
2020 No. 198
Court Of Session
Sheriff Court
Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Company Insolvency Rules Amendment) (Insolvency) 2020
Made 30th June 2020
Laid before the Scottish Parliament 1st July 2020
Coming into force 2nd July 2020
The Court of Session makes this Act of Sederunt under the powers conferred by sections 103(1) and 104(1) of the Courts Reform (Scotland) Act 2014 and all other powers enabling it to do so.
Citation and commencement, etc.
1 

(1) This Act of Sederunt may be cited as the Act of Sederunt (Rules of the Court of Session 1994 and Sheriff Court Company Insolvency Rules Amendment) (Insolvency) 2020.
(2) It comes into force on 2nd July 2020.
(3) A certified copy is to be inserted in the Books of Sederunt.
Amendment of the Rules of the Court of Session 1994
2 

(1) The Rules of the Court of Session 1994 are amended in accordance with this paragraph.
(2) In rule 74.1(2) (application and interpretation of this Chapter), after the definition of “the Act of 2011” insert—“
 “the Act of 2020” means the Corporate Insolvency and Governance Act 2020;”.
(3) In rule 74.3B (decision making), in paragraphs (1) and (2), after “in relation to any” insert “moratorium,”.
(4) After rule 74.3B insert—“
PART IA MORATORIUMS
Moratoriums - general
74.3C. 

(1) A moratorium to be obtained by lodging the relevant documents in court must be—
(a) lodged in the Petition Department; and
(b) marked by the clerk of session receiving them with the time and date on which they are lodged and a certified copy provided to the directors.
(2) An application to the court for a moratorium must be made—
(a) where the eligible company is subject to an outstanding winding-up petition, by note in the process of that petition; or
(b) in all other cases, by petition.
(3) Paragraph (1) applies to—
(a) the obtaining of an extension of a moratorium under sections A10 (extension by directors without creditor consent) or A11 (extension by directors with creditor consent); and
(b) the termination of a moratorium by the monitor under section A38(1) (termination of moratorium by monitor),
of the Act of 1986, as it does to the obtaining of a moratorium.
(4) Paragraph (5) applies to an application to the court under—
(a) section A13 (extension by court on application of directors);
(b) section A21(1) (restrictions on enforcement and legal proceedings);
(c) section A31(1) (disposal of charged property free from charge);
(d) section A32(1) (disposal of hire-purchase property);
(e) section A37 (application by monitor for directions);
(f) section A39(1) or (2) (replacement of monitor or appointment of additional monitor);
(g) section A42(1) (challenge to monitor’s actions);
(h) rules under section A43(1) (challenges to monitor remuneration in insolvency proceedings);
(i) section A44(1) (challenge to directors’ actions),
of the Act of 1986.
(5) Where this paragraph applies, an application to the court must be made—
(a) where the eligible company is subject to an outstanding winding-up petition, by note in the process of that petition;
(b) where the application for the moratorium was made by petition, by note in the process of that petition; or
(c) in all other cases, by petition.
Moratoriums – regulated companies
74.3D. 
An application under any of the following sections of the Act of 1986 in relation to a regulated company is to be intimated to the appropriate regulator (as those persons are defined in section A49(13) of that Act (regulated companies: modifications to this Part))—
(a) section A31(1);
(b) section A32(1);
(c) section A39(1);
(d) section A42(1);
(e) section A44(1).
Moratoriums – challenge to monitor’s remuneration
74.3E. 
An application to the court under paragraph 80 of schedule 4 of the Act of 2020 (challenge to monitor’s remuneration) must be made—
(a) where the company is in administration or being wound-up by the court, by note in the process of those insolvency proceedings; or
(b) in all other cases, by petition.”.
(5) In rule 74.21(1) (petition to wind up a company, after paragraph (1)(b)(iii) insert—“
(iiia) confirmation that it is not the subject of a moratorium;”.
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Amendment of Act of Sederunt (Sheriff Court Company Insolvency Rules) 1986
3 

(1) The Act of Sederunt (Sheriff Court Company Insolvency Rules) 1986 is amended in accordance with this paragraph.
(2) In rule 3(1) (interpretation), after the definition of “the Act of 2011” insert—“
 “the Act of 2020” means the Corporate Insolvency and Governance Act 2020;”.
(3) After rule 3B (expenses) insert—“
PART AI MORATORIUMS
Moratoriums – general
3C. 

(1) A moratorium to be obtained by lodging the relevant documents in court must be—
(a) lodged in the offices of the court;
(b) marked by the sheriff clerk with the time and date on which they are lodged and a certified copy provided to the directors.
(2) An application to the court for a moratorium must be made—
(a) where the eligible company is subject to an outstanding winding-up petition, by note in the process of that petition; or
(b) in all other cases, by petition.
(3) Paragraph (1) applies to—
(a) the obtaining of an extension of a moratorium under sections A10 (extension by directors without creditor consent) or A11 (extension by directors with creditor consent); and
(b) the termination of a moratorium by the monitor under section A38(1) (termination of moratorium by monitor),
of the Act of 1986, as it does to the obtaining of a moratorium.
(4) Paragraph (5) applies to an application to the court under—
(a) section A13 (extension by court on application of directors);
(b) section A21(1) (restrictions on enforcement and legal proceedings);
(c) section A31(1) (disposal of charged property free from charge);
(d) section A32(1) (disposal of hire-purchase property);
(e) section A37 (application by monitor for directions);
(f) section A39(1) or (2) (replacement of monitor or appointment of additional monitor);
(g) section A42(1) (challenge to monitor’s actions);
(h) rules under section A43(1) (challenges to monitor remuneration in insolvency proceedings);
(i) section A44(1) (challenge to directors’ actions),
of the Act of 1986.
(5) Where this paragraph applies, an application to the court must be made—
(a) where the eligible company is subject to an outstanding winding-up petition, by note in the process of that petition;
(b) where the application for the moratorium was made by petition, by note in the process of that petition; or
(c) in all other cases, by petition.
Moratoriums – regulated companies
3D. 
An application under any of the following sections of the Act of 1986 in relation to a regulated company is to be intimated to the appropriate regulator (as those persons are defined in section A49(13) of that Act (regulated companies: modifications to this Part))—
(a) section A31(1);
(b) section A32(1);
(c) section A39(1);
(d) section A42(1);
(e) section A44(1).
Moratoriums – challenge to monitor’s remuneration
3E. 
An application to the court under paragraph 80 of schedule 4 of the Act of 2020 (challenge to monitor’s remuneration) must be made—
(a) where the company is in administration or being wound-up by the court, by note in the process of those insolvency proceedings; or
(b) in all other cases, by petition.”.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) In rule 18(1) (petitions to wind up a company), after paragraph (b)(iii) insert—“
(iv) confirmation that it is not the subject of a moratorium;”.
(6) In rule 31 (application) for “Parts I” substitute “Parts AI”.
(7) In rule 31AB (decision making), in paragraphs (1) and (2), after “in relation to any” insert “moratorium,”.
CJM SUTHERLAND
Lord President
I.P.D.
Edinburgh
