Office of Public Sector Information
PART 2 continued
(1) A bank liquidator has the following powers.
(2) Power to effect and maintain insurances in respect of the business and property of the bank.
(3) Power to do all such things (including the carrying out of works) as may be necessary for the realisation of the property of the bank.
(4) Power to make any payment which is necessary or incidental to the performance of the bank liquidator’s functions.
A bank liquidator is an officer of the court.
A bank liquidator appointed by bank insolvency order remains in office until vacating office—
(a) by resigning under section 107,
(b) on removal under section 108 or 109,
(c) on disqualification under section 110,
(d) on the appointment of a replacement in accordance with section 112,
(e) in accordance with sections 113 to 115, or
(f) on death.
(1) A bank liquidator may resign by notice to the court.
(2) Rules under section 411 of the Insolvency Act 1986 (as applied by section 125 below) may restrict a bank liquidator’s power to resign.
(3) Resignation shall take effect in accordance with those rules (which shall include provision about release).
(1) A bank liquidator may be removed by order of the court on the application of—
(a) the liquidation committee,
(b) the FSA, or
(c) the Bank of England.
(2) Before making an application the FSA must consult the Bank of England.
(3) Before making an application the Bank of England must consult the FSA.
(4) A bank liquidator removed by order has release with effect from a time determined by—
(a) the Secretary of State, or
(b) in the case of a bank liquidator in Scotland, the Accountant of Court.
(1) A bank liquidator may be removed by resolution of a meeting of creditors held pursuant to section 195 of the Insolvency Act 1986 (as applied by section 103 above) provided that the following conditions are met.
(2) Condition 1 is that the liquidation committee has passed a full payment resolution.
(3) Condition 2 is that the notice given to creditors of the meeting includes notice of intention to move a resolution removing the bank liquidator.
(4) Condition 3 is that the Bank of England and the FSA—
(a) receive notice of the meeting, and
(b) are given an opportunity to make representations to it.
(5) A bank liquidator who is removed under this section has release with effect—
(a) from the time when the court is informed of the removal, or
(b) if the meeting removing the bank liquidator resolves to disapply paragraph (a), from a time determined by—
(i) the Secretary of State, or
(ii) in the case of a bank liquidator in Scotland, the Accountant of Court.
(1) If a bank liquidator ceases to be qualified to act as an insolvency practitioner, the appointment lapses.
(2) A bank liquidator whose appointment lapses under subsection (1) has release with effect from a time determined by—
(a) the Secretary of State, or
(b) in the case of a bank liquidator in Scotland, the Accountant of Court.
A bank liquidator who is released is discharged from all liability in respect of acts or omissions in the bank insolvency and otherwise in relation to conduct as bank liquidator (but without prejudice to the effect of section 212 of the Insolvency Act 1986 as applied by section 103 above).
(1) Where a bank liquidator vacates office the Bank of England must as soon as is reasonably practicable appoint a replacement bank liquidator.
(2) But where a bank liquidator is removed by resolution of a meeting of creditors under section 109—
(a) a replacement may be appointed by resolution of the meeting, and
(b) failing that, subsection (1) above applies.
(1) A bank liquidator may make a proposal in accordance with section 1 of the Insolvency Act 1986 (company voluntary arrangement).
(2) Before making a proposal the bank liquidator—
(a) shall present a final report on the bank liquidation to the liquidation committee,
(b) shall send a copy of the report to—
(i) the FSA,
(ii) the FSCS,
(iii) the Bank of England,
(iv) the Treasury, and
(v) the registrar of companies, and
(c) shall make the report available to members, creditors and contributories on request.
(3) A proposal may be made only with the consent of the liquidation committee.
(4) The liquidation committee may consent only if—
(a) it has passed a full payment resolution, and
(b) the bank liquidator is satisfied, as a result of arrangements made with the FSCS, that any depositor still eligible for compensation under the scheme will be dealt with in accordance with section 99(2)(a) or (b).
(5) The bank liquidator must be the nominee (see section 1(2) of the 1986 Act).
(6) Part 1 of the 1986 Act shall apply to a proposal made by a bank liquidator, with the following modifications.
(7) In section 3 (summoning of meetings) subsection (2) (and not (1)) applies.
(8) The action that may be taken by the court under section 5(3) (effect of approval) includes suspension of the bank insolvency order.
(9) On the termination of a company voluntary arrangement the bank liquidator may apply to the court to lift the suspension of the bank insolvency order.
(1) A bank liquidator who thinks that administration would achieve a better result for the bank’s creditors as a whole than bank insolvency may apply to the court for an administration order (under paragraph 38 of Schedule B1 to the Insolvency Act 1986).
(2) An application may be made only if the following conditions are satisfied.
(3) Condition 1 is that the liquidation committee has passed a full payment resolution.
(4) Condition 2 is that the liquidation committee has resolved that moving to administration might enable the rescue of the bank as a going concern.
(5) Condition 3 is that the bank liquidator is satisfied, as a result of arrangements made with the FSCS, that any depositors still eligible for compensation under the scheme will receive their payments or have their accounts transferred during administration.
(1) A bank liquidator who thinks that the winding up of the bank is for practical purposes complete shall summon a final meeting of the liquidation committee.
(2) The bank liquidator—
(a) shall present a final report on the bank insolvency to the meeting,
(b) shall send a copy of the report to—
(i) the FSA,
(ii) the FSCS,
(iii) the Bank of England,
(iv) the Treasury, and
(v) the registrar of companies, and
(c) shall make the report available to members, creditors and contributories on request.
(3) At the meeting the liquidation committee shall—
(a) consider the report, and
(b) decide whether to release the bank liquidator.
(4) If the liquidation committee decides to release the bank liquidator, the bank liquidator—
(a) shall notify the court and the registrar of companies, and
(b) vacates office, and has release, when the court is notified.
(5) If the liquidation committee decides not to release the bank liquidator, the bank liquidator may apply to the Secretary of State for release; if the application is granted, the bank liquidator—
(a) vacates office when the application is granted, and
(b) has release from a time determined by the Secretary of State.
(6) In the case of a bank liquidator in Scotland, a reference in subsection (5) to the Secretary of State is a reference to the Accountant of Court.
(7) On receipt of a notice under subsection (4)(a) the registrar of companies shall register it.
(8) At the end of the period of 3 months beginning with the day of the registration of the notice, the bank is dissolved (subject to deferral under section 116).
(1) The Secretary of State may by direction defer the date of dissolution under section 115, on the application of a person who appears to the Secretary of State to be interested.
(2) An appeal to the court lies from any decision of the Secretary of State on an application for a direction under subsection (1).
(3) Subsection (1) does not apply where the bank insolvency order was made by the court in Scotland; but the court may by direction defer the date of dissolution on an application by a person appearing to the court to have an interest.
(4) A person who obtains deferral under subsection (1) or (3) shall, within 7 days after the giving of the deferral direction, deliver a copy of the direction to the registrar of companies for registration.
(5) A person who without reasonable excuse fails to comply with subsection (4) is liable to a fine and, for continued contravention, to a daily default fine, in each case of the same amount as for a contravention of section 205(6) of the Insolvency Act 1986 (dissolution).
(6) The bank liquidator may give the notice summoning the final meeting under section 115 above at the same time as giving notice of any final distribution of the bank’s property; but, if summoned for an earlier date the meeting shall be adjourned (and, if necessary, further adjourned) until a date on which the bank liquidator is able to report to the meeting that the winding up of the bank is for practical purposes complete.
(7) A bank liquidator must retain sufficient sums to cover the expenses of the final meeting under section 115 above.
(1) On a petition for a winding up order or an application for an administration order in respect of a bank the court may, instead, make a bank insolvency order.
(2) A bank insolvency order may be made under subsection (1) only—
(a) on the application of the FSA made with the consent of the Bank of England, or
(b) on the application of the Bank of England.
A resolution for voluntary winding up of a bank under section 84 of the Insolvency Act 1986 shall have no effect without the prior approval of the court.
(1) The following paragraphs of Schedule B1 to the Insolvency Act 1986 (administration) apply to a bank insolvency order as to an administration order.
(2) Those paragraphs are—
(a) paragraph 40 (dismissal of pending winding-up petition), and
(b) paragraph 42 (moratorium on insolvency proceedings).
(3) For that purpose—
(a) a reference to an administration order is a reference to a bank insolvency order,
(b) a reference to a company being in administration is a reference to a bank being in bank insolvency, and
(c) a reference to an administrator is a reference to a bank liquidator.
(1) An application for an administration order in respect of a bank may not be determined unless the conditions below are satisfied.
(2) A petition for a winding up order in respect of a bank may not be determined unless the conditions below are satisfied.
(3) A resolution for voluntary winding up of a bank may not be made unless the conditions below are satisfied.
(4) An administrator of a bank may not be appointed unless the conditions below are satisfied.
(5) Condition 1 is that the FSA has been notified—
(a) by the applicant for an administration order, that the application has been made,
(b) by the petitioner for a winding up order, that the petition has been presented,
(c) by the bank, that a resolution for voluntary winding up may be made, or
(d) by the person proposing to appoint an administrator, of the proposed appointment.
(6) Condition 2 is that a copy of the notice complying with Condition 1 has been filed with the court (and made available for public inspection by the court).
(7) Condition 3 is that—
(a) the period of 2 weeks, beginning with the day on which the notice is received, has ended, or
(b) both—
(i) the FSA has informed the person who gave the notice that it does not intend to apply for a bank insolvency order, and
(ii) the Bank of England has informed the person who gave the notice that it does not intend to apply for a bank insolvency order or to exercise a stabilisation power under Part 1.
(8) Condition 4 is that no application for a bank insolvency order is pending.
(9) Arranging for the giving of notice in order to satisfy Condition 1 can be a step with a view to minimising the potential loss to a bank’s creditors for the purpose of section 214 of the Insolvency Act 1986 (wrongful trading).
(10) Where the FSA receives notice under Condition 1—
(a) the FSA shall inform the Bank of England,
(b) the FSA shall inform the person who gave the notice, within the period in Condition 3(a), whether it intends to apply for a bank insolvency order, and
(c) if the Bank of England decides to apply for a bank insolvency order or to exercise a stabilisation power under Part 1, the Bank shall inform the person who gave the notice, within the period in Condition 3(a).
(1) In this section “the Disqualification Act” means the Company Directors Disqualification Act 1986.
(2) In the Disqualification Act—
(a) a reference to liquidation includes a reference to bank insolvency,
(b) a reference to winding up includes a reference to making or being subject to a bank insolvency order,
(c) a reference to becoming insolvent includes a reference to becoming subject to a bank insolvency order, and
(d) a reference to a liquidator includes a reference to a bank liquidator.
(3) For the purposes of the application of section 7(3) of the Disqualification Act (disqualification order or undertaking) to a bank which is subject to a bank insolvency order, the responsible office-holder is the bank liquidator.
(4) After section 21 of the Disqualification Act (interaction with Insolvency Act) insert—
Section 121 of the Banking Act 2009 provides for this Act to apply in relation to bank insolvency as it applies in relation to liquidation.”
(1) The Secretary of State and the Treasury may by order made jointly—
(a) provide for an enactment about insolvency to apply to bank insolvency (with or without specified modifications);
(b) amend, or modify the application of, an enactment about insolvency in consequence of this Part.
(2) An order under subsection (1)—
(a) shall be made by statutory instrument, and
(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
(1) For the purpose of co-operating in the pursuit of Objective 1 in section 99 the FSCS—
(a) may make or arrange for payments to or in respect of eligible depositors of the bank, and
(b) may make money available to facilitate the transfer of accounts of eligible depositors of the bank.
(2) The FSCS may include provision about expenditure under this section; and, in particular—
(a) money may be raised through the imposition of a levy under Part 15 of the Financial Services and Markets Act in respect of expenditure or possible expenditure under this section, and
(b) sums raised in connection with the scheme (whether or not under paragraph (a)) may be expended under this section.
(3) In section 220(3)(a) of the Financial Services and Markets Act 2000 (Compensation Scheme: information) after “liquidator” insert “, bank liquidator”.
(4) The FSCS is entitled to participate in proceedings for or in respect of a bank insolvency order.
(5) A bank liquidator must—
(a) comply with a request of the FSCS for the provision of information, and
(b) provide the FSCS with any other information which the bank liquidator thinks might be useful for the purpose of co-operating in the pursuit of Objective 1.
(6) A bank liquidator may enter into an agreement under section 221A of the Financial Services and Markets Act 2000 (Compensation Scheme: delegation of functions) for the bank liquidator to exercise functions of the scheme manager for the purpose of facilitating the pursuit of Objective 1.
(7) Where a bank insolvency order is made in respect of a bank, the fact that it later ceases to be an authorised person does not prevent the operation of the compensation scheme in respect of it; and for that purpose the bank is a relevant person within the meaning of section 213(9) of the Financial Services and Markets Act 2000 despite the lapse of authorisation.
(1) This section applies where a bank liquidator arranges, in pursuit of Objective 1 in section 99, for the transfer of eligible depositors' accounts from the bank to another financial institution.
(2) The arrangements may disapply, or provide that they shall have effect despite, any restriction arising by virtue of contract or legislation or in any other way.
(3) In subsection (2) “restriction” includes—
(a) any restriction, inability or incapacity affecting what can and cannot be assigned or transferred (whether generally or by a particular person), and
(b) a requirement for consent (by any name).
(4) In making the arrangements mentioned in subsection (1) the bank liquidator must ensure that eligible depositors will be able to remove money from transferred accounts as soon as is reasonably practicable after transfer.
(1) Section 411 of the Insolvency Act 1986 (company insolvency rules) is amended as follows.
(2) After subsection (1) insert—
“(1A) Rules may also be made for the purpose of giving effect to Part 2 of the Banking Act 2009 (bank insolvency orders); and rules for that purpose shall be made—
(a) in relation to England and Wales, by the Lord Chancellor with the concurrence of—
(i) the Treasury, and
(ii) in the case of rules that affect court procedure, the Lord Chief Justice, or
(b) in relation to Scotland, by the Treasury.”
(3) In subsection (2)—
(a) after “subsection (1),” insert “(1A)”;
(b) in paragraph (b), after “Secretary of State” insert “or the Treasury”.
(4) After subsection (2B) insert—
“(2C) For the purposes of subsection (2), a reference in Schedule 8 to this Act to doing anything under or for the purposes of a provision of this Act includes a reference to doing anything under or for the purposes of Part 2 of the Banking Act 2009.”
(5) In subsection (3)—
(a) after “provisional liquidator” insert “or bank liquidator”, and
(b) after “Parts I to VII of this Act” insert “or Part 2 of the Banking Act 2009”.
(6) In subsection (5), after “the Secretary of State” insert “or the Treasury”.
(7) In paragraph 27 of Schedule 8 to the Insolvency Act 1986 (provisions capable of inclusion in company insolvency rules), after “Secretary of State” insert “or the Treasury”.
(8) Section 413(2) of the Insolvency Act 1986 (rules: duty to consult Insolvency Rules Committee) shall not apply to the first set of rules which is made in reliance on this section.
After section 414(8) of the Insolvency Act 1986 (fees orders) insert—
“(8A) This section applies in relation to Part 2 of the Banking Act 2009 (bank insolvency) as in relation to Parts I to VII of this Act.”
A bank liquidator who obtains money by realising assets in the course of the bank insolvency must pay it into the Insolvency Services Account (kept by the Secretary of State).
In section 433(1) of the Insolvency Act 1986 (admissibility of statements of affairs) after paragraph (a) insert (before the “and”)—
“(aa) a statement made in pursuance of a requirement imposed by or under Part 2 of the Banking Act 2009 (bank insolvency),”.
(1) Provisions of or by virtue of this Part are “insolvency law” for the purposes of section 426 of the Insolvency Act 1986 (co-operation between courts).
(2) At the end of that section add—
“(13) Section 129 of the Banking Act 2009 provides for provisions of that Act about bank insolvency to be “insolvency law” for the purposes of this section.”
(1) The Treasury may by order provide for this Part to apply to building societies (within the meaning of section 119 of the Building Societies Act 1986) as it applies to banks, subject to modifications set out in the order.
(2) An order may—
(a) amend the Building Societies Act 1986 or any other enactment which relates, or in so far as it relates, to building societies;
(b) amend an enactment amended by this Part;
(c) replicate, with or without modifications, any provision of this Part;
(d) apply a provision made under or by virtue of this Part, with or without modifications, to this Part as it applies to building societies.
(3) An order—
(a) shall be made by statutory instrument, and
(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
(4) Provision made under or by virtue of this Part may make special provision in relation to the application of this Part to building societies.
(1) The Treasury may by order provide for this Part to apply to credit unions (within the meaning of section 31 of the Credit Unions Act 1979) as it applies to banks, subject to modifications set out in the order.
(2) An order may—
(a) amend the Credit Unions Act 1979, the Industrial and Providential Societies Act 1965 or any other enactment which relates, or in so far as it relates, to credit unions;
(b) amend an enactment amended by this Part;
(c) replicate, with or without modifications, any provision of this Part;
(d) apply a provision made under or by virtue of this Part, with or without modifications, to this Part as it applies to credit unions.
(3) An order—
(a) shall be made by statutory instrument, and
(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
(4) Provision made under or by virtue of this Part may make special provision in relation to the application of this Part to credit unions.
(1) The Lord Chancellor may, by order made with the concurrence of the Secretary of State and the Lord Chief Justice, modify provisions of this Part in their application to partnerships.
(2) For procedural purposes an order under subsection (1) shall be treated in the same way as an order under section 420 of the Insolvency Act 1986 (partnerships).
(3) This section does not apply in relation to partnerships constituted under the law of Scotland.
(1) The Secretary of State may by order modify provisions of this Part in their application to partnerships constituted under the law of Scotland.
(2) An order—
(a) shall be made by statutory instrument, and
(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
In the application of this Part to Northern Ireland—
(a) a reference to an enactment is to be treated as a reference to the equivalent enactment having effect in relation to Northern Ireland,
(b) where this Part amends an enactment an equivalent amendment (incorporating any necessary modification) is made to the equivalent enactment having effect in relation to Northern Ireland,
(c) references to the Secretary of State, except in section 122, are to be treated as references to the Department of Enterprise, Trade and Investment,
(d) a reference to the Insolvency Services Account is to be treated as a reference to the Insolvency Account,
(e) a reference to section 31 of the Credit Unions Act 1979 is to be treated as a reference to Article 2 of the Credit Unions (Northern Ireland) Order 1985,
(f) the Judgments Enforcement (Northern Ireland) Order 1981 has effect in place of sections 183 and 184 of the Insolvency Act 1986 (applied by section 103 above), and
(g) the reference in section 132 to the Lord Chief Justice is a reference to the Lord Chief Justice in Northern Ireland.
Banking Act 2009