The Insolvency (England and Wales) (Amendment) Rules 2017

• Citation: S.I. 2017/366
• Sections: 55

Section 1 Citation and Commencement

These Rules may be cited as the Insolvency (England and Wales) (Amendment) Rules 2017 and come into force on 6th April 2017.

Section 2 Extent

These Rules extend to England and Wales only.

Section 3

The Insolvency (England and Wales) Rules 2016 are amended as follows.

Section 4 Definition of “attendance” and “attend”

In rule 1.2, for the definition of “attendance and attend” substitute—

“attendance” and “attend” a person attends, or is in attendance at, a meeting who is present or attends remotely in accordance with section 246A or rule 15.6, or who participates in a virtual meeting, whether that person attends the meeting or virtual meeting in person, by proxy, or by corporate representative (in accordance with section 434B or section 323 of the Companies Act, as applicable);

Section 5 Delivery to the creditors and opting out

In rule 1.37(1), for “(where the opt out applies)” substitute “unless the opt out does not apply”.

Section 6 Registrar of companies: covering notices

(1) In rule 1.20(1)(k) for “7.68(3)(b)” substitute “7.67(3)(b)”.

(2) In rule 1.20(1)(l) for “7.69(4)(b)” substitute “7.68(4)(b)”.

(3) In rule 1.20(m)(iv) for “6A” substitute “(6A)”.

Section 7 Requisition of physical meeting by creditors

For rule 2.31(3), substitute—

(3) A notice summoning a meeting of the creditors must be delivered to the creditors at least seven days before the day fixed for the meeting.

Section 8 Report of consideration of proposal under section 4(6) and (6A) or paragraph 30(3) and (4) of Schedule A1

(1) In rule 2.38(1), after “report” insert “or reports as the case may be”.

(2) In rule 2.38(2)(b), after “resolution” insert “or whether they abstained”.

(3) In rule 2.38(3), omit the words from “the deadline” to “correspondence) or”.

Section 9 Revocation or suspension of IVA

In rule 2.40(4), for “a matter to be considered further” substitute “action to be taken”.

Section 10 Supervisor’s accounts and reports

In rule 2.41(8), omit “(2)”.

Section 11 Supervisor’s accounts and reports

In rule 8.28(7), omit “(3)”.

Section 12 Appointment taking place out of court business hours: content of notice

(1) In rule 3.21(1)(f)(i), for “from that date” substitute “since notice was given under paragraph 15(1)(a) of Schedule B1”.

(2) In rule 3.21(1)(f)(iii) and (iv), after “consent” insert “in writing”.

(3) In rule 3.21(1)(h), omit the words “and that a statement of the reasons for stating this in the appointer’s possession”.

(4) In rule 3.21(1)(i), after the words “non-EC proceedings” insert “and that a statement of the reasons for stating this is in the appointer’s possession”.

Section 13 Notice of intention to appoint

In rule 3.23(4), for “delivered” substitute “sent”.

Section 14 Notice of appointment after notice of intention to appoint

In rule 3.24(1)(i)(i), for “from that date” substitute “since notice was given under paragraph 26(1) of Schedule B1”.

Section 15 Statement of affairs: notice requiring and delivery to the administrator (paragraph 47(1) of Schedule B1)

For rule 3.29(2)(b)(ii), substitute—

(ii) the requirement to deliver the statement of affairs to the administrator no later than eleven days after receipt of the notice requiring the statement of affairs;

Section 16 Administrator’s proposals: revisions

In rule 3.42, after paragraph (5), insert—

(6) A copy of the statement of revised proposals under rule 3.43(3) must be delivered to the registrar of companies not later than five days after the report under rule 3.43(1) is delivered.

Section 17 Receivers or managers appointed under an instrument: acceptance of appointment (section 33)

In rule 4.1(1), after the word “applies” in the second place it occurs, insert “(other than those appointed under section 51 (Scottish Receiverships))”.

Section 18 Removal of liquidator by the court

In rule 5.7(7)(g)(ii), for “meeting of the company’s creditors” substitute “company meeting”.

Section 19 Application for and appointment of special manager (section 177)

In rule 5.17(3)(h), for “177(4)” substitute “177(3)”.

Section 20 Application for and appointment of special manager (section 177)

In rule 6.37(3)(h), for “177(4)” substitute “177(3)”.

Section 21 Application for and appointment of special manager (section 177)

In rule 7.93(3)(g), for “177(4)” substitute “177(3)”.

Section 22 Information to creditors and contributories (conversion of members’ voluntary winding up into creditors’ voluntary winding up)

In rule 6.13(1)(b), for “6.10” substitute “6.11”.

Section 23 Creditors’ decision on appointment other than at a meeting (conversion from members’ voluntary winding up)

In rule 6.12(6), for “deliver” substitute “send”.

Section 24 Appointment by creditors or by the company

For rule 6.20(2), substitute—

(2) The liquidator’s appointment takes effect from the date of the passing of the resolution of the company or, where the creditors decide to appoint a person who is not the person appointed by the company, from the relevant decision date.

Section 25 Definition of “approval” and “authorisation”

In rule 6.44(1), in the definition of “approval” and “authorisation”, for “176ZA(3)” substitute “176ZA(1)”.

Section 26 General Rule as to Priority

For rule 7.108(2), substitute—

(2) The expenses of the winding up are payable out of—

(a) assets of the company available for the payment of general creditors, including—

(i) proceeds of any legal action which the liquidator has power to bring in the liquidator’s own name or in the name of the company;

(ii) proceeds arising from any award made under any arbitration or other dispute resolution procedure which the liquidator has power to bring in the liquidator’s own name or in the name of the company;

(iii) any payments made under any compromise or other agreement intended to avoid legal action or recourse to arbitration or to any other dispute resolution procedure;

(iv) payments made as a result of an assignment or a settlement of any such action, arrangement or procedure in lieu of or before any judgment being given or award being made; and

(b) subject as provided in rules 7.111 to 7.116, property comprised in or subject to a floating charge created by the company.

Section 27 Report of the creditors’ consideration of a proposal

For rule 8.24(2)(b), substitute—

(b) list the creditors who voted or attended or who were represented at the meeting or decision procedure (as applicable) used to consider the proposal, setting out (with their respective values) how they voted on each resolution or whether they abstained;

Section 28 Debt Relief Orders, Excluded Debts

In rule 9.2(3)—

(a) in sub-paragraph (b), omit “and”; and

(b) for sub-paragraph (c) substitute—

and includes any interest on the loan and any penalties or charges incurred in connection with it.

Section 29 Income Payments Agreements, Interpretation

Before rule 10.115 insert—

Interpretation

(10.114A)

In this Chapter, the “permitted fee” means the amount which is prescribed for the purposes of section 7(4)(a) of the Attachment of Earnings Act 1971.

Section 30 Annulment, the hearing

After rule 10.137(5), insert—

(6) The adjudicator is not in any event to be liable for costs arising on an application under section 282.

Section 31 Bankruptcy, general rule as to priority

In rule 10.149(a)(i) for the words “the bankrupt” in the second place they occur, substitute “the official receiver or the trustee”.

Section 32 Criminal bankruptcy, application

Before rule 10.154 insert—

Application

(10.153A)

The rules in this chapter apply to proceedings arising out of criminal bankruptcy orders.

Section 33 Rules not applying in criminal bankruptcy

Omit rule 10.158(a).

Section 34 Appeals and reviews of court orders in corporate insolvency

In rule 12.59(2)(b)(iii), after “Registrar in Bankruptcy” insert “of the High Court”.

Section 35 The prescribed decision procedures

In rule 15.3(d), omit “or”.

Section 36 Physical meetings, calculation of the value of creditor’s debt

In rule 15.6, after (7) insert—

(8) For the purpose of determining whether the thresholds under section 246ZE(7) or 379ZA(7) are met, the convener must calculate the value of the creditor’s debt by reference to rule 15.31.

Section 37 Notices to creditors of decision procedure

In rule 15.8(3)—

(a) in sub-paragraph (e), omit “except in the case of a decision in relation to a proposed CVA or IVA,”;

(b) in sub-paragraph (h), after “173(2)” insert “, 174(2)”; and

(c) in sub-paragraph (i), after “section” insert “299(1) or”.

Section 38 Chair at meetings

After rule 15.21, insert—

(2) However, where a decision on the appointment of a liquidator under rule 6.14(2)(b), 6.14(4) or 6.14(6) is made by a meeting or a virtual meeting, the chair of the meeting must be the convener.

Section 39 Requisite majorities

For 15.34(2), substitute—

(2) In the case of an administration, a decision is not made if those voting against it include more than half in value of the creditors to whom notice of the decision procedure was delivered who are not, to the best of the convener’s or chair’s belief, persons connected with the company.

Section 40 Blank proxy

In rule 16.3—

(a) for paragraph (2) substitute—

(2) A blank proxy must state that the creditor, member or contributory named in the document (when completed) appoints a person who is named or identified as the proxy-holder of the creditor, member or contributory.

(b) in paragraph (3)(b), omit “and”;

(c) for paragraph (c), substitute—

(c) a statement that the proxy is either—

(i) for a specific meeting, which is identified in the proxy, or

(ii) a continuing proxy for the proceedings; and

(d) if the proxy is for a specific meeting, instructions as to the extent to which the proxy holder is directed to vote in a particular way, to abstain or to propose any resolution.

Section 41 Information about remuneration

(1) For rule 18.4(1)(e)(i), substitute—

(i) in a case other than a members’ voluntary winding up, the remuneration expected to be charged by the office-holder is likely to exceed the fees estimate under rule 18.16(4) or any approval given,

(2) In rule 18.4(1)(f), for “and” in the first place it occurs, substitute “or”.

Section 42 Progress reports in voluntary winding up: timing

(1) In rule 18.7(5)—

(a) after the word “after”, insert “a notice is delivered under rule 5.9(1) (members’ voluntary winding up) or after”;

(b) omit the words “94 or”; and

(c) omit the words “to members (members’ voluntary winding up) or”.

(2) In rule 18.7(6), for “send” substitute “deliver”.

Section 43 Creditors’ and members’ requests for further information in administration, winding up and bankruptcy

(1) In rule 18.9(1), after “final report” insert “or account”.

(2) In rule 18.9(2), after “report” insert “or account”.

Section 44 Remuneration: procedure for initial determination in an administration

In rule 18.18(3), after the word “procedure” insert “except in a case under paragraph (4)”.

Section 45 Savings in respect of meetings taking place on or after the commencement date and resolutions by correspondence

In paragraph 5(1)(d) of Schedule 2—

(a) omit the word “progress”;

(b) for “section 104A” substitute “sections 93 or 105”.

Section 46 Savings in respect of meetings taking place on or after the commencement date and resolutions by correspondence

In paragraph 5(2) of Schedule 2, omit subparagraph (j).

Section 47 Savings in respect of final meetings taking place on or after the commencement date

In paragraph 6(1)(a)(iii) of Schedule 2—

(a) for “section 94” substitute “sections 94, 106, 146 or 331”; and

(b) omit “prior to dissolution”.

Section 48 Progress reports and statements to the registrar of companies

In paragraph 7(2) of Schedule 2, omit “but has not been registered on the commencement date” and “once the notice has been registered”.

Section 49 Progress reports and statements to the registrar of companies

After paragraph 7(4) of Schedule 2 insert—

(5) Where rules 18.6, 18.7 or 18.8 prescribe the periods for which progress reports must be made but before the commencement date an office-holder has ceased to act resulting in a change in reporting period under 1986 rule 2.47(3A), 2.47(3B) 4.49B(5), 4.49C(3), or 6.78A(4), the period for which reports must be made is the period for which reports were required to be made under the 1986 Rules immediately before the commencement date.

Section 50 Service of notice of intention to appoint

In the table of requirements for service under paragraph 6 of Schedule 4, in the third column, against the corresponding entries in the first column “3.16 (& para 15 of Sch B1)” and “3.23 (& para 26 of Sch B1)”, for “Claim form” substitute “Other document”.