The Water Industry (Special Administration) Rules 2009
2009 No.2477
Insolvency, England And Wales
Water Industry, England And Wales
Companies, England And Wales
The Water Industry (Special Administration) Rules 2009
Made 8th September 2009
Laid before Parliament 14th September 2009
Coming into force 1st November 2009
The Lord Chancellor makes these Rules in the exercise the powers under section 411 of the Insolvency Act 19861as applied by sections 23 and 24 of, and Schedule 3 to, the Water Industry Act 19912.
These Rules apply rules made under section 411 of the Insolvency Act 1986, with modifications, for the purposes of provision made by sections 23 to 26 of the Water Industry Act 1991 and Schedule 3 to that Act.
As required by section 411 of the Insolvency Act 1986, the Lord Chancellor makes these Rules with the concurrence of the Secretary of State.
PART 1
Introduction
Citation
1. These Rules may be cited as the Water Industry (Special Administration) Rules 2009.
Commencement
2. These Rules come into force on 1st November 2009.
Definitions and interpretation
3.—(1) In these Rules—
“the Authority” means the Water Services Regulation Authority;
“business day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day that is a bank holiday in any part of England and Wales;
“the CPR” means the Civil Procedure Rules 19983and “CPR” followed by a Part or rule number means the Part or rule with that number in those Rules;
“court” means the High Court;
“file” means file in court;
“Form WAT” followed by a number means the form with that number in the Schedule;
“the Insolvency Act” means, subject to paragraph (2), the Insolvency Act 1986;
“proxy” has the meaning given in rule 61;
“the registrar” means—
(a) in the case of proceedings in a district registry of the Chancery Division of the High Court, the district judge; and
(b) in any other case, a Registrar in Bankruptcy of the High Court;
“solicitor” (except in relation to witnessing an affidavit) includes any person who has, under or pursuant to an enactment, the right to conduct litigation in relation to special administration proceedings;
“special administration order” has the meaning given by section 23 of the Water Industry Act 19914;
“special administration proceedings” means proceedings under sections 23 to 25 of, and Schedule 3 to, the Water Industry Act 1991;
“special administrator” has the meaning given in paragraph 12 of Schedule 3 to the Water Industry Act 1991;
“statement of affairs” has the meaning given in section 22 of the Insolvency Act;
“water company” means a relevant undertaker or a qualifying licensed water supplier within the meaning of the Water Industry Act 1991.
(2) A reference to the Insolvency Act or a provision of that Act is a reference to that Act or provision as applied, substituted or modified by sections 23 to 26 of, and Schedule 3 to, the Water Industry Act 1991, construed in accordance with section 249 of the Enterprise Act 20025.
(3) A reference to the Insolvency Rules 19866is a reference to those Rules as in force immediately before 15th September 2003.
(4) A reference to the venue for proceedings, for an attendance before the court, or for a meeting, is to the time, date and place for the proceedings, attendance or meeting.
Application: general
4.—(1) These Rules apply to special administration proceedings that commence, in relation to a water company, on or after the date on which these Rules come into force.
(2) For special administration proceedings that commenced before that date, these Rules apply to steps taken in those proceedings on or after that date.
Application of Insolvency Rules 1986
5.—(1) These Rules apply the Insolvency Rules 1986, with modifications.
(2) Except as provided for in these Rules, nothing in the Insolvency Rules 1986 applies to—
(a)
(a) special administration proceedings commenced, in relation to a water company, on or after the date on which these Rules come into force; or
(b)
(b) any step taken on or after that date in special administration proceedings that commenced before that date.
Forms for use in special administration proceedings
6.—(1) The forms in the Schedule must be used in, and in connection with, special administration proceedings.
(2) A form may be used with any variations that the circumstances require.
PART 2
The petition and the special administration order
Form of petition
7.—(1) A petition for an order for special administration in relation to a water company must be in Form WAT1.
(2) The petition must state the petitioner’s name and address for service.
(3) If the petitioner is the Secretary of State7, and the water company is a qualifying licensed water supplier (within the meaning of the Water Industry Act 1991) the petition must state that the Secretary of State has consulted the Welsh Ministers before presenting it.
(4) If the petitioner is the Authority, the petition must state—
(a)
(a) that it is presented with the consent of—
(i) if the water company is a relevant undertaker (within the meaning of the Water Industry Act 1991) whose area is wholly or mainly in Wales, the Welsh Ministers; or
(ii) the Secretary of State; and
(b)
(b) if the water company is a qualifying licensed water supplier (within the meaning of the Water Industry Act 1991), that the Secretary of State has consulted the Welsh Ministers before consenting.
(5) The petition—
(a)
(a) must specify the name and address of the person, or each person, proposed to be appointed as special administrator; and
(b)
(b) must state that, to the best of the petitioner’s knowledge and belief, the person, or each person, proposed is qualified to act as an insolvency practitioner in relation to the water company.
(6) The petitioner, or another person on the petitioner’s behalf, must prepare and swear an affidavit complying with rule 8.
(7) There must be exhibited to the affidavit—
(a)
(a) a copy of the petition;
(b)
(b) the proposed special administrator’s written consent, in Form WAT2, to being appointed.
Contents of affidavit
8.—(1) The affidavit must state—
(a)
(a) whether the water company that is the subject of the petition is a relevant undertaker or a qualifying licensed water supplier (within the meaning of the Water Industry Act 1991);
(b)
(b) which of the grounds set out in section 24(2) of the Water Industry Act 1991 the petitioner believes are satisfied in relation to the water company; and
(c)
(c) the reasons for that belief.
(2) The affidavit must contain a statement of the water company’s financial position, setting out (so far as the deponent knows) the assets and liabilities of the company, including contingent and prospective liabilities.
(3) The affidavit must set out details (to the best of the deponent’s knowledge and belief) of—
(a)
(a) any security held by creditors of the water company; and
(b)
(b) whether any such security gives its holder power to appoint an administrative receiver.
(4) If the deponent knows or believes that an administrative receiver has been appointed, the affidavit must state that fact.
(5) The affidavit must contain details (to the best of the deponent’s knowledge and belief) of—
(a)
(a) any petition that has been presented for the winding up of the water company;
(b)
(b) any notice served in accordance with section 26(1)(c) of the Water Industry Act 1991 by any person intending to enforce a security over the water company’s property; and
(c)
(c) any step taken to enforce such a security.
(6) If there are other matters that, in the opinion of the person intending to present the petition for a special administration order, will assist the court in deciding whether to make such an order, those matters must also be stated in the affidavit.
Filing of petition
9.—(1) The petitioner must file as many copies of the petition and affidavit as are required to be served in accordance with rule 11.
(2) The court must—
(a)
(a) seal each filed copy; and
(b)
(b) endorse it with the date and time of filing.
(3) The court must also—
(a)
(a) fix a venue for the hearing of the petition; and
(b)
(b) endorse the details of the venue on each copy of the petition.
(4) The court must then issue each copy to the petitioner.
Notice to enforcement officer, etc.
10. As soon as reasonably practicable after filing the petition, the petitioner must give notice of its presentation—
(a) to any enforcement officer or other officer who, to the petitioner’s knowledge, is charged with an execution or other legal process against the water company or its property; and
(b) to any person who, to the petitioner’s knowledge, has distrained against the water company or its property.
Service of petition
11.—(1) Not less than 2 days before the hearing the petitioner must serve on each person specified in paragraph (2)—
(a)
(a) a copy of the petition issued by the court,
(b)
(b) a copy of the affidavit and exhibits in support of it.
(2) The following must be served—
(a)
(a) the water company;
(b)
(b) any person who has appointed, or is or may be entitled to appoint, an administrative receiver of the water company;
(c)
(c) if an administrative receiver has been appointed, the administrative receiver;
(d)
(d) any person who has applied to the court for an administration order under Part II of the Insolvency Act in relation to the water company;
(e)
(e) if a petition is pending for the winding up of the water company, the petitioner and any provisional liquidator;
(f)
(f) the person, or each person, proposed for appointment as special administrator;
(g)
(g) the Environment Agency;
(h)
(h) the Consumer Council for Water;
(i)
(i) the Chief Inspector of Drinking Water;
(j)
(j) if the...
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