Contents

THE STATES make these Regulations under Article 60 of the Limited Liability Companies (Jersey) Law 2018 –

“ “special resolution” means a vote (or consent) of members which is passed (or given) by members who together hold a two thirds majority of the total rights to the profits of the limited liability company, but where that results in no members with a right to vote or provide consent, a vote (or consent) by a two thirds majority in number of the members;”.

“13    Procedure

A limited liability company, other than a limited liability company in respect of which a declaration has been made (and not recalled) under the Désastre Law, may be wound up under this Part if –

(a)     the limited liability company resolves to do so by special resolution; or

(b)     the Court makes an order for winding up under Regulation 13C.”.

“13A Application for creditors’ winding up by creditor

(1)     A creditor may make an application to the Court for an order to commence a creditors’ winding up if the creditor has a claim against the limited liability company for not less than the minimum liquidated sum and –

(a)     the limited liability company is unable to pay its debts;

(b)     the creditor has evidence of the limited liability company’s insolvency; or

(c)     the creditor has the consent of the limited liability company.

(2)     A limited liability company is deemed to be unable to pay its debts for the purposes of paragraph (1)(a) if –

(a)     the creditor to whom the limited liability company is indebted in a sum exceeding the minimum liquidated sum then due has served on the limited liability company, by way of personal service, a statutory demand in the form set out in the Schedule requiring the limited liability company to pay the sum so due; and

(b)     the limited liability company has for 21 days after service of the statutory demand failed to pay the sum or otherwise dispute the debt due to the reasonable satisfaction of the creditor.

(3)     Except in exceptional circumstances, a creditor who makes an application under paragraph (1) must give the limited liability company at least 48 hours’ notice of the application that is being made.

(4)     A creditor must not make an application under paragraph (1) –

(a)     to the extent that the creditor has agreed not to make an application; or

(b)     if the creditor’s only claim is for repossession of goods.

(5)     An application under paragraph (1) must be made in the form approved by the Court and must be accompanied by an affidavit verifying the content of the form.

(6)     In this Regulation, the “minimum liquidated sum” means the minimum liquidated sum prescribed for the time being in the Companies (General Provisions) (Jersey) Order 2002 for the purposes of Article 157A of the Companies (Jersey) Law 1991.

13B   Appointment of provisional liquidator

(1)     Subject to the provisions of this Regulation, the Court may, at any time after an application for a creditors’ winding up is made under Regulation 13A, appoint a liquidator provisionally.

(2)     The liquidator appointed provisionally under this Regulation must carry out such functions that the Court may confer on the liquidator.

(3)     The powers of a liquidator appointed provisionally under this Regulation may be limited by the order appointing the liquidator.

(4)     After the appointment of a liquidator provisionally under this Regulation no action must be taken or proceeded with against the limited liability company except by leave of the Court and subject to such terms as the Court may impose.

(5)     A liquidator appointed provisionally under this Regulation must as soon as is reasonably practicable after the appointment –

(a)     give notice of the appointment to the registrar, the Viscount and the managers and creditors of the limited liability company (to the extent known to the liquidator); and

(b)     send a copy of the relevant act of Court to the registrar.

13C    Order of Court commencing creditors’ winding up

(1)     The Court, after considering an application made, and the affidavit required, under Regulation 13A, may –

(a)     make an order that a creditors’ winding up must commence in respect of the limited liability company from the date of the application or such other date as the Court deems fit and appoint a person nominated by the applicant or selected by the Court as the liquidator; or

(b)     dismiss the application and make such order as it thinks fit.

(2)     The Court may –

(a)     at any time adjourn the hearing of an application made under Regulation 13A for such time as the Court thinks fit;

(b)     require the applicant to furnish such further information as the Court requires; and

(c)     order other parties to be convened to the application.

(3)     A liquidator appointed under paragraph (1)(a) must, within 14 days after the liquidator’s appointment –

(a)     give notice of the appointment to the registrar, the Viscount and the managers and creditors of the limited liability company (to the extent known to the liquidator); and

(b)     send a copy of the relevant act of Court to the registrar.

(4)     A liquidator who fails to comply with paragraph (3) commits an offence and is liable to a fine not exceeding level 3 on the standard scale.

(5)     If, as a result of an application made by a creditor, an order for a creditors’ winding up is made and the limited liability company was not insolvent at the date that the application was made, the limited liability company has the right of action against the applicant to recover damages for or in respect of any loss sustained by the limited liability company as a consequence of the order, unless the applicant, in making the application, acted reasonably and in good faith.

(6)     Any action brought under paragraph (5) must be commenced within 12 months from the date of the application.

13D   Limited liability company’s application to terminate creditors’ winding up

(1)     A limited liability company may, at any time during the course of the creditors’ winding up which has been ordered by the Court under Regulation 13C(1)(a), apply to the Court for an order terminating the creditors’ winding up.

(2)     The Court must refuse an application made under paragraph (1) if the Court is not satisfied that the property of the limited liability company is at the time of the application sufficient to pay in full claims filed with the liquidator or claims which the liquidator has been advised will be filed within the time required for proving a debt.

(3)     In considering an application under paragraph (1), the Court must have regard to the interests of –

(a)     creditors who have filed a proof of debt;

(b)     creditors whose claims the liquidator has been advised will be filed within time required for proving a debt; and

(c)     the limited liability company.

(4)     If the Court makes an order under this Regulation, the Court may make such further order as it thinks fit.

(5)     If the Court makes an order under this Regulation, the creditors’ winding up terminates from the date of the order unless the Court orders otherwise.

(6)     An order made under this Regulation does not prejudice the validity of any act of the liquidator relating to the limited liability company between the date the application for the creditors’ winding up is made under Regulation 13C(1)(a) and the date of the termination of the creditors’ winding up under paragraph (5).

(7)     For the purposes of this Regulation, the same rules apply to the time and manner of proving debts as are in force for the time being with respect to persons against whom a declaration has been made under the Désastre Law with the substitution of references to a creditors’ winding up for references to the désastre and references to a liquidator for references to the Viscount.”.

“(4)    The liquidator must, if the Court orders a creditors’ winding up –

(a)     publish a notice in the Jersey Gazette; and

(b)     provide notice to the registrar.

(5)     The notice must be published, and provided to the registrar, within 14 days after the day on which the order was made.

(6)     A liquidator that fails to comply with paragraph (4) or (5) commits an offence and is liable to a fine not exceeding level 3 on the standard scale.”.

“(1)    A creditors’ winding up commences –

(a)     when a creditors’ winding up is approved by the members of the limited liability company; or

(b)     if the Court orders the creditors’ winding up under Regulation 13C(1)(a), at the time the application is made under Regulation 13A(1), unless the Court orders otherwise.”;

“(A1) This Regulation applies in the case of a creditors’ winding up that is not ordered by the Court.”.

“16A Meeting of creditors following Court-ordered creditors’ winding up

(1)     If the Court orders a creditors’ winding up in respect of a limited liability company under Regulation 13C(1)(a) or appoints a liquidator provisionally under Regulation 13B, the liquidator must –

(a)     within 7 days after the date of the appointment of the liquidator, give notice to the creditors of the limited liability company of a meeting to be held in Jersey on the day falling 21 days after the date of the Court order, or if that day is not a working day, the next working day after that day;

(b)     during the period before the meeting, provide, free of charge, any information concerning the affairs of the limited liability company as the creditors may reasonably require.

(2)     The notice must be given –

(a)     at least 14 days before the day on which the meeting is to be held; and

(b)     by advertisement in the Jersey Gazette at least 10 days before the day of the meeting.

(3)     If a liquidator fails, without reasonable excuse, to comply with paragraph (1) or (2), the liquidator commits an offence and is liable to a fine.

(4)     The managers of a limited liability company in a creditors’ winding up must –

(a)     prepare a statement as to the affairs of the limited liability company, verified by affidavit by one or more of the managers; and

(b)     lay that statement before the creditors’ meeting.

(5)     If a manager fails, without reasonable excuse, to comply with paragraph (4), the manager commits an offence and is liable to a fine.

(6)     The liquidator appointed by the Court must preside over the creditors’ meeting called under this Regulation.

(7)     In paragraph (1), “working day” means a day which is not –

(a)     a Saturday, a Sunday, Christmas Day, or Good Friday; or

(b)     a day that is a public holiday under the Public Holidays and Bank Holidays (Jersey) Act 2010.”.

“(3A) Where a liquidator has been appointed by the Court, a creditor of the limited liability company in respect of which the creditors’ winding up has been ordered under Regulation 13C(1)(a) may, within 7 days of the creditors’ meeting referred to in Regulation 16A, apply to the Court for an order appointing some other person to be the liquidator instead of the person appointed by the Court under Regulation 13C(1)(a).”.

“(6)    A Court order appointing more than one person as a liquidator may provide whether any act to be done is to be done by all or any one or more of them and in the absence of any such provision, any such act may be done by 2 or more of them.”.

“29A Liability in respect of acquisition of LLC interests

(1)     This Regulation applies where a limited liability company is being wound up in a creditors’ winding up and –

(a)     it has within 6 months before the commencement of the winding up made a payment under Article 45 of the Law to acquire, by purchase, redemption or otherwise any LLC interest in the limited liability company;

(b)     the payment was not made lawfully; and

(c)     the aggregate realisable value of the limited liability company’s assets and the amount paid by way of contribution to its assets (apart from this Regulation) is not sufficient for the payment of its liabilities and the expenses of the winding up.

(2)     In this Regulation, the amount of a payment that has not been made lawfully for the purpose of the acquisition is referred to as the “relevant payment”.

(3)     Subject to paragraph (5), the Court on the application of the liquidator may order the following to contribute in accordance with this Regulation to the limited liability company’s assets so as to enable the insufficiency to be met –

(a)     a person from whom the LLC interests were acquired; or

(b)     a manager.

(4)     A person from whom any LLC interests were acquired may be ordered to contribute an amount not exceeding so much of the relevant payment as was made in respect of those LLC interests.

(5)     The Court may not order a person from whom the LLC interests were acquired to contribute under this Regulation unless the Court is satisfied that, when the person received payment for their LLC interest, the person knew, or ought to have concluded from the facts known to the person, that immediately after the relevant payment was made –

(a)     the limited liability company would be unable to discharge its liabilities as they fell due; and

(b)     the realisable value of the limited liability company’s assets would be less than the aggregate of its liabilities.

(6)     Where a person has contributed an amount under this Regulation, the Court may direct any other person who is jointly and severally liable to contribute under this Regulation to pay to that person such amount as the Court thinks just and reasonable.”.

“(3)    The appointment or removal of a liquidator under this Regulation may be made on request by the limited liability company, a manager of the limited liability company, a creditor, the Viscount, the Commission, the Minister or any other person.”.

“(1)    A person must not act as a liquidator of a limited liability company that is being wound up under Regulation 3 (power for Court to wind up on just and equitable grounds) or Part 2 (summary winding up) unless the person –

(a)     is an individual; and

(b)     is qualified to act as a liquidator in accordance with paragraph (3) or (4).”;

“(1A) Subject to paragraph (4), a person must not act as a liquidator of a limited liability company that is being wound up under Part 3 (creditors’ winding up) unless the person is registered as an approved liquidator and entered on the Register of Approved Liquidators under paragraph (3C).”;

“(3A) A person is not qualified to be registered as an approved liquidator and entered on the Register of Approved Liquidators under paragraph (3C) 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 of the United Kingdom, 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 –

(i)      a general bond of an amount for the time being specified in Article 7(2A)(c) of the Companies (General Provisions) (Jersey) Order 2002, and

(ii)      a specific bond of between the minimum and maximum amounts for the time being specified in that provision for each appointment.

(3B)   An individual who is not ordinarily resident in Jersey but is otherwise qualified in accordance with paragraph (3A)(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 (3C), be appointed as a liquidator of a limited liability company, and the Viscount may, in accordance with this Regulation, register the individual as a non-Jersey liquidator in the Register of Approved Liquidators.

(3C)   An individual who is qualified under paragraph (3A) to be registered as an approved liquidator or as a non-Jersey liquidator under paragraph (3B) 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.

(3D)   The Viscount must keep and maintain a Register of Approved Liquidators and may upon –

(a)     application under paragraph (3C) by an individual who is qualified to be registered as an approved liquidator under paragraph (3A) or as a non-Jersey liquidator under paragraph (3B); and

(b)     payment to the Viscount by the individual of the registration or re-registration fee of an amount for the time being specified in Article 7(2D)(b) of the Companies (General Provisions) (Jersey) Order 2002,

register the individual as an approved liquidator or non-Jersey liquidator and enter the name of the individual in the Register of Approved Liquidators.

(3E)   The registration of an individual as an approved liquidator or a non-Jersey liquidator under this Regulation expires after one year and an individual may apply to the Viscount under paragraph (3C) to re-register.

(3F)   A person registered as an approved liquidator or a non-Jersey liquidator under this Regulation must within 21 days of any change of circumstances which disqualifies the person from meeting the requirements under paragraph (3A) 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.

(3G)   The Viscount must publish online the Register of Approved Liquidators kept and maintained under paragraph (3D) and make the register available for inspection to the public.”.

“45A 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 their 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 the liquidator’s 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 these Regulations 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 Regulation 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 Regulation 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 these Regulations.

(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.”.

“(1A) A liquidator appointed by a Court in a creditors’ winding up ordered by the Court is entitled to receive such remuneration as is fixed by the Court.”;

“(2)    The creditors, in the case of a creditors’ winding up that is not ordered by the Court under Regulation 13C(1)(a) or the Court, in the case of a creditors’ winding up ordered by the Court under Regulation 13C(1)(a), may at any time remove a liquidator.”;

“(a)    in the case of a creditors’ winding up (except where the removal is under paragraph (2)), to the creditors;

(b)     in the case of a creditors’ winding up ordered by the Court, to the Court and the Viscount.”;

“(a)    in the case of a creditors’ winding up that is not ordered by the Court –

(i)      by the Court on the application of a manager or member, but only if the former liquidator was appointed by the Court, or

(ii)      in any other case, by the creditors;

(b)     in the case of a creditors’ winding up that is ordered by the Court under Regulation 13C(1)(a), by the Court.”;

“(6)    On the appointment of a liquidator in a creditors’ winding up, all the powers of the managers cease, except –

(a)     in the case of a creditors’ winding up that is not ordered by the Court, so far as the liquidation committee (or, if there is no committee, the creditors) sanction their continuance; or

(b)     in the case of a creditors’ winding up that is ordered by the Court under Regulation 13C(1)(a), so far as the Court or liquidator sanction their continuance.”.

“52A Disposal of records

(1)     When a limited liability company has been wound up and is about to be dissolved, its records and those of a liquidator may be disposed of as follows –

(a)     in the case of a summary winding up, in the way that the limited liability company by special resolution directs;

(b)     in the case of a creditors’ winding up that is not ordered by the Court, in the way that the liquidation committee (or, if there is no committee, the creditors) may direct; and

(c)     in the case of a creditors’ winding up that is ordered by the Court under Regulation 13C(1)(a), in the way that the Court or liquidator may direct.

(2)     After 10 years from the date of the limited liability company’s dissolution no responsibility rests on the limited liability company, a liquidator, or a person to whom the custody of the records has been committed, to provide or produce any record to a person claiming to be interested in it.

(3)     The Commission may direct that for such period as it thinks proper (but not exceeding 10 years from the date of the limited liability company’s dissolution), the records of a limited liability company which has been wound up must not be destroyed.

(4)     A person who acts in contravention of a direction made by the Court or the Commission for the purposes of this Regulation commits an offence and is liable to a fine not exceeding level 3 on the standard scale.”.

“Schedule

(Regulation 13A(2)(a))

statutory demand