of his intention to declare and distribute a dividend in accordance with Rule 63.

(3) Where it is intended that the distribution is to be a sole or final dividend, the energy administrator shall, after the date specified in the notice referred to in paragraph (2)—

(a) defray any items payable in accordance with the provisions of paragraph 99 of Schedule B1 to the 1986 Act;

(b) defray any amounts (including any debts or liabilities and his own remuneration and expenses) which would, if the energy administrator were to cease to be the energy administrator of the protected energy company, be payable out of the property of which he had custody or control in accordance with the provisions of paragraph 99 of Schedule B1 to the 1986 Act; and

(c) declare and distribute that dividend without regard to the claim of any person in respect of a debt not already proved.

(4) The court may, on the application of any person, postpone the date specified in the notice.

Section 37 Debts of insolvent company to rank equally

Debts other than preferential debts rank equally between themselves in the energy administration and, after the preferential debts, shall be paid in full unless the assets are insufficient for meeting them, in which case they abate in equal proportions between themselves.

Section 38 Supplementary provisions as to dividend

(1) In the calculation and distribution of a dividend the energy administrator shall make provision for—

(a) any debts which appear to him to be due to persons who, by reason of the distance of their place of residence, may not have had sufficient time to tender and establish their proofs;

(b) any debts which are the subject of claims which have not yet been determined; and

(c) disputed proofs and claims.

(2) A creditor who has not proved his debt before the declaration of any dividend is not entitled to disturb, by reason that he has not participated in it, the distribution of that dividend or any other dividend declared before his debt was proved, but—

(a) when he has proved that debt he is entitled to be paid, out of any money for the time being available for the payment of any further dividend, any dividend or dividends which he has failed to receive; and

(b) any dividends payable under sub-paragraph (a) shall be paid before the money is applied to the payment of any such further dividend.

(3) No action lies against the energy administrator for a dividend; but if he refuses to pay a dividend the court may, if it thinks fit, order him to pay it and also to pay, out of his own money—

(a) interest on the dividend, at the rate for the time being specified in section 17 of the Judgments Act 1838 , from the time when it was withheld; and

(b) the costs of the proceedings in which the order to pay is made.

Section 39 Division of unsold assets

The energy administrator may, with the permission of the creditors, divide in its existing form amongst the protected energy company’s creditors, according to its estimated value, any property which from its peculiar nature or other special circumstances cannot be readily or advantageously sold.

Section 40 Proving a debt

(1) A person claiming to be a creditor of the protected energy company and wishing to recover his debt in whole or in part must (subject to any order of the court to the contrary) submit his claim in writing to the energy administrator.

(2) A creditor who claims is referred to as “proving” for his debt and a document by which he seeks to establish his claim is his “proof”.

(3) Subject to the next paragraph, a proof must—

(a) be made out by, or under the direction of, the creditor and signed by him or a person authorised in that behalf; and

(b) state the following matters—

(i) the creditor’s name and address;

(ii) the total amount of his claim as at the date on which the protected energy company entered energy administration, less any payments that have been made to him after that date in respect of his claim and any adjustment by way of set-off in accordance with Rule 53;

(iii) whether or not the claim includes outstanding uncapitalised interest;

(iv) whether or not the claim includes value added tax;

(v) whether the whole or any part of the debt falls within any, and if so, which categories of preferential debts under section 386 of the 1986 Act;

(vi) particulars of how and when the debt was incurred by the protected energy company;

(vii) particulars of any security held, the date on which it was given and the value which the creditor puts on it;

(viii) details of any reservation of title in respect of goods to which the debt refers; and

(ix) the name, address and authority of the person signing the proof (if other than the creditor himself).

(4) There shall be specified in the proof details of any documents by reference to which the debt can be substantiated; but (subject as follows) it is not essential that such document be attached to the proof or submitted with it.

(5) The energy administrator may call for any document or other evidence to be produced to him, where he thinks it necessary for the purpose of substantiating the whole or any part of the claim made in the proof.

Section 41 Claim established by affidavit

(1) The energy administrator may, if he thinks it necessary, require a claim of debt to be verified by means of an affidavit in Form EA18.

(2) An affidavit may be required notwithstanding that a proof of debt has already been lodged.

Section 42 Costs of proving

Unless the court otherwise orders—

(a) every creditor bears the cost of proving his own debt, including costs incurred in providing documents or evidence under Rule 40(5); and

(b) costs incurred by the energy administrator in estimating the quantum of a debt under Rule 49 are payable out of the assets as an expense of the energy administration.

Section 43 Energy administrator to allow inspection of proofs

The energy administrator shall, so long as proofs lodged with him are in his hands, allow them to be inspected, at all reasonable times on any business day, by any of the following persons—

(a) any creditor who has submitted a proof of debt (unless his proof has been wholly rejected for purposes of dividend or otherwise);

(b) any contributory of the protected energy company; and

(c) any person acting on behalf of either of the above.

Section 44 New energy administrator appointed

(1) If a new energy administrator is appointed in place of another, the former energy administrator shall transmit to him all proofs which he has received, together with an itemised list of them.

(2) The new energy administrator shall sign the list by way of receipt for the proofs, and return it to his predecessor.

Section 45 Admission and rejection of proofs for dividend

(1) A proof may be admitted for dividend either for the whole amount claimed by the creditor, or for part of that amount.

(2) If the energy administrator rejects a proof in whole or in part, he shall prepare a written statement of his reasons for doing so, and send it as soon as reasonably practicable to the creditor.

Section 46 Appeal against decision on proof

(1) If a creditor is dissatisfied with the energy administrator’s decision with respect to his proof (including any decision on the question of preference), he may apply to the court for the decision to be reversed or varied. The application must be made within 21 days of his receiving the statement sent under Rule 45(2).

(2) Any other creditor may, if dissatisfied with the energy administrator’s decision admitting or rejecting the whole or any part of a proof, make such an application within 21 days of becoming aware of the energy administrator’s decision.

(3) Where application is made to the court under this Rule, the court shall fix a venue for the application to be heard, notice of which shall be sent by the applicant to the creditor who lodged the proof in question (if it is not himself) and the energy administrator.

(4) The energy administrator shall, on receipt of the notice, file with the court the relevant proof, together (if appropriate) with a copy of the statement sent under Rule 45(2).

(5) After the application has been heard and determined, the proof shall, unless it has been wholly disallowed, be returned by the court to the energy administrator.

(6) The energy administrator is not personally liable for costs incurred by any person in respect of an application under this Rule unless the court otherwise orders.

Section 47 Withdrawal or variation of proof

A creditor’s proof may at any time, by agreement between himself and the energy administrator, be withdrawn or varied as to the amount claimed.

Section 48 Expunging of proof by the court

(1) The court may expunge a proof or reduce the amount claimed—

(a) on the energy administrator’s application, where he thinks that the proof has been improperly admitted, or ought to be reduced; or

(b) on the application of a creditor, if the energy administrator declines to interfere in the matter.

(2) Where application is made to the court under this Rule, the court shall fix a venue for the application to be heard, notice of which shall be sent by the applicant—

(a) in the case of an application by the energy administrator, to the creditor who made the proof; and

(b) in the case of an application by a creditor, to the energy administrator and to the creditor who made the proof (if not himself).

Section 49 Estimate of quantum

(1) The energy administrator shall estimate the value of any debt which, by reason of its being subject to any contingency or for any other reason, does not bear a certain value; and he may revise any estimate previously made, if he thinks fit by reference to any change of circumstances or to information becoming available to him. He shall inform the creditor as to his estimate and any revision of it.

(2) Where the value of a debt is estimated under this Rule, the amount provable in the energy administration in the case of that debt is that of the estimate for the time being.

Section 50 Negotiable instruments, etc

Unless the energy administrator allows, a proof in respect of money owed on a bill of exchange, promissory note, cheque or other negotiable instrument or security cannot be admitted unless there is produced the instrument or security itself or a copy of it, certified by the creditor or his authorised representative to be a true copy.