Office of Public Sector Information
SCHEDULE 17 continued
43 The Companies Act 1989 shall be amended as follows.
44 In section 158 (modification of insolvency law)—
(a) in subsection (3) for paragraph (b) substitute—
“(b) the application for an administration order or the presentation of a winding-up petition or the passing of a resolution for voluntary winding up,”, and
(b) after subsection (3) insert—
“(3A) In subsection (3)(b) the reference to an application for an administration order shall be taken to include a reference to—
(a) in a case where an administrator is appointed under paragraph 14 or 22 of Schedule B1 to the Insolvency Act 1986 (appointment by floating charge holder, company or directors) following filing with the court of a copy of a notice of intention to appoint under that paragraph, the filing of the copy of the notice, and
(b) in a case where an administrator is appointed under either of those paragraphs without a copy of a notice of intention to appoint having been filed with the court, the appointment of the administrator.”
45 In section 161(4) (disapplication of enactments to default proceedings) for “sections 10(1)(c), 11(3), 126, 128, 130, 185 or 285 of the Insolvency Act 1986” substitute “section 126, 128, 130, 185 or 285 of, or paragraph 42 or 43 (including paragraph 43(6) as applied by paragraph 44) of Schedule B1 to, the Insolvency Act 1986”.
46 After section 167(1) (application by exchange or clearing house about taking default proceedings) insert—
“(1A) In subsection (1) a reference to an administration order shall be taken to include a reference to the appointment of an administrator under—
(a) paragraph 14 of Schedule B1 to the Insolvency Act 1986 (c. 45) (appointment by holder of qualifying floating charge), or
(b) paragraph 22 of that Schedule (appointment by company or directors).”
47 (1) Section 175 (financial markets: administration) shall be amended as follows.
(2) For subsection (1) substitute—
“(1) The following provisions of Schedule B1 to the Insolvency Act 1986 (administration) do not apply in relation to a market charge—
(a) paragraph 43(2) and (3) (restriction on enforcement of security or repossession of goods) (including that provision as applied by paragraph 44 (interim moratorium)), and
(b) paragraphs 70, 71 and 72 (power of administrator to deal with charged or hire-purchase property).
(1A) Paragraph 41(2) of that Schedule (receiver to vacate office at request of administrator) does not apply to a receiver appointed under a market charge.”
(3) In subsection (2) for “an administration order has been made or a petition for an administration order has been presented” substitute “the occurrence of an event to which subsection (2A) applies”.
(4) After subsection (2) insert—
“(2A) This subsection applies to—
(a) making an administration application under paragraph 12 of Schedule B1 to the Insolvency Act 1986,
(b) appointing an administrator under paragraph 14 or 22 of that Schedule (appointment by floating charge holder, company or directors),
(c) filing with the court a copy of notice of intention to appoint an administrator under either of those paragraphs.”
48 (1) Section 36 of the Coal Industry Act 1994 (insolvency of licensed operator) shall be amended as follows.
(2) After subsection (2) insert—
“(2A) Where the administrator of a company which is or has been a licensed operator files a notice with the registrar of companies under paragraph 84(1) of Schedule B1 to the Insolvency Act 1986 (c. 45) (administration: moving to dissolution), he shall at the same time send a copy to the Authority.”
(3) In subsection (3)—
(a) after “liquidator” insert “or administrator”, and
(b) after “subsection (2)” insert “or (2A)”.
49 (1) The Employment Rights Act 1996 shall be amended as follows.
(2) In section 166(7) (application by employee for payment by Secretary of State)—
(a) in paragraph (a) omit “or an administration order”, and
(b) after paragraph (a) insert—
“(aa) if the company is in administration for the purposes of the Insolvency Act 1986,”.
(3) In section 183(3)(a) (insolvency of employer)—
(a) in paragraph (a) omit “or an administration order”, and
(b) after paragraph (a) insert—
“(aa) if the company is in administration for the purposes of the Insolvency Act 1986,”.
(4) Omit section 189(4) (transfer to Secretary of State of rights and remedies: priority of preferential debts).
50 The Housing Act 1996 shall be amended as follows.
51 At the end of section 40 (initial notice to be given to Housing Corporation or Housing for Wales) add—
“(7) Subsections (8) and (9) apply in relation to the reference in subsection (3) to applying for an administration order.
(8) In a case where an administrator is appointed under paragraph 14 or 22 of Schedule B1 to the Insolvency Act 1986 (appointment by floating charge holder, company or directors)—
(a) the reference includes a reference to appointing an administrator under that paragraph, and
(b) in respect of an appointment under either of those paragraphs the reference to the applicant shall be taken as a reference to the person making the appointment.
(9) In a case where a copy of a notice of intention to appoint an administrator under either of those paragraphs is filed with the court—
(a) the reference shall be taken to include a reference to the filing of the copy of the notice, and
(b) in respect of the filing of a copy of a notice of intention to appoint under either of those paragraphs the reference to the applicant shall be taken as a reference to the person giving the notice.”
52 At the end of section 41 (further notice to be given to Housing Corporation or Housing for Wales) add—
“(6) In subsection (3)—
(a) the reference to the making of an administration order includes a reference to appointing an administrator under paragraph 14 or 22 of Schedule B1 to the Insolvency Act 1986 (administration), and
(b) in respect of an appointment under either of those paragraphs the reference to the applicant shall be taken as a reference to the person making the appointment.”
53 The Financial Services and Markets Act 2000 shall be amended as follows.
54 (1) Section 215 (provision of Financial Services Compensation Scheme in relation to insolvency) shall be amended as follows.
(2) In subsection (3) for “presents a petition under section 9 of the 1986 Act or Article 22 of the 1989 Order” substitute “makes an administration application under Schedule B1 to the 1986 Act or presents a petition under Article 22 of the 1989 Order”.
(3) After subsection (3) insert—
“(3A) In subsection (3) the reference to making an administration application includes a reference to—
(a) appointing an administrator under paragraph 14 or 22 of Schedule B1 to the 1986 Act, or
(b) filing with the court a copy of notice of intention to appoint an administrator under either of those paragraphs.”
55 For section 359 (administration order) substitute—
(1) The Authority may make an administration application under Schedule B1 to the 1986 Act (or present a petition under Article 22 of the 1989 Order) in relation to a company or insolvent partnership which—
(a) is or has been an authorised person,
(b) is or has been an appointed representative, or
(c) is carrying on or has carried on a regulated activity in contravention of the general prohibition.
(2) Subsection (3) applies in relation to an administration application made (or a petition presented) by the Authority by virtue of this section.
(3) Any of the following shall be treated for the purpose of paragraph 11(a) of Schedule B1 to the 1986 Act (or Article 21(1)(a) of the 1989 Order) as unable to pay its debts—
(a) a company or partnership in default on an obligation to pay a sum due and payable under an agreement, and
(b) an authorised deposit taker in default on an obligation to pay a sum due and payable in respect of a relevant deposit.
(4) In this section—
“agreement” means an agreement the making or performance of which constitutes or is part of a regulated activity carried on by the company or partnership,
“authorised deposit taker” means a person with a Part IV permission to accept deposits (but not a person who has a Part IV permission to accept deposits only for the purpose of carrying on another regulated activity in accordance with that permission),
“company” means a company—
in respect of which an administrator may be appointed under Schedule B1 to the 1986 Act, or
to which Article 21 of the 1989 Order applies, and
“relevant deposit” shall, ignoring any restriction on the meaning of deposit arising from the identity of the person making the deposit, be construed in accordance with—
section 22,
any relevant order under that section, and
Schedule 2.
(5) The definition of “authorised deposit taker” in subsection (4) shall be construed in accordance with—
(a) section 22,
(b) any relevant order under that section, and
(c) Schedule 2.”
56 For section 361 (administrator to report to Authority) substitute—
(1) This section applies where a company or partnership is—
(a) in administration within the meaning of Schedule B1 to the 1986 Act, or
(b) the subject of an administration order under Part III of the 1989 Order.
(2) If the administrator thinks that the company or partnership is carrying on or has carried on a regulated activity in contravention of the general prohibition, he must report to the Authority without delay.
(3) Subsection (2) does not apply where the administration arises out of an administration order made on an application made or petition presented by the Authority.”
57 In section 362 (Financial Services Authority’s right to participate in proceedings)—
(a) in subsection (1) for “presents a petition to the court under section 9 of the 1986 Act (or Article 22 of the 1989 Order)” substitute “makes an administration application under Schedule B1 to the 1986 Act (or presents a petition under Article 22 of the 1989 Order)”,
(b) after subsection (1) insert—
“(1A) This section also applies in relation to—
(a) the appointment under paragraph 14 or 22 of Schedule B1 to the 1986 Act of an administrator of a company of a kind described in subsection (1)(a) to (c), or
(b) the filing with the court of a copy of notice of intention to appoint an administrator under either of those paragraphs.”,
(c) in subsection (2)(a) for “petition” substitute “administration application or the petition”,
(d) for subsection (4) substitute—
“(4) The Authority may apply to the court under paragraph 74 of Schedule B1 to the 1986 Act (or Article 39 of the 1989 Order).
(4A) In respect of an application under subsection (4)—
(a) paragraph 74(1)(a) and (b) shall have effect as if for the words “harm the interests of the applicant (whether alone or in common with some or all other members or creditors)” there were substituted the words “harm the interests of some or all members or creditors”, and
(b) Article 39 of the 1989 Order shall have effect with the omission of the words “(including at least himself”).”, and
(e) in subsection (5)(b) for “section 26 of the 1986 Act” substitute “paragraph 57 of Schedule B1 to the 1986 Act”.
58 After section 362 insert—
(1) This section applies in relation to a company of a kind described in section 362(1)(a) to (c).
(2) An administrator of the company may not be appointed under paragraph 22 of Schedule B1 to the 1986 Act without the consent of the Authority.
(3) Consent under subsection (2)—
(a) must be in writing, and
(b) must be filed with the court along with the notice of intention to appoint under paragraph 27 of that Schedule.
(4) In a case where no notice of intention to appoint is required—
(a) subsection (3)(b) shall not apply, but
(b) consent under subsection (2) must accompany the notice of appointment filed under paragraph 29 of that Schedule.”
59 In section 427A(3) (mergers and divisions of public companies) for “an administration order being in force in relation to the company” substitute “where the company is in administration”.
Enterprise Act 2002