UK Offence Report

Information to creditors and appointment of liquidator

article 4.14(13) of The Insolvency (Scotland) (Receivership and Winding up) Rules 2018

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

13 A director who is in default in seeking

a decision on the nomination of

a liquidator in accordance with this rule is guilty of an offence.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a director
Conduct
breaching the provision
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a director meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach article 4.14(13)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing what the provision prohibits, or failing to do what it requires under the Insolvency (Scotland) (Receivership and Winding up) Rules 2018.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
13 November 2018
In force from
6 April 2019
Extent
S

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Rules) — the explanatory note published with the instrument, © Crown copyright.

These Rules set out the detailed procedures for the conduct of receivership and winding up proceedings in Scotland under the Insolvency Act 1986 (“the Act”). The Rules accordingly give effect, for Scotland, to Parts 3 to 7 of the Act and to EU Regulation No 2015/848 of 20 May 2015 on insolvency proceedings (“the EU Regulation”). These Rules, in conjunction with the related Insolvency (Scotland) (Company Voluntary Arrangement and Administration) Rules 2018 – aim to modernise and consolidate the Insolvency (Scotland) Rules 1986 (S.I. 1986/1915, as amended). To the extent that they apply to receivership and winding up proceedings, the 1986 Rules are accordingly revoked by this instrument, along with a number of amending rules and related instruments, including the Receivers (Scotland) Regulations 1986. These Rules also give effect to amendments made to the Act by the Enterprise and Regulatory Reform Act 2011, the Deregulation Act 2015, the Small Business, Enterprise and Employment Act 2015, the Public Services Reform (Insolvency) (Scotland) Order 2016 (S.S.I. 2016/141), and the Public Services Reform (Corporate Insolvency and Bankruptcy) (Scotland) Order 2017 (S.S.I.2017/209). The rules are structured as follows: The introductory rules 1 to 5 contain the citation, commencement, extent and application of these Rules. The introductory rules also introduce schedule 1 (revocations), schedule 2 (transitional and savings provisions) and schedule 3 (punishment of offences). Part 1 (rules 1.1 to 1.57) is a common part containing definitions and rules about the standard contents of documents, the delivery and service of documents, the use of websites, and the keeping of records. Part 1 also gives effect to schedule 4 which sets out minimum information to be contained in the Sederunt Book. Part 2 (rules 2.1 to 2.20) contains rules about receivership. Part 3 (rules 3.1 to 3.23) contains rules about members’ voluntary winding up. Part 4 (rules 4.1 to 4.41) contains rules about creditors’ voluntary winding up. Part 5 (rules 5.1 to 5.55) contains rules about winding up by the court. Part 6 (rules 6.1 to 6.3) contains rules about the block transfer of winding up proceedings between insolvency practitioners. Part 7 (rules 7.1 to 7.35) is a common part containing rules about reporting and remuneration of office-holders, accounts and claims by and distributions to creditors in winding up. Part 8 (rules 8.1 to 8.46) is a common part containing rules about decision making. Part 9 (rules 9.1 to 9.8) is a common part containing rules about proxies and corporate representation. Part 10 (rules 10.1 to 10.29) is a common part containing rules about creditors’ and liquidation committees. Part 11 (rules 11.1 to 11.17) contains rules which give effect to EU Regulation No. 2015/848 of 20 May 2015 on Insolvency Proceedings. Part 12 (rules 12.1 to 12.7) contains rules about obtaining permission to act as director of a company with a prohibited name. A full business and regulatory impact assessment of the effect that these Rules will have on the costs of business and the voluntary sector is available from the Accountant in Bankruptcy, 1 Pennyburn Road, Kilwinning, and is published on the website www.aib.gov.uk/. It is also published alongside these Rules on www.legislation.gov.uk.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source