The Insolvency (England and Wales) Rules 2016

PART 15DECISION MAKING

CHAPTER 1Application of Part

Application of Part

15.1.  In this Part—

(a)Chapters 2 to 11 apply where the Act or these Rules require a decision to be made by a qualifying decision procedure, or by a creditors’ decision procedure or permit a decision to be made by the deemed consent procedure; and

(b)Chapter 12 applies to company meetings.

CHAPTER 2Decision procedures

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Interpretation

15.2.—(1) In these Rules—

“decision date” means—

and a decision falling within paragraph (b) is to be treated as made at 23:59 on the decision date;

“decision procedure” means a qualifying decision procedure or a creditors’ decision procedure as prescribed by rule 15.3;

“electronic voting” includes any electronic system which enables a person to vote without the need to attend at a particular location to do so;

“physical meeting” means a meeting as described in section 246ZE(9) or 379ZA(9)(1);

“virtual meeting” means a meeting where persons who are not invited to be physically present together may participate in the meeting including communicating directly with all the other participants in the meeting and voting (either directly or via a proxy-holder);

(2) The decision date is to be set at the discretion of the convener, but must be not less than 14 days from the date of delivery of the notice, except where the table in rule 15.11 requires a different period or the court directs otherwise.

(3) The rules in Chapters 2 to 11 about decision procedures of creditors apply with any necessary modifications to decision making by contributories.

(4) In particular, in place of the requirement for percentages or majorities in decision making by creditors to be determined by value, where the procedure seeks a decision from contributories value must be determined on the percentage of voting rights in accordance with rule 15.39.

The prescribed decision procedures

[Note: under sections 246ZE and 379ZA a decision may not be made by a creditors’ meeting (a physical meeting) unless the prescribed proportion of the creditors request in writing that the decision be made by such a meeting.]

15.3.  The following decision procedures are prescribed as decision procedures under sections 246ZE and 379ZA by which a convener may seek a decision under the Act or these Rules from creditors—

(a)correspondence;

(b)electronic voting;

(c)virtual meeting;

(d)physical meeting; or

(e)any other decision making procedure which enables all creditors who are entitled to participate in the making of the decision to participate equally.

Electronic voting

15.4.  Where the decision procedure uses electronic voting—

(a)the notice delivered to creditors must give them any necessary information as to how to access the voting system including any password required;

(b)except where electronic voting is being used at a meeting, the voting system must be a system capable of enabling a creditor to vote at any time between the notice being delivered and the decision date; and

(c)in the course of a vote the voting system must not provide any creditor with information concerning the vote cast by any other creditor.

Virtual meetings

15.5.  Where the decision procedure uses a virtual meeting the notice delivered to creditors must contain—

(a)any necessary information as to how to access the virtual meeting including any telephone number, access code or password required; and

(b)a statement that the meeting may be suspended or adjourned by the chair of the meeting (and must be adjourned if it is so resolved at the meeting).

Physical meetings

15.6.—(1) A request for a physical meeting may be made before or after the notice of the decision procedure or deemed consent procedure has been delivered, but must be made not later than five business days after the date on which the convener delivered the notice of the decision procedure or deemed consent procedure unless these Rules provide to the contrary.

(2) It is the convener’s responsibility to check whether any requests for a physical meeting are submitted before the deadline and if so whether in aggregate they meet or surpass one of the thresholds requiring a physical meeting under sections 246ZE(7) or 379ZA(7).

(3) Where the prescribed proportion of creditors require a physical meeting the convener must summon the meeting by giving notice which complies with rule 15.8 so far as applicable and which must also contain a statement that the meeting may be suspended or adjourned by the chair of the meeting (and must be adjourned if it is so resolved at the meeting).

(4) In addition, the notice under paragraph (3) must inform the creditors that as a result of the requirement to hold a physical meeting the original decision procedure or the deemed consent procedure is superseded.

(5) The convener must send the notice under paragraph (3) not later than three business days after one of the thresholds requiring a physical meeting has been met or surpassed.

(6) The convener—

(a)may permit a creditor to attend a physical meeting remotely if the convener receives a request to do so in advance of the meeting; and

(b)must include in the notice of the meeting a statement explaining the convener’s discretion to permit remote attendance.

(7) In this rule, attending a physical meeting “remotely” means attending and being able to participate in the meeting without being in the place where the meeting is being held.

Deemed consent (sections 246ZF and 379ZB)

[Note: the deemed consent procedure cannot be used to make a decision on remuneration of any person, or where the Act, these Rules or any other legislation requires a decision to be made by a decision procedure.]

15.7.—(1) This rule makes further provision about the deemed consent procedure to that set out in sections 246ZF and 379ZB(2).

(2) A notice seeking deemed consent must, in addition to the requirements of section 246ZF or 379ZB (as applicable) comply with the requirements of rule 15.8 so far as applicable and must also contain—

(a)a statement that in order to object to the proposed decision a creditor must have delivered a notice, stating that the creditor so objects, to the convener not later than the decision date together with a proof in respect of the creditor’s claim in accordance with these Rules failing which the objection will be disregarded;

(b)a statement that it is the convener’s responsibility to aggregate any objections to see if the threshold is met for the decision to be taken as not having been made; and

(c)a statement that if the threshold is met the deemed consent procedure will terminate without a decision being made and if a decision is sought again on the same matter it will be sought by a decision procedure.

(3) In this rule, the threshold is met where the appropriate number of relevant creditors (as defined in sections 246ZF and 379ZB) have objected to the proposed decision.

(4) For the purpose of aggregating objections, the convener may presume the value of relevant creditors’ claims to be the value of claims by those creditors who, in the convener’s view, would have been entitled to vote had the decision been sought by a decision procedure in accordance with this Part, even where those creditors had not already met the criteria for such entitlement to vote.

(5) The provisions of rules 15.31(2) (calculation of voting rights), 15.32 (calculation of voting rights: special cases) and 15.33 (procedure for admitting creditors’ claims for voting) apply to the admission or rejection of a claim for the purpose of the convener deciding whether or not an objection should count towards the total aggregated objections.

(6) A decision of the convener on the aggregation of objections under this rule is subject to appeal under rule 15.35 as if it were a decision under Chapter 8 of this Part.

CHAPTER 3Notices, voting and venues for decisions

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Notices to creditors of decision procedure

15.8.—(1) This rule sets out the requirements for notices to creditors where a decision is sought by a decision procedure.

(2) The convener must deliver a notice to every creditor who is entitled to notice of the procedure.

(3) The notice must contain the following—

(a)identification details for the proceedings;

(b)details of the decision to be made or of any resolution on which a decision is sought;

(c)a description of the decision procedure which the convener is using, and arrangements, including the venue, for the decision procedure;

(d)a statement of the decision date;

(e)except in the case of a decision in relation to a proposed CVA or IVA, a statement of by when the creditor must have delivered a proof in respect of the creditor’s claim in accordance with these Rules failing which a vote by the creditor will be disregarded;

(f)a statement that a creditor whose debt is treated as a small debt in accordance with rule 14.31(1) must still deliver a proof if that creditor wishes to vote;

(g)a statement that a creditor who has opted out from receiving notices may nevertheless vote if the creditor provides a proof in accordance with paragraph (e);

(h)in the case of a decision to remove a liquidator in a creditors’ voluntary winding-up or a winding up by the court, a statement drawing the attention of creditors to section 173(2) or 174(4) (which relate to the release of the liquidator), as appropriate(3);

(i)in the case of a decision to remove a trustee in a bankruptcy, a statement drawing the attention of creditors to section 299(3)(4) (which relates to the release of the trustee);

(j)in the case of a decision in relation to a proposed CVA or IVA, a statement of the effects of the relevant provisions of the following—

(i)rule 15.28 about creditors’ voting rights,

(ii)rule 15.31 about the calculation of creditors’ voting rights, and

(iii)rule 15.34 about the requisite majority of creditors for making decisions;

(k)except in the case of a physical meeting, a statement that creditors who meet the thresholds in sections 246ZE(7) or 379ZA(7) may, within five business days from the date of delivery of the notice, require a physical meeting to be held to consider the matter;

(l)in the case of a meeting, a statement that any proxy must be delivered to the convener or chair before it may be used at the meeting;

(m)in the case of a meeting, a statement that, where applicable, a complaint may be made in accordance with rule 15.38 and the period within which such a complaint may be made; and

(n)a statement that a creditor may appeal a decision in accordance with rule 15.35, and the relevant period under rule 15.35 within which such an appeal may be made.

(4) The notice must be authenticated and dated by the convener.

(5) Where the decision procedure is a meeting the notice must be accompanied by a blank proxy complying with rule 16.3.

(6) This rule does not apply if the court orders under rule 15.12 that notice of a decision procedure be given by advertisement only.

Voting in a decision procedure

15.9.—(1) In order to be counted in a decision procedure other than where votes are cast at a meeting, votes must—

(a)be received by the convener on or before the decision date; and

(b)in the case of a vote cast by a creditor, be accompanied by a proof in respect of the creditor’s claim unless it has already been given to the convener.

(2) In an administration, an administrative receivership, a creditors’ voluntary winding up, a winding up by the court or a bankruptcy a vote must be disregarded if—

(a)a proof in respect of the claim is not received by the convener on or before the decision date or, in the case of a meeting, 4pm on the business day before the decision date unless under rule 15.26 or 15.28(1)(b)(ii) (as applicable) the chair is content to accept the proof later; or

(b)the convener decides, in the application of Chapter 8 of this Part, that the creditor is not entitled to cast the vote.

(3) For the decision to be made, the convener must receive at least one valid vote on or before the decision date.

Venue for decision procedure

15.10.  The convener must have regard to the convenience of those invited to participate when fixing the venue for a decision procedure (including the resumption of an adjourned meeting).

Notice of decision procedures or of seeking deemed consent: when and to whom delivered

[Note: when an office-holder is obliged to give notice to “the creditors”, this is subject to rule 1.37, which limits the obligation to giving notice to those creditors of whose address the office-holder is aware.]

15.11.—(1) Notices of decision procedures, and notices seeking deemed consent, must be delivered in accordance with the following table.

(2) This rule does not apply where the court orders under rule 15.12 that notice of a decision procedure be given by advertisement only.

Notice of decision procedure by advertisement only

15.12.—(1) The court may order that notice of a decision procedure is to be given by advertisement only and not by individual notice to the persons concerned.

(2) In considering whether to make such an order, the court must have regard to the relative cost of advertisement as against the giving of individual notices, the amount of assets available and the extent of the interest of creditors, members and contributories or any particular class of them.

(3) The advertisement must meet the requirements for a notice under rule 15.8(3), and must also state—

(a)that the court ordered that notice of the decision procedure be given by advertisement only; and

(b)the date of the court’s order.

Gazetting and advertisement of meeting

15.13.—(1) In an administration, a creditors’ voluntary winding up, a winding up by the court, or a bankruptcy, where a decision is being sought by a meeting the convener must gazette a notice of the procedure stating—

(a)that a meeting of creditors or contributories is to take place;

(b)the venue for the meeting;

(c)the purpose of the meeting; and

(d)the time and date by which, and place at which, those attending must deliver proxies and proofs (if not already delivered) in order to be entitled to vote.

(2) The notice must also state—

(a)who is the convener in respect of the decision procedure; and

(b)if the procedure results from a request of one or more creditors, the fact that it was so summoned and the section of the Act under which it was summoned.

(3) The notice must be gazetted before or as soon as reasonably practicable after notice of the meeting is delivered in accordance with these Rules.

(4) Information to be gazetted under this rule may also be advertised in such other manner as the convener thinks fit.

(5) The convener may gazette other decision procedures or the deemed consent procedure in which case the equivalent information to that required by this rule must be stated in the notice.

Notice to company officers, bankrupts etc. in respect of meetings

15.14.—(1) In a proposal for a CVA, an administration, a creditors’ voluntary winding up or a winding up by the court notice to participate in a creditors’ meeting must be delivered to every present or former officer of the company whose presence the convener thinks is required and that person is required to attend the meeting.

(2) In a bankruptcy, notice of a meeting must be delivered to the bankrupt who is required to attend the meeting unless paragraph (3) applies.

(3) In a bankruptcy, where the bankrupt is not required to attend the meeting, the notice must state—

(a)that the bankrupt is not required to attend the meeting;

(b)that if the bankrupt wishes to attend, the bankrupt should tell the convener as soon as reasonably practicable;

(c)that whether the bankrupt will be allowed to participate in the meeting is at the discretion of the chair; and

(d)that the decision of the chair as to what intervention, if any, the bankrupt may make is final.

(4) Notices under this rule must be delivered in compliance with the minimum notice requirements set out in rule 15.2(2) or in compliance with an order of the court under rule 15.12.

Non-receipt of notice of decision

15.15.  Where a decision is sought by a notice in accordance with the Act or these Rules, the decision procedure or deemed consent procedure is presumed to have been duly initiated and conducted, even if not everyone to whom the notice is to be delivered has received it.

Decisions on remuneration and conduct

15.16.—(1) This rule applies in relation to a decision or resolution which is proposed in an administration, a creditors’ voluntary winding up, a winding up by the court or a bankruptcy and which affects a person in relation to that person’s remuneration or conduct as administrator, liquidator or trustee (actual, proposed or former).

(2) The following may not vote on such a decision or resolution whether as a creditor, contributory, proxy-holder or corporate representative, except so far as permitted by rule 16.7 (proxy-holder with financial interest)—

(a)that person;

(b)the partners and employees of that person; and

(c)the officers and employees of the company of which that person is a director, officer or employee.

CHAPTER 4Decision making in particular proceedings

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Decisions in winding up of authorised deposit-takers

15.17.—(1) This rule applies in a creditors’ voluntary winding up or a winding up by the court of an authorised deposit-taker.

(2) The directors of a company must deliver a notice of a meeting of the company at which it is intended to propose a resolution for its winding up to the Financial Conduct Authority and to the scheme manager established under section 212(1) of the Financial Services and Markets Act 2000.

(3) These notices must be the same as those delivered to members of the company.

(4) Where any decision is sought for the purpose of considering whether a replacement should be appointed after the liquidator’s resignation, removing the liquidator or appointing a new liquidator, the convener must also deliver a copy of the notice by which such a decision is sought to the Financial Conduct Authority and the scheme manager.

(5) A scheme manager who is required by this rule to be given notice of a meeting is entitled to be represented at the meeting.

CHAPTER 5Requisitioned decisions

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Requisitions of decision

[Note: this rule is concerned with requests by creditors or contributories for a decision, rather than requests for decisions to be made by way of a physical meeting under sections 246ZE(3) or 379ZA(3)(6).]

15.18.—(1) In this Chapter, “requisitioned decision” means a decision on nominations requested to be sought under section 136(5)(c) or a decision requested to be sought under section 168(2)(7), 171(2)(b), 171(3A)(8), 172(3), 298(4)(c)(9) or 314(7)(10) or paragraph 52(2) or 56(1) of Schedule B1(11).

(2) A request for a decision to be sought under paragraph 52(2) of Schedule B1 must be delivered within 8 business days of the date on which the administrator’s statement of proposals is delivered.

(3) The request for a requisitioned decision must include a statement of the purpose of the proposed decision and either—

(a)a statement of the requesting creditor’s claim or contributory’s value, together with—

(i)a list of the creditors or contributories concurring with the request and of the amounts of their respective claims or values, and

(ii)confirmation of concurrence from each creditor or contributory concurring; or

(b)a statement of the requesting creditor’s debt or contributory’s value and that that alone is sufficient without the concurrence of other creditors or contributories.

(4) A decision procedure must be instigated under section 171(2)(b) for the removal of the liquidator, other than a liquidator appointed by the court under section 108, if 25% in value of the company’s creditors, excluding those who are connected with the company(12), request it.

(5) Where a decision procedure under section 171(2)(b), 171(3), 171(3A) or 298(4)(c) is to be instigated, or is proposed to be instigated, the court may, on the application of any creditor, give directions as to the decision procedure to be used and any other matter which appears to the court to require regulation or control.

(6) Where the official receiver receives a request under section 136(5)(c) and it appears that it is properly made, the official receiver must withdraw any notices previously given under section 136(5)(b) and act in accordance with Chapter 2 as if the official receiver had decided under section 136 to seek nominations.

Expenses and timing of requisitioned decision

15.19.—(1) The convener must, not later than 14 days from receipt of a request for a requisitioned decision, provide the requesting creditor with itemised details of the sum to be deposited as security for payment of the expenses of such procedure.

(2) The convener is not obliged to initiate the decision procedure or deemed consent procedure (where applicable) until either—

(a)the convener has received the required sum; or

(b)the period of 14 days has expired without the convener having informed the requesting creditor or contributory of the sum required to be deposited as security.

(3) A requisitioned decision must be made—

(a)where requested under section 136(5)(c), within three months; or

(b)in any other case, within 28 days;

of the date on which the earlier of the events specified in paragraph (2) of this rule occurs.

(4) The expenses of a requisitioned decision must be paid out of the deposit (if any) unless—

(a)the creditors decide that they are to be payable as an expense of the administration, winding up or bankruptcy, as the case may be; and

(b)in the case of a decision of contributories, the creditors are first paid in full, with interest.

(5) The notice of a requisitioned decision of creditors must contain a statement that the creditors may make a decision as in paragraph (4)(a) of this rule.

(6) Where the creditors do not so decide, the expenses must be paid by the requesting creditor or contributory to the extent that the deposit (if any) is not sufficient.

(7) To the extent that the deposit (if any) is not required for payment of the expenses, it must be repaid to the requesting creditor or contributory.

CHAPTER 6Constitution of meetings

Quorum at meetings

15.20.—(1) A meeting is not competent to act unless a quorum is in attendance.

(2) A quorum is—

(a)in the case of a meeting of creditors, at least one creditor entitled to vote; and

(b)in the case of a meeting of contributories, at least two contributories entitled to vote, or all the contributories, if their number does not exceed two.

(3) Where the provisions of this rule as to quorum are satisfied by the attendance of the chair alone or the chair and one additional person, but the chair is aware, either by virtue of proofs and proxies received or otherwise, that one or more additional persons would, if attending, be entitled to vote, the chair must delay the start of the meeting by at least 15 minutes after the appointed time.

Chair at meetings

15.21.  The chair of a meeting must be—

(a)the convener;

(b)an appointed person; or

(c)in cases where the convener is the official receiver, a person appointed by the official receiver.

The chair – attendance, interventions and questions

15.22.  The chair of a meeting may—

(a)allow any person who has given reasonable notice of wishing to attend to participate in a virtual meeting or to be admitted to a physical meeting;

(b)decide what intervention, if any, may be made at—

(i)a meeting of creditors by any person attending who is not a creditor, or

(ii)a meeting of contributories by any person attending who is not a contributory; and

(c)decide what questions may be put to—

(i)any present or former officer of the company, or

(ii)the bankrupt or debtor.

CHAPTER 7Adjournment and suspension of meetings

Adjournment by chair

15.23.—(1) The chair may (and must if it is so resolved) adjourn a meeting for not more than 14 days, but subject to any direction of the court and to rule 15.24.

(2) Further adjournment under this rule must not be to a day later than 14 days after the date on which the meeting was originally held (subject to any direction by the court).

(3) But in a case relating to a proposed CVA, the chair may, and must if the meeting so resolves, adjourn a meeting held under paragraph 29(1) of Schedule A1(13) to a day which is not more than 14 days after the date on which the moratorium (including any extension) ends.

Adjournment of meetings to remove a liquidator or trustee

15.24.  If the chair of a meeting to remove the liquidator or trustee in a creditors’ voluntary winding up, a winding up by the court or a bankruptcy is the liquidator or trustee or the liquidator’s or trustee’s nominee and a resolution has been proposed for the liquidator’s or trustee’s removal, the chair must not adjourn the meeting without the consent of at least one-half (in value) of the creditors attending and entitled to vote.

Adjournment in absence of chair

15.25.—(1) In an administration, administrative receivership, a creditors’ voluntary winding up, a winding up by the court or a bankruptcy, if no one attends to act as chair within 30 minutes of the time fixed for a meeting to start, then the meeting is adjourned to the same time and place the following week or, if that is not a business day, to the business day immediately following.

(2) If no one attends to act as chair within 30 minutes of the time fixed for the meeting after a second adjournment under this rule, then the meeting comes to an end.

Proofs in adjournment

15.26.  Where a meeting in an administration, an administrative receivership, a creditors’ voluntary winding-up, a winding up by the court or a bankruptcy is adjourned, proofs may be used if delivered not later than 4pm on the business day immediately before resumption of the adjourned meeting, or later than that time where the chair is content to accept the proof.

Suspension

15.27.  The chair of a meeting may, without an adjournment, declare the meeting suspended for one or more periods not exceeding one hour in total (or, in exceptional circumstances, such longer total period during the same day at the chair’s discretion).

CHAPTER 8Creditors’ voting rights and majorities

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Creditors’ voting rights

15.28.—(1) In an administration, an administrative receivership, a creditors’ voluntary winding up, a winding up by the court and a bankruptcy, a creditor is entitled to vote in a decision procedure or to object to a decision proposed using the deemed consent procedure only if—

(a)the creditor has, subject to rule 15.29, delivered to the convener a proof of the debt claimed in accordance with paragraph (3), including any calculation for the purposes of rule 15.31 or 15.32, and

(b)the proof was received by the convener—

(i)not later than the decision date, or in the case of a meeting, 4pm on the business day before the meeting, or

(ii)in the case of a meeting, later than the time given in sub-paragraph (i) where the chair is content to accept the proof; and

(c)the proof has been admitted for the purposes of entitlement to vote.

(2) In the case of a meeting, a proxy-holder is not entitled to vote on behalf of a creditor unless the convener or chair has received the proxy intended to be used on behalf of that creditor.

(3) A debt is claimed in accordance with this paragraph if it is—

(a)claimed as due from the company or bankrupt to the person seeking to be entitled to vote; or

(b)in relation to a member State liquidator, claimed to be due to creditors in proceedings in relation to which that liquidator holds office.

(4) The convener or chair may call for any document or other evidence to be produced if the convener or chair thinks it necessary for the purpose of substantiating the whole or any part of a claim.

(5) In a decision relating to a proposed CVA or IVA every creditor, secured or unsecured, who has notice of the decision procedure is entitled to vote in respect of that creditor’s debt.

(6) Where a decision is sought in an administration under rule 3.52(3)(b) (pre-administration costs), rule 18.18(4) (remuneration: procedure for initial determination in an administration) or rule 18.26(2) (first exception: administrator has made statement under paragraph 52(1)(b) of Schedule B1), creditors are entitled to participate to the extent stated in those paragraphs.

Scheme manager’s voting rights

15.29.—(1) For the purpose of voting in a creditors’ voluntary winding up or a winding up by the court of an authorised deposit-taker at which the scheme manager established under section 212(1) of the Financial Services and Markets Act 2000 is entitled to be represented under rule 15.17 (but not for any other purpose), the manager may deliver, instead of a proof, a statement containing—

(a)the names of the creditors of the company in relation to whom an obligation of the scheme manager has arisen or may reasonably be expected to arise;

(b)the amount of each such obligation; and

(c)the total amount of all such obligations.

(2) The manager may from time to time deliver a further statement; and each such statement supersedes any previous statement.

Claim made in proceedings in other member States

15.30.—(1) Where a creditor in an administration, a creditors’ voluntary winding up, a winding up by the court or a bankruptcy—

(a)is entitled to vote under rule 15.28(1) (as determined, where that be the case, in accordance with rule 15.35);

(b)has made the claim in other proceedings; and

(c)votes on a resolution in a decision procedure;

and a member State liquidator casts a vote in respect of the same claim, only the creditor’s vote is to be counted.

(2) Where in an administration, a creditors’ voluntary winding up, a winding up by the court or a bankruptcy—

(a)a creditor has made a claim in more than one set of other proceedings; and

(b)more than one member State liquidator seeks to vote in respect of that claim;

the entitlement to vote in respect of that claim is exercisable by the member State liquidator in the main proceedings, whether or not the creditor has made the claim in the main proceedings.

(3) In this rule, “other proceedings” mean main, secondary or territorial proceedings in another member State.

Calculation of voting rights

15.31.—(1) Votes are calculated according to the amount of each creditor’s claim—

(a)in an administration, as at the date on which the company entered administration, less—

(i)any payments that have been made to the creditor after that date in respect of the claim, and

(ii)any adjustment by way of set-off which has been made in accordance with rule 14.24 or would have been made if that rule were applied on the date on which the votes are counted;

(b)in an administrative receivership, as at the date of the appointment of the receiver, less any payments that have been made to the creditor after that date in respect of the claim;

(c)in a creditors’ voluntary winding up, a winding up by the court or a bankruptcy, as set out in the creditor’s proof to the extent that it has been admitted;

(d)in a proposed CVA—

(i)at the date the company went into liquidation where the company is being wound up,

(ii)at the date the company entered into administration (less any payments made to the creditor after that date in respect of the claim) where it is in administration,

(iii)at the beginning of the moratorium where a moratorium has been obtained (less any payments made to the creditor after that date in respect of the claim), or

(iv)where (i) to (iii) do not apply, at the decision date;

(e)in a proposed IVA—

(i)where the debtor is not an undischarged bankrupt—

(aa)at the date of the interim order, where there is an interim order in force,

(bb)otherwise, at the decision date,

(ii)where the debtor is an undischarged bankrupt, at the date of the bankruptcy order.

(2) A creditor may vote in respect of a debt of an unliquidated or unascertained amount if the convener or chair decides to put upon it an estimated minimum value for the purpose of entitlement to vote and admits the claim for that purpose.

(3) But in relation to a proposed CVA or IVA, a debt of an unliquidated or unascertained amount is to be valued at £1 for the purposes of voting unless the convener or chair or an appointed person decides to put a higher value on it.

(4) Where a debt is wholly secured its value for voting purposes is nil.

(5) Where a debt is partly secured its value for voting purposes is the value of the unsecured part.

(6) However, the value of the debt for voting purposes is its full value without deduction of the value of the security in the following cases—

(a)where the administrator has made a statement under paragraph 52(1)(b) of Schedule B1 and the administrator has been requested to seek a decision under paragraph 52(2); and

(b)where, in a proposed CVA, there is a decision on whether to extend or further extend a moratorium or to bring a moratorium to an end before the end of the period of any extension.

(7) No vote may be cast in respect of a claim more than once on any resolution put to the meeting; and for this purpose (where relevant), the claim of a creditor and of any member State liquidator in relation to the same debt are a single claim.

(8) A vote cast in a decision procedure which is not a meeting may not be changed.

(9) Paragraph (7) does not prevent a creditor or member State liquidator from—

(a)voting in respect of less than the full value of an entitlement to vote; or

(b)casting a vote one way in respect of part of the value of an entitlement and another way in respect of some or all of the balance of that value.

Calculation of voting rights: special cases

15.32.—(1) In an administration, a creditor under a hire-purchase agreement is entitled to vote in respect of the amount of the debt due and payable by the company on the date on which the company entered administration.

(2) In calculating the amount of any debt for the purpose of paragraph (1), no account is to 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—

(a)the making of an administration application;

(b)a notice of intention to appoint an administrator or any matter arising as a consequence of the notice; or

(c)the company entering administration.

(3) Any voting rights which a creditor might otherwise exercise in respect of a claim in a creditors’ voluntary winding up or a winding up by the court of an authorised deposit-taker are reduced by a sum equal to the amount of that claim in relation to which the scheme manager, by virtue of its having delivered a statement under rule 15.29, is entitled to exercise voting rights.

Procedure for admitting creditors’ claims for voting

15.33.—(1) The convener or chair in respect of a decision procedure must ascertain entitlement to vote and admit or reject claims accordingly.

(2) The convener or chair may admit or reject a claim in whole or in part.

(3) If the convener or chair is in any doubt whether a claim should be admitted or rejected, the convener or chair must mark it as objected to and allow votes to be cast in respect of it, subject to such votes being subsequently declared invalid if the objection to the claim is sustained.

Requisite majorities

15.34.—(1) A decision is made by creditors when a majority (in value) of those voting have voted in favour of the proposed decision, except where this rule provides otherwise.

(2) In the case of an administration, a decision is not made if those voting against it—

(a)include more than half in value of the creditors to whom notice of the decision procedure was delivered; and

(b)are not, to the best of the convener or chair’s belief, persons connected with the company.

(3) Each of the following decisions in a proposed CVA is made when three-quarters or more (in value) of those responding vote in favour of it—

(a)a decision approving a proposal or a modification;

(b)a decision extending or further extending a moratorium; or

(c)a decision bringing a moratorium to an end before the end of the period of any extension.

(4) In a proposed CVA a decision is not made if more than half of the total value of the unconnected creditors vote against it.

(5) For the purposes of paragraph (4)—

(a)a creditor is unconnected unless the convener or chair decides that the creditor is connected with the company;

(b)in deciding whether a creditor is connected reliance may be placed on the information provided by the company’s statement of affairs or otherwise in accordance with these Rules; and

(c)the total value of the unconnected creditors is the total value of those unconnected creditors whose claims have been admitted for voting.

(6) In a case relating to a proposed IVA—

(a)a decision approving a proposal or a modification is made when three-quarters or more (in value) of those responding vote in favour of it;

(b)a decision is not made if more than half of the total value of creditors who are not associates of the debtor vote against it.

(7) For the purposes of paragraph (6)—

(a)a creditor is not an associate of the debtor unless the convener or chair decides that the creditor is an associate of the debtor;

(b)in deciding whether a creditor is an associate of the debtor, reliance may be placed on the information provided by the debtor’s statement of affairs or otherwise in accordance with these Rules; and

(c)the total value of the creditors who are not associates of the debtor is the total value of the creditors who are not associates of the debtor whose claims have been admitted for voting.

Appeals against decisions under this Chapter

15.35.—(1) A decision of the convener or chair under this Chapter is subject to appeal to the court by a creditor, by a contributory, or by the bankrupt or debtor (as applicable).

(2) In a proposed CVA, an appeal against a decision under this Chapter may also be made by a member of the company.

(3) If the decision is reversed or varied, or votes are declared invalid, the court may order another decision procedure to be initiated or make such order as it thinks just but, in a CVA or IVA, the court may only make an order if it considers that the circumstances which led to the appeal give rise to unfair prejudice or material irregularity.

(4) An appeal under this rule may not be made later than 21 days after the decision date.

(5) However, the previous paragraph does not apply in a proposed CVA or IVA, where an appeal may not be made after the end of the period of 28 days beginning with the day—

(a)in a proposed CVA, on which the first of the reports required by section 4(6) or paragraph 30(3) of Schedule A1 was filed with the court(14); or

(b)in a proposed IVA—

(i)where an interim order has not been obtained, on which the notice of the result of the consideration of the proposal required by section 259(1)(a) has been given, or

(ii)otherwise, on which the report required by section 259(1)(b)(15) is made to the court.

(6) The person who made the decision is not personally liable for costs incurred by any person in relation to an appeal under this rule unless the court makes an order to that effect.

(7) The court may not make an order under paragraph (6) if the person who made the decision in a winding up by the court or a bankruptcy is the official receiver or a person nominated by the official receiver.

CHAPTER 9Exclusions from meetings

[Note: a document required by the Act or these Rules must also contain the standard contents set out in Part 1.]

Action where person excluded

15.36.—(1) In this rule and rules 15.37 and 15.38, an “excluded person” means a person who has taken all steps necessary to attend a virtual meeting or has been permitted by the convener to attend a physical meeting remotely under the arrangements which—

(a)have been put in place by the convener of the meeting; but

(b)do not enable that person to attend the whole or part of that meeting.

(2) Where the chair becomes aware during the course of the meeting that there is an excluded person, the chair may—

(a)continue the meeting;

(b)declare the meeting void and convene the meeting again; or

(c)declare the meeting valid up to the point where the person was excluded and adjourn the meeting.

(3) Where the chair continues the meeting, the meeting is valid unless—

(a)the chair decides in consequence of a complaint under rule 15.38 to declare the meeting void and hold the meeting again; or

(b)the court directs otherwise.

(4) Without prejudice to paragraph (2), where the chair becomes aware during the course of the meeting that there is an excluded person, the chair may, at the chair’s discretion and without an adjournment, declare the meeting suspended for any period up to 1 hour.

Indication to excluded person

15.37.—(1) A creditor who claims to be an excluded person may request an indication of what occurred during the period of that person’s claimed exclusion.

(2) A request under paragraph (1) must be made in accordance with paragraph (3) as soon as reasonably practicable, and in any event, not later than 4pm on the business day following the day on which the exclusion is claimed to have occurred.

(3) A request under paragraph (1) must be made to—

(a)the chair where it is made during the course of the business of the meeting; or

(b)the convener where it is made after the conclusion of the business of the meeting.

(4) Where satisfied that the person making the request is an excluded person, the person to whom the request is made under paragraph (3) must deliver the requested indication to the excluded person as soon as reasonably practicable, and in any event, not later than 4pm on the business day following the day on which the request was made under paragraph (1).

Complaint

15.38.—(1) A person may make a complaint who—

(a)is, or claims to be, an excluded person; or

(b)attends the meeting and claims to have been adversely affected by the actual, apparent or claimed exclusion of another person.

(2) The complaint must be made to the appropriate person who is —

(a)the chair, where the complaint is made during the course of the meeting; or

(b)the convener, where it is made after the meeting.

(3) The complaint must be made as soon as reasonably practicable and, in any event, no later than 4pm on the business day following—

(a)the day on which the person was, appeared or claimed to be excluded; or

(b)where an indication is sought under rule 15.37, the day on which the complainant received the indication.

(4) The appropriate person must, as soon as reasonably practicable following receipt of the complaint,—

(a)consider whether there is an excluded person;

(b)where satisfied that there is an excluded person, consider the complaint; and

(c)where satisfied that there has been prejudice, take such action as the appropriate person considers fit to remedy the prejudice.

(5) Paragraph (6) applies where the appropriate person is satisfied that the complainant is an excluded person and—

(a)a resolution was voted on at the meeting during the period of the person’s exclusion; and

(b)the excluded person asserts how the excluded person intended to vote on the resolution.

(6) Where the appropriate person is satisfied that if the excluded person had voted as that person intended it would have changed the result of the resolution, then the appropriate person must, as soon as reasonably practicable,—

(a)count the intended vote as having been cast in that way;

(b)amend the record of the result of the resolution;

(c)where notice of the result of the resolution has been delivered to those entitled to attend the meeting, deliver notice to them of the change and the reason for it; and

(d)where notice of the result of the resolution has yet to be delivered to those entitled to attend the meeting, the notice must include details of the change and the reason for it.

(7) Where satisfied that more than one complainant is an excluded person, the appropriate person must have regard to the combined effect of the intended votes.

(8) The appropriate person must deliver notice to the complainant of any decision as soon as reasonably practicable.

(9) A complainant who is not satisfied by the action of the appropriate person may apply to the court for directions and any application must be made no more than two business days from the date of receiving the decision of the appropriate person.

CHAPTER 10Contributories’ voting rights and majorities

Contributories’ voting rights and requisite majorities

15.39.  In a decision procedure for contributories—

(a)voting rights are as at a general meeting of the company, subject to any provision of the articles affecting entitlement to vote, either generally or at a time when the company is in liquidation; and

(b)a decision is made if more than one half of the votes cast by contributories are in favour.

CHAPTER 11Records

Record of a decision

15.40.—(1) The convener or chair must cause a record of the decision procedure to be kept.

(2) In the case of a meeting, the record must be in the form of a minute of the meeting.

(3) The record must be authenticated by the convener or chair and be retained by the office-holder as part of the records of the insolvency proceedings in question.

(4) The record must identify the proceedings, and must include—

(a)in the case of a decision procedure of creditors, a list of the names of the creditors who participated and their claims;

(b)in the case of a decision procedure of contributories, a list of the names of the contributories who participated;

(c)where a decision is taken on the election of members of a creditors’ committee or liquidation committee, the names and addresses of those elected;

(d)a record of any change to the result of the resolution made under rule 15.38(6) and the reason for any such change; and

(e)in any case, a record of every decision made and how creditors voted.

(5) Where a decision is sought using the deemed consent procedure, a record must be made of the procedure, authenticated by the convener, and must be retained by the office-holder as part of the records of the insolvency proceedings in question.

(6) The record under paragraph (5) must—

(a)identify the proceedings;

(b)state whether or not the decision was taken; and

(c)contain a list of the creditors or contributories who objected to the decision, and in the case of creditors, their claims.

(7) A record under this rule must also identify any decision procedure (or the deemed consent procedure) by which the decision had previously been sought.

CHAPTER 12Company meetings

Company meetings

15.41.—(1) Unless the Act or these Rules provide otherwise, a company meeting must be called and conducted, and records of the meeting must be kept—

(a)in accordance with the law of England and Wales, including any applicable provision in or made under the Companies Act, in the case of a company incorporated—

(i)in England and Wales, or

(ii)outside the United Kingdom other than in an EEA state;

(b)in accordance with the law of that state applicable to meetings of the company in the case of a company incorporated in an EEA state other than the United Kingdom.

(2) For the purpose of this rule, reference to a company meeting called and conducted to resolve, decide or determine a particular matter includes a reference to that matter being resolved, decided or determined by written resolution of a private company passed in accordance with section 288 of the Companies Act(16).

(3) In an administration—

(a)in summoning any company meeting the administrator must have regard to the convenience of the members when fixing the venue; and

(b)the chair of the meeting must be either the administrator or an appointed person.

Remote attendance: notification requirements

15.42.  When a meeting is to be summoned and held in accordance with section 246A(3), the convener must notify all those to whom notice of the meeting is being given of—

(a)the ability of a person claiming to be an excluded person to request an indication in accordance with rule 15.45;

(b)the ability of a person within rule 15.46(1) to make a complaint in accordance with that rule; and

(c)in either case, the period within which a request or complaint must be made.

Location of company meetings

15.43.—(1) This rule applies to a request to the convener of a meeting under section 246A(9)(17) to specify a place for the meeting.

(2) The request must be accompanied by

(a)a list of the members making or concurring with the request and their voting rights, and

(b)from each person concurring, confirmation of that person’s concurrence.

(3) The request must be delivered to the convener within seven business days of the date on which the convener delivered the notice of the meeting in question.

(4) Where the convener considers that the request has been properly made in accordance with the Act and this rule, the convener must—

(a)deliver notice to all those previously given notice of the meeting—

(i)that it is to be held at a specified place, and

(ii)as to whether the date and time are to remain the same or not;

(b)set a venue (including specification of a place) for the meeting, the date of which must be not later than 28 days after the original date for the meeting; and

(c)deliver at least 14 days’ notice of that venue to all those previously given notice of the meeting;

and the notices required by sub-paragraphs (a) and (c) may be delivered at the same or different times.

(5) Where the convener has specified a place for the meeting in response to a request to which this rule applies, the chair of the meeting must attend the meeting by being present in person at that place.

Action where person excluded

15.44.—(1) In this rule and rules 15.45 and 15.46, an “excluded person” means a person who has taken all steps necessary to attend a company meeting under the arrangements which—

(a)have been put in place by the convener of the meeting under section 246A(6); but

(b)do not enable that person to attend the whole or part of that meeting.

(2) Where the chair becomes aware during the course of the meeting that there is an excluded person, the chair may—

(a)continue the meeting;

(b)declare the meeting void and convene the meeting again; or

(c)declare the meeting valid up to the point where the person was excluded and adjourn the meeting.

(3) Where the chair continues the meeting, the meeting is valid unless—

(a)the chair decides in consequence of a complaint under rule 15.46 to declare the meeting void and hold the meeting again; or

(b)the court directs otherwise.

(4) Without prejudice to paragraph (2), where the chair becomes aware during the course of the meeting that there is an excluded person, the chair may, in the chair’s discretion and without an adjournment, declare the meeting suspended for any period up to 1 hour.

Indication to excluded person

15.45.—(1) A person who claims to be an excluded person may request an indication of what occurred during the period of that person’s claimed exclusion.

(2) A request under paragraph (1) must be made in accordance with paragraph (3) as soon as reasonably practicable, and in any event, not later than 4pm on the business day following the day on which the exclusion is claimed to have occurred.

(3) A request under paragraph (1) must be made to—

(a)the chair where it is made during the course of the business of the meeting; or

(b)the convener where it is made after the conclusion of the business of the meeting.

(4) Where satisfied that the person making the request is an excluded person, the person to whom the request is made under paragraph (3) must deliver the requested indication to the excluded person as soon as reasonably practicable, and in any event, not later than 4pm on the business day following the day on which the request was made under paragraph (1).

Complaint

15.46.—(1) A person may make a complaint who—

(a)is, or claims to be, an excluded person; or

(b)attends the meeting and claims to have been adversely affected by the actual, apparent or claimed exclusion of another person.

(2) The complaint must be made to the appropriate person who is —

(a)the chair, where the complaint is made during the course of the meeting; or

(b)the convener, where it is made after the meeting.

(3) The complaint must be made as soon as reasonably practicable and, in any event, no later than 4pm on the business day following—

(a)the day on which the person was, appeared or claimed to be excluded; or

(b)where an indication is sought under rule 15.45, the day on which the complainant received the indication.

(4) The appropriate person must, as soon as reasonably practicable following receipt of the complaint,—

(a)consider whether there is an excluded person;

(b)where satisfied that there is an excluded person, consider the complaint; and

(c)where satisfied that there has been prejudice, take such action as the appropriate person considers fit to remedy the prejudice.

(5) Paragraph (6) applies where the appropriate person is satisfied that the complainant is an excluded person and—

(a)a resolution was voted on at the meeting during the period of the person’s exclusion; and

(b)the excluded person asserts how the excluded person intended to vote on the resolution.

(6) Where the appropriate person is satisfied that if the excluded person had voted as that person intended it would have changed the result of the resolution, then the appropriate person must, as soon as reasonably practicable,—

(a)count the intended vote as having been cast in that way;

(b)amend the record of the result of the resolution;

(c)where notice of the result of the resolution has been delivered to those entitled to attend the meeting, deliver notice to them of the change and the reason for it; and

(d)where notice of the result of the resolution has yet to be delivered to those entitled to attend the meeting, the notice must include details of the change and the reason for it.

(7) Where satisfied that more than one complainant is an excluded person, the appropriate person must have regard to the combined effect of the intended votes.

(8) The appropriate person must deliver notice to the complainant of any decision as soon as reasonably practicable.

(9) A complainant who is not satisfied by the action of the appropriate person may apply to the court for directions and any application must be made no more than two business days from the date of receiving the decision of the appropriate person.