Companies
(General Provisions) (Amendment No. 6)
(Jersey) Order 2022
Made 25th February 2022
Coming into
force 1st March 2022
THE MINISTER FOR EXTERNAL RELATIONS AND
FINANCIAL SERVICES makes this Order under Articles 188 and 219 of the Companies
(Jersey) Law 1991, having consulted the Jersey Financial
Services Commission –
1 Companies (General Provisions) (Jersey) Order 2002 amended
This Order amends the Companies (General
Provisions) (Jersey) Order 2002.
2 Article 7 (qualifications
of liquidator) amended
In Article 7 for
paragraph (2) there is substituted –
“(2) Subject
to paragraph (3), a person is only eligible for appointment as a
liquidator of a company to which this Article applies if the person is
registered as an approved liquidator and entered on the Register of Approved
Liquidators under paragraph (2C).
(2A) A
person is not qualified to be registered as an approved liquidator and entered
on the Register of Approved Liquidators under paragraph (2C) unless the
person –
(a) is
ordinarily resident in Jersey;
(b) is
an individual who has the level of experience determined by the Viscount in
writing and –
(i) is licensed in the
United Kingdom to act as insolvency practitioner by one of the recognised
professional bodies as defined under section 391(8) of the Insolvency Act 1986
c. 45, or
(ii) is a member of –
(A) the
Association of Chartered Certified Accountants,
(B) the
Chartered Accountants of Ireland,
(C) the
Institute of Chartered Accountants in England and Wales, or
(D) the
Institute of Chartered Accountants in Scotland; and
(c) has
in place a general bond of £250,000 plus a specific bond of between £5000 and
£5,000,000 for each appointment.
(2B) An
individual who is not ordinarily resident in Jersey but is otherwise qualified
in accordance with paragraph (2A)(b) and (c) may, together with an
individual who is registered as an approved liquidator and entered in the
Register of Approved Liquidators under paragraph (2C), be appointed as a
liquidator of a company, and the Viscount may, in accordance with this Article,
register the individual as a non-Jersey liquidator in the Register of Approved
Liquidators.
(2C) An
individual who is qualified under paragraph (2A) to be registered as an
approved liquidator or as a non-Jersey liquidator under paragraph (2B) may
apply to the Viscount, in the form approved by the Viscount, to be registered
or re-registered as an approved liquidator or a non-Jersey liquidator, as the case may be, and entered in the Register of
Approved Liquidators.
(2D) The
Viscount must keep and maintain a Register of Approved Liquidators and may upon –
(a) application
under paragraph (2C) by an individual who is qualified to be registered as
an approved liquidator under paragraph (2A) or as a non-Jersey liquidator
under paragraph (2B); and
(b) payment
to the Viscount by the individual of the registration or re-registration fee of
£800,
register the individual as an
approved liquidator or non-Jersey liquidator and enter the name of the
individual in the Register of Approved Liquidators.
(2E) The
registration of an individual as an approved liquidator or a non-Jersey
liquidator under this Article expires after one year and an individual may
apply to the Viscount under paragraph (2C) to re-register.
(2F) A
person registered as an approved liquidator or a non-Jersey liquidator under
this Article must within 21 days of any change of circumstances which disqualifies
the person from meeting the requirements under paragraph (2A) notify the
Viscount of the change and the Viscount must cancel the person’s registration
as an approved liquidator or non-Jersey liquidator and remove the name of the
person from the Register of Approved Liquidators.
(2G) The
Viscount must publish the Register of Approved Liquidators kept and maintained
under paragraph (2D) online and make the register available for inspection
to the public.”.
3 Article 8 (investigation
into conduct of liquidators), Article 9 (prescribed minimum liquidated
sum) and Article 9A (statutory demand) inserted
After Article 7 there is inserted –
“8 Investigation
into conduct of liquidators
(1) The
Viscount may investigate the conduct of a liquidator where –
(a) the
Viscount receives representations (including, but not limited to, complaints)
about the exercise of powers, or a failure to exercise powers, by a liquidator
and the Viscount is of the opinion that the matter relating to the
representations has not been satisfactorily dealt with by the liquidator or
within a reasonable timeframe; or
(b) it
otherwise appears to the Viscount that there are circumstances justifying
investigation including circumstances which –
(i) give rise to concerns on
the part of the Viscount about the conduct of the liquidator (including, but
not limited to, the level of fees charged or proposed to be charged by a
liquidator),
(ii) suggest that a
liquidator has failed to comply with an order made or directions given by the
Court, or
(iii) otherwise constitute good
reason, in the view of the Viscount, to seek further information about a
liquidator’s discharge of his or her functions.
(2) The
Viscount may by notice in writing –
(a) except
where the Viscount finds that there is good reason not to do so, inform the liquidator
of the representations made under paragraph (1), if any; and
(b) require
the liquidator to provide such information (including accounts) or documents as
may be specified, or as are of such description as may be specified, and such
reports as the Viscount may require, from the liquidator as to the exercise of
his or her functions, and in either case, may require the liquidator to do so
in such a manner and before the end of such reasonable period and at such place
as may be specified.
(3) Where
any information or document is provided to the Viscount under paragraph (2)(a),
the Viscount may further require such information to be verified, or such
document to be authenticated, in such reasonable manner as the Viscount may see
fit.
(4) Nothing
in this Order requires the Viscount to investigate, consider or determine any
complaint if, in the Viscount’s opinion –
(a) the
subject matter of the complaint is trivial; or
(b) the
complaint is frivolous or vexatious or is not made in good faith.
(5) A
person required under paragraph (2)(b) to submit a report may make an
application to the Viscount to request more time for doing so.
(6) An
application under paragraph (5) must –
(a) state
the grounds for requesting more time; and
(b) contain,
or be accompanied by, such information as the Viscount may reasonably require to determine the application.
(7) The
Viscount may, in response to an application under paragraph (5), grant
such extension of time as the Viscount may consider reasonable.
(8) The
Viscount may, at all reasonable times, examine and take copies of any record
kept in relation to the liquidator’s functions by persons or bodies carrying on
the business of providing financial services within the meaning given to that
expression by Article 1(1) of the Financial Services Commission
(Jersey) Law 1998.
(9) For
the purposes of an investigation into a complaint received by the Viscount, the
Viscount may consult such persons, who have expertise in the matter in respect
of which the complaint is made, as the Viscount may see fit.
(10) Where,
following an investigation under this Article the Viscount considers it
necessary or appropriate to do so, the Viscount may make an application to the
Court requesting the exercise, in relation to a liquidator of any of the Court’s
powers under the Law.
(11) In
considering whether it is necessary or appropriate to make an application under
paragraph (10), the Viscount must have regard to –
(a) the
terms of the appointment of the liquidator; and
(b) orders
or directions given by the Court.
(12) A
liquidator may require the Viscount to reconsider any decision made by the
Viscount under this Article in relation to that liquidator.
(13) The
right conferred by paragraph (12) is exercisable by the liquidator giving
notice in writing to the Viscount within the period of 21 days beginning
with the date on which notice of the decision was given to the liquidator.
(14) Notice
given in accordance with paragraph (13) must –
(a) state
the grounds for the request for reconsideration; and
(b) contain,
or be accompanied by, any relevant information or documents.
(15) At
any time after receiving the notice and before reconsidering the decision to
which it relates, the Viscount may require the liquidator to provide such
further information, or to produce such documents, as the Viscount reasonably
considers necessary to enable reconsideration of the decision.
(16) Following
reconsideration, the Viscount must give to the liquidator –
(a) notice
in writing of the decision on reconsideration; and
(b) if
the previous decision is upheld, a statement in writing of the reasons for
upholding it.
(17) The
Viscount, or any member of the Viscount’s Department is not liable in damages
for anything done or omitted in the discharge of or purported discharge of any
function under this Order.
(18) Paragraph (17)
does not apply –
(a) if
it is shown that the act was done, or the omission made, in bad faith; or
(b) so
as to prevent an award of damages made in respect of an act on the ground that
the act was unlawful as a result of Article 7(1) of the Human Rights (Jersey)
Law 2000.
9 Prescribed
minimum liquidated sum
The prescribed minimum
liquidated sum under Article 157A of the Law is £3,000.
A statutory demand under
Article 157A(2) of the Law must be in the form set out in Part 3 of the Schedule.”.
4 Schedule amended
In the Schedule after Part 2 there is inserted –
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Section
1 – DEMAND
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To [Insert
details of Debtor Company]
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Name: (The
Company)
[If registered, insert its registered name]
Registered No. :
Address:
[insert its registered office]
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This
demand is made under Article 157A of the Companies
(Jersey) Law 1991
and
is served on you by the Creditor [insert
details of Creditor below]
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Name:
[If a registered company, insert its
registered name; if unregistered, its name; if an individual, their full name]
Registered No. (if any):
[If an entity registered in Jersey with the
Jersey Financial Services Commission, insert its registered number]
Address:
[If registered, insert the registered
address; if unregistered, the postal address of any principal residence or
principal place of business;]
The creditor claims that the Company owes the
sum of
£ ,
full details of which are set out in section 2
of this Demand.
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Notes for Creditor on Section 1
• The person making this demand must
complete the whole of sections 1, 2 (including Part B if applicable) and 3
and the authentication (including the date) at the end.
• The Details of Debt (Section 2) must
include all the relevant matters listed in the margin notes at Section 2.
These should be set out in the order given unless the person completing the
demand considers that a different order would be more convenient for the
recipient.
• The creditor must give details of an
individual with whom the Company can communicate about the Demand in Section
3.
• If the signatory of the demand is an
Advocate/Solicitor or other agent of the creditor the name of their firm
should be given.
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Section
2
Part
A: Details of Debt
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Notes for Creditor on Section 2 Part A
These details must include the following
information:
• The amount of the debt as at the date
of this demand.
• How the debt arose – such as any cause
or consideration given for the debt; the date on which the debt arose should
also be included.
• If the demand is based on a judgment or
order of a court, details of the judgment or order.
• If the creditor is entitled to the debt
by way of assignment, a statement to that effect and that the details of the
relevant assignment(s) are given in Part B below (which must then also be
filled in).
• If the sums demanded include:
a. Any
charge by way of interest not previously notified to the company as included
in its liability and/or
b. Any
other charge accruing due from time to time,
each such charge must be separately identified
(if claimed) with the amount or rate of the charge and the grounds upon which
payment is claimed and the amount claimed for such charges must be limited to
that which has accrued due at the date of the demand.
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Part B: [for completion if the creditor is entitled to the debt by way of assignment]
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Name
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Date(s)
of Assignment
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Original Creditor
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Assignees
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Section
3
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The
Company must pay the above debt within 21 days of service of this demand on
the Company after which the creditor may make an application to the Royal
Court of Jersey to wind up the Company unless the Company offers security for
the debt and the creditor agrees to accept security or the Company compounds
the debt with the creditor’s agreement.
The
individual(s) acting for the Creditor to whom any communication regarding
this demand may be addressed is/are:
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Name
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Address
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Electronic address
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Telephone number
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Reference
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How to comply with a statutory demand
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If
the Company wishes to avoid an application for winding up being made against
it, it must pay the debt shown in Section 1 above, details of which are set
out in Section 2 of this notice, within the period of 21 days after its
service upon the Company. Alternatively, the Company can attempt to come to a
settlement with the creditor. To do this an officer or representative of the
Company should:
• Inform the individual(s) named in Part A
above immediately that it is willing and able to offer security for the debt
to the creditor’s satisfaction; or
• Inform the individual(s) named in Part A
immediately that it is willing and able to compound for the debt to the
creditor’s satisfaction.
If the
Company disputes the demand in whole or in part, it should contact the
individual(s) named in Part A immediately.
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REMEMBER
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The Company only has 21 days after the date of
service on it of this document before the creditor may apply to the Royal
Court of Jersey to wind up the Company.
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NOTE:
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The Company has the right to make an
application to the Royal Court of Jersey for an injunction restraining the
creditor from presenting an application to wind it up.
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Authentication:
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Signature of Individual:
Name (block letters):
Date:
Address:
Telephone No:
Ref:
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[I, the
above-signed, not being the creditor herein, state as follows:
I am
authorised to make this demand on the creditor’s behalf.
My position in/relationship to the creditor is
[insert].........................................
[ [If
the creditor is a body corporate of which the signatory is the sole member] I am
the sole member of the creditor.]
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Note: The demand must be dated, and
authenticated either by the creditor, or a person authorised to make the
demand on the creditor’s behalf. A demand which is authenticated by a person
other than by the creditor must state that the person is authorised to make
this demand on the creditor’s behalf and state the person’s relationship to
the creditor.”.
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5 Citation and commencement
This Order may be cited as
the Companies (General Provisions) (Amendment No. 6) (Jersey) Order 2022
and comes into force on the same day as the Companies (Amendment No. 8)
(Jersey) Regulations 2022 come into force.
Senator I.J. Gorst
Minister for External
Relations and Financial Services