Postal Services Bill (HL Bill 70)

(a) the court must notify the postal administrator of
the proposed order and of a period during which
the postal administrator is to have the opportunity
of taking steps falling within sub-paragraphs (10)
5to (12), and

(b) the period notified must have expired without the
taking of such of those steps as the court thinks
should have been taken,

and that period must be a reasonable period.

(10) 10In the case of a claim under sub-paragraph (1)(a), the steps
referred to in sub-paragraph (9) are—

(a) ceasing to act in a manner that unfairly harms the
interests to which the claim relates,

(b) remedying any harm unfairly caused to those
15interests, and

(c) steps for ensuring that there is no repetition of
conduct unfairly causing harm to those interests.

(11) In the case of a claim under sub-paragraph (1)(b), the steps
referred to in sub-paragraph (9) are steps for ensuring that
20the interests to which the claim relates are not unfairly
harmed.

(12) In the case of a claim under sub-paragraph (2), the steps
referred to in sub-paragraph (9) are—

(a) ceasing to act in a manner preventing the
25achievement of the objective of the postal
administration as quickly and as efficiently as is
reasonably practicable,

(b) remedying the consequences of the postal
administrator having acted in such a manner, and

(c) 30steps for ensuring that there is no repetition of
conduct preventing the achievement of the
objective of the postal administration as quickly
and as efficiently as is reasonably practicable.”

16 Paragraph 75(2) (misfeasance) is to have effect as if after paragraph (b) there
35were inserted—

“(ba) a person appointed as an administrator of the
company under the provisions of this Act, as they
have effect in relation to administrators other than
postal administrators,”.

17 40Paragraph 79 (end of administration) is to have effect as if—

(a) for sub-paragraphs (1) and (2) there were substituted—

“(1) On an application made by a person mentioned in sub-
paragraph (2), the court may provide for the appointment
of a postal administrator of a company to cease to have
45effect from a specified time.

(2) An application may be made to the court under this
paragraph—

(a) by the Secretary of State,

(b) with the consent of the Secretary of State, by
OFCOM, or

(c) with the consent of the Secretary of State, by the
postal administrator.”, and

(b) 5sub-paragraph (3) were omitted.

18 Paragraph 83(3) (notice to registrar when moving to voluntary liquidation)
is to have effect as if after “may” there were inserted “, with the consent of
the Secretary of State or of OFCOM,”.

19 (1) Paragraph 84 (notice to registrar when moving to dissolution) is to have
10effect as if—

(a) in sub-paragraph (1), for “to the registrar of companies” there were
substituted—

“(a) to the Secretary of State and OFCOM, and

(b) if directed to do so by either the Secretary of State
15or OFCOM, to the registrar of companies.”,

(b) sub-paragraph (2) were omitted, and

(c) in sub-paragraphs (3) to (6), for “(1)”, in each place, there were
substituted “(1)(b)”.

20 Paragraph 87(2) (resignation of administrator) is to have effect as if for
20paragraphs (a) to (d) there were substituted “by notice in writing to the
court”.

21 Paragraph 89(2) (administrator ceasing to be qualified) is to have effect as if
for paragraphs (a) to (d) there were substituted “to the court”.

22 Paragraph 90 (filling vacancy in office of administrator) is to have effect as if
25for “Paragraphs 91 to 95 apply” there were substituted “Paragraph 91
applies”.

23 Paragraph 91 (vacancies in court appointments) is to have effect as if—

(a) for sub-paragraph (1) there were substituted—

“(1) The court may replace the postal administrator on an
30application made—

(a) by the Secretary of State,

(b) with the consent of the Secretary of State, by
OFCOM, or

(c) where more than one person was appointed to act
35jointly as the postal administrator, by any of those
persons who remains in office.”, and

(b) sub-paragraph (2) were omitted.

24 Paragraph 98 (discharge from liability on vacation of office) is to have effect
as if sub-paragraphs (2)(b) and (3) were omitted.

25 40Paragraph 99 (charges and liabilities upon vacation of office by
administrator) is to have effect as if—

(a) in sub-paragraph (4), for the words from the beginning to
“cessation”, in the first place, there were substituted “A sum falling
within sub-paragraph (4A)”,

(b) 45after that sub-paragraph there were inserted—

“(4A) A sum falls within this sub-paragraph if it is—

(a) a sum payable in respect of a debt or other liability
arising out of a contract that was entered into
before cessation by the former postal administrator
or a predecessor,

(b) 5a sum that must be repaid by the company in
respect of a grant that was made before cessation
under section 79 of the Postal Services Act 2011 as
is mentioned in subsection (4) of that section,

(c) a sum that must be repaid by the company in
10respect of a loan made before cessation under that
section or that must be paid by the company in
respect of interest payable on such a loan,

(d) a sum payable by the company under subsection
(5) of section 80 of that Act in respect of an
15agreement to indemnify made before cessation, or

(e) a sum payable by the company under subsection
(5) of section 81 of that Act in respect of a guarantee
given before cessation.”, and

(c) in sub-paragraph (5), for “(4)” there were substituted “(4A)(a)”.

26 20Paragraph 100 (joint and concurrent administrators) is to have effect as if
sub-paragraph (2) were omitted.

27 Paragraph 101(3) (joint administrators) is to have effect as if after “87 to”
there were inserted “91, 98 and”.

28 Paragraph 103 (appointment of additional administrators) is to have effect
25as if—

(a) in sub-paragraph (2) the words from the beginning to “order” were
omitted and for paragraph (a) there were substituted—

“(a) the Secretary of State,

(aa) OFCOM, or”,

(b) 30after that sub-paragraph there were inserted—

“(2A) The consent of the Secretary of State is required for an
application by OFCOM for the purposes of sub-paragraph
(2).”, and

(c) sub-paragraphs (3) to (5) were omitted.

29 35Paragraph 106(2) (penalties) is to have effect as if paragraphs (a), (b), (f), (g),
(i) and (l) to (n) were omitted.

30 Paragraph 109 (references to extended periods) is to have effect as if “or 108”
were omitted.

31 Paragraph 111 (interpretation) is to have effect as if—

(a) 40in sub-paragraph (1), the definitions of “correspondence”, “holder of
a qualifying floating charge”, “market value”, “the purpose of
administration” and “unable to pay its debts” were omitted,

(b) in that sub-paragraph, after the definition of “administrator” (as
modified as a result of paragraph 2 above) there were inserted—

• 45““appropriate value” means the best price which would
  be reasonably available on a sale which is consistent
  with the achievement of the objective of the postal
  administration,”,

(c) in that sub-paragraph, before the definition of “creditors’ meeting”
there were inserted—

• ““company” and “court” have the same meaning as in
  Part 4 of the Postal Services Act 2011,”,

(d) 5in that sub-paragraph, after the definition of “hire purchase
agreement” there were inserted—

• ““objective”, in relation to a postal administration, is to
  be read in accordance with section 69 of the Postal
  Services Act 2011,

• 10“OFCOM” means the Office of Communications,

• “postal administration application” means an
  application to the court for a postal administration
  order under Part 4 of the Postal Services Act 2011,

• “postal administration order” has the same meaning as
  15in Part 4 of the Postal Services Act 2011,

• “prescribed” means prescribed by postal administration
  rules within the meaning of Part 4 of the Postal
  Services Act 2011.”,

(e) sub-paragraphs (1A) and (1B) were omitted, and

(f) 20after sub-paragraph (3) there were inserted—

“(4) For the purposes of this Schedule a reference to a postal
administration order includes a reference to an
appointment under paragraph 91 or 103.”

Part 2 25Further modifications of Schedule B1 to 1986 Act: foreign companies

Introductory

32 (1) This Part of this Schedule applies in the case of a postal administration order
applying to a foreign company.

(2) The provisions of Schedule B1 to the 1986 Act mentioned in paragraph 1
30above (as modified by Part 1 of this Schedule) have effect in relation to the
company with the further modifications set out in this Part of this Schedule.

(3) The Secretary of State may by order amend this Part of this Schedule so as to
add more modifications.

(4) An order under this paragraph is subject to negative resolution procedure.

33 35In paragraphs 34 to 39—

(a) the provisions of Schedule B1 to the 1986 Act that are mentioned in
paragraph 1 above are referred to as the applicable provisions, and

(b) references to those provisions, or to provisions comprised in them,
are references to those provisions as modified by Part 1 of this
40Schedule.

Modifications

34 In the case of a foreign company—

(a) paragraphs 42(2), 83 and 84 of Schedule B1 to the 1986 Act do not
apply,

(b) paragraphs 46(4), 49(4)(a), 54(2)(a), 71(5) and (6), 72(4) and (5) and 86
of that Schedule apply only if the company is subject to a
requirement imposed by regulations under section 1043 or 1046 of
the Companies Act 2006 (unregistered UK companies or overseas
5companies), and

(c) paragraph 61 of that Schedule does not apply.

35 (1) The applicable provisions and Schedule 1 to the 1986 Act (as applied by
paragraph 60(1) of Schedule B1 to that Act) are to be read by reference to the
limitation imposed on the scope of the postal administration order in
10question as a result of section 68(4) above.

(2) Sub-paragraph (1) has effect, in particular, so that—

(a) a power conferred, or duty imposed, on the postal administrator by
or under the applicable provisions or Schedule 1 to the 1986 Act is to
be read as being conferred or imposed in relation to the company’s
15UK affairs, business and property,

(b) references to the company’s affairs, business or property are to be
read as references to its UK affairs, business and property,

(c) references to goods in the company’s possession are to be read as
references to goods in its possession in the United Kingdom,

(d) 20references to premises let to the company are to be read as references
to premises let to it in the United Kingdom, and

(e) references to legal process instituted or continued against the
company or its property are to be read as references to such legal
process relating to its UK affairs, business and property.

36 25Paragraph 41 of Schedule B1 to the 1986 Act (dismissal of receivers) is to
have effect as if—

(a) for sub-paragraph (1) there were substituted—

“(1) Where a postal administration order takes effect in respect
of a company—

(a) 30a person appointed to perform functions
equivalent to those of an administrative receiver,
and

(b) if the postal administrator so requires, a person
appointed to perform functions equivalent to those
35of a receiver,

must refrain, during the period specified in sub-paragraph
(1A), from performing those functions in the United
Kingdom or in relation to any of the company’s property
in the United Kingdom.

(1A) 40That period is—

(a) in the case of a person mentioned in sub-paragraph
(1)(a), the period while the company is in postal
administration, and

(b) in the case of a person mentioned in sub-paragraph
45(1)(b), during so much of that period as is after the
date on which the person is required by the postal
administrator to refrain from performing
functions.”, and

(b) sub-paragraphs (2) to (4) were omitted.

37 Paragraph 43(6A) of Schedule B1 to the 1986 Act (moratorium on
appointment to receiverships) is to have effect as if for “An administrative
receiver” there were substituted “A person with functions equivalent to
those of an administrative receiver”.

38 5Paragraph 44(7) of Schedule B1 to the 1986 Act (proceedings to which
interim moratorium does not apply) is to have effect as if for paragraph (d)
there were substituted—

“(d) the carrying out of functions by a person who (whenever
appointed) has functions equivalent to those of an
10administrative receiver of the company.”

39 Paragraph 64 of Schedule B1 to the 1986 Act (general powers of
administrator) is to have effect as if—

(a) in sub-paragraph (1), after “power” there were inserted “in relation
to the affairs or business of the company so far as carried on in the
15United Kingdom or to its property in the United Kingdom”, and

(b) in sub-paragraph (2)(b), after “instrument” there were inserted “or
by the law of the place where the company is incorporated”.

Part 3 Other modifications

20General modifications

40 (1) References within sub-paragraph (2) which are contained—

(a) in the 1986 Act (other than Schedule B1 to that Act), or

(b) in other enactments passed or made before this Act,

include references to whatever corresponds to them for the purposes of this
25paragraph.

(2) The references are those (however expressed) which are or include
references to—

(a) an administrator appointed by an administration order,

(b) an administration order,

(c) 30an application for an administration order,

(d) a company in administration,

(e) entering into administration, and

(f) Schedule B1 to the 1986 Act or a provision of that Schedule.

(3) For the purposes of this paragraph—

(a) 35a postal administrator corresponds to an administrator appointed by
an administration order,

(b) a postal administration order corresponds to an administration
order,

(c) an application for a postal administration order corresponds to an
40application for an administration order,

(d) a company in postal administration corresponds to a company in
administration,

(e) entering into postal administration corresponds to entering into
administration, and

(f) what corresponds to Schedule B1 to the 1986 Act or a provision of
that Schedule is that Schedule or that provision as applied by Part 1
of this Schedule.

41 (1) Paragraph 40, in its application to section 1(3) of the 1986 Act, does not
5entitle the postal administrator of an unregistered company to make a
proposal under Part 1 of the 1986 Act (company voluntary arrangements).

(2) Paragraph 40 does not confer any right under section 7(4) of the 1986 Act
(implementation of voluntary arrangements) for a supervisor of voluntary
arrangements to apply for a postal administration order in relation to a
10company which is a universal service provider.

(3) Paragraph 40 does not apply to section 359 of the Financial Services and
Markets Act 2000 (administration applications by FSA).

Modifications of 1986 Act

42 The following provisions of the 1986 Act are to have effect in the case of any
15postal administration with the following modifications.

43 Section 5 (effect of approval of voluntary arrangements) is to have effect as
if after subsection (4) there were inserted—

“(4A) Where the company is in postal administration, the court must not
make an order or give a direction under subsection (3) unless—

(a) 20the court has given the Secretary of State or the Office of
Communications a reasonable opportunity of making
representations to it about the proposed order or direction,
and

(b) the order or direction is consistent with the objective of the
25postal administration.

(4B) In subsection (4A) “in postal administration” and “objective of the
postal administration” are to be read in accordance with Schedule B1
to this Act, as applied by Part 1 of Schedule 10 to the Postal Services
Act 2011.”

44 30Section 6 (challenge of decisions in relation to voluntary arrangements) is to
have effect as if—

(a) in subsection (2), for “this section” there were substituted
“subsection (1)”,

(b) after that subsection there were inserted—

“(2AA) 35Subject to this section, where a voluntary arrangement in
relation to a company in postal administration is approved at
the meetings summoned under section 3, an application to
the court may be made—

(a) by the Secretary of State, or

(b) 40with the consent of the Secretary of State, by the
Office of Communications,

on the ground that the voluntary arrangement is not
consistent with the achievement of the objective of the postal
administration.”,

(c) in subsection (4), after “subsection (1)” there were inserted “or, in the
case of an application under subsection (2AA), as to the ground
mentioned in that subsection”, and

(d) after subsection (7) there were inserted—

“(7A) 5In this section “in postal administration” and “objective of the
postal administration” are to be read in accordance with
Schedule B1 to this Act, as applied by Part 1 of Schedule 10 to
the Postal Services Act 2011.”

45 In section 129(1A) (commencement of winding up), the reference to
10paragraph 13(1)(e) of Schedule B1 is to include section 71(1)(e) of this Act.

Power to make further modifications

46 (1) The Secretary of State may by order amend this Part of this Schedule so as to
add further modifications.

(2) The further modifications that may be made are confined to such
15modifications of—

(a) the 1986 Act, or

(b) other enactments passed or made before this Act that relate to
insolvency or make provision by reference to anything that is or may
be done under the 1986 Act,

20as the Secretary of State considers appropriate in relation to any provision
made by or under this Part of this Act.

(3) An order under this paragraph is subject to affirmative resolution
procedure.

Interpretation of Part 3 of Schedule

47 25In this Part of this Schedule—

• “administration order”, “administrator”, “enters administration” and
  “in administration” are to be read in accordance with Schedule B1 to
  the 1986 Act (disregarding Part 1 of this Schedule), and

• “enters postal administration” and “in postal administration” are to be
  30read in accordance with Schedule B1 to the 1986 Act (as applied by
  Part 1 of this Schedule).

Section 73

SCHEDULE 11 Postal transfer schemes

Application of Schedule

1 35This Schedule applies if—

(a) the court has made a postal administration order in relation to a
company (the “old company”), and

(b) it is proposed that a relevant transfer (within the meaning of section
69(3)) be made to another company (or companies) (a “new
40company”).

2 While the order is in force, the postal administrator is to act on behalf of the
old company in doing anything that it is authorised or required to do by or
under this Schedule.

Making of postal transfer schemes

3 (1) 5The old company may for the purpose of giving effect to the proposed
transfer make a scheme (a “postal transfer scheme”) for the transfer of
property, rights and liabilities from it to the new company (or companies).

(2) A postal transfer scheme has effect only if—

(a) the new company (or companies) have consented to the making of
10the scheme, and

(b) the Secretary of State has approved the scheme.

(3) A postal transfer scheme may be made only at a time when the postal
administration order is in force in relation to the old company.

(4) A postal transfer scheme takes effect at the time specified in the scheme.

(5) 15In the case of a proposed transfer falling within section 69(4)(a) (transfer to
wholly-owned subsidiary), sub-paragraph (2)(a) does not apply.

Approval and modification of scheme by Secretary of State

4 (1) The Secretary of State may modify a postal transfer scheme before
approving it.

(2) 20After a postal transfer scheme has taken effect—

(a) the Secretary of State may by notice to the old company and the new
company (or companies) modify the scheme, and

(b) the scheme as modified is to be treated for all purposes as having
come into force at the time specified under paragraph 3(4).

(3) 25The only modifications that may be made by the Secretary of State under this
paragraph are ones—

(a) to which the old company and the new company (or companies)
have consented, or

(b) in the case of a proposed transfer falling within section 69(4)(a), to
30which the old company has consented.

(4) In connection with giving effect to modifications under sub-paragraph (2),
the Secretary of State may make incidental, supplementary, consequential,
transitional, transitory or saving provision (and different provision may be
made for different cases or circumstances).

(5) 35In deciding whether to approve or modify a postal transfer scheme, the
Secretary of State must have regard to—

(a) the public interest, and

(b) any effect the scheme or modification is likely to have on the interests
of persons other than the old company and a new company.

(6) 40Before approving or modifying a postal transfer scheme, the Secretary of
State must consult OFCOM.

(7) The old company and the new company (or companies) each have a duty to
provide the Secretary of State with any information or other assistance that

the Secretary of State may reasonably require for the purposes of, or in
connection with, the exercise of any power under this paragraph.

(8) That duty overrides a contractual or other requirement to keep information
in confidence.

(9) 5That duty is enforceable in civil proceedings by the Secretary of State—

(a) for an injunction,

(b) for specific performance of a statutory duty under section 45 of the
Court of Session Act 1988, or

(c) for any other appropriate remedy or relief.

10Identification of property etc to be transferred

5 (1) A postal transfer scheme may identify the property, rights and liabilities to
be transferred by specifying or describing them.

(2) A postal transfer scheme may provide for the way in which property, rights
or liabilities of any description are to be identified.

15Property, rights and liabilities that may be transferred

6 (1) A postal transfer scheme may transfer—

(a) property situated in any part of the world, and

(b) rights and liabilities arising (in any way) under the law of any
country or territory.

(2) 20The property, rights and liabilities that may be transferred by a postal
transfer scheme include—

(a) property, rights and liabilities acquired or arising after the scheme
has been made but before the time at which it takes effect,

(b) rights and liabilities arising after that time in respect of matters
25occurring before that time, and

(c) property, rights and liabilities that would not otherwise be capable
of being transferred or assigned.

(3) The transfers to which effect may be given by a postal transfer scheme
include ones that are to take effect as if there were no such contravention,
30liability or interference with any interest or right as there would otherwise
be by reason of any provision having effect in relation to the terms on which
the old company is entitled or subject to anything to which the transfer
relates.

(4) In sub-paragraph (3) the reference to any provision is a reference to any
35provision, whether under an enactment or agreement or otherwise.