Index to The Law & Practice of Receivership in Scotland, 3rd Edition
Resource type: Chapter
Status:
Law stated as at 30-Nov-2004
Jurisdiction:
Scotland
This is a chapter from the practical text from Bloomsbury Professional, The Law & Practice of Receivership in Scotland, 3rd Edition, which is written by leading practitioners in the field of insolvency, who combine academic research with great practical knowledge, giving the reader clear guidance on problems likely to arise in practice. The third edition of this highly regarded practitioner text was fully updated at the time of publication to take account of the Insolvency Act 2001 and developments in case law and practice. New material on the rescue culture ensures that the realities of modern day practice are covered.
Chapter 3, this index and the table of contents are FREE to view, as a sample of the book's contents. To view the other chapters, please subscribe to Books online.
I M Fletcher and Roy Roxburgh
- Abstract of receipts and payments 10.33
- Accession
- retention of title, and 5.41, 5.42
- Agency of receiver 3.54-3.62
- contract of employment, and 3.55
- personal liability, and 3.54-3.62
- suspension of powers, and 3.57
- termination on winding up 3.58-3.62
- Cork Committee 3.60
- English law 3.59
- Agreement for sale of business
- form, App.10
- Appointment of receiver 1.01-1.69.
- (see also Insolvency practitioner)
- acceptance 1.40
- docquet 1.40
- Accountant in Bankruptcy, notification to 1.41
- attachment to property covered by floating charge 1.42
- breach of floating charge 1.27-1.31
- checking validity 1.56-1.60
- defect in procedural steps 1.60
- documents to be examined 1.56-1.59
- circumstances justifying 1.27-1.32
- clause purporting to convert floating charge into fixed charge, and 2.35
- consignation of funds in court, and 2.36
- continuing professional relationship 1.07, 1.08, 1.09
- Cork Report on 1.03
- court, by 1.22
- circumstances justifying 1.32
- mode of 1.61
- deed of appointment, App.4
- directors, and.
- (see Directors)
- effect 2.01-2.43
- effect of other floating charges 2.31, 2.32
- effective date 1.38
- execution of instrument of appointment 1.34-1.37
- payment on demand, and 1.35-1.37
- extent of security 2.33-2.36
- failure to register floating charge 1.43, 1.44
- rectification of register 1.45-1.49
- fixed charge, effect of 2.30
- form of wording 1.24-1.26
- holder of floating charge, by 1.01, 1.20, 1.21
- investigation of assets 2.33
- letter of request, App.3
- mode of 1.33
- notification to Registrar 1.38.
- (see also Notification of appointment)
- personal nature of 1.02
- precedence 1.63-1.65
- receipt of instrument of appointment 1.39
- Registrar of Companies, notification to 1.41
- restrictions on
- exceptions to, App.14
- vacation.
- (see Vacation of appointment of receiver)
- Arrestment
- distributions, and 9.08, 9.09
- Arrestors
- ranking of securities and guarantees, and 8.17
- Assignation
- form, App.18
- Assignatus utitur jure auctoris
- set-off, and 4.75
- Attachment of floating charge 2.01-2.20
- book debts 2.10
- corporeal moveable property 2.09
- diligence, and, 2.16-2.20.
- (see also Diligence)
- effect 2.03
- fixed security, conversion into 2.11-2.14
- book debts, and 2.12
- jus crediti, and 2.13
- heritable property 2.07, 2.08
- incorporeal moveable property 2.10
- property and undertaking of company 2.04-2.06
- ranking of holder 2.37-2.43
- Burnett's Trustee v Grainger sale of property, and 2.40
- extortionate credit transactions 2.39
- fraudulent trading, and 2.38
- gratuitous alienation, and 2.37
- proceeds of misfeasance action 2.41
- trust assets 2.42
- unfair preference, and 2.37
- wrongful trading, and 2.38
- security for principal and interest 2.15
- specific property and assets, effect on 2.07-2.14
Avoidance of floating charges 8.45-8.48- company deemed unable to pay debts 8.47, 8.48
- exclusion of avoidance provisions 8.50-8.53
- existing overdraft, where 8.57
- gratuitous alienation 8.58
- new bank, and 8.54
- unfair preference 8.58
Bills of lading 4.33-4.37- endorsed with instruction to deliver to order of sellers' agent's bank 4.37
- endorsement in favour of company in receivership 4.36
- nature of 4.34
Book debts- attachment of floating charge, and 2.10
- fixed charge by English registered company over 8.18-8.20
- letter for collection
- form, App.11
- sale of receivership assets, and 7.18, 7.19
Building contracts 4.05-4.07- deed of novation 4.07
- express exclusion of receiver's personal liability 4.06
- standard form 4.05
Burnett's Trustee v Grainger sale of property- ranking of floating charge holder, and 2.40
Caveat- against interim interdict, App.8
- against liquidation, App.8
- form, App.8
Committee of creditors 10.34-10.39- dealings with company 10.38
- exclusions 10.37
- functions 10.34, 10.36
- furnishing of information to 10.35
- modifications 10.37
- proceedings 10.34
Commixtion- retention of title, and 5.43-5.47
Company records- responsibility of receiver for, App.15
Confusion- retention of title, and 5.43-5.47
Continuing professional relationship- meaning 1.07, 1.08, 1.09
Contracts 4.01-4.10- building.
- (see Building contracts)
- continuing essential contracts 4.08-4.10
- commercial realities, and 4.09
- monopoly suppliers 4.10
- events of default 4.02
- exclusion of personal liability of receiver 4.04
- general position 4.01-4.04
- receiver as agent, and 4.03
Copyright 4.59, 4.60- drawings, on 4.59, 4.60
- engineering certifications, on 4.59, 4.60
Corporeal moveable property- attachment of floating charge, and 2.09
Course of dealing- retention of title, and.
- (see Retention of title)
Creditor, letter to- form, App.6
Crown- set-off 4.87-4.89
Crystallisation of floating charge.(see Attachment of floating charge)Custodian of goods, receiver as 4.28-
4.32- contract of storage 4.29-4.32
- exclusion of liability for damage 4.30
- goods belonging to third parties 4.28-4.32
Data protection 4.90Debtor, letter to- form, App.5
Deed of appointment- form, App.4
Deed of novation- building contract, and 4.07
Diligence- effect of attachment of floating charge 2.16-2.20
- inhibition, and 2.17, 2.18
- inhibition registered before appointment of receiver 2.17
- poinding, and 2.16
- sequestration for rent 2.19
Directors 6.04, 6.05- acquisition of assets of insolvent companies by, App.15
- borrowing limits exceeded 8.21
- claims as 'employees', App.15
- effect of receivership on 6.04, 6.05
- meeting
- extract minute, App.2
- powers
- dealing with property subject to charge 2.22
- effect of appointment of receiver 2.21-2.27
- institution of proceedings 2.23
- preventing sale of property 2.25
- protection of assets 2.26
- sisting of receiver 2.24
- remuneration
- effect of appointment of receiver 2.29
- responsibilities
- effect of appointment of receiver 2.28
Distributions 9.01-9.36.(see also Payments)- arrestment, and 9.08, 9.09
- expenses of receiver 9.11-9.13
- liability of receiver 9.11-9.13
- order of priority 9.01, 9.02
- priority of debts, 9.14-9.26.
- (see also Priority of debts)
- provisions of section 60, 9.01-9.10
- reasonable expenses of realisation 9.05
- remuneration of receiver 9.11-9.13
- right to combine accounts 9.27-
9.34
- payments by way of commission 9.33
- separate wages account 9.32
- rights of persons who have 'effectually executed diligence' 9.08
Duties of receiver 3.43-3.53- company, to 3.44-3.48
- agency 3.47
- negligence, and 3.46
- creditor other than holder of floating charge, to 3.51
- debenture holder, to 3.45
- employees, to 3.52
- guarantor, to 3.49, 3.50
- pension schemes, in relation to 3.53
- statutory framework 3.43
Employees 6.06-6.34- dismissed without proper notice by insolvent employers
- non-preferential claims, App.15
- entitlements under employment protection legislation 6.14
- guarantee payment 6.20
- maternity pay 6.18
- notice 6.16
- occupational pension schemes 6.27
- preference for wages 6.10-6.13
- protective award 6.17
- redundancy payments 6.15
- rights on receivership 6.10-6.34
- sale of business, and, 6.28-6.34.
- (see also Sale of business)
- sale of receivership assets, and 7.42, 7.43
- suspension on medical grounds 6.21
- termination of contract of employment 6.06-6.09
- time off to act as pension trustee 6.24, 6.25
- time off to look for employment or arrange training 6.23
- time off for trade union or employee representative activities 6.22
- treatment of claims on receivership 6.26
- treatment of directors' claims as, App.15
- unfair dismissal, 6.19.
- (see also Unfair dismissal)
English registered company- fixed charge over book debts 8.18-8.20
Extortionate credit transaction- ranking of floating charge holder, and 2.39
Fair and reasonable landlord test 4.25, 4.26- assignation, and 4.26
- key considerations 4.25
Fixed charge- effect 2.30
Fixed security- meaning 2.11, 2.14
Floating charge- appointment of receiver by holder.
- (see Appointment of receiver)
- assignation, validity of 1.66
- attachment.
- (see Attachment of floating charge)
- attachment to property covered
by 1.42
- avoidance 1.50-1.55.
- (see also Avoidance of floating charges)
- competition between receiver and liquidator 1.67-1.69
- crystallisation.
- (see Attachment of floating charge)
- failure to register 1.43, 1.44
- form, App.1
- ranking 2.43
- rectification of register 1.45-1.49
- effect 1.46
- interaction of two standard securities 1.47
Fraudulent trading- ranking of floating charge holder, and 2.38
Goodwill- sale of receivership assets, and 7.21
Gratuitous alienation- ranking of floating charge holder, and 2.37
Guarantee payment.(see Employees)Heritable property- attachment of floating charge, and 2.07, 2.08
Hire-purchase contracts 4.42-4.44- settlement 4.44
Hive down agreement 7.37-7.38- form, App.9
- nature of, 7.37A
- reasons for 7.38
Hypothec 4.61-4.63.(see also Liens)- sequestration for rent, and 4.61-4.63
Incorporeal moveable property- attachment of floating charge,
and 2.10
Indemnity, letter of- early delivery of business
- form, App.12
Information where receiver appointed- enforcement provisions 10.40
- forms 10.50
- provisions of Rules of general application 10.47-10.49
Inhibitions- ranking of securities and guarantees, and 8.14-8.16
Insolvency office holders- provision of information, App.15
- receipts and payments accounts, App.15
- remuneration, App.15
- reporting, App.15
Insolvency practitioner.(see also Appointment of receiver)- authorisation of members of recognised professional bodies 1.10-1.16
- authorised 1.04
- application for 1.13
- grant 1.14-1.16
- recognised bodies 1.12
- reference to Insolvency Practitioners Tribunal 1.17-1.19
- refusal 1.14-1.16
- withdrawal 1.14-1.16
- qualification 1.04-1.06
Intellectual property 4.38-4.41- nature of contract 4.41
- provision for re-transfer 4.39
Interest- ranking of securities and guarantees, and 8.05-8.07
Interim interdict- caveat against, App.8
Invoices- notification of appointment on 10.13, 10.14
Landlord- company in receivership as 4.12-4.14
Landlord, letter to- form, App.7
Leases- company in receivership as landlord 4.12-4.14
- company in receivership as tenant 4.15-4.27
- 'all the circumstances of the case' 4.24
- arrangements in relation to rent
4.17
- background 4.18
- conventional irritancy cannot be purged 4.19
- entitlement to irritate lease 4.16
- fair and reasonable landlord test, 4.25, 4.26.
- (see also Fair and reasonable landlord test)
- personal liability of receiver, and 4.21
- reform, proposals for 4.27
- statutory restrictions on exercise of right to irritancy 4.22-4.24
- wording qualifying irritancy rights 4.20
- pre-receivership contracts, and 3.69
- right to receive rent 4.13, 4.14
Leasing contracts 4.42-4.44- settlement 4.44
Legal problems arising on receivership 4.01-4.90Letter for collection of book debts- form, App.11
Letter of indemnity- early delivery of business
- form, App.12
Letter of request to appoint receiver, App.3Letter of set-off- form, App.17
Letter to creditor- form, App.6
Letter to debtor- form, App.5
Letter to landlord- form, App.7
Letters of obligation 7.47-7.56- change of name 7.60-7.61
- Companies Charges Register 7.49, 7.54-7.56
- our client's title 7.50
- personal obligation 7.48
- Personal Register 7.49, 7.52, 7.53
- Property Register, 7.49, 7.51A
- wording 7.47
Letters of set-off 8.22-8.39Lex situs- retention of title, and 5.35-5.39
Liability of receiver 3.54-3.62.(see also Agency of receiver)- appointment invalid, where 3.71-3.73
- challenge to validity of floating charge 3.73
- indemnity 3.72
- personal liability 3.71
Licences 4.11Liens 4.48-4.58- enforcement
- denial of possession of documents, and 4.52, 4.53
- general 4.49-4.54
- maritime, 4.55-4.58.
- (see also Maritime liens)
- position where person claiming factored own debts 4.51
- solicitor
- documents, over 4.54
- special 4.49-4.54
Liquidation- caveat against, App.8
Liquidator- competition with receiver 1.67-1.69
Management buy-outs 7.39Maritime liens 4.55-4.58- possessory 4.58
- scope 4.56
- statutory 4.57
Maternity pay.(see Employees)Misfeasance action- proceeds of
- ranking of floating charge holder, and 2.41
Name of company- change of 7.60-7.61
Notification of appointment 10.01-10.08- advertisement 10.06, 10.12
- appointment by court, where 10.08, 10.09
- form 10.02
- invoices, on 10.13, 10.14
Occupational pension schemes.(see Employees)Officers of company 6.01-6.05.(see also Directors)- effect of receivership on 6.01-6.05
Option in loan documentation to heritable creditor 8.10-8.12Ownership of documents created by receivers 4.71, 4.72- documents belonging to company 4.71, 4.72
Payments 9.01-9.36.(see also Distributions)- order of priority 9.01, 9.02
- provisions of section 60, 9.01-9.10
- reasonable expenses of realisation 9.05
Pensions- sale of receivership assets, and 7.57-7.59
Permits 4.111Powers of receiver 3.01-3.42- advisers, appointment 3.09, 3.10
- agents, appointment 3.18
- arbitration 3.13
- arrangements 3.23
- borrowing 3.08
- carrying on of business 3.21
- change of registered office 3.27
- charge, contained in 3.01
- company seal, use of 3.15
- compromises 3.23
- disposal of interest in property 3.36-3.39
- employees, in relation to 3.18
- establishment of subsidiaries 3.25
- execution of deeds 3.16
- exercise outwith jurisdiction 3.41, 3.42
- incidental payments 3.20
- incidental powers 3.32
- insurances 3.14
- leases 3.22
- legal proceedings 3.12
- negotiable instruments 3.20
- persons dealing with receiver 3.40
- powers subject to rights of certain persons 3.33-3.35
- pre-receivership contracts.
- (see Pre-receivership contracts)
- ranking in debtors' estates 3.26
- sale of property 3.07
- seeking directions 3.11
- solicitor, appointment 3.09, 3.10
- statutory 3.02-3.32
- suspension, effect 3.70
- taking possession of property 3.03-
3.06
- delivery by liquidator 3.06
- importance of 3.03
- powers of court 3.04
- supply of information 3.05
- tenancies 3.22
- uncalled capital 3.24
- winding-up petitions 3.28-3.31
- circumstances justifying 3.28-3.31
- work on property 3.19
Pre-receivership contracts 3.63-3.69- carrying on business, and 3.67
- failure to implement 3.68
- leases 3.69
- specific implement 3.64-3.66
- voidable 3.63
Preferential creditors 9.15-9.36- contributions to occupational pension schemes 9.17
- remuneration of employees 9.14-9.36
- amounts payable 9.18
- 'gross' 9.35, 9.36
- money advanced for purpose of remuneration or accrued holiday remuneration 9.20-9.26
- 'net' 9.35, 9.36
- orders 9.19
- payments by way of commission 9.33
Priority of debts 9.14-9.26- preferential creditors, 9.15-9.36.
- (see also Preferential creditors)
Protective award.(see Employees)Ranking of securities and guarantees 8.01-8.58- additional interest 8.05-8.07
- arrestors 8.17
- avoidance of certain floating charges, 8.45-8.58.
- (see also Avoidance of floating charges)
- directors' borrowing limits exceeded 8.21
- fixed charge by English registered company over book debts 8.18-8.20
- general position 8.01, 8.02
- guarantors, general duty to 8.13
- inhibitors 8.14-8.16
- interest 8.05-8.07
- letters of set-off 8.22-8.39
- suggested approach 8.23-8.39
- option in loan documentation to heritable creditor 8.10-8.12
- proper division of guarantee liability 8.40-8.44
- ranking agreements 8.03
- running account 8.04
- unlimited guarantees 8.22-8.39
- suggested approach 8.23-8.39
- wages preference 8.08, 8.09
Receiver- competition with liquidator 1.67-1.69
Redundancy payments.(see Employees)Registration of appointment 10.01-10.08- non-registration 10.11
- receiver should seek confirmation 10.10
Rent- right to receive 4.13, 4.14
- sequestration for
- hypothec, and 4.61-4.63
Report by receiver 10.23-10.32- assessment of sum available for other creditors 10.26
- copy to liquidator 10.29
- dispensing with requirement to lay before meeting of unsecured creditors 10.28
- exclusions 10.31
- matters excluded 10.30
- matters to be dealt with 10.25
- penalty 10.32
- persons to whom sent 10.24
- publication of notice 10.27
- time for 10.23
Reports on conduct of directors of insolvent companies 10.41-10.46- duty to provide 10.41
- manner of 10.42-10.46
Retention of title 5.01-5.47- accession, and 5.41, 5.42
- commixtion, and 5.43-5.47
- confusion, and 5.43-5.47
- course of dealing 5.09-5.16
- incorporation, arguing against 5.16
- previous transactions 5.11, 5.12
- reasonableness test 5.14, 5.15
- standard form contract 5.14
- verbal contract 5.10
- English law 5.04
- incorporation in contract 5.07, 5.08
- inmixed goods 5.40
- meaning 5.03
- practical application 5.05, 5.06
- resolution of dispute 5.17-5.18
- negotiation 5.18
- standard form of letter 5.17
- Romalpa clauses 5.01
- specificatio, and 5.31
- specification, and 5.41, 5.42
- stocktaking, and 5.05, 5.06
- trusts over funds 5.19-5.40
- beneficial interest, and 5.24-5.26
- existence of trust fund 5.23
- lex situs 5.28-5.30, 5.35-5.39
- mercantile agent, and 5.34
- principles 5.19
- reality of transaction 5.22
- specification 5.27, 5.28-5.30
- subrogation, and 5.32
- validity of conditions 5.19-5.40
- division of long clause 5.20
- principles 5.19
Romalpa clauses.(see Retention of title)Sale of business 6.28-6.34- transfer of undertakings 6.28-6.34
- defence 6.29
- dismissal, and 6.30, 6.31
- liabilities that transfer or do not transfer on relevant transfer 6.33, 6.34
- obligations to inform representatives of employees 6.32
Sale of receivership assets 7.01-7.61- assignation of rights and obligations under contracts 7.11, 7.12
- supplies on or about transfer date 7.13, 7.14
- third parties, and 7.12
- book debts 7.18, 7.19
- books and records of company 7.15
- courses open to receiver 7.02
- duties of receiver, and 7.04
- early transfer of business 7.22
- employees 7.42, 7.43
- evaluation of business, and 7.01
- finalising documentation 7.41
- finished goods, status of 7.10
- form of agreements 7.05-7.09
- definition 7.05, 7.06
- stocktaking 7.07-7.09
- form of 7.23
- goodwill 7.21
- hive down agreement.
- (see Hive down agreement)
- information brochure 7.03
- disclaimer 7.03
- letters of obligation, 7.47-7.56.
- (see also Letters of obligation)
- liabilities prior to transfer date 7.20
- management buy-outs 7.39
- mechanics of 7.23
- missives 7.24
- patents 7.16
- pension matters 7.57-7.59
- power of execution by receiver after appointment of liquidator 7.46
- premises 7.17
- preparation of financial package 7.40
- property matters 7.44, 7.45
- receiver, liability of 7.26
- section 61 petition 7.34-7.36
- stamp duty 7.33
- terms 7.27-7.31
- consideration 7.29
- exclusion of warranty 7.30
- good title 7.31
- interpretation 7.28
- recital, 7.27A
- trade marks 7.16
- VAT 7.32
- vendor, designation of 7.25, 7.26
Section 61 petition- sale of receivership assets, and 7.34-7.36
Sequestration for rent- appointment of receiver, and 2.19
- hypothec, and 4.61-4.63
Set-off, 4.73-4.89- assignation of debt, and 4.80, 4.81
- assignatus utitur jure auctoris, and 4.75
- case law 4.74
- claim arising post appointment of liquidator 4.85
- Crown 4.87-4.89
- elements 4.73
- fixed security, and 4.82-4.84
- insolvency law, and 4.78
- letter
- form, App.17
- no concursus debiti et crediti, where 4.76, 4.77, 4.79
- uncertainties as to 4.86
Share purchase agreement- form, App.13
Specificatio- retention of title, and 5.31
Specification- retention of title, and 5.41, 5.42
Stamp duty- sale of receivership assets, and 7.33
Statements of Insolvency Practice (Scotland), App.15Statement to be made by officers to receiver 10.15-10.22- contents 10.18
- persons specified 10.17
- release from requirement to submit 10.21
- Sederunt Book 10.19
Tenant- company in receivership as.
- (see Leases)
Third parties, rights against insurers 4.45-4.47- Act of 1930, 4.45-4.47
Transfer of undertakings.(see Sale of business)Trust assets- ranking of floating charge holder, and 2.42
Unfair dismissal 6.19- basic award 6.19
- compensatory award 6.19
- enhancement of compensation on failure to obey tribunal order to reinstate or re-engage 6.19
Unfair prejudiceUnlimited guarantee 8.22-8.39- form, App.16
Vacation of appointment of receiver 11.01-11.12- circumstances 11.01
- indemnity 11.04, 11.05
- notification 11.06-11.08
- ownership of documents 11.09
- re-floating of charge, effect 11.10-11.12
- joint receivers 11.11
- single receiver 11.10
- removal from office 11.03
- remuneration 11.04, 11.05
- resignation 11.02
VAT- sale of receivership assets, and 7.32
Wages- ranking of securities and guarantees, and 8.08, 8.09
Winding-up petition- threatened 4.64-4.70
- appointment of liquidator 4.64-4.66
- bad debt relief, and 4.68
- caveats 4.69
- members' voluntary liquidation 4.67
- prevention of liquidator's appointment 4.70
- value added tax 4.68
Wrongful trading- ranking of floating charge holder, and 2.38