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United Kingdom Statutory Instruments |
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You are here: BAILII >> Databases >> United Kingdom Statutory Instruments >> The Insurers (Winding Up) (Scotland) Rules 2001 URL: http://www.bailii.org/uk/legis/num_reg/2001/20014040.html |
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| Made | 20th December 2001 | ||
| Laid before Parliament | 20th December 2001 | ||
| Coming into force | 18th January 2002 |
(2) Unless the context otherwise requires, words or expressions contained in these Rules bear the same meaning as in the principal rules, the 1986 Act, the 2000 Act or any statutory modification thereof respectively.
Application
3.
- (1) These Rules apply in relation to an insurer which the courts in Scotland have jurisdiction to wind up.
(2) These Rules apply to proceedings for the winding up of such an insurer which commence on or after the date on which these Rules come into force.
(3) These Rules supplement the principal rules which also apply to the proceedings in the winding up of such an insurer under the 1986 Act as they apply to proceedings in the winding up of any company under that Act; but in the event of a conflict between these Rules and the principal rules these Rules prevail.
Financial Services Compensation Scheme
4.
In any proceedings for the appointment of a liquidator by the court under -
the manager of the Financial Services Compensation Scheme shall be entitled to appear and make representations as to the person to be appointed.
Separation of long-term and other business in winding up
5.
- (1) This rule applies in the case of a company carrying on long-term business.
(2) The assets of the company which, in accordance with regulation 3 of the Financial Services and Markets Act 2000 (Treatment of Assets of Insurers on Winding Up) Regulations 2001[10], are available for meeting the liabilities of the company attributable to its long-term business shall be applied in discharge of those liabilities as though those assets and those liabilities were the assets and liabilities of a separate company.
(3) The assets of the company which, in accordance with the aforementioned Regulations, are available for meeting the liabilities of the company attributable to its other business shall be applied in discharge of those liabilities as though those assets and those liabilities were the assets and liabilities of a separate company.
Valuation of general business policies
6.
Except in relation to amounts which have fallen due for payment before the liquidation date and liabilities referred to in paragraph 2(1)(b) of Schedule 1, the holder of a general business policy shall be accepted as a creditor in relation to his policy, without submitting or lodging a claim, for an amount equal to the value of the policy and for this purpose the value of a policy shall be determined in accordance with Schedule 1.
Valuation of long-term policies
7.
- (1) This rule applies in relation to a company's long-term business where no stop order has been made.
(2) In relation to a claim under a policy which has fallen due for payment before the liquidation date, a policy holder shall be accepted as a creditor, without submitting or lodging a claim, for such amount as appears from the records of the company to be due in respect of that claim.
(3) In all other respects a policy holder shall be accepted as a creditor in relation to his policy, without submitting or lodging a claim, for an amount equal to the value of the policy and for this purpose the value of a policy of any class shall be determined in the manner applicable to policies of that class provided by Schedules 2, 3 and 4.
(4) This rule applies in relation to a person entitled to apply for a free paid-up policy under section 24 of the 1923 Act (provisions as to forfeited policies) and to whom no such policy has been issued before the liquidation date (whether or not it was applied for) as if such a policy had been issued immediately before the liquidation date -
Valuation of long-term policies: stop order made
8.
- (1) This rule applies in relation to a company's long-term business where a stop order has been made.
(2) In relation to a claim under a policy which has fallen due for payment on or after the liquidation date and before the date of the stop order, a policy holder shall be accepted as a creditor, without submitting or lodging a claim, for such amount as appears from the records of the company and of the liquidator to be due in respect of that claim.
(3) In all other respects a policy holder shall be accepted as a creditor in relation to his policy, without submitting or lodging a claim, for an amount equal to the value of the policy and for this purpose the value of a policy of any class shall be determined in the manner applicable to the policies of that class provided by Schedule 5.
(4) Paragraph (4) of rule 7 applies for the purposes of this rule as if references to the liquidation date (other than that in sub-paragraph (b) of that paragraph) were references to the date of the stop order.
Attribution of liabilities to company's long-term business
9.
- (1) This rule applies in the case of a company carrying on long-term business if at the liquidation date there are liabilities of the company in respect of which it is not clear from the accounting and other records of the company whether they are or are not attributable to the company's long-term business.
(2) The liquidator shall, in such manner and according to such accounting principles as he shall determine, identify the liabilities referred to in paragraph (1) as attributable or not attributable to a company's long-term business and those liabilities shall for the purposes of the winding up be deemed as at the liquidation date to be so attributable or not as the case may be.
(3) For the purposes of paragraph (2) the liquidator may -
and he may use the first method for some of the liabilities and the second method for the remainder of them.
(4) Notwithstanding anything in the preceding paragraphs of this rule, the court may order that the determination of which (if any) of the liabilities referred to in paragraph (1) are attributable to the company's long-term business and which (if any) are not shall be made in such manner and by such methods as the court may direct or the court may itself make the determination.
Attribution of assets to company's long-term business
10.
- (1) This rule applies in the case of a company carrying on long-term business if at the liquidation date there are assets of the company in respect of which -
(2) Subject to paragraph (6) the liquidator shall determine which (if any) of the assets referred to in paragraph (1) are attributable to those funds and which (if any) are not and those assets shall, for the purposes of the winding up, be deemed as at the liquidation date to represent those funds or not in accordance with the liquidator's determination.
(3) For the purposes of paragraph (2) the liquidator may -
and he may use the first method for some of those assets and the second method for others of them.
(4)
(5) For the purposes of paragraph (4) the value of a liability of the company shall, if it falls to be valued under rule 6 or 7, have the same value as it has under that rule but otherwise it shall have such value as would have been included in relation to it in a balance sheet of the company prepared in accordance with the 1985 Act as at the liquidation date; and, for the purpose of determining the ratio referred to in paragraph (4) but not for the purpose of determining the amount of any deficit therein referred to, the net balance of the shareholders' funds shall be included in the liabilities not attributable to the company's long-term business.
(6) Notwithstanding anything in the preceding paragraphs of this rule, the court may order that the determination of which (if any) of the assets referred to in paragraph (1) are attributable to the fund or funds maintained by the company in respect of its long-term business and which (if any) are not shall be made in such manner and by such methods as the court may direct or the court may itself make the determination.
Excess of long-term business assets
11.
- (1) Where the company is one carrying on long-term business, for the purpose of determining the amount, if any, of the excess of the long-term business assets, there shall be included amongst the liabilities of the company attributable to its long-term business an amount determined by the liquidator in respect of liabilities and expenses likely to be incurred in connection with the transfer of the company's long-term business as a going concern to another insurance company being liabilities not included in the valuation of the long-term policies made in pursuance of rule 7.
(2) Where the liquidator is carrying on the long-term business of an insurer with a view to that business being transferred as a going concern to a person or persons ("the transferee") who may lawfully carry out those contracts (or substitute policies being issued by another insurer), the liquidator may, in addition to any amounts paid by the Financial Services Compensation Scheme for the benefit of the transferee to secure such a transfer or to procure substitute policies being issued, pay to the transferee or other insurer all or part of such funds or assets as are attributable to the long-term business being transferred or substituted.
Actuarial advice
12.
- (1) Before -
the liquidator shall obtain and consider advice thereon (including an estimate of any value or amount required to be determined) from an actuary.
(2) Before seeking, for the purpose of valuing a policy, the direction of the court as to the assumption of a particular rate of interest or the employment of any rates of mortality or disability, the liquidator shall obtain and consider advice thereon from an actuary.
Utilisation of excess of assets
13.
- (1) Except at the direction of the court, no distribution may be made out of and no transfer to another insurer may be made of -
(2) Before giving a direction under paragraph (1) the court may require the liquidator to advertise the proposal to make a distribution or a transfer in such manner as the court shall direct.
Custody of assets
14.
- (1) The Secretary of State may, in the case of a company carrying on long-term business in whose case no stop order has been made, require that the whole or a specified proportion of the assets representing the fund or funds maintained by the company in respect of its long-term business shall be held by a person approved by him for the purpose as trustee for the company.
(2) No assets held by a person as trustee for a company in compliance with a requirement imposed under this rule shall, so long as the requirement is in force, be released except with the consent of the Secretary of State but they may be transposed by the trustee into other assets by any transaction or series of transactions on the written instructions of the liquidator.
(3) The liquidator may not, except with the consent of the Secretary of State, grant any security over assets which are held by a person as trustee for the company in compliance with a requirement imposed under this rule.
Maintenance of accounting, valuation and other records
15.
The liquidator of a company carrying on long-term business in whose case no stop order has been made shall, with a view to the long-term business of the company being transferred to another insurance company, maintain such accounting, valuation and other records as will enable such other insurer upon the transfer being effected to comply with the requirements of any rules made by the Authority under Part X of the 2000 Act relating to accounts and statements of insurers.
Additional powers in relation to long-term business
16.
The liquidator of a company carrying on long-term business shall, so long as no stop order has been made, have power to do all such things as may be necessary to the performance of his duties under section 376(2) of the 2000 Act (continuation of contracts of long-term insurance where insurer in liquidation) but the Secretary of State may require him -
Accounts and audit
17.
- (1) The liquidator of a company carrying on long-term business in whose case no stop order has been made shall supply the Secretary of State, at such times or intervals as he may specify, with such accounts as he may specify and audited in such manner as he may require and with such information about specified matters and verified in such specified manner as he may require.
(2) The liquidator of such a company shall, if required to do so by the Secretary of State, instruct an actuary to investigate the financial condition of the company's long-term business and to report thereon in such manner as the Secretary of State may specify.
Caution for long-term and other business
18.
Where a company carries on long-term business and -
rule 4.70 of the principal rules (caution) applies separately to the company's long-term business and to its other business.
Claims
19.
- (1) This rule applies to a company carrying on long-term business.
(2) The liquidator may, in relation to the long-term business of the company and to its other business, fix different days on or before which the creditors of the company, who are required to submit or lodge claims, are to do so and he may fix one of those days without at the same time fixing the other.
(3) In submitting or lodging a claim, a creditor may claim the whole or part of such claim as attributable to the long-term business of the company or to its other business or he may make no such attribution.
(4) When he accepts any claim, in whole or in part, the liquidator shall state in writing how much of what he accepts is attributable to the long-term business of the company and how much to the other business of the company.
Failure to pay premiums
20.
- (1) The liquidator may in the course of carrying on the company's long-term business and on such terms as he thinks fit accept payment of a premium even though the payment is tendered after the date on which under the terms of the policy it was finally due to be paid.
(2) The liquidator may in the course of carrying on the company's long-term business, and having regard to the general practice of insurers, compensate a policy holder whose policy has lapsed in consequence of a failure to pay any premium by issuing a free paid-up policy for reduced benefits or otherwise as the liquidator thinks fit.
Notice of valuation of policy
21.
- (1) Before paying a dividend in respect of claims other than under contracts of long-term insurance, the liquidator shall give notice of the value of each general business policy, as determined by him in accordance with rule 6, to the persons appearing from the records of the company or otherwise to be entitled to an interest in that policy and he shall do so in such manner as the court may direct.
(2) Before paying a dividend in respect of claims under contracts of long-term insurance and where a stop order has not been made in relation to the company, the liquidator shall give notice to the persons appearing from the records of the company or otherwise to be entitled to a payment under or to an interest in a long-term policy of the amount of that payment or the value of that policy as determined by him in accordance with rule 7(2) or (3), as the case may be.
(3) If a stop order is made in relation to the company, the liquidator shall give notice to all the persons appearing from the records of the company or otherwise to be entitled to a payment under or to an interest in a long-term policy of the amount of that payment or the value of that policy as determined by him in accordance with rule 8(2) or (3), as the case may be, and he shall give that notice in such manner as the court may direct.
(4) Any person to whom notice is so given shall be bound by the value so determined unless and until the court otherwise orders.
(5) Paragraphs (2) and (3) of this rule have effect as though references therein to persons appearing to be entitled to an interest in a long-term policy and to the value of that policy included, respectively, references to persons appearing to be entitled to apply for a free paid-up policy under section 24 of the 1923 Act and to the value of that entitlement under rule 7 (in the case of paragraph (2) of this rule) or under rule 8 (in the case of paragraph (3) of this rule).
(6) Where the liquidator summons a meeting of creditors in respect of liabilities of the company attributable either to its long-term business or other business, he may adopt any valuation carried out in accordance with rules 6, 7 or 8 as the case may be or, if no such valuation has been carried out by the time of the meeting, he may conduct the meeting using such estimates of the value of policies as he thinks fit.
Dividends to creditors
22.
- (1) This rule applies in the case of a company carrying on long-term business.
(2) The procedure for payment of dividends to creditors under Chapter 9 of Part 4 of the principal rules (distribution of company's assets by liquidator) applies separately in relation to the two separate companies assumed for the purposes of rule 5 above.
(3) The court may, at any time before the making of a stop order, permit a dividend to be declared and paid on such terms as it thinks fit in respect only of debts which fell due for payment before the liquidation date or, in the case of claims under long-term policies, which have fallen due for payment on or after the liquidation date.
Meetings of creditors
23.
- (1) In the case of a company carrying on long-term business, Chapter 4 (meetings of creditors) and rule 4.31 (final meeting) of Part 4 and Chapters 1 and 2 of Part 7 (meetings and proxies and company representation) of the principal rules apply to each separate general meeting of the creditors summoned under the 1986 Act or the principal rules.
(2) In relation to any such separate meeting -
Apportionment of expenses of liquidation
24.
- (1) Rule 4.67 of the principal rules (appointment and remuneration) applies separately to the assets of the long-term business of the company and to the assets of the other business of the company.
(2) Where any fee, expense, cost, charge, outlay or remuneration does not relate exclusively to the assets of the company's long-term business or to the assets of the company's other business, the liquidator shall apportion it amongst those assets in such manner as he shall determine.
Notice of stop order
25.
- (1) When a stop order has been made in relation to the company, the clerk of court shall, on the same day, send -
a certified copy of the stop order.
(2) The liquidator shall forthwith after receiving a certified copy give notice of the order in the Form in Schedule 6 -
Patricia Hewitt
Secretary of State for Trade and Industry
20th December 2001
(2) The value to be attributed to such liabilities shall be determined on such actuarial principles and assumptions in regard to all relevant factors as the court shall direct.
3.
- (1) This paragraph applies in relation to liabilities under a general business policy not dealt with by paragraphs 1 or 2.
(2) The value to be attributed to those liabilities shall -
(b) in any other case, be a just estimate of that value.
(c) there shall be determined:
and for the purposes of this Schedule if the ordinary benefits only take into account premiums paid to date, the present value of future premiums shall be taken as nil.
Present value of the ordinary benefits
2.
- (1) Ordinary benefits are the benefits which will become payable to the policy holder on or after the liquidation date without his having to exercise any option under the policy (including any bonus or addition to the sum assured or the amount of annuity declared before the liquidation date) and for this purpose "option" includes a right to surrender the policy.
(2) Subject to sub-paragraph (3), the present value of the ordinary benefits shall be the value at the liquidation date of the reversion in the ordinary benefits according to the contingency upon which those benefits are payable calculated on the basis of the rates of interest, mortality and disability referred to in paragraph 1.
(3) For accumulating with profits policies -
(4) Where -
the value shall be adjusted on the basis set out in paragraph 3(3) to (5) of Schedule 3.
(5) Where sub-paragraph (3) applies, the value may be further adjusted by reference to the value of the assets underlying the unit price (or as the case may be) the value of the fund, if the liquidator considers such an adjustment to be necessary.
Present value of additional benefits
3.
- (1) Where under the terms of the policy or on the basis of the company's established practice the policy holder has a right to receive or an expectation of receiving benefits additional to the minimum benefits guaranteed under those terms, the court shall determine rates of interest, bonus (whether reversionary, terminal or any other type of bonus used by the company), mortality and disability to provide for the present value (if any) of that right or expectation.
(2) In determining what (if any) value to attribute to any such expectations the court shall have regard to the premium payable in relation to the minimum guaranteed benefits and the amount (if any) an insurer is required to provide in respect of those expectations in any rules made by the Authority under Part X of the 2000 Act.
Present value of options
4.
The amount of the present value of options shall be the amount which, in the opinion of the liquidator, is necessary to be provided at the liquidation date (in addition to the amount of the present value of the ordinary benefits) to cover the additional liabilities likely to arise upon the exercise on or after that date by the policy holder of any option conferred upon him by the terms of the policy or, in the case of an industrial assurance policy, by the Industrial Assurance Acts other than an option whereby the policy holder can secure a guaranteed cash payment within the period of 12 months beginning with that date.
Present value of premiums
5.
The present value of the premiums shall be the value at the liquidation date of the premiums which fall due to be paid by the policy holder after the liquidation date calculated on the basis of the rates of interest, mortality and disability referred to in paragraph 1.
Value of the policy
6.
- (1) Subject to sub-paragraph (2) -
(b) if further premiums fall due to be so paid and the aggregate value referred to in sub-paragraph (a) exceeds the present value of the premiums, the value of the policy shall be the amount of that excess; and
(c) if further premiums fall due to be so paid and that aggregate does not exceed the present value of the premiums, the policy shall have no value.
(2) Where the policy holder has a right conferred upon him by the terms of the policy or by the Industrial Assurance Acts whereby the policy holder can secure a guaranteed cash payment within the period of 12 months beginning with the liquidation date, the liquidator shall determine the amount which in his opinion it is necessary to provide at that date to cover the liabilities which will accrue when that option is exercised (on the assumption that it will be exercised) and the value of the policy shall be that amount if it exceeds the value of the policy (if any) determined in accordance with sub-paragraph (1).
3.
- (1) This paragraph applies where -
(2) Where this paragraph applies, the value of the linked liabilities calculated in accordance with paragraph 2(1) shall be reduced by an amount calculated in accordance with sub-paragraph (3) of this paragraph.
(3) The said amount is -
(4) In calculating any amount in accordance with sub-paragraph (3) there shall be disregarded -
(5) In determining the said amount -
4.
Where the linked liabilities are not expressed in terms of units the value of those liabilities shall be the value (subject to adjustment for any amounts which would have been deducted for taxation) which would have been ascribed to those liabilities had the policy matured on the liquidation date.
5.
- (1) The value of any liabilities other than linked liabilities including reserves for future expenses, options and guarantees shall he determined on actuarial principles and appropriate assumptions in regard to all relevant factors including the assumption of such rate or rates of interest, mortality and disability as the court may direct.
(2) In valuing liabilities under this paragraph credit shall be taken for those parts of future premiums which do not fall to be applied in the allocation of further units to the policy and for any rights of the company which have been disregarded under paragraph 3(4)(a) in valuing the linked liabilities.
2.
- (1) This paragraph applies where the policy holder has a right conferred upon him under the terms of the policy or by the Industrial Assurance Acts to surrender the policy and that right is exercisable on the date of the stop order.
(2) Where this paragraph applies and the amount required at the date of the stop order to provide for the benefits payable upon surrender of the policy (on the assumption that the policy is surrendered on the date of the stop order) is greater than the value of the policy determined in accordance with paragraph 1, the value of the policy shall, subject to paragraph 3, be the said amount so required.
(3) Where any part of the surrender value is payable after the date of the stop order, sub-paragraph (2) shall apply but the value therein referred to shall be discounted at such rate of interest as the court may direct.
3.
- (1) This paragraph applies in the case of a linked policy where -
(2) Where this paragraph applies the value of the policy shall be the greater of the following two amounts -
[6] S.I. 2001/544, amended by S.I. 2001/3544.back
[9] S.I. 1986/1915, amended by S.I. 1999/1820.back
