Small Business, Enterprise and Employment Bill (HL Bill 91)

(31) In paragraph 37(5)(a)—

(a) omit “of the meetings”;

(b) after “30(3)” insert “and (4)”.

(32) In paragraph 38(1)—

(a) 5in paragraph (a) for the words from “approved” to “effect” substitute
“which has taken effect under paragraph 37”;

(b) in paragraph (b) for “either of those meetings” substitute “the
meeting of the company summoned under paragraph 29, or in
relation to the relevant qualifying decision procedure”.

(33) 10After paragraph 38(1) insert—

“(1A) In this paragraph—

(a) the “relevant qualifying decision procedure” means the
qualifying decision procedure in which the creditors
decided whether to approve the voluntary arrangement;

(b) 15references to a decision made in the relevant qualifying
decision procedure include any other decision made in
that qualifying decision procedure.”

(34) In paragraph 38(2)—

(a) in paragraph (a) for “either of the meetings” substitute “the meeting
20of the company or in the relevant qualifying decision procedure”;

(b) in paragraph (b) for “at the creditors’ meeting” substitute “in the
relevant qualifying decision procedure”.

(35) In paragraph 38(3)(a) after “30(3)” insert “and (4)”.

(36) In paragraph 38(3)(b)—

(a) 25for “creditors’ meeting” substitute “relevant qualifying decision
procedure”;

(b) for “the meeting” substitute “the relevant qualifying decision
procedure”.

(37) In paragraph 38(4)(a)(ii) for “in question” substitute “of the company, or in
30the relevant qualifying decision procedure,”.

(38) In paragraph 38(4)(b)—

(a) for “further meetings” substitute “a further company meeting”;

(b) after “(1)(b)” insert “and relating to the company meeting”;

(c) omit “or (as the case may be) creditors’”.

(39) 35In paragraph 38(4), after paragraph (b) insert—

“(c) direct any person—

(i) to seek a decision from the company’s creditors
(using a qualifying decision procedure) as to whether
they approve any revised proposal for a voluntary
40arrangement which the directors may make, or

(ii) in a case falling within sub-paragraph (1)(b) and
relating to the relevant qualifying decision procedure,
to seek a decision from the company’s creditors
(using a qualifying decision procedure) as to whether
45they approve the original proposal.”

(40) In paragraph 38(5), after “(4)(b)(i)” insert “or (c)(i)”.

(41) In paragraph 38(6) and (7)(a), after “(4)(b)” insert “or (c)”.

(42) In paragraph 38(9)—

(a) the words from “a decision” to the end become paragraph (a);

(b) in that paragraph (a), after “at a” insert “company”;

(c) 5after that paragraph (a) insert “, and

(b) a decision of the company’s creditors made in the
relevant qualifying decision procedure is not
invalidated by any irregularity in relation to the
relevant qualifying decision procedure.”

(43) 10In paragraph 39(1) for the words from “approved” to the end substitute “has
taken effect under paragraph 37.”

(44) In paragraph 40(5)—

(a) in paragraph (c), omit “creditors or”;

(b) after paragraph (c) insert—

“(ca) 15require a decision of the company’s creditors to be
sought (using a qualifying decision procedure) on
such matters as the court may direct,”.

(45) For paragraph 44(8) substitute—

“(8) The appropriate regulator must be given notice of any qualifying
20decision procedure by which a decision of the company’s
creditors is sought for the purposes of this Schedule.

(8A) The appropriate regulator, or a person appointed by the
appropriate regulator, may in the way provided for by the rules
participate in (but not vote in) any qualifying decision procedure
25by which a decision of the company’s creditors is sought for the
purposes of this Schedule.”

(46) Omit paragraph 44(9)(a).

(47) In paragraph 44(17A)(b) for “sub-paragraph” substitute “sub-paragraphs
(8A) and”.

30Administration

10 (1) Schedule B1 (administration) is amended as follows.

(2) In paragraph 49(4)(b), after “company” insert “, other than an opted-out
creditor,”.

(3) Omit paragraph 50 and the heading before it.

(4) 35For the heading before paragraph 51 substitute “Consideration of
administrator’s proposals by creditors”.

(5) In paragraph 51, for sub-paragraphs (1) to (3) substitute—

“(1) The administrator must seek a decision from the company’s
creditors as to whether they approve the proposals set out in the
40statement made under paragraph 49(1).

(2) The initial decision date for that decision must be within the
period of 10 weeks beginning with the day on which the company
enters administration.

(3) The “initial decision date” for that decision—

(a) if the decision is initially sought using the deemed consent
procedure, is the date on which a decision will be made if
the creditors by that procedure approve the proposals, and

(b) 5if the decision is initially sought using a qualifying
decision procedure, is the date on or before which a
decision will be made if it is made by that qualifying
decision procedure (assuming that date does not change
after the procedure is instigated).”

(6) 10In paragraph 52(2), for the words from “summon” to “requested” substitute
“seek a decision from the company’s creditors as to whether they approve
the proposals set out in the statement made under paragraph 49(1) if
requested to do so”.

(7) For paragraph 52(3) substitute—

“(3) 15Where a decision is sought by virtue of sub-paragraph (2) the
initial decision date (as defined in paragraph 51(3)) must be within
the prescribed period.”

(8) For the heading before paragraph 53 substitute “Creditors’ decision”.

(9) In paragraph 53, for sub-paragraph (1) substitute—

“(1) 20The company’s creditors may approve the administrator’s
proposals—

(a) without modification, or

(b) with modification to which the administrator consents.”

(10) In paragraph 53(2)—

(a) 25for “After the conclusion of an initial creditors’ meeting the”
substitute “The”;

(b) after “taken” insert “by the company’s creditors”.

(11) In paragraph 54(1)(a) for “at an initial creditors’ meeting” substitute “by the
company’s creditors”.

(12) 30Omit paragraph 54(2)(a).

(13) In paragraph 54(2)(b)—

(a) omit “with the notice of the meeting sent”;

(b) after “creditor” insert “who is not an opted-out creditor”.

(14) For paragraph 54(2)(d) substitute—

“(d) 35seek a decision from the company’s creditors as to whether
they approve the proposed revision.”

(15) For paragraph 54(5) substitute—

“(5) The company’s creditors may approve the proposed revision—

(a) without modification, or

(b) 40with modification to which the administrator consents.”

(16) In paragraph 54(6)—

(a) for “After the conclusion of a creditors’ meeting the” substitute
“The”;

(b) after “taken” insert “by the company’s creditors”.

(17) For paragraph 55(1) substitute—

“(1) This paragraph applies where an administrator—

(a) reports to the court under paragraph 53 that a company’s
creditors have failed to approve the administrator’s
5proposals, or

(b) reports to the court under paragraph 54 that a company’s
creditors have failed to approve a revision of the
administrator’s proposals.”

(18) In the heading before paragraph 56, for “meetings” substitute “decisions”.

(19) 10In paragraph 56(1), for “summon a creditors’ meeting”—

(a) in the first place, substitute “seek a decision from the company’s
creditors on a matter”;

(b) in the second place, substitute “do so”.

(20) In paragraph 56(2), for “summon a creditors’ meeting” substitute “seek a
15decision from the company’s creditors on a matter”.

(21) In paragraph 57(1), for “A creditors’ meeting may” substitute “The
company’s creditors may, in accordance with the rules,”.

(22) Omit paragraph 58 and the heading before it.

(23) In paragraph 62, for the words from “may” to the end substitute “may—

(a) 20call a meeting of members of the company;

(b) seek a decision on any matter from the company’s
creditors.”

(24) For paragraph 74(4)(c) substitute—

“(c) require a decision of the company’s creditors to be sought
25on a matter;”.

(25) For paragraph 78(1)(b) substitute—

“(b) if the company has unsecured debts, the unsecured
creditors of the company.”

(26) For paragraph 78(2)(b)(ii) substitute—

“(ii) 30the preferential creditors of the company.”

(27) After paragraph 78(2) insert—

“(2A) Whether the company’s unsecured creditors or preferential
creditors consent is to be determined by the administrator seeking
a decision from those creditors as to whether they consent.”

(28) 35Omit paragraph 78(3).

(29) In paragraph 79(2)(c) for “a creditors’ meeting requires him to” substitute
“the company’s creditors decide that he must”.

(30) In paragraph 80(4) after “company” insert “, other than an opted-out
creditor,”.

(31) 40In paragraph 83(5)(b) after “creditor” insert “, other than an opted-out
creditor,”.

(32) In paragraph 83(8)(d) omit “98,”.

(33) In paragraph 84(5)(b) after “creditor” insert “, other than an opted-out
creditor,”.

(34) In the heading before paragraph 97, for “meeting” substitute “decision”.

(35) For paragraph 97(2) and (3) substitute—

“(2) 5The administrator may be replaced by a decision of the creditors
made by a qualifying decision procedure.

(3) The decision has effect only if, before the decision is made, the new
administrator has consented to act in writing.”

(36) In paragraph 98(2)(b), for the second “resolution” substitute “decision”.

(37) 10In paragraph 98(3)—

(a) after “as passed” insert “and a decision shall be taken as made”;

(b) after “if) passed” insert “or made”.

(38) For paragraph 98(3)(b)(ii) substitute—

“(ii) the preferential creditors of the company.”

(39) 15After paragraph 98(3) insert—

“(3A) Whether the company’s preferential creditors give their approval
is to be determined by a decision of those creditors as to whether
they give their approval.

(3B) In a case where the administrator is removed from office, that
20decision must be made by a qualifying decision procedure.”

(40) In paragraph 108(1) omit “, 50(1)(b)”.

(41) For paragraph 108(2)(b) substitute—

“(b) if the company has unsecured debts, the unsecured
creditors of the company.”

(42) 25For paragraph 108(3)(b)(ii) substitute—

“(ii) the preferential creditors of the company.”

(43) After paragraph 108(3) insert—

“(3A) Whether the company’s unsecured creditors or preferential
creditors consent is to be determined by the administrator seeking
30a decision from those creditors as to whether they consent.”

(44) Omit paragraph 108(4).

(45) In paragraph 111, omit the definitions of “correspondence” and “creditors’
meeting”.

11 (1) Schedule 10 (offences) is amended as follows.

(2) 35In the entry for Schedule B1, paragraph 51(5), in column 2, for “arrange
initial creditors’ meeting” substitute “seek creditors’ decision”.

(3) In the entry for Schedule B1, paragraph 53(3), in column 2, for “at initial
creditors’ meeting” substitute “by creditors”.

(4) In the entry for Schedule B1, paragraph 54(7), in column 2, for the words
40from “decision” to “consider” insert “creditors’ decision on”.

(5) In the entry for Schedule B1, paragraph 56(2), in column 2, for “summon
creditors’ meeting” substitute “seek creditors’ decision”.

Receivers and managers

12 (1) Section 48 (report by administrative receiver - England and Wales) is
5amended as follows.

(2) In subsection (1), after “such creditors” insert “, other than opted-out
creditors,”.

(3) In subsection (2)—

(a) in paragraph (a), after “company” insert “, other than opted-out
10creditors,”;

(b) omit the words after paragraph (b).

(4) Omit subsection (3).

13 In section 49(1) (committee of creditors - England and Wales), for the words
from the beginning to “fit” substitute “Where an administrative receiver has
15sent or published a report as mentioned in section 48(2) the company’s
unsecured creditors may, in accordance with the rules”.

14 (1) Section 67 (report by receiver - Scotland) is amended as follows.

(2) In subsection (1), after “such creditors” insert “, other than opted-out
creditors,”.

(3) 20In subsection (2)—

(a) in paragraph (a), after “company” insert “, other than opted-out
creditors”;

(b) omit the words after paragraph (b).

(4) Omit subsection (3).

15 25In section 68(1) (committee of creditors - Scotland), for the words from the
beginning to “fit” substitute “Where a receiver has sent or published a report
as mentioned in section 67(2) the company’s unsecured creditors may, in
accordance with the rules”.

Winding-up

16 30In section 92A(1) (members’ voluntary winding-up in England and Wales:
progress report to company) for “sections 96 and 102” substitute “section
96”.

17 In section 93(1) (members’ voluntary winding-up in Scotland: company
meeting at year’s end) for “sections 96 and 102” substitute “section 96”.

18 35For section 94 (members’ voluntary winding up: final meeting of company
prior to dissolution) substitute—

“94 Final account prior to dissolution

(1) As soon as the company’s affairs are fully wound up the liquidator
must make up an account of the winding up, showing how it has
40been conducted and the company’s property has been disposed of.

(2) The liquidator must send a copy of the account to the members of the
company before the end of the period of 14 days beginning with the
day on which the account is made up.

(3) The liquidator must send a copy of the account to the registrar of
5companies before the end of that period (but not before sending it to
the members of the company).

(4) If the liquidator does not comply with subsection (2) the liquidator is
liable to a fine.

(5) If the liquidator does not comply with subsection (3) the liquidator is
10liable to a fine and, for continued contravention, a daily default fine.”

19 (1) Section 95 (effect of company’s insolvency) is amended as follows.

(2) After subsection (1) insert—

“(1A) The liquidator must before the end of the period of 7 days beginning
with the day after the day on which the liquidator formed that
15opinion—

(a) make out a statement in the prescribed form as to the affairs
of the company, and

(b) send it to the company’s creditors.”

(3) Omit subsections (2) to (3) and (5) to (7).

(4) 20After subsection (4A) insert—

“(4B) The company’s creditors may in accordance with the rules nominate
a person to be liquidator.

(4C) The liquidator must in accordance with the rules seek such a
nomination from the company’s creditors.”

(5) 25In subsection (8), for “this section” substitute “subsections (1) to (4A)”.

20 (1) For section 96 (conversion to creditors’ voluntary winding up) substitute—

“96 Conversion to creditors’ voluntary winding up

(1) The winding up becomes a creditors’ voluntary winding up as from
the day on which—

(a) 30the company’s creditors under section 95 nominate a person
to be liquidator, or

(b) the procedure by which the company’s creditors were to
have made such a nomination concludes without a
nomination having been made.

(2) 35As from that day this Act has effect as if the directors’ declaration
under section 89 had not been made.

(3) The liquidator in the creditors’ voluntary winding up is to be the
person nominated by the company’s creditors under section 95 or,
where no person has been so nominated, the existing liquidator.

(4) 40In the case of the creditors nominating a person other than the
existing liquidator any director, member or creditor of the company
may, within 7 days after the date on which the nomination was made
by the creditors, apply to the court for an order either—

(a) directing that the existing liquidator is to be liquidator
instead of or jointly with the person nominated by the
creditors, or

(b) appointing some other person to be liquidator instead of the
5person nominated by the creditors.

(5) The “existing liquidator” is the person who is liquidator immediately
before the winding up becomes a creditors’ voluntary winding up.”

(2) In section 96 (as inserted by sub-paragraph (1)), after subsection (4) insert—

“(4A) The court shall grant an application under subsection (4) made by the
10holder of a qualifying floating charge in respect of the company’s
property (within the meaning of paragraph 14 of Schedule B1) unless
the court thinks it right to refuse the application because of the
particular circumstances of the case.”

21 In section 97(2) (application of Chapter 4), for “98 and 99” substitute “99 and
15100”.

22 Omit section 98 (meeting of creditors).

23 (1) Section 99 (directors to lay statement of affairs before creditors) is amended
as follows.

(2) For subsection (1) substitute—

“(1) 20The directors of the company must, before the end of the period of 7
days beginning with the day after the day on which the company
passes a resolution for voluntary winding up—

(a) make out a statement in the prescribed form as to the affairs
of the company, and

(b) 25send the statement to the company’s creditors.”

(3) For subsection (3) substitute—

“(3) If the directors without reasonable excuse fail to comply with
subsection (1), (2) or (2A), they are guilty of an offence and liable to
a fine.”

24 30For section 100(1) (appointment of liquidator) substitute—

“(1) The company may nominate a person to be liquidator at the
company meeting at which the resolution for voluntary winding up
is passed.

(1A) The company’s creditors may in accordance with the rules nominate
35a person to be liquidator.

(1B) The directors of the company must in accordance with the rules seek
such a nomination from the company’s creditors.”

25 (1) Section 101 (appointment of liquidation committee) is amended as follows.

(2) For subsection (1) substitute—

“(1) 40The creditors may in accordance with the rules appoint a committee
(“the liquidation committee”) of not more than 5 persons to exercise
the functions conferred on it by or under this Act.”

(3) In subsection (3)—

(a) for “resolve” (in both places) substitute “decide”;

(b) for “the persons mentioned in the resolution” (in both places)
substitute “those persons”.

26 Omit section 102 (creditors’ meeting where winding up converted under
5section 96).

27 In section 104A (progress report to company and creditors at year’s end
(England and Wales)), in subsection (1)(b)(i), after “creditors” insert “, other
than opted-out creditors”.

28 In section 105(4) (meetings of company and creditors at each year’s end
10(Scotland)) for “creditors meeting under section 95 is held” substitute
“liquidator sends a statement of affairs to the company’s creditors under
section 95(1A)(b)”.

29 For section 106 (creditors’ voluntary winding-up: final meetings of company
and creditors prior to dissolution) substitute—

“106 15Final account prior to dissolution

(1) As soon as the company’s affairs are fully wound up the liquidator
must make up an account of the winding up, showing how it has
been conducted and the company’s property has been disposed of.

(2) The liquidator must, before the end of the period of 14 days
20beginning with the day on which the account is made up—

(a) send a copy of the account to the company’s members,

(b) send a copy of the account to the company’s creditors (other
than opted-out creditors), and

(c) give the company’s creditors (other than opted-out creditors)
25a notice explaining the effect of section 173(2)(e) and how
they may object to the liquidator’s release.

(3) The liquidator must during the relevant period send to the registrar
of companies—

(a) a copy of the account, and

(b) 30a statement of whether any of the company’s creditors
objected to the liquidator’s release.

(4) The relevant period is the period of 7 days beginning with the day
after the last day of the period prescribed by the rules as the period
within which the creditors may object to the liquidator’s release.

(5) 35If the liquidator does not comply with subsection (2) the liquidator is
liable to a fine.

(6) If the liquidator does not comply with subsection (3) the liquidator is
liable to a fine and, for continued contravention, a daily default fine.”

30 In section 114(2) (powers of directors in voluntary winding up where no
40liquidator nominated by company)—

(a) omit “98 (creditors’ meeting) and”;

(b) after “affairs)” insert “and 100(1B) (nomination of liquidator by
creditors)”.

31 (1) Section 136 (functions of official receiver in relation to office of liquidator) is
45amended as follows.

(2) In subsection (4) for “summon separate meetings of” substitute “in
accordance with the rules seek nominations from”.

(3) In subsection (5)(a) and (c), omit “to summon meetings”.

(4) In subsection (6), for “summon meetings of” substitute “seek nominations
5from”.

32 (1) Section 137 (appointment by Secretary of State) is amended as follows.

(2) In subsection (2)—

(a) for “meetings are held” substitute “nominations are sought from the
company’s creditors and contributories”;

(b) 10omit “of those meetings”.

(3) In subsection (5), for the words from “shall” to the end substitute “must
explain the procedure for establishing a liquidation committee under section
141.”

33 (1) Section 138 (appointment of liquidator in Scotland) is amended as follows.

(2) 15In subsection (3), for “summon separate meetings of” substitute “in
accordance with the rules seek nominations from”.

(3) In subsection (4), for the words from “summon under” to the second
“meeting of” substitute “seek a nomination from the company’s
contributories under subsection (3), he may seek a nomination only from”.

(4) 20In subsection (5)—

(a) for “one or more meetings are held” substitute “a nomination is
sought from the company’s creditors, or nominations are sought
from the company’s creditors and contributories,”;

(b) for “by the meeting or meetings” substitute “as a result”.

34 (1) 25Section 139 (choice of liquidator at meetings of creditors and contributories)
is amended as follows.

(2) In subsection (1), for “separate meetings of the company’s creditors and
contributories are summoned” substitute “nominations are sought from the
company’s creditors and contributories”.

(3) 30In subsection (2) for “at their respective meetings may” substitute “may in
accordance with the rules”.

(4) In the heading, for “at meetings of” substitute “by”.

35 In section 140(3) (appointment of liquidator by court following
administration or voluntary arrangement), for the words from “he” to the
35end substitute “section 136(5)(a) and (b) does not apply.”

36 In section 141 (liquidation committee: England and Wales) for subsections
(1) to (3) substitute—

“(1) This section applies where a winding up order has been made by the
court in England and Wales.

(2) 40If both the company’s creditors and the company’s contributories
decide that a liquidation committee should be established, a
liquidation committee is to be established in accordance with the
rules.