Radio Phone-ins and some information on the Administration/Liquidation dabacle…….

It would appear, judging by the furore on certain other websites and blogs that the Rangers Tax Case has resumed. I think anyone with half a brain these days realises that the tribunal is far more about ‘how liable’ Rangers are as opposed to ‘If they are liable’.

Naturally there are still some fantasists out there that have decided to disregard all the available information and are hedging their hopes on some miracle, American County Court style acquittal type result. But such is life.

In recent weeks I have been making the fatal mistake of listening to a few Radio Phone-In’s. You know the ones where Celtic fans come on to talk about Rangers, how bad a boys they have been and how they should be spanked by big bad UEFA/FIFA/SPL/SFA who are all bias towards Rangers anyway because they are not ‘Cafflicks’ and wear Masonic rings………. Sharply followed by Billy that, completely forgetting the failings of his own club and their fans, wants Celtic closed down for using a flair and holding up a few banners but UEFA/SFA/SPL whoever won’t do anything to Celtic because they are scared because Celtic complain about everything and are offended by nothing and ON AND ON AND ON AND ON AND ………….SHUT UP!!

The media in this country are not bias towards any of the clubs, some want to berate the media for failing to Report on the Rangers Tax Tribunal – you know the one that no one really knows any facts about apart from things that have been STOLEN.

I’m sure if the national press were to turn up with some documents that they shouldn’t quite have their hands on, in the midst of a major enquiry lead by Lord Justice Leveson, there would be some questions. At a time where newspapers etc. are facing an almost daily examination in the courts for defamation – not to mention handing out apologies and compensation like it’s going out of fashion – do you REALLY expect them to start shooting in the dark around Rangers? Let’s be serious. I wouldn’t do it either.

The best way I have heard it explained was by one broadcast journalist….his words were, “After the BBC documentary, Craig Whyte claimed he was proceeding with legal action against the BBC. Most people think nothing has happened but until the BBC come out and publically say that they are faced no legal action then no Journalist will touch the Rangers Tax tribunal or Craig Whyte with a bargepole” Basically – not worth it. Whether people agree with those sentiments, or would rather harbour their own feeling that it’s because it’s big cuddly Rangers who can do no wrong it completely up to themselves , but I thought it was a fairly decent answer if I am honest.

One thing, and the main point of this post, that has come to light when listening to the squabbling on the Radio is that most people, Rangers fans included fully expect some form of administration/liquidation/receivership situation in the not too distant future.

I use those three words for a reason, if ANYTHING has become abundantly clear over the airwaves from the ex-pro’s, broadcast journalists down to the random callers it is that no one really seems to be able to differentiate between those three situations, when they are relevant and how they operate. So, I decided to try and put them into simple terms for any would be callers to the show in future:

I understand this is a bit academic and probably boring to everyone but hey – the information is there for anyone that might want to brush up on their solvency knowledge. I appreciate some of the information available out there is fantastic on other blogs, and I wouldn’t dare slate them but sometimes when reading the comments made by those that visit the sites and blogs I feel that people don’t quite understand the basics before they start commenting on things that are perhaps slighting more advanced and start shooting in the dark for answers that are a mile off the cause.

And I await someone telling me I’ve made mistakes along the way here lol…….enjoy, take care.

PS) Does anyone know how to cancel a bid on EBAY – it’s just, i put in a bid for a cowboy outfit and i am about 8 minutes away from owning Rangers. (It’s good to laugh about things….. :D)

Receivers and their role

A receiver is a qualified insolvency practitioner who has been appointed under the terms of a floating charge granted by the company. It is the task of the receiver to take control of the property of the company that is subject to the floating charge and to thereafter realise it for the benefit of the creditor appointing the receiver. Following the appointment of the receiver, the directors of the company lose their power and control in relation to the assets covered by the charge. The directors will however remain in office for other purposes.

It should be appreciated that receivership is not the same as administration, nor is it the same as liquidation.

Whilst there are differences in the concept of receivers in Scotlandas opposed to receivers in England& Wales, generally speaking the same rules and regulations apply. It should be noted however that in England& Walesthere exists both receivers and administrative receivers, whereas in Scotlandthere are only receivers, who are the equivalent of the administrative receiver. We will be concentrating our examination on administrative receivers (referred to hereafter as “receivers”).

Further differences between the jurisdictions are that in Scotlandonly the holder of a floating charge can secure the appointment of a receiver, whereas in England& Wales, a fixed security holder can also appoint a receiver. Additionally receivers in Scotlandare the creation of statute – the Companies (Floating Charges and Receivers) (Scotland) Act 1972 – whereas they are a creation at common law in England & Wales, although today their regulation in both jurisdictions is controlled by the Insolvency Act 1986.

The Enterprise Act 2002 altered the way in which receivership was to be handled, with the government seeking to facilitate company rescue through administration. However in certain circumstances a receiver can still be appointed. The current rules on receivership apply to those floating charges registered prior to the Enterprise Act coming into force – 15th September 2003. If a floating charge was registered prior to that date then a receiver as opposed to an administrator will be appointed. Floating charges registered on or after that date must now be “qualifying floating charges” and as such will require the appointment of an administrator, with eight exceptions where the old style receiver will still be appointed.

The eight exceptions relate to:

(i)       capital market investments having a value of at least £50 million

(ii)       public-private partnership schemes

(iii)      utility companies

(iv)     urban regeneration projects

(v)      protected railway & water companies

(vi)     project finance that do not fall within categories (ii) & (iii) supra but where a debt of at least £50 million has been incurred

(vii)     registered social landlords, and

(viii)    financial market exceptions

Other than the above exceptions, as already indicated, an administrator rather than a receiver will now require to be appointed in the first instance. If however the administration proves unsuccessful then either/ both a receiver and/ or a liquidator could be appointed to deal with the winding up of the company and the sale of its assets.

Grounds for appointment of a Receiver

The floating charge holder can specify grounds of appointment in the charge instrument itself, but failing that it is competent to seek the appointment of a receiver in the following circumstances, namely:

(a)      the expiry of 21 days after a demand for payment and no payment is tendered;

(b)      the expiry of 2 months during the whole of which interest due and payable is in arrears;

(c)      the making of an order, or the passing of a resolution to wind up the company; and

(d)      the appointment of a receiver by virtue of any other floating charge created by the company.

It should be appreciated that inScotlanda receiver can be appointed over any assets covered by the floating charge, irrespective of the extent of the charge, whereas inEngland&Walesthe charge has to be over all, or substantially all of the company’s assets for a receiver to be appointed

Who can be a receiver?

A receiver must be a “qualified insolvency practitioner”, generally a lawyer or an accountant authorised to act as such by being a member of the recognised body of insolvency practitioners. A receiver cannot be a body corporate. It is perfectly legitimate to appoint joint receivers to handle the realisation of the company’s assets covered by the floating charge.

Mode of Appointment

A receiver can be appointed in one of two ways:

(a)      by the holder of the floating charge, or

(b)      by the Court

Where the appointment is by the holder of the charge, this will involve a validly executed Instrument of Appointment, executed either by the holder of the charge or someone authorised on their behalf. The appointment requires to be accepted by the receiver “before the end of the business day next following” the date on which the request is received. Initially the appointment can be accepted verbally, but it must be followed up in writing by endorsing a docquet of acceptance onto the instrument of appointment.

The receiver’s appointment must then be notified to Companies House within 7 days, along with a certified copy of the instrument of appointment, together with a notice providing details of the appointment and a statement of circumstances justifying the appointment.

Where the appointment of a receiver is effected through court action there is no requirement for the receiver to intimate his/her acceptance of that appointment, although the appointment must still be notified to Companies House, within 7 days, along with a copy of the court order of appointment. The disadvantages of the court process to the chargeholder are the expense and the time to obtain an appointment.

Effect of the appointment

The directors’ powers to deal with the company property subject to the floating charge are superseded but not extinguished. They can still sue in the company name if the receiver elects not to pursue a matter, provided both the chargeholder and the company are protected against any prejudice – the costs of the court action.

Although title to the company assets remains with the company, the receiver is treated as if he/ she had a completed security as at the date of crystallisation of the charge.

Powers of the Receiver

The receiver’s powers will be defined in the floating charge itself, failing which reference can be made to the Insolvency Act 1986. This Act contains extensive powers and the receiver has a wide discretion as to what powers to make use of and in what manner.

For example the statutory powers include:

(i)       the power to take possession of the company property from any person, including the power to take such proceedings as may seem appropriate to achieve that end;

(ii)       the power to appoint a solicitor, accountant, or other professional qualified to assist the receiver in the performance of his/ her functions;

(iii)      the power to sell, hire out, or otherwise dispose of the company property subject to the charge by private bargain, or public auction;

(iv)     the power to raise, or borrow money and grant a security over the property;

(v)      the power to bring, or defend any action, or legal proceedings on behalf of the company;

(vi)     to make any payment that is necessary, or incidental to the performance of his/her functions;

(vii)     to carry on the business of the company (although it should be appreciated here that the continuation of the business would be for the better realisation of the assets, or to obtain a better deal on a sale of the business, in order that sufficient monies are obtained to satisfy the debt due to the chargeholder and any preferential creditor);

(viii)    to make any arrangement on behalf of the company;

(ix)     to present, or defend any court action for the winding up of the company; and

(x)      to do all other things incidental to the exercise of the powers detailed in the Insolvency Act 1986

The above is not an exhaustive list, but does provide an indication of the wide and extensive powers that are available to a receiver.

Duties of the Receiver

Unlike a receiver’s powers there is no statutory statement of duties available to a receiver. Their primary concern however is to realise the assets covered by the floating charge as advantageously as possible, to satisfy the claims of the chargeholder and of any preferential creditor.

The receiver has a total discretion as to which assets are realised and liability for negligence on the part of the receiver will only be applicable where the receiver has not exercised reasonable care in securing a reasonable price, or not exercised reasonable care in the exercise of his/ her powers. The receiver has the authority to apply to Court for an order to recover property, or company records, and that even where the receiver’s appointment was not made through a court order. The receiver can also obtain a court order to examine an officer of the company. [This could occur where the receiver was of the view that they required a fulsome disclosure from the company officer.]

Procedure after appointment

Following their appointment a receiver is under an obligation to ensure that he receives a statement of the company’s assets, liabilities and debts, details of the creditors and the date of their creation, and of any security connected to them etc and that has to be done within 4/ 8 weeks of their appointment.

This information requires to be produced in the form of a sworn statement and the receiver can request this information from,

(i)       the officers of the company, or

(ii)       any promoter, solicitor, accountant or other professional who was involved with the company in the year preceding the appointment of the receiver, or

(iii)      current employees and former employees who have left the company within the preceding 12 months.

Within 3 months of the receiver’s appointment, he /she is required to circulate a Report on the company’s position to:

(i)       Companies House,

(ii)       the floating charge holder, and

(iii)       the trustees of any secured creditors and all secured creditors whose addresses are known.

(iv)      If the receiver is experiencing difficulty in meeting this time limit an

application can be made to Court for an extension. If the company is not also in liquidation, [it is possible for a company to be both in receivership and in liquidation at the same time; the receiver would deal with the assets covered by the floating charge and the liquidator with those remaining assets of the company] then the receiver must also within the same time period remit a copy of the report to the unsecured creditors, or alternatively publish a notice advising these creditors of the position.

(v)       If the company has gone into liquidation then the receiver is required to send a copy of the report to the liquidator within 7 days of sending the report to the secured creditors, there being no need then to intimate to the unsecured creditors.

Receiver as an agent for the Company

The receiver is an agent for the company until such times as the company goes into liquidation. Where a receiver enters into a new contract with a third party the receiver will be personally liable unless the contract specifies otherwise. Receivers will therefore seek to limit their liability, otherwise their appointment would become meaningless. If the receiver were to be personally liable he could refuse to enter into new contracts, which in turn could lead to a less advantageous realisation of the assets. The Insolvency Act 1986 therefore allows the receiver to limit his/ her liability through being indemnified out of the assets of the company. If the assets of the company are insufficient to meet this liability, then the receiver will be personally liable, unless the receiver obtained an indemnity from the floating charge holder.

So far as liability of the receiver for continuing existing contracts is concerned, if the receiver decides to continue with performance of that contract then personal liability will attach to the receiver, subject to a right to be indemnified from the company’s assets. The receiver can in general terms elect not to continue with the existing contract, leaving the third party with a right to sue the company for breach of contract – if there is any value in such a claim.

However it should be noted that in certain situations, courts have refused to allow a receiver to withdraw from an existing contract, if this were to damage the goodwill of the company, or result in a more disadvantageous realisation of the company’s assets.

Special provisions apply in relation to contracts of employment. The receiver has 14 days from his/ her appointment to decide whether or not to continue the existing staff members’ employment contracts. Following the expiry of the 14 day period a receiver will be personally liable for any such contracts that were not terminated and indeed for any new contracts of employment entered into, all again subject to a right to be indemnified from the company’s assets against any “qualifying liability”, such as wages, salary, or pension contributions.

Entitlement to Remuneration

The receiver should seek to establish a right to remuneration by means of a direct contract with the chargeholder, failing which the receiver will require to seek reimbursement from the company’s assets, after settlement of any preferential claims.

Payments and Distributions by the Receiver

The receiver is required to pay out of the company’s assets in priority to the chargeholder any preferential claims provided the receiver is advised of their existence within 6 months of advertising for submission of claims. The order of payment is as follows:

(i)       any monies due to the holder of a fixed, or floating charge that ranks prior to the chargeholder appointing the receiver;

(ii)       any person who has effectively effected diligence;

(iii)      any creditor in respect of a liability incurred by the receiver;

(iv)     the receiver for his/ her remuneration, expenses, or liabilities;

(v)  any preferential creditors – it should be noted here that the Crown no longer ranks as a preferential creditor;

(vi)     the chargeholder along with any other floating charge holder ranking equally with the floating charge used to secure the appointment of the receiver;

(vii)     postponed chargeholders;

(viii)    any balance is then remitted to the company if it is still solvent, and if in liquidation then the balance is transferred to the liquidator

Relationship with Preferential Creditors

The receiver’s powers are subject to the rights of the holders of fixed securities, or to floating charge holders that rank prior to the one appointing the receiver. The receiver will normally require the consent of any such creditor to dispose of the asset concerned. However the Insolvency Act 1986 puts in place provisions to allow the receiver to obtain the authority of the court to dispose of such an asset free of the security. The receiver will require to persuade the court that such a course of action would lead to a more advantageous sale of the asset concerned.

Even though the asset may then be sold free of the security affecting it, the free proceeds of sale must be transferred by the receiver to the security holder. The use of these powers under the Insolvency Act does prejudice the creditor right to rank for their debt. It is open to such a prior security holder to persuade the court that a higher figure could have been obtained on the open market and that the receiver should be liable for the claimed shortfall in the price.

Removal from Office

A receiver can be removed from office by the court on cause shown. It is also open to a receiver to tender their resignation. If they however sell off the assets covered by the floating charge and then settle with the chargeholder and any preferential claimholder, any balance of funds is either transferred to the company if it is still solvent, or to the liquidator in an insolvency situation. Once the receivership comes to an end if the company is still solvent, the directors and shareholders regain control of whatever assets that are left.


Current Administration Procedures – Part 10 of the Enterprise Act 2002

The Enterprise Act 2002 brought about a shift in the balance of insolvency procedures in favour of administration, with the aim of taking account of the interests of all creditors, as contrasted with the old receivership rules which in essence sought to protect the interests of the floating charge holder only. Administration is now the rescue vehicle of choice, as opposed to receivership and/or liquidation. Administration is also the only option as from September 2003 now for secured creditors wishing to enforce their security.

The administration procedures contained in the Enterprise Act apply throughout the UK. It should be noted though that the old administration rules that were applied by the Insolvency Act 1986 were retained for a small number of cases namely:

(i)       Water companies under the Water Industry Act 1991;

(ii)       Air traffic controlling companies under the Transport Act 2000;

(iii)      railway companies under the Railways Act 1993 & the Channel Tunnel rail Link Act 1996;

(iv)    Londonunderground private public partnership companies under the Greater London Authority Act 1999; and

(v)      Building societies under the Building Societies Act 1986

Apart from these instances the Enterprise Act provisions, effective from 15th September 2003, now require to be applied and these notes will concentrate on the new provisions, given that it is this type of administration situation we are likely to be involved with.

What is the impact of Part 10 on the administration procedure?

Previously, under section 8 of the Insolvency Act 1986, administration had 4 purposes, namely:-

(i)       survival of the company

(ii)       entering into a section 425 CA 85 compromise or scheme of arrangement with the company’s creditors

(iii)      approval of a voluntary arrangement, or

(iv)     a more advantageous realisation of the company’s assets than there would be on a winding up.

The Enterprise Act 2002 replaces these four purposes with one overarching purpose, which is divided into 3 objectives. These objectives require to be followed in order. They are hierarchical:

(i)       the rescue of the company as a going concern is the primary objective.

(ii)       If that is not possible, or if the second objective would clearly be better for the creditors as a whole, then the administrator has to attempt to achieve a better result for the creditors than would be obtained through an immediate winding-up of the company – under this objective the administrator would have the authority to trade on for a while and thereafter sell the business as a going concern.

(iii)      if neither of these two objectives are possible then and only then the administrator can realise the company’s property in order to make a distribution to the secured and/or preferential creditors.

Previously an administrator was under an obligation to stipulate which of the 4 purposes under the 1986 Act they were going to pursue before the company entered administration. Under the 2002 Act an administrator, once appointed, if they have to realise property – the third objective – must explain why this result cannot be achieved by either the second and/or first objective.

Methods of Commencing the Administration

Under the 2002 Act two methods of proceeding to administration are permitted. As well as the court order entry into administration, the 2002 Act has introduced a ‘without court order’ appointment route for holders of “qualifying floating charges” and for companies, or their directors.

If a company, or its directors seek to appoint an administrator, this can only be processed under the non-court route, if the company has not had the benefit of a moratorium (or interim moratorium) within the previous 12 months. Creditors and the justices chief executive of aMagistrates CourtinEnglandcan also seek the appointment of an administrator but only through the court route.

The court route will be necessary if the company is in liquidation, where the court can end the liquidation and make an administration order instead, or if a receiver has already been appointed, or if a provisional liquidator has been appointed, or if there is an outstanding winding up petition against the company.

There is an immediate 5 day moratorium for out of court appointments by qualifying charge holders, starting with the date of the notice of intention to appoint the administrator is served. During that period the appointment requires to be made and if not, whilst it will still be possible to appoint an administrator at a later date the interim moratorium will be lost. Once the moratorium is effective, a petition for liquidation cannot be presented.

Where the application is by the company or the directors there is again a moratorium effective from the date of filing the notice of intention to appoint the administrator with the court. In this instance the administrator cannot be appointed within the first 5 days but must be appointed within 10 days of the filing of the notice.

Restrictions on company/ director induced administrations

In certain situations it will not be possible for either the company, or its directors to seek to commence an administration, namely where:

(a)      the application is within 12 months of the end of a previous administration, or a company voluntary arrangement;

(b)      a petition to liquidate the company has not been fully disposed of;

(c)      another petition for administration has not been fully disposed of; and

(d)      a receiver is already in office

Irrespective of which manner of appointment is selected the administrator will still be considered as an officer of the court and the appropriate documentation will need to be filed with the court. The administrator requires to complete a form, detailing their acceptance of the appointment, and they must also disclose whether or not they have had any prior professional dealings with the company concerned (this is to avoid potential claims of conflict of interest), together with their opinion on whether or not the purpose of the administration is likely to be achieved. The appointment however will only be deemed to be effective from the date and time that the notice of appointment was filed with the appropriate court.

The petitioner, unless they are a qualifying charge holder, requires to provide a statement regarding their belief that the company is unable to settle its debts, together with an affidavit setting out the company’s financial position.

Where a floating charge holder seeks to appoint an administrator, they are required to give notice of this only to the holders of any prior floating charges, who must consent to the appointment, or make alternative arrangements to appoint their own choice of administrator. There is no requirement on the floating charge holder to notify anyone else of the intended appointment of the administrator.

Where the company or its directors seek the appointment then again the holders of all qualifying floating charges must be given notice of the intention to appoint the administrator, and the charge holders will be entitled to appoint their own administrator if that is what they want to do – they in effect have a preference of choice over the company through its shareholders or the directors.

What is a qualifying floating charge?

The charge document must state that it is a qualifying charge and that it “empowers the holder of the floating charge to appoint an administrator”.

2.6             Who can be a qualifying floating charge holder?

To qualify as such one must hold one or more debentures secured in one of the following manners, namely:

(i)       by a qualifying floating charge over the whole or substantially the whole of the company’s assets;

(ii)       through a number of such qualifying charges which relate to the whole or substantially the whole of the company’s assets;

(iii)      through charges and other forms of security that encompass the whole or substantially the whole of the company’s assets, and at least one of the charges is a qualifying charge.

This net result of the above conditions is that a security holder who only holds a fixed security cannot appoint an administrator.

Procedure after the Appointment

Following their appointment the administrator needs to ensure that all further communications from the company disclose the fact that the company is in administration and notify as soon as possible all creditors of the appointment. There is a requirement to advertise the appointment, either in the London or Edinburgh Gazette (dependent in which jurisdiction the registered office of the company is situated), and at the same time in a relevant newspaper – one that the administrator considers appropriate for ensuring that the appointment will come to the notice of the company’s creditors.

Similar to the procedure under the old style receivership rules, the administrator is required to obtain a “statement of affairs” from the company officers or its employees. The statement is in a prescribed form, which details the company’s assets and liabilities, including those assets that are subject to any fixed or floating charges. Thereafter the administrator is required to produce proposals to satisfy one of the three objectives for administration.

These proposals require to be submitted to Companies House, the shareholders and the creditors within 8 weeks of the commencement of the administration. These proposals will detail how the company came to be in administration, how it is coping with the administration and the administrator’s opinion on how matters will progress. The administrator must explain their decision on how the company will fare.

The prime objective of an administrator is to rescue the company as a going concern with all or most of its businesses intact. If however the prime objective is not reasonably practicable, the administrator must consider the second objective, namely to seek a better result for the company’s creditors as a whole than would otherwise be achieved if the company went straight into liquidation. This in effect means that there is now an onus on an administrator to display greater transparency in decision making, with a need to explain to creditors in his statement of proposals why it was not reasonably practicable to pursue the first objective.

If it is not reasonably practicable to achieve either of the first two objectives, the administrator’s objective will be to realise the company’s property in order to make a distribution to the secured or preferential creditors. The administrator will however still have to act in a way that does not unnecessarily harm the interests of unsecured creditors. The administrator has to explain his actions to all creditors, whether secured or not, in his statement of proposals why it was not reasonably practicable to pursue the first two objectives. As to whether or not a particular course of action was or was not reasonably practicable is a matter for the commercial judgement of the administrator.

Included with each creditors’ copy of the administrator’s proposals will be an invitation to the initial creditors’ meeting, at which meeting the creditors are entitled to vote on those proposals. This meeting must be held within 10 weeks of the date the company entered into administration, and the creditors must be given at least 2 weeks’ notice of the meeting, although these time limits can be extended by the creditors and/or the court.

The business of the creditor’s meeting can be carried out by correspondence. However if 10% or more of the creditors (based on the value of claims and not the number of creditors) demand a meeting, then the administrator must call one. The administrator’s proposals can be accepted by a majority vote (again based on the value of claims), or they can be modified and then accepted, or the creditors, if they so choose, can reject the administrator’s proposals. Following that initial meeting, and any subsequent creditors’ meeting, the administrator must send a report of the outcome of the meeting in a prescribed form to each creditor, to the court and to the Registrar of Companies.

Thereafter the administrator must manage the company’s affairs, business and property in accordance with the proposals agreed to at the creditors’ meeting. If the administrator wishes to change the accepted proposals, and he is of the view that such a change would be a substantial revision, then he must send out revised proposals to all the creditors and obtain approval of those revised proposals, again either at a creditors’ meeting or by correspondence.

The administrator is also required, under the Company Directors Disqualification Act 1986, to submit a conduct report to the Secretary of State for Trade and Industry on the conduct of each director and/or former director of the company within 6 months of the company entering administration. This report may then be used in proceedings against the directors to decide if they should be disqualified from being a company director.

Time Periods for Administration

Under the 1986 Insolvency Act administrations could be open-ended. The 2002 Enterprise Act introduced an overall time limit of 1 year for concluding an administration, although this time period can be extended with the consent of the creditors and/or by the court. In practice it is unlikely that an administration would end within 12 months, and where it does need to continue for longer the administrator must take steps to ensure that an extension is arranged, either through the consent of the creditors or by obtaining the appropriate court order, otherwise the administration will cease. Positive action is therefore required on the part of the administrator to ensure that the administration continues, subject to it complying with the prime objective.

The time-limits for the administrator getting proposals out to creditors and thereafter holding the initial creditors’ meeting have been shortened from 10 to 8 weeks, although again there is the possibility of these time limits being extended with the creditors’ consent and/or by the court.

Prior to 15/09/03 administrations ended with a company moving into another form of proceedings, most commonly a company voluntary arrangement or a compulsory liquidation. The Enterprise Act has introduced definite time periods, which allow the administrator to move the company straight from administration into a creditors’ voluntary liquidation, if there are assets to be distributed to unsecured creditors, or to dissolve the company if there is no property left to distribute to creditors. These events can occur following on registration of the relevant notice with Companies House.

Duties and Powers of the administrator

The administrator, as an agent for the company, can do “anything expedient for the management, affairs, business and property of the company”. The administrator has wide ranging powers similar to that of a receiver, such as:

(i)       the power to remove and appoint directors;

(ii)       investigate gratuitous alienations of company property and reduce such transactions;

(iii)      to dispose of company property subject to a floating charge, although the charge-holder will have the same priority in respect of the property subsequently acquired through the transaction as he had in respect of that which has been disposed of. Similarly any assets that are subject to a non-floating charge and/or hire-purchase property can also be disposed of, but only with permission of the court, and subject to the security of the relevant creditor(s) being discharged as a result of the disposal

(iv)     make distributions to secured and/or preferential creditors during the course of the administration.

(v)      make a distribution to unsecured creditors out of the prescribed part (that is, of any ring-fenced sums of money arising out of the abolition of the Crown’s preferential status in insolvency proceedings) and out of realised assets, but in both cases only with the permission of the court.

(vi)     make payments to cover the ongoing costs of the administration, including the running costs of the administration, any trading expenses where the administrator elects to trade for a period of time, and one-off payments to creditors where the administrator is of the view that such payments will assist the administration.

Remuneration of the Administrator

Payment is made out of the company property and in priority to any floating charge holder. If the assets are insufficient then it would have been for the administrator to ensure that he had an indemnity from the parties appointing him.

Administrator & Contracts

The administrator is not personally liable for any existing or new contracts that are for the benefit of the company. The moratorium that exists during the administration prevents creditors from enforcing their contractual rights, although it is possible for them to raise court proceedings to obtain payment, provided they can persuade a court that the administrator was unfairly harming their interests. In fact at any point during the course of the administration a creditor or member of the company may apply to the court to challenge the conduct of the administrator if it appears that the administrator is acting, or intends to act, in a way that unfairly harms the interests of the applicant.

So far as employment contracts are concerned the administrator has (in the same way as the receiver has) 14 days from his appointment to adopt the employment contract or not. However no personal liability is incurred where a contract of employment is adopted.

Termination of Administration

A successful administration, where the company is rescued as a going concern, will most likely lead either to a company voluntary arrangement or a scheme of arrangement under the Companies Act 2006. An administration that involves disposing entirely of the business and other assets of the company will require the administrator to arrange for the proper winding up of the company.

Alternatively, the business and/or assets could be disposed of and a distribution made to the secured and/or preferential creditors, with little or no money left over to distribute to the unsecured creditors. As long as the court has given permission to make the distribution to unsecured creditors, these realisations could be distributed and the administrator can then file a notice with the Registrar of Companies, which would move the company from administration to dissolution.

Liquidation Options & Procedures

When a company is unable to pay its debts a petition can be presented to a court to wind the company up or alternatively the shareholders can decide to put the company into liquidation, in order that the creditors can be paid what they are owed, or as in many cases a proportion of what they are owed. Any balance of funds left after settlement of all liabilities can then be distributed among the shareholders

There are three types of liquidation procedure but irrespective of which method is used the following events will occur:

(i)       the company will go into liquidation;

(ii)       an interim liquidator will be appointed;

(iii)      the company’s creditors will require to submit vouchable claims;

(iv)     a permanent liquidator will then be appointed at a meeting of the creditors and shareholders;

(v)      the permanent liquidator will ingather the company’s property;

(vi)     payments will then be made to creditors;

(vii)     any remaining funds will be distributed to the shareholders;

(viii)    the company will then be struck off the Register of Companies if necessary.

Methods of Winding Up

There are three specific methods of winding up a company, namely:

(a)      members’ voluntary winding up (MVWU);

(b)      creditors’ voluntary winding up (CVWU); and

(c)      compulsory winding up by the court (CWU).

The majority of liquidations are voluntary made by resolution of the members. As to whether or not the route chosen is a MVWU or a CVWU will be dictated by whether or not there is to be a “declaration of solvency” – section 89 Insolvency Act (IA) 1986. This is a statutory declaration by a majority of the directors to effect that company will be able to pay its debts in full within a period not exceeding 12 months after commencement of the winding up. If such a declaration is made then it will be a MVWU, and if no such declaration is made then it will automatically be a CVWU.

Criminal penalties will apply if the directors make the declaration without reasonable grounds and once made the solvency declaration must be registered with Companies House within 15 days.

 

A MVWU can proceed on the basis of the shareholders passing a special resolution to wind up voluntarily, with no reason being required, or a special resolution on the basis that the company cannot due to liabilities continue its business & that it is advisable to wind up, or by means of an ordinary resolution passed in the event or at the time under which, in terms of its articles, the company is to be dissolved

Whatever resolution is passed the company must lodge a copy of the resolution with Registrar of Companies within 15 days & advertise the fact in either the London or the Edinburgh Gazette within 14 days.

Commencement of Voluntary Winding Up

The commencement date will be the date of the resolution – section 86 IA 1986; the company must cease to carry on business “ except so far as may be required for the beneficial winding up thereof”. In a MVWU, the involvement of the creditors is not as great since the position should be that they will be paid in full.

However in a CVWU , the company must call meeting of creditors to be held no later than 14 days after the meeting of company, at which the resolution to wind up is to be considered; notice of the meeting must be posted to creditors no later than 7 days before the day on which company meeting is to be held, and all of this must advertised at least once in either the London or the Edinburgh Gazette and once in two newspapers circulating in the district of the company’s principal place of business. A sworn statement by the directors of the company’s affairs in prescribed form must thereafter be sent to the Liquidator when appointed and this statement must also be laid before the first meeting of the creditors.

The purpose of the creditors’ meeting is to :

(a)      consider the statement of the company’s affairs;

(b)      appoint a permanent liquidator

(c)      consider the need for a liquidation committee – this can consist of up to 5 creditors, together with up to 5 nominees of the company, although the creditors can remove all/ any of the company appointments. A minimum of 3 creditors are needed to establish the committee; the quorum is 2.

Following their appointment if the liquidator is of the view that company will not be able to pay its debts within 12 months, then he must call a further meeting of the creditors within 28 days – section 95 IA 86. If the liquidation started as an a MVWU and the liquidator has now formed the view that the company will not be able to meet its liabilities within the twelve month time period,  then the liquidation will now be treated as if the declaration of solvency had not been made and it will convert into a CVWU. In an insolvent liquidation, the liquidator is under an obligation to submit reports on the directors to the Department of Trade & Industry for consideration to be given as to whether the directors should be disqualified.

Appointment of liquidator

In a MVWU, the Liquidator is appointed by company in general meeting immediately the resolution to wind up the company is passed – section 91 IA 86; in a CVWU, both the company and the creditors nominate a Liquidator at their relevant meetings. However if there is a disagreement as to who should be the liquidator then it is the creditors who have the preferential right to nominate. If a director/ member / creditor is unhappy with the appointment then they can make application to the court.

The Liquidator, like receivers and administrators must be “qualified insolvency practitioner”. Notice of their appointment must be lodged with Companies House and in either the London or Edinburgh Gazette within 14 days, and with a local newspaper within 28 days. Once appointed the liquidator can only be removed either by the court, or by a General Meeting of the shareholders, or the creditors. A Liquidator will be released from his duties at the end of the winding up process, or when he demits office.

Conduct of the liquidation :

The general duties of a liquidator in either a MVWU or a CVWU are the same as those in compulsory liquidation; following his appointment the powers of directors cease, except so far as their continuance may be sanctioned, in a MVWU by the company in general meeting, and in a CVWU by the liquidation committee, or if no committee is established then by the creditors.

The directors do retain powers to dispose of perishable goods and such other goods, the value of which is likely to diminish if not immediately disposed of and they are also authorised to do all other things as may be necessary for the protection of the company assets. These powers also apply to a liquidator appointed by the members, pending the creditors having opportunity to consider whether to replace with their own nominee.

A liquidator must exercise due diligence in investigating the existence of claims; he must satisfy all preferential debts and then all other liabilities

 pari passu.

Powers of liquidator :

There main aim here is to take control of assets with a view to their realisation. The authority of a liquidator to exercise his powers without reference to anyone is limited. He can exercise the following powers without sanction : –

(a)      institute proceedings in the name of the company;

(b)      carry on its business so far as may be necessary for its beneficial winding up;

(c)      to sell the assets of the company;

(d)      to execute deeds and documents, and to use the company seal;

(e)      to rank for dividends in bankruptcies of individuals who owe money to the company;

(f)       to draw cheques;

(g)      to borrow on the security of the company’s assets

(h)      to confirm as executor-creditor on the estate of any deceased contributory and otherwise claim on their estate;

(i)       to appoint an agent; and

(j)       to do all things as may be necessary for winding up the company’s affairs and for distributing its assets

The following powers however need either the sanction of a special extraordinary resolution of the company in respect of an MVWU, or of the court/ liquidation committee/ meeting of creditors for a CVWU, namely:-

(i)       to pay any class of creditors in full;

(ii)       to make compromises, or arrangements; and

(iii)      to compromise calls, debts etc. and to accept security for payment or performance

There are a number of other powers available to a Liquidator :

1)       apply to the court for sanction for Scheme of Arrangement under section 895 et seq CA 06;

2)       where a company is proposing to, or is in the course of being wound up, the liquidator can sell either the whole, or part of its business/property in consideration for shares/policies/other like interests in another company – with regard to a MVWU this will need sanctioned by a special resolution, and with regard to a CVWU it will need the sanction of the court, or the liquidation committee

3)       summon general meetings of company to obtain its sanction by special resolution, or ordinary resolution for any other purpose

4)       apply to the court for an order to stop any proceedings against the company; unlike a compulsory liquidation however the liquidator has to show sufficient reason here.

5)       the liquidator or any creditor/contributory can apply to the court to determine any question arising in the winding up or to exercise all/any powers of court in a compulsory winding up – section 112 IA 86 – for example the power to examine the company books, or its officers.

Carrying on business

From the commencement of the winding up, a company must cease to carry on its business, except as required for the beneficial winding up; if the liquidator is in doubt then they should apply to the court for sanction under section 112 IA 86. If the liquidator does carry on the business he will have all the necessary powers and will not be personally liable, provided he makes it clear that he is acting on behalf of the company & that it is in liquidation.

Continuing liquidations :

Where a voluntary winding up is taking in excess of 1 year then the liquidator must perform the following tasks:

(i)       file with Companies House within 30 days, a statement of intromissions, and do this every subsequent 6 months;

(ii)       call an annual meeting of members and lay a statement of the company’s position before it; and

(iii)      In a CVWU lay a statement before the creditors’ annual meeting; submit accounts etc to the liquidation committee every 6 months.

Final meetings & dissolution

As soon as the affairs of the company are fully wound up, the liquidator is required to summon a meeting of the company in a MVWU and both a meeting of the members and of the creditors in a CVWU; either the London or the Edinburgh Gazette must have a notice lodged at least 1 month before the meetings and at least 28 days notice to every admitted creditor must also be given; the liquidator after these meetings must file a return with Companies House within 1 week of the meetings and after a period of at least 3 months has expired the company can be dissolved.

As an alternative in a MVWU an application can be made under section 652 CA 85 (section 1000 CA 2006 will replace this as at 1st October 2009) to strike off the company. The liquidator will need to submit a letter to Companies House stating that company has no assets or liabilities, is not trading and does not own any heritable property.

Compulsory Liquidations by the Court

The grounds for such a liquidation are as follows:

(i)       the company has passed a special resolution to this effect;

(ii)       the company was registered as a public limited company on incorporation, but it has not obtained a section 761 CA 06 certificate within 12 months of registration;

(iii)      the number of shareholders falls below 2, unless it is a private company limited by shares or by guarantee;

(iv)     the company has not commenced business within 1 year of incorporation, or has suspended its business for a year;

(v)      the company is unable to pay its debts; or

(vi)     the court is of the opinion that it is just and equitable that the company be wound up.

In essence the last two grounds are the ones that will most commonly be used and so to this end it would be appropriate to determine what is meant by an inability to pay ones debts, as defined in section 123 IA 86, Inability to pay debts is deemed to occur where there is :

a)       a failure to pay a debt of £750 or more, either in cash or by providing a security, within 21 days of being asked following delivery of the prescribed written demand;

b)       a failure to pay within 15 days, following, an extracted court decree or an extract protested bill;

c)       inEngland&Wales, execution issued on a judgement decree, or an order of any court is returned unsatisfied in whole or in part;

d)       the company’s inability to pay its debts as they fall due – even if this is just a temporary cash flow situation this ground may be used;

e)       that the company’s assets are less than its liabilities taking into account all its contingent and prospective liabilities.

A winding up by the court commences on the day the petition, is presented to the court, unless a resolution for voluntary winding up has been passed, in which case it will commence from the date of the resolution.

Provisional liquidator

The Court has the power to appoint a provisional liquidator (“PL”), until such time as an interim liquidator is appointed; the court’s concern here is to ensure the preservation of the status quo in the affairs of the company. The Court can limit the PL’s power – section 135 IA 86 – the position is that the court must expressly specify the functions to be carried out by PL; the Court does have a discretion, as to what powers it grants the PL, but it must do so expressly. If a PL is appointed then their remuneration is ascertained and fixed by the court. The appointment of a PL has the effect of stopping any proceedings against the company or its property without leave of the court.

Interim Liquidator

If no responses/ answers to the winding up petition are lodged, or after any answers that are lodged are disposed of, the court will order that the company be wound up; the court at this stage must appoint an interim liquidator to hold office until the permanent liquidator is appointed. All types of liquidators, PL’s, interim and permanent, must be “qualified insolvency practitioners”. The Interim Liquidator must lodge a statement with court that he is a qualified practitioner & must find caution; the court will send copy of the court order of his appointment and his appointment takes effect from the date of the court order.

Again the Interim Liquidator is a temporary appointment, basically to preserve the company’s assets, until such times as the permanent liquidator is appointed.

On making of a winding up order either the company or the interim liquidator must notify the Registrar of Companies “forthwith” (no specific time limit) of the fact that the company has gone into liquidation and also provide details of the interim liquidator’s appointment. There is also a requirement to publicise the court order by the Registrar in either theLondon or the Edinburgh Gazette. Publication is important in order that a liquidator can rely on it to counter any argument by third parties claiming they did not receive notice of the liquidation

Following their appointment the Interim Liquidator is required to convene separate meetings of both the creditors & any contributories, to decide who is to be the permanent liquidator. If a company is being wound up through an inability to pay its debts then Interim Liquidator can dispense with the need to call a meeting of the contributories. It is perfectly possible for the Interim Liquidator to become the permanent liquidator.

These meetings of creditors and contributories require to be convened within 42 days of the Interim Liquidator’s appointment, or longer if permitted by the court – section 138(3) IA 86

Agenda of the meetings

At the meetings called by the Interim Liquidator the following actions require to be dealt with:

(i)       appoint a permanent liquidator – similar to the position in a CVWU, the creditors’ nominee will always be the liquidator; if however the meetings fail to appoint any liquidator then the Interim Liquidator requires to report this fact to the Court, and it will then be for the Court to make an appointment; where the Court makes the appointment then the Court is required to submit a copy of the court order to the liquidator; any liquidator appointed either by the court or through the meetings of creditors and contributories must in any event notify their appointment to Companies House within 7 days.

(ii)       decide whether or not to establish a liquidation committee;

(iii)      if no such committee is to be formed then determine how the liquidator will be remunerated or to defer consideration of this – the contributories are not allowed to debate this item;

(iv)     pass a resolution to adjourn for not more than 3 weeks; and

(v)      deal with any other business admitted by the chairperson of the meeting

Remuneration & outlays of liquidator :

These are governed by the Insolvency Rules; the first meeting of creditors can determine the basis of remuneration, failing which remuneration may be dealt with as a claim on the amount of estate realised, but in any event will take into account the value of work reasonably undertaken and the extent of the responsibilities in administering the assets of the company. The Liquidator will submit periodic accounts either to the liquidation committee, failing whom the Court.

Liquidation Committee :

If the creditors decide to establish a committee, it will consist of at least 3 but not more than 5 members/creditors; if the winding up is a “solvent” one then the contributories may elect up to a further 3 members. If the creditors don’t want a committee then contributories can set up one of between 3 & 5 members. If a committee is established then the Liquidator must report all matters of concern to the Committee, or if the Committee requests a report, and this report must be made at least every 6 months.

The Liquidator must call the first committee meeting within 3 months of his appointment, or within three months of the committee’s establishment; thereafter whenever requested within 21 days of such request; the quorum for any meeting is 2 creditors ( or 2 contributories if contributory members only)

Certain restrictions are placed on liquidation committee members from participating in transactions with the company during the winding up process. A committee member cannot:

(i)       receive payment from the assets of the company for services/goods supplied in connection with the liquidation;

(ii)       obtain profit from the liquidation;

(iii)      purchase any assets of the company, subject to certain exceptions, which are as follows:

(a)      where the court gives prior approval;

(b)      in cases of urgency;

(c)      if the transaction is by way of performance of a pre-liquidation contract and the person concerned has applied for court sanction without undue delay; or

(d)      if the committee, on the basis of full disclosure, approves the deal as being on normal commercial terms; however it should be noted that no person connected with the deal should participate in the vote.

If there is any breach of the above rules the Court can reduce any transaction.

Duties & Powers of the Liquidator :

In general terms the duties of the liquidator are to :

(i)       take control of company assets

(ii)       make a list of creditors/contributories

(iii)      resolve disputes

(iv)     realise assets

(v)      apply the proceeds in payment of the company debts/liabilities in due course and

(vi)     if there exists any surplus, then adjust the rights of contributories and distribute that surplus in accordance with those rights

Liquidator and powers not requiring sanction

Where a company has been wound up by court, the liquidator has certain powers that do not require the sanction of either the court, or the liquidation committee, namely:

(a)      to sell any assets by public auction, or by private bargain

(b)      to do all acts and execute deeds, or other documents in the name of the company

(c)      to prove, rank, claim and receive dividends from the estate of an insolvent contributory

(d)      to draw, accept, make and endorse bills of exchange & promissory notes in the name or on behalf of the company

(e)      to borrow on the security of the company’s assets

(f)       to apply for confirmation/probate as an executor on the estate of a deceased contributory and to do all acts necessary to obtain any sums due

(g) to appoint an agent to act on his behalf of the liquidator

(h) to do all other things as may be necessary for the winding up of company’s affairs & in distributing its assets

If the liquidator disposes of property to a “connected” person, or employs a solicitor, then he must notify the Liquidation Committee.

Where a winding up order has been granted or a PL appointed, then the Liquidator, or the PL assumes custody and control of the company assets, subject to any floating charge/prior security holder’s rights.

The Insolvency Act 1986 provides the liquidator with the requisite power to require certain persons to provide sworn statements as to company affairs in the prescribed form, namely

(a)      any current, or previous officers of the company;

(b)      anyone who took part in formation of the company within a year before the grant of the winding up order;

(c)      any current employees, or anyone who was an employee up to 1 year before the grant of the winding up order;

The prescribed statement covers the company’s position in relation to its assets, debts and liabilities, the names and addresses of creditors, and whether or not the creditors have security for their debts and if so the date of creation of the security. There is a 21 day time limit for providing the statement, but time period can be extended under application and an appeal can be made to the court against providing the statement at all.

The liquidator is under an obligation to take all reasonable steps to investigate and discover the extent of the company’s debts and liabilities, including advertising for claims and writing to all known creditors requesting confirmation of their claim. The liquidator must make provision for any company tax liability and if he distributes surplus assets without retaining sufficient funds for such a tax liability, then he will be personally liable with no right of recovery from the shareholders – see Taylor v Wilson’s Trustees 1979 SLT 105.

 

 

 

Liquidator and powers requiring sanction

Over and above the situations where the liquidator can exercise his powers without sanction there are occasions where the liquidator does require the sanction of the court, or the liquidation committee, namely:

(i)       to pay classes of creditors in full;

(ii)       to make compromises, or arrangements with the creditors, including prospective/contingent/disputed creditors;

(iii)      to compromise calls / debts / related liabilities/claims of all kinds between the company and any (alleged) contributory/other debtor, or any other question affecting the assets or winding up;

(iv)     to bring or defend proceedings in the name of the company;

(v)      to carry on the business of the company so far as may be necessary for its beneficial winding up

Control of liquidator

The liquidator acts under general control of the court and in a winding up by the court any creditor/contributory who is aggrieved may apply to the court for an appropriate order, – section 167 IA 86. If the liquidator is in default regarding the delivery of returns/accounts etc. and refuses to comply within 14 days of doing so, then the court can make an order for compliance. If a liquidation committee exists, then the liquidator must report regularly and answer reasonable requests for information.

Reduction of transaction

Any transaction between the liquidator and an “associate” can be reduced. An “associate” in terms of section 435 IA 86, includes close relatives (full and half blood, adopted & illegitimate); partners & their husbands/ wives/ registered civil partners, close relatives; employer/employee associations, and associated companies. These are extremely complex provisions. It is however a defence to show that deal was for value and that the liquidator did not know, or had no reason to suppose that the person concerned was an associate.

Accounting obligations

The liquidator must report to known creditors and also to any contributories, unless he considers it inappropriate, with respect to his actions and that within 6 weeks of the end of each accounting period. An “accounting period” represents each period of 26 weeks starting with the date of commencement of the winding up; the liquidator can shorten this period with the consent of the Liquidation Committee. If the winding up is not concluded within 1 year, the Liquidator must within 30 days of end of year and at 6 monthly intervals thereafter, file a return with the Registrar of Companies.

Legal effect of winding up order

A winding up order, operates for the benefit of all creditors/contributories. It acts as completed diligence; the company’s property is in the control of Liquidator; accordingly any share transfers or transfers of company property after the grant of the winding up order will be void, unless they have court sanction,. Any court proceedings are automatically stopped after the appointment of the PL and leave of court will be required for such proceedings to continue. The directors’ powers in relation to the company’s assets and the business of the company will cease, but only to extent that those powers are passed to the liquidator. The directors will still retain the power to seek to recall the liquidator’s appointment, or appeal against the winding up order.

Effect of a liquidation on contracts

Non-employment contracts are not automatically terminated in the absence of a specific term to that effect. The liquidator has the option to take over the contract or terminate it and concede a ranking for damages; the Liquidator must though make a choice within a reasonable time frame, otherwise he will be deemed to have abandoned the intention to proceed. So far as employment contracts are concerned, the winding up order has the effect of constructive notice of termination on all contracts of employment.

Personal liability of liquidator :

A Liquidator is not personally liable for any obligations of the company, but he will be liable to creditors and contributories for negligence in the performance of his duties. Such a claim will not be possible in the absence of fraud/concealment of material facts, where a court sanctioned act is complained of. A liquidator who enters appearance in a court action warrants that there is a sufficiency of company assets to meet any expenses, and can therefore incur personal liability if it transpires the assets are insufficient.

Distribution Order of Assets by a Liquidator

The Liquidator is required to settle debts in a specific order.

The distribution order it is as follows:

1.        The costs of winding up the company, which will include the costs of getting in the assets, the costs of the court petition and the statement of affairs, the liquidator’s own remuneration and any associated expenses.

2.        The preferential debts (see Insolvency Act schedule 6) all of which rank equally –

(i)       salary of employees due within 4 months next before the relevant date up to a maximum of £800 per employee

(ii)       all accrued holiday pay of employees

(iii)      contributions to occupational pension fund

(iv)     assessed taxes no longer preferential; it should be noted however that if a bank has transferred funds to pay salaries then that debt will become a preferential debt under the rule of subrogation.

3.        All charges secured by floating charge. It should be noted that fixed securities are not subject to the claims of preferential creditors. In most cases the holder of both fixed and floating charges will seek to appoint a receiver to sell the assets secured

It should also be noted that following on the abolition of the preferential status of Crown debts, theEnterpriseact 2002 created provisions to ring fence the monies that would have been allocated to the crown debts for the benefit of the unsecured creditors and not the floating charge holders. These arrangements will not however apply where the fund is below the prescribed limit and the liquidator is of the view that the costs in distributing these assets would be disproportionate to the benefits

4.        All unsecured ordinary creditors. If a secured lender’s asset is sold and there are insufficient funds to settle the debt, then the secured lender will rank as an unsecured creditor along with all the other unsecured creditors for the balance due to them.

5.        All deferred debts – for example dividends declared but not paid.

6.        And finally any surplus assets will be distributed to the shareholders in terms of their rights as specified in the articles of association or under the terms on which the shares were issued.

Resignation/ removal/ release of liquidator

A liquidator may resign, but only on the grounds and by the procedure prescribed in the Insolvency Rules; if the liquidator was appointed to act alone then he can only resign due to ill health, or if he is no longer an insolvency practitioner, or there is now a conflict of interest, or there has been a change of personal circumstances that would inhibit the discharge of his duties. The liquidator cannot resign simply because he is unhappy with the lev

el of remuneration, or because the task has become difficult. Where there has been the appointment of joint liquidators then a joint liquidator can resign if it is deemed that such an appointment is no longer expedient

The liquidator must convene meeting of creditors to receive his resignation who in turn can refuse/, or accept the resignation; if the resignation is accepted, then the liquidator must notify the court forthwith in the prescribed manner and also send a copy of his resignation to the Registrar of Companies; if the resignation is refused, then the liquidator can apply to the court for the court to make a decision as to whether or not the liquidator should be allowed to resign; if there is no quorum at the creditor’s meeting then the liquidator’s resignation is deemed to have been accepted.A PL can only be removed by the court.

A liquidator, in a winding up by the court, may only be removed by the court, or a meeting of creditors summoned especially for that purpose – a meeting of creditors must be convened if at least 25% in value of the creditors demand it. The court will require cause to be shown even if majority of creditors want the liquidator out. Misconduct of itself is not necessary, but removal will only be granted if it is shown that it is in the best interests of the liquidation. Release has the effect of discharging the liquidator from all liability in respect of his acts/omissions in the winding up.

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5 Comments on “Radio Phone-ins and some information on the Administration/Liquidation dabacle…….”


  1. Good stuff Garry!

    An excellent “cut out and keep” guide, and almost as long as one of my posts!

  2. Gwared Says:

    Great to see an educated appraisal from the Blue side. If anything hopefully it will raise awareness.

    Well done.


    • I must admit there is a severe lack of rangers fans commentating on any of the issues- yet a plethora or Celtic fans.

      I have absolutely no idea how this works but it is the truth. I have raised the issues among Rangers fan sites and find myself completely banned from them all- take from that what you will.

      Sometimes a spade needs to be called a spade, like everyone else I speculate on matters and throw in a few facts here and there. Again, like everyone else I have no idea what has been said at Tax Tribunal nor shall I pretend (like others have) that I do. What I do know- is that I cannot wait for it to be all over for some sort of perspective of the way forward for Rangers no matter what path that may take.

      The tax case, like many in this country, has dragged on an unnecessary length of time and has grown legs on its route. Not in fact, but among some people on fan sites that have completely fabricated fantasy theory’s on the matter.

      Soon it is over the better- it’s got a bit boring. Rather deal with a situation head on than have it sitting like an elephant in the room!


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